Opinion
03-12-1817
Harris v. Nicholas. [*]
Green for the Appellant. Chapman Johnson for the Appellee. Wickham on the same side.
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
The Appellee Wilson C. Nicholas, by a Covenant under seal agreed with the Appellant as follows: " For the hire of four Negro fellows the present year, who are to be returned well clothed on or before the 25th of December, I promise to pay Frederick Harris at that time the sum of two hundred and eighty dollars; witness my hand and seal the 6th of January, 1812."
On this Covenant Harris brought his action, and for breach alleged, " that one of the said negro fellows, to wit, one named Joe, alias Roger, was not returned, well clothed, on or before the 25th day of December next ensuing the date of the said Covenant, nor at any time since; and also that the defendant did not return the said negro fellow on or before the said 25th of December, nor at any time since."
The defendant pleaded, " that after the date of the Covenant, and before the 25th day of December next ensuing the said slave Joe departed this life; " and for farther plea, that, " after the date of the said Covenant, and before the 25th day of December in the same year, to wit, on the day of 1812, the said slave Joe, in the declaration mentioned, without the fault, agency, privity or consent of the defendant, and by an event, over which the said defendant had no control, to wit, by a mortal wound received from a certain Thomas Thilman, died, so that the said slave could not be returned to the plaintiff on the said 25th of December, 1812; and this he is ready to verify, wherefore he prays Judgment, & c."
To the first plea, the plaintiff replied, " that after the day of the date of the Covenant, to wit, on at the County of Albemarle, and before the 25th of December 1812, the defendant delivered the negro fellow Joe, alias Roger, in the Declaration and Plea mentioned, into the possession of a certain John Patterson, to labour upon his plantation; on whose plantation the said negro continued to work, with the defendant's knowledge and consent, as one of the labouring hands of the said John Patterson until a certain Thomas Thilman, on the day of at the County aforesaid, who was then and there acting as the Overseer of the said John Patterson, and in his employment, and whilst superintending and managing the labouring hands of the said John Patterson engaged upon the Farm in doing his work, and whilst managing and superintending the said slave Joe alias Roger, who was then and there, with the knowledge and consent of the defendant, working upon the Farm and doing the business of the said John Patterson, under the care and superintendence of the said Thomas Thilman, so unlawfully, cruelly, and excessively beat and whipped the said slave Joe alias Roger, that, by reason of such unlawful, cruel and excessive beating and whipping the said slave afterwards died at the time in the defendants' plea set forth; and this he is ready to verify," & c. To this replication the defendant demurred generally; and joinder in demurrer.
The plaintiff replied to the second plea, " that the said Thomas Thilman in the said defendant's second plea mentioned, and who it is alleged inflicted the said mortal wound upon the said negro Joe alias Roger in the Declaration and Plea mentioned, was, at the time, when it is alleged in and by the said Plea that the said mortal wound was inflicted, the Overseer and Manager of a certain John Patterson, to whose possession and custody the said defendant had delivered the said negro Joe alias Roger, to be used and employed by him the said John Patterson on his, the said John Patterson's estate, and who then and there, with the knowledge and consent of the said defendant, placed the said negro Joe, alias Roger, under the management and superintendence of the said Thomas Thilman, as his, the said John Patterson's Overseer; and, whilst so acting, as Overseer as aforesaid, he the said Thomas Thilman, so unlawfully, inhumanly and without any justifiable cause, beat and whipped the said negro Joe alias Roger, that he died; and so the said death was by the default of the defendant, and therefore is no sufficient excuse to the said defendant for not performing his said Covenant; and this he is ready to verify," & c.
