122 Mass. 228 | Mass. | 1877
It is altogether probable that the ruling complained of in this case was wholly immaterial and had no influence upon its decision. It does not, however, so certainly appear upon the
A custom, within the meaning of the law, if general, is incorporated into and becomes a part of every contract to which it is applicable; if local, of every contract made by parties having knowledge of or bound to know its existence. It must be certain, definite, precise and unvarying. That is not necessarily a custom, which is merely the ordinary mode of doing business; nor is a general habit or practice a custom. There is a great variety of things, which, in the ordinary transaction of business, are habitual and usual, but which are in no sense customs which, in law, are incorporated into and become parts of the contract entered into. When, therefore, there is offered to be proved a custom which is a part of the contract, it becomes necessary to look carefully to the exact language of the tender.
In examining the language, in which the offer to prove a custom in this case is made, we find it to be this: “ A lessor is required to cleanse a leased house before the lessee enters into possession of it.” This language implies that the contract has already been entered into and that the relation of lessor and lessee exists. Ordinarily, this would perhaps be too rigid a rule to apply to the construction of a bill of exceptions; but we are dealing with a matter which requires the utmost precision; for if a party is to be bound by an engagement by force of “ a custom ” into which he has entered only by implication, it is essenial to know exactly what the implication is.
Exceptions must be sustained.