Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-24

such custom. A general custom or
usage need not be pleaded. IL Cyc.,
Sec. 1897. Where a local custom is
relied upon as entering into, OF fore
going a part of a contract, it must
be pleaded. A local custom which is
merely incidental to an implied con-
tract, and relied upon only as evil
dence of some fact in issue, need not
be pleaded. Sherwood v. Home Saw.
Bank, 131 Ia, 52S.
1t may be helpful to inquire wheth-
er the customs referred to is a gen.
eral or a local one, within the mean
ing Of the rule. The witnesses testi-
flying were experts on the subject OF
Pacific Coast marine insurance, and
when they stated that the custom
was general and well understood
they, without doubt referred to the
Pacific Coast. If defendants answer
should be treated as a denial Of the
contract, we think, in order that the
transaction be fully understood, and
to explain what was said and done,
that 1t was competent for plaintiff to
prove such a custom. Insurance
agents and brokers in their negotia-
tion use words fraught with such
meaning, which would have but little
sense to one unacquainted with the
business. Taking the statement of
these witnesses, therefore, as correct,
1t would seem that the custom was
general in so far as It in any way
affected the dealings between plain
tiff and defendant. AS a matter of
fact it might be presumed that de-
fendant, doing brokerage business
in the marine insurance line, had
knowledge of such custom, If one
prevailed. Whitehouse v. Moore, 13
Abbott's Prac, 142. Mr.. Justice Lord,
in Sawtelle " Drew, 122 Mass, 229,
says. CuSIOul, WlLulh lue Lu6du-
ing of the law II general, is incor-
porated into and becomes a part of
every contract to which 1t is applica-
BILE; If local, of every contract made
by parties having knowledge of or
bound to know it's existence" In
our opinion this evidence is admis-
sible to prove the circumstances of
the alleged contract, and to explain
what was expressed in general way
perhaps, in order to determine the
understanding between the parties at
the time of making the arrangement,
upon what, If anything, their minds
met, or what their agreement was.
McCulsky v. Klosterman, 20 Or, 10S;
Holmes " Whitaker, 23 Or, 319, 1923.
In Hewitt " Week Lumber Co., II
Wis, 54S, where the jury found it
was, and had been for many years, a
general custom in the saw mills on
the Wisconsin river for the manufac-
turer to keep the slabs from manu-
factured logs it was held that the
custom was a general one, within the
meaning of the law, and therefore
could be proved without an allega-
tion thereof. "The proof of such is
always admitted without pleading it"
And in Fish v. Crawford Mfg. Co.,
120 Mich, 500: "The plaintiff claims
that by local custom the seller of
lumber to Chicago or Milwaukee pur-
chasers pays the entire of the in
spection charges, at least in the first
instance. The circuit judge left it
to the jury to find whether the GUS
tom claimed to exist in fact pre-
vailed, instructing the jury that a
custom, in order to be controlling
must be definite, precise and unvary-
ing. 1t is contended that it was err
ror to submit the question to the
jury, for two reasons: First, that
the custom was not declared upon
and, second, that the evidence did
not show custom. We think 1t was
not necessary to declare specially
upon this custom. 1t was in this
case only q matter of evidence ad.