To this Replication the defendant rejoined, " that the slave Joe, in the said Plea and Replication mentioned, was hired from the plaintiff by the defendant, for the use and benefit of the said John Patterson, in the Replication mentioned, to be employed and used by the said John Patterson in labouring upon the plantation of him, the said Patterson, under the superintendence, management and sole direction of him the said John Patterson, his lawful Agents and Overseers; of which fact, the said plaintiff at the time of the hiring aforesaid, had due notice, and to which he fully assented; and that the said slave Joe, afterwards, to wit, on the day of January in the said year 1812, being so hired, was, with the consent and knowledge of him, the said plaintiff, and in pursuance of the terms, on which he had been hired as aforesaid, delivered by the defendant to the said John Patterson to be employed in labouring on the plantation aforesaid of the said Patterson, over which plantation, and over the hands labouring thereon, the defendant had no control, and in which he had no interest; after which said time of delivery of the said slave to the said Patterson, the defendant had no control over the said slave, and no interest in the labour or profits thereof: and that the said Thomas Thilman in the said Replication mentioned, at the time of the delivery of said slave to the said Patterson, was not the Overseer or Agent, or otherwise in the employment of the said Patterson, but afterwards, to wit, on the day of in the year aforesaid, before the giving of the mortal wound in the Replication aforesaid mentioned, and without the agency, privity or consent of the defendant, was employed by the said Patterson, and placed as Overseer on his plantation aforesaid, and entrusted, as Overseer, with the control and management of the said slave as one of the labouring hands on the plantation aforesaid; and this he is ready to verify; wherefore he prays Judgment," & c.
The plaintiff demurred generally to this Rejoinder; and the defendant filed a joinder in demurrer.
The Superior Court of Law sustained the defendant's demurrer to the plaintiff's Replication to the first Plea, and over-ruled the plaintiff's demurrer to the defendant's Rejoinder. Judgment was therefore entered for the defendant, from which the plaintiff appealed to this Court.
Affirmed the judgment.
Green for the Appellant. I can find no case shewing that a Contract is merged in a felony; though a trespass is. The felony, committed by Thilman, therefore, did not excuse Nicholas from the obligation to return the Negro according to his Covenant. But, indeed, the question of felony did not properly arise in the case; for the killing of the Slave is not charged in the pleadings, as having been done feloniously.
Buller's N. P. 32.
Chapman Johnson for the Appellee. This is an action of Covenant on a Bond for the hire of a Slave, who was to be returned at the end of the year well cloathed. The first question is whether, in fact, there is in the Bond any Covenant for the return of the slave? Upon inspecting that instrument, we find in it merely a recital of the time when the negro was to be returned. It certainly is not an express Covenant. There was no necessity of such a Covenant; for, when the term of service expired, the Law itself raised the obligation to return. Detinue or trover would then lie for the Slave or his value. The Court therefore will not raise an implied Covenant.
But if there was a Covenant, it ceased to bind, upon the death of the Slave.
Is Wilson C. Nicholas liable for the death of this Slave, in any form of action? The person, who killed him, was not his Agent; and if he were, it was not such an act as the principal was liable for. It does not appear that, when the beating was inflicted, it was in the line of the Overseer's authority. He was not controlling the Slave as an Overseer, but treating him as a Murderer. The beating is stated to have been severe and inhuman, and the cause of his death. If public policy requires the Master to be responsible for the acts of the Overseer, why not make him responsible criminaliter, as well as civiliter? But public policy is not to make our laws in this Court, but elsewhere.
1 Chitty 68; 1 East. 106, M'Manus v. Crickett.
Wickham on the same side. Covenant would not lie in this case, even if the Overseer had acted by his employer's direction. No hirer of a Negro understands himself, as bound to deliver him at all events. In this case the Covenant is not, that the Slave shall be returned, but that he shall be well cloathed when returned.
It is a rule, in the construction of Covenants, that words, forming one, cannot be split into two distinct and independent Covenants.
1 Saund. 59, Gainsforth v. Griffith, and the case of Broughton v. Conway in Dyer there cited; also, Idem 60.
If there had been a Covenant, to restore the negro in good health, the Covenantor would have been an Insurer: but this is not such a Covenant. Even if the Negro runs away without the fault of the hirer, he is not bound to deliver him at the time appointed.
In language of law no authority can be given to do an unlawful act. The person, who dircets it to be done, is a principal in treason or trespass, and in other cases an accessary before the fact. If an Employer had continued in his service an Overseer, noted for cruelty, I am not prepared to say that he might not have been made liable by a proper form of action. But that question has no application to the present case. Harris knew that the Negro was to go into the hands of Patterson, and Nicholas had nothing to do with the choice of the Overseer.
But if Thilman had been the Overseer of Nicholas, and employed by him, Nicholas would not have been responsible; for the act committed was not only out of the limits of an Overseer's authority, but contrary to it; and for such acts of a servant, the master is not liable. The Overseer, whenever he steps out of the limits of his authority, becomes as a stranger. There can be no question, that the act, described in the pleadings, was a felony, though the word " feloniously" is not used; for felony may be inferred from facts found in a special verdict; and the facts pleaded bring it within the definition of murder in the first degree, 2 R. C. p. 15.
