| Pa. | Sep 28, 1852
The opinion of the Court, filéd was delivered by
The defendant, a common carrier, received certain goods of the plaintiff on a canal-boat at Williamsport, to be delivered at Philadelphia. They were damaged on the way, and this suit is brought to recover for the injury. The defence was, that by a custom on the canal, carriers are not bound to make good any loss which may happen to goods which they are intrusted with, if such loss results from the dangers of the navigation, from fire, or from unavoidable accident; and this injury to the goods in question, it is alleged, was produced by one of these causes.
The contract between the parties, if construed by the common law- of the land, bound the defendant to deliver the goods in Philadelphia in as good order as he received them, unless he was prevented from doing so by the act of Grod, or by a public enemy.
It was held, a century since, that all customs which intrench on the common law, ought to be taken strictly, nay, very strictly (11 Mad. 160), and that where law a,nd custom conflict, the former must stand and the latter go down (7 Vin. Abr. 187). The leaning of the Courts, both in England and America, has of late years become still stronger against allowing the law to be controlled by local usages (2 Sumner 567). The evidence of them often arises out of mere mistake, and they are so constantly liable to misapprehension and abuse, that they must always be received with dislike and jealousy. Eor these reasons it is necessary that a party who relies on such a custom, shall prove distinctly, not only that it exists, but that it has all the legal requisites of an established custom.
It must be ancient. In England it must have stood time out of mind. In this state it must have existed at least long enough to become generally known (3 W. C. C. R. 149; 3 Watts 179). Neither of the three witnesses sworn for the defendant testify whether the custom he relied on was a month, or a year, or ten years old, at the time of the trial. This is a fatal defect in the proof. Antiquity is not enough. To be valid, a custom ought to be proved to have been uniform from its commencement, without interruption or serious opposition, and to have had the acquiescence of those who are interested against it, as wrell as of that class who are benefited by it. It is not sufficient that transporters and boatmen have been in the habit of denying the legal liability of common carriers on the canal. Exemption from the public and general laws of the country cannot be made out in favor of any portion of the people by such means. Another most essential requisite is that it be notorious, so that all men whose interests or rights are brought within its operation may know of it. Such evidence was not given, and, in a case like this, could not be ex-2>ected; for the persons who send their freight through the Pennsylvania Canal are living in every part of the continent. The impossibility of a special custom becoming generally known all over the world, will perhaps for ever prevent the establishment of one w'hich common carriers, on a great thoroughfare like this, can take advantage of. This is not to be regretted. The law is as wise and as just as any custom which the transporters would be likely to make for themselves. At any rate, it would be a most intolerable wrong to allow strangers, who rely upon the law, and trust their whole fortunes on the canal, to be entrapped by a custom of which they are ignorant. But, assuming the usage in question to be well proved, as an ancient, notorious, and uniform
The custom,, in this ease, is set up to defeat the contract of the party, as well as the law. The receipt of the goods implied a promise to deliver them safely in Philadelphia; implied it as clearly as such a promise could be expressed in words or writing. Now a custom cannot be received to defeat the essential terms of a contract (3 Kent 360). The usage of trade is admissible in evidence to explain a contract which is doubtful or ambiguous, or where words are used in a sense different from their ordinary meaning (7 Johns. R. 389), but not to change or destroy a contract: (8 Taunt. 254; 11 Adolph. & Ellis 23; 2 Sumner 377; 2 Greenl. Evidence, § 292.) The eases which rule this principle are mostly upon express contract, but it cannot be doubted that where a well understood and clearly defined rule of law implies a contract from the act of the party, from the consideration paid to him, and from the known duties of his calling, such a contract is, and ought-to be, no less secure against a local usage inconsistent with it, than the same contract would be if made in express words.
Our own decisions on this subject have not been very consistent. This Court, in the early cases, stood over the law and guarded it against invasion faithfully enough. A rule among merchants to charge interest for goods sold after six months (1 Dallas 265), a usage of plasterers to charge for their work at a certain rate (3 Yeates 318), a custom to re-enter for a forfeiture, incurred by non-payment of rent (6 Binn. 417). All these were held to be inadmissible. But in 1822 a custom on the Ohio river was' permitted to vary the responsibility of a carrier there (8 Ser. § R. 533), and nine years later a usage in Philadelphia was allowed to add a warranty to a contract of sale, which in fact and in law did not embrace one (3 Rawle 101). In both these cases Chief Justice Oibson dissented from a bare majority; and his warning, though unheeded at the time, was remembered when the question came up again ; (3 Watts 179; 5 Barr 42.) Our latest decisions are consistent with the oldest. The law of Pennsylvania may therefore be considered as settled in accordance with reason, and with the judicial authorities of other commercial states. A local usage, if it be ancient, uniform, notorious, and reasonable, may
Judgment reversed and venire de novo awarded.