159 Mass. 522 | Mass. | 1893
The defendants’ first exception was to the admission of the evidence of the custom. They contend that the custom, if it existed, was an illegal custom, because it was in violation of the rules of law. The presiding justice ruled substantially in accordance with the contention of the defendants upon the question as to what facts would in law constitute a constructive delivery of the hemp, and instructed the jury that, if only a constructive delivery had been shown, the duty would
We are not called upon to determine whether in any respect this instruction was too favorable to the defendants. The question of the admissibility of the custom is directly presented, and this forms the principal question in the case.
A usage cannot override an express contract, neither can a usage be valid which is in contravention of an established rule of law. But it has often been held to be within the legitimate and proper scope of a usage of trade to regulate the time, place, and manner of the delivery of a cargo, when there is no express contract upon the subject; and under such circumstances the usage is deemed to enter into and form a part of the contract. Miller v. Mansfield, 112 Mass. 260. Robinson v. United States, 13 Wall. 363, 366. Hostetter v. Park, 137 U. S. 30. The Boskenna Bay, 40 Fed. Rep. 91, 95. According to all the decisions, the rules of law which would otherwise exist as to the beginning or end of the liability of a carrier may be modified to some extent by the course and usages of trade and business, though there may be a difficulty in defining by a general statement how far such modification may go. See Judson v. Western Railroad, 4 Allen, 520, 521; Mansur v. New England Ins. Co. 12 Gray, 520, 526; Haskins v. Warren, 115 Mass. 514, 535, 536; Reed v. Richardson, 98 Mass. 216; Richardson v. Goddard, 23 How. 28; The Norway, 2 Mar. Law Cas. 168. In the present case, the jury have found that there was a general custom of the port of Boston that “ after a vessel arrives at the port and goes to a wharf designated by the consignee, and due notice has been given to the consignee, and the cargo is taken off and distributed upon the wharf according to the marks and numbers, the care of the goods devolves upon the consignee.” The parties must be deemed to have contracted with reference to this custom. There is no such well established and general rule of law to the con
The defendants further criticise the custom as not showing a course of dealing, but as being merely the adoption of a peculiar doctrine or rule of law; and they contend that the plaintiffs’ witnesses merely testified to their opinion as to the rule of law. This criticism rests on the phraseology used to describe the custom, which was that under the circumstances stated “ the care of the goods devolves upon the consignee.” But the word “ devolves,” as used at the trial, obviously did not mean that the care of the goods rests upon the consignee as a matter of legal duty, but rather that such care passes as a matter of usage from the carrier to the consignee. An actual usage or practice of trade and business was contemplated and understood, and is plainly shown by a reference to the instructions given to the jury.
The defendants also contend that the existence of the alleged custom could not affect the rights of the parties because it is plain upon the undisputed facts of the case that the plaintiffs did not act in reliance upon the custom, and therefore the ruling of the court giving to it the effect stated in the bill of exceptions w;as erroneous. This point is not distinctly stated in the bill of exceptions, and it does not appear that the attention of the presiding justice was called to it at the trial. It rests upon the effect which should be given to the appointment and acts of the delivery clerk. The bill of exceptions says that “ there was evi
Exceptions overruled.