Page v. Cole

120 Mass. 37 | Mass. | 1876

Ames, J.

The evidence offered as to the uniform custom and usage of the milk trade was admissible, and the defendant’s contract is hardly intelligible without it. The sale of “ a certain milk route, situated in the southerly part of Boston, with all the rights, privileges thereunto belonging,” is the sale of the good will of the business which the vendor had been in the habit of doing in that locality. To make the sale of this good will available to the vendee, he must know who the customers are whom he is to supply, and where they live; and for this knowL edge he must necessarily rely, mainly if not entirely, upon information to be furnished by the vendor. The usage which the plaintiff offered to prove was reasonable in itself; it was not in conflict with any of the rules or principles of law; it was not offered for the purpose of contradicting the terms of the written contract, or applying to it any system of interpretation different from the standing rules applicable to written contracts generally. It was merely as to the mode of doing business in that particular trade, and to show that certain terms, hardly intelligible in themselves, have a recognized and well known meaning in that special trade. The evidence offered by the plaintiff was competent to show that in stipulating to convey “ the right and good will of supplying twenty-six full eight-quart cans of custom situated as above,” the defendant undertook to sell, and the plaintiff supposed he was buying, the good will of a business in which the customers at the time of the sale, “situated as aforesaid,” (that is to say, included in the milk route in question,) were in the habit of taking milk to the extent of twenty-six cans of eight quarts each. If he succeeded in proving the alleged usage, he might well claim that the defendant had not delivered and pointed out what he had undertaken to sell and had been paid for.

We find nothing in the alleged usage to make its exclusion proper within the rule laid down va Dickinson v. Gay, 7 Allen, 29, or in the cases there cited and relied upon.

Exceptions sustained.