#### WILSON READ vs. JOSIAH GRANBERRY.

Where ill a lease for a fishery, !t is stipulated that the lessor, as a consideration for the lease, shall be entitled to all the offal, the lessees may put up their fish *v>hole,*so as to leave no offal, there being no stipulation in the lease that the fish should be out, and no general custom proved that the fish put up at such fisheries were usually cut.

Where the *meaning*of a word in a covenant is to he explained by a custom, the custom must be proved to be so general, that the parties to the contract must be presumed to have reference to it.

Nothing is offal at a fishery, which is fit for food, and is consumed or sold for that purpose.

Appeal from the Superior Court of Law of Perquimons County, at the Fall Term, 1846, his Honor Judge Pjjarson presiding.

This is an action of covenant, contained in a lease, granted by the plaintiff’, Read, to the defendant, Gran-berry, in the year 1837. Read leased to Granberry a Fishery, adjacent to his farm, on Chowan river, and Granberry covenanted as follows : “ And I, the said Josiah Granberry, do for myself, my heirs, and assigns, promise and bind ourselves, that the said Wilson Read shall have and enjoy, for, and in consideration of the above named privileges, all the offal of said beach, &c.” Two breaches were assigned as *follows*— -first, that the defendant had not permitted the plaintiff1 to haul all the offal off the beach, and *secondly,*that the defendant had diminished the quantity of offal, by putting up in gross, without cutting and trimming, seven hundred barrels of herrings during the fishing season of 1845. Nixon was a partner with Granberry in the lease. On the part of the defendants it was insisted, that they had a right to put up as many herrings in gross, as they thought proper. To rebut this defence, the plaintiff contended, that in the *110year 1837, when the covenant was executed and always before that time, the practice of the fisheries on the Albe-marle sound, and its tribularies, where this fishery is situated, was to cut and trim all the herrings that were put up. In order to establish the existence of this custom, the plaintiff introduced two witnesses; by one, he proved, that, previous to 1837, such was the custom at two specified fisheries, on that sound, both when leased out and when worked by their owners ; but in neither case was the witness able to testify, that, when leased, the herrings wore cut and trimmed at those fisheries, under a covenant in the lease or under any general custom. He further stated, that there were many other fisheries on the Albemarle sound, but he had no knowledge of any such custom or practice at them. The other witness proved, that, previous to 1840, he had very little knowledge of the fishing business; that it was not until 1842, that the fishermen commenced putting up gross herrings, but it was admitted, that, before 1837, the fishermen did put up what are called roe-herrings for family use which were not cut or trimmed.

The defendants insisted that there was no such ambiguity in the lease, as to authorise the introduction of parol evidence of any usage or custom to explain *it;*and that there was no evidence of *any*usage or custom, that would give to the words of the lease, an artificial meaning ; that the word *offal*had a precise and definite meaning, and that there was no evidence to authorise the juryffo infer that it was used in the covenant in any other sense.

His Honor instructed the jury that the word *“offal ”*used in this lease might be explained by evidence of the custom of cutting and trimming fish, that were caught at the fisheries on the Albemarle sound, at and before the date of the lease ; that it was in evidence before them, that, at and before the date of the lease, it was the custom at the *large*fisheries on that sound for the fishermen *111to cut and trim all the herrings they caught, except' a few barrels of roe-herrings, *put*up for family use ; that it was for them to say whether the evidence proved the custom, or whether the contract was not made in reference to such usage; if they did, they would find for the plaintiff.

There was a verdict for the plaintiff and from the judgment the defendant appealed.

*Iredell,*for the plaintiff.

A. *Moore,*for the defendant.

Nash, J.

We think his Honor erred in his instructions. The word *offal,*if not in general a word of art, may be such in the relation, in which it is used in this particular business, and therefore, may admit of parol evidence to show, in what sense, according to *the*custom of fishing, it is used. But here there can be no pretence, that there was any evidence of a general custom among the fishermen, upon the subject. Two witnesses were examined to this point. The first stated, that for nine years before 1837, he had lived as an overseer upon a plantation, to which was attached a fishery, which was under lease during a portion of that time ; and that both the lessee, and the owner, after the expiration of the lease, were in the habit, or custom, of cutting and trimming the herrings for market; and that the same custom existed in an ad-joiningfishery,buthe expressly stated thathe didnotknow, whether the lessees of those fisheries, cut and trimmed their herrings, “ in conformity to an existing custom, or in execution of the terms of their lease.” He further stated “ that there were *many*other fisheries on the Albe-marle sound, but that he had no acquaintance with any practice observed at them of cutting and trimming all the herrings caught at them.” The other witness stated, “that, previous to the year 1840, he had *very little acquaintance,*with the fishing business, and that it was not *112until *1842,*that the fishermen *began to put*up fish in gross.” Neither of these witnesses prove the existence of any general custom upon the subject. Oat of the many fisheries on the Albemarle, the plaintiff has selected two, how near to the one leased by the defendant, is not stated, and asks to hold them bound by the course pursued ■at them. - The second witness knows nothing of any custom of any kind previous to IS40. If the above evidence was properly received by the Court, it certainly was not such as would authorise the jury in finding the existence of any such general custom, as would control the plain and natural import of the words used in the lease. Nor is there any thing in the case to show, if such a custom did exist, that it was so general, that the parties in contracting this lease, must be presumed to have had reference to it. 3 *Pk. on Ev.*1410 and 1412. *Heald*v. *Cooper,*3 Greenleaf 32, cited there. What then is the natural meaning of the word *offal?*The best Lexicographers define it to be, “ waste meat, carrion, refuse, that which is thrown away as of no value, or fit only for beasts.” When used in a covenant of this kind, it must mean, that portion of the product of the seine, which is not used for food, and all the portion of *that*which is used for food, and which is taken *from it, in*preparing it for market, or merchantable fish, as by exposure, has become unfit for such use. Thus it often happens that many fish are caught, which are not fit for food; and, very often from the great abundance that are caught, many become spoilt; all these, as well as *the*cuttings and trimmings are *offal;*and these constituted what the defendants covenanted the plaintiff should enjoy. We consider nothing as *offal*at a fishery, which is fit for food, and is consumed or sold for that purpose. Have they been guilty of the first breach assigned in the plaintiff’s declaration? We think not. Is the second.breach sustained, by proof that in barrelling their fish whole, they have violated their contract ? We see no restriction in *113the covenant, as to the mode of preparing their fish for market. It is proved by the plaintiff, that, all the fish, caught previous to 1837, were not cut and trimmed, for many were barrelled as roe-herrings for family use. Herrings so put up are neither cut nor trimmed. They do not therefore furnish near so much offal, as those which are so prepared for market. What if the defendants, instead of putting up a few barrels of roe-herrings, had so prepared for market all that were fit for such purpose ; would it have been a violation of his covenant, even though one half or two thirds of all he caught, were so prepared ? Certainly not; and yet the profits of the plaintiff would, in that case, be as much diminished, as they are now, according to his complaint.

We are of opinion, that, under their lease, the defendants had a right to prepare their fish for market, in any way their own interest might dictate ; and that in bar-relling them in gross, they have not violated any right which the plaintiff has reserved to himself. The plaintiff might, if he had so chosen, have expressed in the covenant in what manner the fish should be prepared for market. They were his property, and the defendant could not have thrown them away unless the plaintiff had been guilty of unnecessary delay in removing them, nor have given them away, or sold them, or in any manner appropriated them to his own use.

Per Curiam. Judgment reversed, and a *venire de novo*awarded.