Savignac v. Roome, 6 Term. Rep. 125; Morley v. Gainsford, 2 H. Bl. 442.
Rex v. Oneby, 2 Ld. Raym. 1485.
Wirt in reply. There is, I insist, an express Covenant to return the negro at the end of the year.
The distinction between express and implied Covenants is laid down in 2 Selwyn's N. P. 384; from which it appears that this is an express Covenant; for there is no need of the word Covenant, nor of any particular form of words, to constitute a Covenant in deed; but any thing, under the hand and seal of the parties, importing an agreement, is sufficient. Had the instrument been signed by Harris, it would, according to the case of Pordage v. Cole, have amounted to a Covenant on his part that Nicholas should have the service of the slave during the year. But the words used are the words of Wilson C. Nicholas; and, if there were a doubt of their import, must be taken most strongly against him. Unless intended to create a Covenant, the words are useless.
2 Sel. N. P. 391; 1 Saund. 319, Pordage v. Cole; 1 Esp. N. P. 266-7-8.
It is said that the Covenant was not to return the Slave, but only that, when returned, he should be well cloathed. To this I answer that the time of the return is expressly specified: the Slaves were to be returned, well cloathed, on or before the 25th of December ensuing. This argument, that the Covenant applies to the cloathing only, is a legal curiosity. It is that, although the defendant has not delivered the negro at all, there is no breach; but if he had delivered him, not well cloathed, there would have been a breach; that is, there could be no breach until he delivered him not well cloathed.
It is contended that this is a mere recital. Of what is it a recital? A recital is always of something extrinsic. But if it were a recital, it is not the less a foundation of Covenant. Mr. Wickham says there cannot be two Covenants in one, or that you cannot make two breaches out of the same Covenant: but a Covenant to pay rent, and leave the premises in repair, is a familiar example of a two-fold Covenant, as to which there might be a breach, of the whole, or of either part. So, here, the Covenant was broken by failing to return the negro at all, or by returning him not well cloathed.
Esp. N. P. 268.
That it is a Covenant is admitted by the defendant's pleas, and therefore he is estopped to deny it. If it be a Covenant, and an express Covenant, the failure to perform it cannot be excused but by the act of God. His own act, disabling him from performing, is no excuse.
Paradine v. Jane. Alleyn 27; Beale v. Thompson 3 Bos. & Pull. 420; Chaplain v. Southgate, 10 Mod. 383; Monk v. Cooper, 1 Str. 762.
1 Bac. 653.
Hiring is one species of bailment. If the property be destroyed by the misconduct of the person, to whom it is hired, or of his servant, the master is liable. Overseers and servants are considered, as acting under the master's direction, express or implied, whenever their acts are done within the line of the business, they are employed in. Nicholas by transferring the slave to Patterson made himself responsible for the consequences. Harris, though he knew the Slave was to go into Patterson's service, yet took Nicholas's Bond for the return of the Negro.
Jones on Bailm. 89.
In the cases cited on the other side, I believe it will be found, the decisions turned on the form of the action; not on the substantial liability of the master. But our suit is not to make Nicholas answerable for the trespass committed by Thilman, but upon his express Covenant.
OPINION
Judge Roane pronounced the Court's opinion.
The Court is of opinion that, if the Covenant stated in the Declaration can be considered, as a Covenant to return the Negro in question, as well as to secure the payment of the money due for his hire, it ought not to be considered as a Covenant to insure such return in the event, which has happened; especially under the usage and understanding of this country in relation to the subject. And the Court is farther of opinion, that the Appellee would not be held liable under the facts disclosed in the pleadings, (admitting that Thomas Thilman therein mentioned were his Servant or Agent; ) as the act of the said Thilman, which caused the death of the said Negro, was neither authorized by the Appellee, nor committed in the usual and proper course of his duty, as such; but was a wilful and unauthorized trespass.
On these grounds, the Court is of opinion to affirm the Judgment.
USAGES AND CUSTOMS.
