Rogers v. Allen , 47 N.H. 529 ( 1867 )

Nesmith, J.

Chapter 2612 of the Pamphlet Laws of 1862, enacts "that all round timber, the quantity of which is estimated by the thousand, shall be measured according to the following rule, viz. : A stick of timber sixteen inches in diameter, and twelve inches in length, shall constitute one cubic foot, and the same ratio for any size and quantity; each cubic foot shall constitute ten feet of a thousand.”

The question before the court is, shall the quantity of logs, embraced in this case, be ascertained or estimated by the aforesaid statute, or by the local usage, known as the Blodgett measure, which is admitted to allow at the rate of 115 feet for a thousand? It is a familiar elementary principle, and generally of binding force, that contracts' made and entered into by the citizens of any State, or country, are to be understood as having been made in reference to the existing laws, and under a tacit consent, that such contracts shall be governed or modified by such laws.

The existing law of the place, where personal contracts are thus made, is of course to govern as to their construction and validity, unless they are to be performed in another State or country, in which case the construction or validity will depend upon the law of the place of the performance. 2 Kent’s Com. 454; Story’s Conflict of Laws, secs. 242, 257 ; Mather v. Buck, 16 Johns. 233; Thompson v. Ketchum, 8 Johns. 189 ; 4 Cowan 510 ; Smith v. Godfrey, 28 N. H. 379.

Proof, in relation to the existence and the extent of the application of usage or custom, is often admissible, for the purpose of explaining the meaning of the parties to the same, or particular terms or words used in the contract, and also as to the general course of trade. But usages or custom are not permitted to have effect to contravene any established general rule of the law, and therefore evidence in proof of any such usage is ordinarily inadmissible. Foye v. Leighton, 22 N. H. 71; Swampscott Man. Co. v. Partridge, 25 N. H. 369 ; George v. Bartlett, 22 N. H. 496.

This rule excludes both general and local usage, when the evidence offered is opposed to, or alters, the well settled) principles, either of the common or statute law. In addition to the authorities referred to in the note in 2 Greenleaf, page 272, we give, also, Strong v. Bliss, 6 Met. 393; Cole v. Goodwin, 19 Wend. 252; Heaton v. Locke, 5 Hill 437; Bank v. Carter, 20 N. H. 246, and many other authorities quoted in the briefs of counsel for plaintiffs.

In Perkins v. The Franklin Bank, 21 Pick. 483, evidence was offered, tending to show, that, according to the usage and custom of banks, the note in fact would be deemed a post note, and payable without grace. Shaw, C. J., remarks : "We think such usage and understanding are not admissible to control the express provisions of a statute. The tendency of the evidence would be to show, that, in its application to post notes, the statute is disregarded, or not deemed applicable. But the statute makes no distinctions between bank post notes and other notes, and the general description of all notes, payable at a future day certain, is broad enough to include them. The construction of a statute is matter of law, and when clear and explicit, cannot be controlled by custom. If this custom existed before the statute was passed, then the statute did away with the effects of it. If it has grown up since, it was bad in the first instance, and in every repeated instance, and cannot be made good by time.” The evident intent of our statute was to abolish the use of a local custom in measuring lumber, that had prevailed here only in some localities, and to a limited extent elsewhere. It had never existed from time immemorial, nor had it been continued here without interruption, was peaceably acquiesced in, and was never compulsory upon all our citizens. Blodgett’s survey, as a local custom, was not certain and binding as a uniform rule of law upon all the people of this State, much less upon those interested in the sale or purchase of lumber out of the State. 3 Blackstone Com. 76 ; Dickinson v. Gray, 7 Allen 29 ; Freary v. Cook, 14 Mass. 488.

It appearing, then, that, before the present contract was made, our legislature had introduced a new rule of action, having for its objects equity and uniformity, binding all within its power; and the parties in this case having thought proper to make an important bargain in this State under the power of the law; and the defendant having reserved no stipulation in his own behalf for any other survey of the lumber, except what the statute might prescribe, we think it now too late for him to claim, against the plaintiff’s consent, the advantages that might accrue to him from the Blodgett survey, therefore that the ruling of the court was correct, excluding the testimony offered by the defendant.

There must be judgment for plaintiff, unless the defendant elects to try the cause by the jury.

Qase discharged.