1977); Charles River Mortgage Co. v. Baptist Home of Mass., 630 N.E.2d 304, 306 (Mass.App.Ct.), review denied, 636 N.E.2d 278 (Mass. 1994); (2) their course of performance, see Affiliated FM Ins. Co. v. Constitution Reins. Corp., 626 N.E.2d 878, 882 n. 10 (Mass. 1994) (citing Restatement (Second) of Contracts Section(s) 203(b) (1981)); (3) their prior course of dealing, see id.; and (4) trade usage in the relevant (viz., banking) industry, see id. at 881-82 (citing Restatement Section(s) 222 cmt. b (1981); A.J. Cunningham Packing Corp. v. Florence Beef Co., 785 F.2d 348, 351 (1st Cir. 1986)); Baccari v. B. Perini Sons, Inc., 199 N.E. 912, 915-16 (Mass. 1936); see also Jamesbury Corp. v. Worcester Valve Co., 443 F.2d 205, 210 (1st Cir. 1971) (citing 3 Arthur L. Corbin, Corbin on Contracts Section(s) 542, at 108 (1970)). B. Standard of Review

"Valid usages known to contracting parties, respecting the subject matter of an agreement, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect to contradict or vary a contract, but upon the theory that the usage forms a part of the contract." Baccari v. B. Perini Sons, Inc. 293 Mass. 297, 303 (1936). On somewhat similar reasoning there was no error in denying the defendant's requests 2, 3, 7, and 9. Although the above quoted finding of the auditor with respect to "the custom under then current trade practices" lost its artificial legal force as prima facie evidence as soon as the defendant introduced evidence before the judge which tended to negative the existence of any such custom, that finding continued to be evidence in the case on which the judge could base a general finding for the plaintiff.

The installation of the tank in question in keeping with the customs and usages of the trade generally recognized as proper may be considered as incorporated in the contract and intended by the parties. Baccari v. B. Perini Sons (1936), (Mass.), 199 N.E. 912. Finding no reversible error, the judgment of the trial court is affirmed.

"The argument that a contract may not be `varied' by evidence of pertinent custom and usage misconceives the role played by such evidence. `Valid usages known to contracting parties, respecting the subject matter of an agreement, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect to contradict or vary a contract, but upon the theory that the usage forms a part of the contract.'" Hardware Specialties, Inc. v. Mishara Constr. Co., 2 Mass. App. Ct. 277, 280 (1974), quoting Baccari v. B. Perini Sons, 293 Mass. 297, 303 (1936). See A.J. Cunningham Packing Corp. v. Florence Beef Co., 785 F.2d 348, 351 (1st Cir. 1986).

A court will not salvage a contracting party from the consequences of a losing contract, but in this case it is clear from the trial court's findings that the change orders and the mode of performance by Blake significantly amended the subcontract. See C. F. Bolster Co. v. J. C. Boespflug Construction Co., 167 Cal.App.2d 143, 334 P.2d 247 (1959); and Baccari v. Perini Sons, Inc., 293 Mass. 297, 199 N.E. 912 (1936). Therefore, the subcontract value offered no standard by which to measure an award for damages.

The corporate presidents of both Sweetman and Western testified that subcontractors' cost increases previously had been passed on to the State by prime contractors under very similar contracts and that such claims had never before been denied by the State. We believe that this contract must be viewed in terms of such custom and usage, Hardware Specialties, Inc. v. Mishara Const. Co., Inc., 2 Mass. App. Ct. 277, 311 N.E.2d 564 (1974), Baccari v. B. Perini Sons, 293 Mass. 297, 199 N.E. 912 (1936), and accordingly hold that Sweetman does have a claim against the State for the freight rate increases. To find that Section 8.1 of the prime contract operated to extend Sweetman's responsibilities with respect to work sublet, and yet find no corresponding extension of the State's obligation with regard to costs reasonably to be anticipated, would be manifestly unreasonable in view of the evidence.

It is well settled that a long established and universal custom or usage which is not violative of some law or public policy and where there is nothing in a contract showing that it is not to be included is impliedly incorporated in the contract. A.J. Tower Co. v. Southern Pacific Co. 184 Mass. 472. Baccari v. B. Perini Sons, Inc. 293 Mass. 297. See also Barrie v. Quinby, 206 Mass. 259; South Deerfield Onion Storage Co. v. New York, New Haven Hartford Railroad, 222 Mass. 535; Rice Lockwood Lumber Co. v. Boston Maine Railroad, 308 Mass. 101; Caggiano v. Marchegiano, 327 Mass. 574.

Cronan v. Hornblower, 211 Mass. 538, 541. That Magill may not have known of the usage in the publishing trade referred to in Allen's testimony is not controlling. "Where the usage is established the presumption is that the parties contracted with reference to it." Baccari v. B. Perini Sons, Inc. 293 Mass. 297, 304. That is especially true where both parties are engaged in the same trade. Restatement: Contracts, § 248 (2). The plaintiff was not obliged to prove actual knowledge of the usage on the part of the defendant.

See Bowen v. Kimbell, 203 Mass. 364; Handy v. Bliss, 204 Mass. 513, 518-519; D'Urso v. Leone, 238 Mass. 58, 61; Smedley v. Walden, 246 Mass. 393, 400; Hub Construction Co. v. Dudley Wood Works Co. 274 Mass. 493, 496; Glazer v. Schwartz, 276 Mass. 54, 57. An insurmountable obstacle remains in that what the master calls the "fair value" of the labor and material required to complete the contract, when added to the amount already paid as "Progress Payments," amounts to as much as the contract price. See as to the method of ascertaining damages on quantum meruit Norwood v. Lathrop, 178 Mass. 208, 210-211; Glazer v. Schwartz, 276 Mass. 54, 57; Soares v. Weitzman, 281 Mass. 409; Baccari v. B. Perini Sons, Inc. 293 Mass. 297, 302; Williston on Contracts (Rev. ed.) §§ 1480-1483. It is evident from the report that by "fair value" the master means fair cost.

A.J. Tower Co. v. Southern Pacific Co. 184 Mass. 472. Barrie v. Quinby, 206 Mass. 259. Nichols v. Rougeau, 284 Mass. 371. Remington v. Pattison, 264 Mass. 249. Baccari v. B. Perini Sons, Inc. 293 Mass. 297. Am. Law Inst. Restatement: Contracts, § 247. The shipment was made under a uniform straight bill of lading, which was issued by the initial carrier and governed the entire transportation and fixed the rights of all participating carriers including the defendant — the terminal carrier.