I. Requisites.
A. In General.
II. Must Not Be Contrary to Law nor Inconsistent with Contracts.
A. In General.
III. Particular Customs.
IV. Knowledge of Usages.
A. In General.
B. Will Excuse Nonperformance of Legal Duty.
V. Effect of Statutory Law.
A. In General.
VI. Usages to Explain Contracts.
A. In General.
VII. Usage Cannot Vary Contracts.
A. In General.
VIII. Miscellaneous Instances.
A. Usages of Banks.
B. Usages between Principal and Agent.
C. Usages as to Negligence.
D. Usages Relative to Land.
IX. Pleading and Practice.
A. General Usage May Be Proved under General Issue.
B. Local Usage Must Be Specially Pleaded.
C. Amendment of Pleadings.
D. Question for Jury.
X. Evidence.
A. Parol Evidence.
B. One Witness Sufficient.
C. What Must Be Shown.
Cross References to Monographic Notes.
Attorney and Client, appended to Johnson v. Gibbons, 27 Gratt. 632.
I. REQUISITES.
A. IN GENERAL.
Must Be Immemorial. --For a custom to be valid it must be as old as the common law, that is, immemorial. Harris v. Carson, 7 Leigh 632.
And where there is a custom for the inspector of flour to take draft flour, which may have existed longer than the memory of any living man, yet as the statutes show the commencement of the inspection of flour in Virginia, and as this period is within the limitation prescribed for the commencement of a custom, the custom is bad. Delaplane v. Crenshaw, 15 Gratt. 457.
Must Be Reasonable, Fair, Certain. --A usage which is permitted to control a general principle must be uniform and general and, moreover, reasonable, fair, impartial, and not contrary to law, and when so proved, it is said to become a part of the law, and will be recognized as such. Crump v. Trytitle, 5 Leigh 251.
And the party who relies upon such custom or usage must show that it is an established usage or custom, uniform, certain, general, and notorious in that locality. Hansbrough v. Neal, 94 Va. 722, 726, 27 S.E. 593.
In Jones v. Logwood, 1 Wash. (VA) 42, the court in speaking of the custom of using a scroll by way of seal, said that to refuse to recognize a scroll as such, " would dishonor government, relax public and private security, and convulse the state."
Pay in Addition to That Allowed by Statute.--If there could be in Virginia a legal, valid usage or custom, the effect of which is to operate per se as an exception to the general rules of the common law; a usage or custom for the inspector of flour, who by the statute is to receive a specified money compensation, to take to his own use the flour drawn from the barrel in the process of inspection, called the draft flour, as an additional compensation or quisite, would be bad, as being unreasonable, unjust, contrary to the policy of the law. Delaplane v. Crenshaw, 15 Gratt. 457.
II. MUST NOT BE CONTRARY TO LAW NOR INCONSISTENT WITH CONTRACTS.
A. IN GENERAL. --A local custom or usage cannot be relied on where it is inconsistent with the terms of a written contract between parties. Southwest Va. M. Co. v. Chase, 95 Va. 50, 27 S.E. 826; Harris v. Carson, 7 Leigh 632, 639; Mason v. Moyers, 2 Rob. 613; Gross v. Criss, 3 Gratt. 262; Delaplane v. Crenshaw, 15 Gratt. 457; Richlands v. Hiltebeitel, 92 Va. 91, 22 S.E. 806; Reese v. Bates, 94 Va. 321, 26 S.E. 865; Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593; Hubble v. Cole, 85 Va. 87, 91, 7 S.E. 242. Nor can it be relied on when it conflicts with well-settled rules of law. Southwest Va. M. Co. v. Chase, 95 Va. 50, 27 S.E. 826; Sterling Organ Co. v. House, 25 W.Va. 64.
Must Not Be Repugnant to Common Law.--It is, of course, well settled, that a usage in opposition to the common law, however general it may be, has no force in this country on the ground of custom (Harris v. Carson, 7 Leigh 632), and there is no customary law in Virginia which per se can vest a right in a party claiming under it ( Delaplane v. Crenshaw, 15 Gratt. 457); but a usage or custom of trade may be shown. Reese v. Bates, 94 Va. 321, 325, 26 S.E. 865.
Custom Contrary to Statute Bad.--The act having directed, that an auger of not more than a half inch in diameter should be used in inspecting flour, a custom to use a larger auger is bad, though the inspector says he cannot execute his duty satisfactorily with an auger of the size prescribed by the statute. Delaplane v. Crenshaw, 15 Gratt. 457.
And in measurement of logs, lumber and timber, where there is no contract provision as to mode of measurement, Scribner's rule applies, under section 17a, c, 59, Code 1891, and custom or usage has no application. Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686.
