Patterson v. Crowther

Bryan, J., delivered the opinion of the Court. Crowther and Boone contracted with Patterson to build the stone wall at the United States Marine Hospital along Remington Avenue in Baltimore County. The wall was to be built according to certain drawings and specifications; and the character of the work and materials was specifically described in the contract. The price was stipulated to be “the sum of four dollars and fifty cents per perch, complete.” This suit was brought by Crowther and Boone.

Boone testified that before commencing the work “he saw the drawings and read the specifications, and then proceeded to do the work, and did finish the same in accordance with said drawings and specifications as he understood them, and that said work when finished, was accepted by the government inspector.” Evidence was then offered that “there existed in Baltimore City and County, a certain well known custom among stone-masons and builders, known as ‘ Masons’ measure,’ whereby stone masons are entitled to claim in the measurement of work done by them, not only the actual solid contents of a wall or structure built by such masons, but credit for all openings such as windows, &c., in the same manner as if the same were solid masonry; also that according to said custom such stone-masons were entitled to charge for all such 'masonry, when built in a circle or curve, fifty per cent, additional, or one and a half times the actual amount of masonry contained in such circular or curved wall or other masonry work.” The defendant took an exception to the admission of this testimony. ¹²⁹ We suppose that stone-masons and builders certainly have the right to establish among themselves a custom for measuring their work, and that other persons may make contracts with them in reference to the custom, if they choose to do so. We are not now called upon to inquire into the facts and circumstances which have given rise to the custom, or which may be alleged in justification of it. It is sufficient to say that there is no reason in the policy of the law, why it should not he adopted by those persons who wish to he governed by it in the dealings connected with their business. “A usage of universal prevalence becomes a part of the existing law, and is to be noticed ex officio by the Courts of justice; but a particular usage has a circumscribed and limited application, and must he supported by proof. Where it is well established, it is as obligatory on the objects of its operation as the general law.” Bank of Columbia vs. Fitzhugh, 1 Harris & Gill, 248.

Unless it is of such great notoriety that knowledge and adoption of it may be presumed, it must be proved to be known to the party whose contract is to be brought within its operation. In Bank of Columbia vs. Fitzhugh, 1 Harris & Gill, 239, on the proof in the case showing an established and notorious usage of the hanks in Washington County, District of Columbia, to allow four days of grace on promissory notes, it was held that where a party endorsed a note for the purpose of being discounted at one of these banks, he must be joresumed to know the usage, and that his contract must be considered as made in reference to it, and not under the general law which allowed three days of grace. In Powell vs. Bradlee, 9 Gill & Johnson, 277, this Court approved of a ruling which left it to the jury to find the fact of usage, and to decide whether the delivery of certain goods had been made in reference to it. And in regard to the custom set up in Burroughs ¹³⁰ vs. Langley, 10 Md., 250 , a similar opinion was given.

In Merchants Mutual Insurance Co. vs. Wilson, 2 Md., 241 , it was said, “the proposition that a usage must he general in order to hind the parties, refers exclusively to the cases in which the knowledge of the’parties and their intention to adopt the usage, are inferred merely from the fact of its existence; but when their knowledge or intentions are established by other direct or circumstantial proof, their contract will be governed by the usage, however local or partial, in reference to which it is proved or presumed to have been made.” If the contract in this case had specified the mode or system of measurement by which the number of perches was to he estimated, it would not have been competent to vary or contradict it by evidence of the custom. The writing would necessarily have been regarded as expressing the contract and intention of the parties; hut usage is admissible to interpret a contract and to ascertain the meaning of the parties, where it can be done without violence to the terms used. As a matter of course, a custom gives a meaning to a written contract different from that which it would have in the absence of the custom. It would be a very ineffective and anomalous sort of a usage, which should be withoirt effect on the acts and contracts of parties.

We can easily see from decided cases how far customs have been permitted to affect and control Avritte'n contracts, without being regarded as violating the rule against varying or contradicting the terms of a written instrument. In the case of the Bank of Columbia, already referred to, the written contract Avas to pay a sum of money sixty days after date ; and yet a custom was held good, by