Walker v. Barron , 6 Minn. 508 ( 1861 )

By the Court. —

ElaNdrau, J.

— This action was brought to recover for the board and lodging of Defendant’s stage agent, his drivers and men, and for stabling his horses and teams. The complaint alleges the value of the board and lodging of the men and drivers, and the stabling for the teams, and sets out a special contract for the board of the stage agent at four dollars per week.

The answer alleges that the men and drivers were to be boarded upon a special contract, for two dollars per week, the consideration for which was that the Defendant would run his stages and passengers to Plaintiff’s hotel, and would give him the boarding and lodging of the men and drivers; and also sets up a special contract for the board of the agent at three dollars per week.

After conflicting testimony had been received concerning the existence of the special contracts alleged in the answer, the Defendant being upon the stand, was interrogated on his knowledge of the stage business, and disclosed that he had great experience therein, in Minnesota and elsewhere. He was then asked the following question:

“ Do you know whether it is customary among hotel keepers to make any difference in their charges for board between persons employed in the stage business and others, when stages run regularly to their hotel ?”

The question was objected to upon the ground that an usage, to be valid, must be fixed, certain, reasonable and general; established, known and uniform, and not contrary to law, and that the question did not tend to elicit testimony to this extent; also for irrelevancy, and to the form of the question.

Upon,this objection the testimony was excluded, and no further attempt was made to follow up the subject by the Defendant.

As one of the issues for the jury to pass upon was the existence of the contract to furnish the board and lodgings at a lower rate than claimed by the-Plaintiff, the consideration for which was alleged to be the running of the Defendant’s stages to the Plaintiff’s hotel, proof of the existence of a custom to board such men lower than others would have tended strongly to support the theory of the Defendant, and been a corroborating circumstance in aid of his having made the contract. We think such a custom might have been proved in this case. There is nothing unreasonable in such a custom, nor does it in any manner conflict with the rules of law or policy. It would not have been admissible to influence the contract made by the parties, if it was found that one was made, but simply as rendering it more probable that they made such a contract. It was admissible upon the issue of contract or no contract.

Proof of particular customs is generally allowed to aid Courts and juries in arriving at the - intention of parties when they perform acts or make contracts that are susceptible of more than one meaning. It is to place the Court in the position occupied by the party, and surround it with the same -influences that operated or might have operated upon him when acting. “ The law is not so unreasonable as to deny to the reader of any instrument the same light -which the writer enjoyed.” Wigram on Extr. Ev., 57-8; 2 Cow. & Hill’s Notes to Phil. Ev., 505. They may, however, like any other facts or circumstances, be shown when their existence will increase or diminish the probabilities of an act having been done or not done, which act is the subject of contest.

A custom, however, must be so well established in the particular locality, trade, profession -or business, to permit its being pi’oved, that all men transacting the business to which it relates, must be presumed to have knowledge of it, and to act and contract with reference to it. It is only because the custom is supposed to have influenced the parties who act within the sphere of its operation that it is admissible at all. It must therefore be clearly shown that the custom existed at the place where, and the time when the contract or act sought to be affected by it was made or performed. It is only in some exceptional cases that proof of an usage in one place is allowed to show that it existed in another.

The question propounded to the witness in this case, had no reference to the time when the contract was alleged to have been made, which was several years before, nor to the place where it was made. It' did not even refer to the county or state. It did not call for an established uniform custom that had become the law of the business referred to. It was therefore irrelevant and properly ruled out.

The case was once tried and the Plaintiff recovered a judgment. An appeal was taken to this Court and the judgment was reversed for error of the Judge in admitting testimony on the trial, and a new trial whs awarded, nothing being said by this Court as to costs. On the second trial the Plaintiff again had judgment, and claimed the right to tax the costs of the first trial in the Court below. In this he . was right. In all cases where a new trial is awarded for error committed by the Judge, the costs'of the irregular trial should abide the event oí the suit, and be recoverable by the party who ultimately succeeds.

Judgment affirmed.