Custom Not to Affect Rights under Statute.--An administrator de bonis non cannot sue the representative of a former executor or administrator, either at law or in equity, for assets wasted or converted by the first executor or administrator; but such suit may be brought directly by creditors, legatees, or distributees. This remedy was given to the administrator de bonis non by the act of 1661; but that act was repealed by the act of 1711. The long prevalence of a practice which is not sanctioned by law, will not give its validity, if it affects the rights of persons. Coleman v. M'Murdo, 5 Rand. 51.
Custom as to Surveying Land. --The accurate and legal mode of surveying land is by horizontal measurement, and, in the absence of an express agreement to the contrary, it should be so measured. Local custom or usage cannot be relied on where it is in conflict with the written agreement of parties, or with well-settled rules of law. But, in the case in judgment, no such usage or custom has been established in the manner required by law, even if it were admissible. Virginia Mineral Co. v. Chase, 95 Va. 50, 51, 27 S.E. 826.
As to Depositing Money in Payment of Debt.--A general custom and usage, which is acquiesced in by a party, allowing him to pay his indebtedness to a bank by depositing to the credit thereof, money for the purpose in any one of the several banks, but the indebtedness is not to be discharged until notice of the deposit is given to the bank where the indebtedness exists, is defeated by a special contract to pay in a particular bank so far as notice being required of the deposit in the particular bank; it being by the special contract made the agent of the creditor to receive the amount of the indebtedness. The Exchange Bank of Va. v. Cookman, 1 W.Va. 69.
III. PARTICULAR CUSTOMS.
Excludes General Customs or Common Law. --If a particular custom be proved to be immemorial, it necessarily excludes the general custom or common law; for two inconsistent customs cannot have immemorially existed, in the same place and to the same thing. Harris v. Carson, 7 Leigh 632.
IV. KNOWLEDGE OF USAGES.
A. IN GENERAL
Presumption as to Knowledge. --Where recovery is sought of a defendant in consequence of a custom or usage to pay a fixed rate for certain services, it is not necessary to prove that the defendant knew of, and acquiesced in, the custom or usage. If the evidence shows an established custom or usage on the subject, certain, uniform, general, and notorious, at the place where the parties lived and did business, there would arise at least a prima facie presumption that the defendant knew of it, and intended to be bound by it. Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593.
And parol evidence of custom and usage is always admissible to arrive at the real meaning of the parties, who are naturally presumed to have contracted in conformity with the known and established usage; which, however, is not permitted to contradict or vary express stipulations. Hubble v. Cole, 85 Va. 87, 91, 7 S.E. 242.
B. WILL EXCUSE NONPERFORMANCE OF LEGAL DUTY.
A custom known and acquiesced in by the party affected, will excuse the nonperformance of a duty prescribed by law. Liggatt v. Withers, 5 Gratt. 24, 25.
V. EFFECT OF STATUTORY LAW.
A. IN GENERAL.
If a custom has been recognized by a statute either expressly or by necessary implication, it will thereby receive vitality, and the right claimed under it may be asserted as conferred by the statute. Delaplane v. Crenshaw, 15 Gratt. 457.
But although a custom when otherwise good, may override and displace the common law rule. yet a statute introducing a new principle with a negative either express or necessarily implied, must be strictly pursued, and no custom can be set up against it. Delaplane v. Crenshaw, 15 Gratt. 457.
Statute May Be Explained by Usage.--When the words of the statute are doubtful, general usage may serve to explain them; but the maxim communis error facit jus, has no application to the usage of particular corporate towns or other places. Currie v. Page, 2 Leigh 617.
VI. USAGES TO EXPLAIN CONTRACTS.
A. IN GENERAL.
Usage to be admissible to explain the intent of parties in a contract must not only be so well settled, so uniformly acted upon and of such long continuance, as to raise a fair presumption, that it was known to both contracting parties, and that they contracted in reference to and in conformity with it, but it must not control the express intention of the parties not the interpretation and effect, which result from an established rule of law applicable to it, nor be inconsistent with the rule of the common law on the same subject. And such usage of a trade, in order that it may be regarded as incorporated into a contract, must be certain, general, known, reasonable and not repugnant to the contract nor to the rules of law. Sterling Organ Co. v. House, 25 W.Va. 64.
