102 Ill. App. 120 | Ill. App. Ct. | 1902
delivered the opinion of the court.
Counsel for appellant say in their brief :
11 It is not questioned by either party that the discharge was, nominally, for refusal by the plaintiff to work on Sunday. If the contract required him to work Sunday, he ivas rightfully discharged and the judgment appealed from is right. If the contract did not require him to work Sunday, the judgment is wrong, and appellant is entitled to a reversal.”
Evidence of the alleged custom in Alaska to work Sundays as well as week days, was offered by appellee against the objection of appellant, under the general issue, without any plea setting up such custom. When the custom is introduced as an affirmative defense, or for the purpose of recoupment, it must be specially pleaded. (Leggat v. Sands Ale Brewing Co., 60 Ill. 158-163.) But the defense of a good cause for discharge can be made without special plea, and is admissible under the general issue. Hoffman v. World’s Columbian Exposition, 55 Ill. App. 290; Connolly v. Bruner (W. Va.), 35 S. E. Rep. 927, 934.
It is claimed that a custom can not be set up in opposition to positive law. This is true. In order to show what the law of Alaska was and is in this regard, appellant quotes in his brief See. 141 of Chap. 8, Laws of Alaska. Granting the existence of that statute, and its application to this case, which la^t is very doubtful, a conclusive answer is that no such law is mentioned in the pleadings, nor was any evidence of it given on the trial. When a foreign law is relied upon, either for the recovery of a right or as a defense, the law must be pleaded and proved. Chumasero v. Gilbert, 24 Ill. 293.
There being no legal proof of the law of Alaska, we are bound to infer that the common law governs in that territory. The common law, as adopted in this State, does not prohibit the citizen from pursuing his ordinary labor on Sunday. Eden v. People, 161 Ill. 296-300.
In Collins Ice Cream Company v. Stephens, 189 Ill. 200, Stephens was discharged because he would not work on Sunday. The evidence showed that it was the custom in the ice cream trade to work on Sunday as well as on week days. Ilelcl, that the discharge was lawful, the court saying:
“ By the contract plaintiff agreed to devote his entire time and attention to the business of the defendant, and the contract is presumed to have been made with reference to the usual custom of that kind of business. Whether he would be bound to work on Sunday would depend upon the manner of conducting the business and the established custom. A contract which contemplates labor on Sunday, not tending to disturb the peace and good order of society, nor constituting a violation of the criminal code, is valid and enforceable.”
It is to be noted that appellant, by his contract, agreed to work anywhere, and in a climate entirely different from that which appellant was accustomed to, and under conditions entirely at variance with conditions theretofore enjoyed by appellant. In other words, he agreed to work under the customs of any place or country which the appellee should select and to which the latter should send him.
Whenever the words of a contract have, by usage or local custom, a peculiar meaning, that meaning may be shown by parol evidence. The admission of this evidence is not for the purpose of varying the effect of a written contract by parol, but to explain the meaning of the words used in the contract. Leavitt v. Kennicott, 157 Ill. 235.
Where the custom is general and well established, it is immaterial whether or not the parties know of the existence of it, for they must be presumed to be familiar with it. All contracts are presumed to be made with reference to existing customs, unless they are excluded by the terms of the contract, and the parties will be held as intending that the business shall be conducted according to such customs. (Chisholm v. Beaman Machine Co., 160 Ill. 101, 113.) The court found that in the year 1900, at Nome, Alaska, there was a general and well established custom with reference to Sunday labor. We think this finding is fully sustained by the evidence.
There being no reversible error in this record, the judgment of the Circuit Court is affirmed.