And the law and custom of merchants though in most of its principles well fixed and ascertained, yet recognizes some variety in usages, and thus it is that the general usage and course of trade is respected in the decision of controversies coming within its influence. Crump v. Trytitle, 5 Leigh 251.
And a general and well-established custom or usage, or one actually known to the parties, constitutes the common understanding of parties, and ought to be resorted to as an interpreter of the contract. Connolly v. Bruner, 48 W.Va. 71, 35 S.E. 927.
Sales without Actual Delivery. --An established usage constitutes the common understanding of the parties, and ought to be resorted to, as the interpreter of a contract. An usage, that flour in store is sold by order, and passes by the transfer of the order from hand to hand, without actual delivery of the flour, is a reasonable usage, and ought to be enforced as part of the contract. Pleasants v. Pendleton, 6 Rand. 473, 474.
Failure to Provide in a Given Particular. --Where a contract does not provide in a given particular local custom may be proven for its interpretation, so it be brought home to the knowledge of the persons to be affected by it, and so it do not violate fixed statute or common law. Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686.
Usage as to Measuring Brick Work.--Where a written contract is entered into to pay agreed price per thousand for brick work, but the contract is silent as to how the number of bricks is to be ascertained, parol evidence may be received to show whether there was any agreement between the parties on the subject, and if so, what was the custom of the locality where the contract was made, or the usage of trade, and with a reference to which in the absence of any special agreement, the parties are to be deemed to have contracted. Flint Glass Co. v. Hiltebeitel, 92 Va. 91, 22 S.E. 806; Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593.
Sale of Lumber.--Where there was a contract for the sale of a quantity of merchantable lumber to be delivered in Richmond, it was held that the usage of the lumber trade in Richmond might be resorted to in order to arrive at the intention of the contracting parties. Ragland v. Butler, 18 Gratt. 323.
And a contract which provides for the sale of all the timber six inches in diameter, but is silent as to laps, passes the laps also by local custom and usage of lumbermen. Allen v. Crank, 2 Va. Dec. 279.
VII. USAGE CANNOT VARY CONTRACTS.
A. IN GENERAL.
A custom of trade cannot change the intrinsic character of the contract of the parties who are ignorant of such custom. Ferguson v. Gooch, 94 Va. 1, 26 S.E. 397; Consumers' Ice Co. v. Jennings, 100 Va. 719, 723, 42 S.E. 879; Sterling Organ Co. v. House, 25 W.Va. 64.
VIII. MISCELLANEOUS INSTANCES.
A. USAGES OF BANKS.
Usage is admissible in interpreting contracts with the farmer's bank which is an incorporated bank chartered by the legislature mainly for the purpose of lending money: that is its trade; and all contracts with it must be construed according to the usages of that trade, which all are presumed to know who deal with it, unless such usages be contrary to law. Crump v. Trytitle, 5 Leigh 251.
Interest Charged on Days of Grace Not Usury.--When a bank lends money for sixty days and according to the usage of banks charges interest on the first and last day and for the three days of grace it was held not to be usury. Crump v. Trytitle, 5 Leigh 251.
In which case the court said, " Under the influence of these considerations I do not hesitate to rest this case upon the grounds: that the usage complained of, has uninterruptedly prevailed for a number of years, and has been so uniform and invariable, as to have become the known established rule in all transactions with our banking institutions."
When Notice to Indorser by Mail Improper.--In the absence of a usage of a bank known to indorsers living outside the town, but in the vicinity, post-offices are not places to deposit notices to indorsers, except where the same are to be transmitted by mail to another post office. Brown v. Bank of Abingdon, 85 Va. 95, 7 S.E. 357.
B. USAGES BETWEEN PRINCIPAL AND AGENT.
Power to Make Sales and Warrant.--A general agent to sell has no power to make a warranty, or any collateral contract binding upon his principal, outside of his express authority, or that which is implied from the custom or usage of the trade in the business in which he is engaged. Reese v. Bates, 94 Va. 321, 325, 26 S.E. 865.
Liability of Agents Crediting.--Where a consignee, who has no orders to the contrary, sells goods on the customary credit of the place, he is justifiable by the known rule of mercantile law; and therefore he is not liable for failures or accidents not arising from his own misconduct. M'Connico v. Curzen, 2 Call 358, 362.
Usage May Be Resorted to in Construing Orders. --As a general principle, usage cannot be allowed to control the execution of the orders, or justify a departure from them; but an exception may arise upon proofs--namely, if it should appear that there was an established usage, showing what should be deemed a substantial and sufficient compliance with such orders, it might be proved to ascertain the sense in which the orders were understood by the parties. Ragland v. Butler, 18 Gratt. 323.
C. USAGES AS TO NEGLIGENCE.
Where a fireman of a railroad company was injured in the service of the company, by his own negligence, it was held that the company was not liable for the injuries to the plaintiff, notwithstanding the fact that it was customary for other firemen to perform the duties in the same negligent manner. Humphreys v. Newport News & M. V. Co., 33 W.Va. 135, 10 S.E. 39.
D. USAGES RELATIVE TO LAND.
Customs of Death Bed Donations Bad.--When it was customary for persons in a certain portion of the state having mere rights of settlement to transfer same by death bed donations they were held to be invalid. Westfall v. Singleton, 1 Wash. (VA) 227.
Not Entitled to Way-Going Crop by Custom.--When land is leased for a fixed and determinate period, the off-going tenant is not entitled by virtue of any supposed custom to the way-going crop. Harris v. Carson, 7 Leigh 632; Mason v. Moyers, 2 Rob. 606.
IX. PLEADING AND PRACTICE.
A. GENERAL USAGE MAY BE PROVED UNDER GENERAL ISSUE.
A general and well established custom or usage may be proved under the general issue and need not be specially proved. Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593; Connolly v. Bruner, 48 W.Va. 71, 35 S.E. 927.
B. LOCAL USAGE MUST BE SPECIALLY PLEADED.
Particular local usages must be specially pleaded or else they cannot be proved. Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593; Jackson v. Henderson, 3 Leigh 196; Governor v. Withers, 5 Gratt. 24: Connolly v. Bruner, 48 W.Va. 71, 35 S.E. 927.
And in an action to recover for services performed what they are reasonably worth. it is necessary to aver in the pleadings a local custom or usage by which the value of the services are fixed, as the plaintiff is entitled to recover what is usual and customary for like services. Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593.
C. AMENDMENT OF PLEADINGS.
The proof of the custom, and of knowledge and acquiescence therein by the plaintiff, having been introduced on the first trial of the cause under the general issue, without objection by the plaintiff, the defendant will be allowed to amend his pleadings on the return of the case from the appellate court, and plead the matter specially. Liggatt v. Withers, 5 Gratt. 24.
D. QUESTION FOR JURY.
Whether a custom or usage exists is a question of fact to be determined by the jury under proper instructions from the court, whenever there is any evidence tending to prove it, although the evidence be conflicting or there be a diversity of opinion as to its extent or character. Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593.
X. EVIDENCE.
A. PAROL EVIDENCE.
Parol evidence of custom and usage, is always admissible to enable us to arrive at the real meaning of the parties, who are naturally presumed to have contracted in conformity with the known and established usage; which however is not permitted to contradict or vary express stipulations. Hubble v. Cole, 85 Va. 87, 7 S.E. 242.
And the evidence of custom or usage is admissible on the principle of ascertaining and carrying into effect the intention of the parties, and thus doing justice between them, and such evidence may be admitted under the general issue. Connolly v. Bruner, 48 W.Va. 71, 35 S.E. 927.
But where a merchant in Philadelphia writes to his debtor in Clarksburg, reminding him that his debt has been due for some time; and saying: " We must request you to remit the amount." Held, this did not authorize the admission of evidence of a local usage or understanding, to give a meaning to the terms of the letter different from which they obviously bore. Gross v. Criss, 3 Gratt. 262.
Inadmissible to Explain Lease.--Parol evidence of a usage for the offgoing tenant to have the waygoing crop, is not admissible to explain a written contract of lease for a fixed and certain period. Harris v. Carson, 7 Leigh 632.
B. ONE WITNESS SUFFICIENT.
A local custom or usage may be proved by one witness where it appears that he has full knowledge and long experience on the subject about which he speaks, and testifies explicitly to the duration and universality of the usage, and is not contradicted. Southwest Virginia Mineral Co. v. Chase, 95 Va. 50, 27 S.E. 826.
B. WHAT MUST BE SHOWN.
The party who relies upon such custom, or usage, must show that it is an established usage or custom, uniform, certain, general, and notorious in that locality. Hansbrough v. Neal, 94 Ga. 726, 27 S.E. 593.