policy was, that the adventure should begin only from the Downs, the Court would not admit the evidence (1). Lord Chief Justice Pemberton in that case said, that policies were sacred things, and that a merchant should no more be allowed to go from what he had subscribed in them, than he, who subscribes a bill of exchange payable at such a day, shall be allowed to go from it and say, it was agreed to be on condition, &c., when it may be, that the bill had been negotiated; for though neither of them are specialties, they are of great credit, and much for the support and advantage of trade.

The same rule of course applies to charter-parties; for they are under seal. Therefore, in a nisi prius case, where a ship was chartered to wait for convoy at Portsmouth, Lord Kenyon would not suffer a parol agreement to be set up on the other side to substitute Corunna for Portsmouth (2). And this doctrine was sustained by the court of King's Bench in the case of White v. Parkin (3), though they held that it did not apply to that particular case.

Upon the same principle, in an action on a promissory note or bill of exchange, the defendant will not be allowed to give evidence of an agreement, between him and the plaintiff, at the time of making the note, that it should be renewed, and that payment should not be demanded on its becoming due (4). So, in the case of contracts of hiring between masters of ships and seamen, (though they are directed by statute to be in writing under a penalty to be inflicted on the master, and it has not been decided that they are void, if unwritten,) still, when once reduced into writing, they cannot be varied or added to by parol. Thus, it was ruled in the court of Common Pleas, that a

mate in a slave-ship could not, on the ground of a verbal promise, claim the perquisite of the price of a negro slave beyond the wages due to him by certain written articles of agreement executed between the master, officers, and crew. (1)

However, it has been long determined by a variety of cases, that mercantile contracts, such as policies of insurance, charter-parties, and others of a like nature, are to be construed conformably with the usage and custom of merchants. On mercantile contracts relating to insurance, said Lord Hardwicke, in a case before him, courts of law examine and hear witnesses, of what is the usage and understanding of merchants conversant therein; for they have a style peculiar to themselves, which is short, yet is understood by them, and must be the rule of construction (2). Thus, where an insurance was on a ship from London to the East Indies, warranted to depart with convoy, the Court held, that this clause of warranty must be construed according to the usage among merchants, that is, from such place where convoys are to be had, as from the Downs (3); so, where the insurance is on goods till landed, and the defence is, that the plaintiff has been guilty of unreasonable delay in landing, the question can only be decided by knowing the usual practice of the trade, with which every underwriter is supposed to be acquainted, whether the practice has been recently or long established. (4)

It has indeed been doubted by judges of the highest authority, whether the practice of admitting such evidence has not been carried to an inconvenient length. In the late case of Anderson v. Pitcher (5), Lord Eldon C.J. expressed himself in the following terms: "It is now too late to say,

that this warranty is not to be expounded with due regard to the usage of trade. Perhaps it is to be lamented, that in policies of insurance, parties should not be left to express their own meaning by the terms of the instrument. This seems to have been the opinion of that great judge Lord Holt (1). It is true, indeed, that Lord Mansfield, who may be considered the establisher, if not the author, of a great part of this law, expressed himself thus: Wherever you render additional words necessary and multiply them, you also multiply doubts and criticisms (2).' Whether, however, it be not true, that as much subtilty is raised by the application of usage to the construction of a contract, as by the introduction of additional words, might, if the matter were res integra, be reasonably questioned.”

But though the usage of merchants, with reference to which the parties are supposed to contract, may be frequently resorted to for explaining or defining the terms of a policy, it is not, therefore, to be supposed that this species of contract is not subject to the same rules of construction as are applicable to other written instruments. The same rules of construction apply to every kind of contract. The terms of a policy are to be understood in their plain, ordinary, and proper sense, unless they have generally, in respect to the subject-matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the words; or unless the context evidently points out, that they must in the particular instance, and in order to effectuate the immediate intention of the parties, be understood in some other special and peculiar sense (3). Proof of usage is not admissible to contradict the plain unequivocal language of a policy; and therefore in an action on a policy of insurance" on the ship till moored at anchor twenty-four hours, and on the goods till discharged and safely landed," evidence having been ad

(1) Lethulier's case, 2 Salk. 443. (2) Lilly v. Ewer, 1 Doug. 74.

(3) Per Lord Ellenborough C. J. in delivering judgment in Robertson v. French, 4 East, 135.

Ff 2

mitted,

mitted, that by the custom of the trade the risk on the goods, as well as on the ship, expired in twenty-four hours, the Court of King's Bench granted a new trial on that ground, and on the new trial the evidence was rejected. (1)

This doctrine of admitting evidence of usage to explain and construe mercantile contracts is strongly illustrated by the case of Cutter v. Powell (2), which was an action of assumpsit brought by an administratrix for work and labour done by the deceased. It appeared that the captain of a ship had given a note to the deceased, by which he promised to pay a sum of money to the deceased, provided that he proceeded on a voyage, and continued to do his duty as second mate, to the port of destination. The second mate died on the voyage, and the question was, whether the plaintiff could recover in this general action any portion of the wages for the time the deceased had served. An inquiry had been made by the direction of the Court relative to the usage of merchants on this kind of agreement; but no settled usage could be ascertained one way or the other. Lord Kenyon in delivering his opinion, after stating, that the deceased stipulated to receive the larger sum if the whole duty were performed, and, unless the whole were performed, to receive nothing, added, that on this particular contract his opinion was at present formed; at the same time, said Lord Kenyon, if we were assured that these notes are in universal use, and that the commercial world have received and acted upon them in a different sense, I should give up my opinion. And Mr. Justice Lawrence said, "with regard to the common case of an hired servant, to which this has been compared, such a servant, though hired in a general way, is considered to be hired with reference to the general understanding upon the subject, that the servant shall be entitled to his wages for the time he serves, though he does not continue in the service during the whole year. So if the plaintiff in this case

(1) Parkinson v. Collier, sitt. after Mich. 1797, Park, Insur. 416. 15

(2) 6 T. R. 320.

could

could have proved any usage, that persons in the situation of this mate are entitled to wages in proportion to the time they served, the plaintiff might have recovered according to that usage. But if this is to depend altogether on the terms of the contract itself, the plaintiff cannot recover any thing."

within the

statute of

4. The same rule applies to all written agreements, Agreements which the statute of frauds requires to be in writing. They cannot be contradicted, or added to, or substantially varied frauds. by parol evidence (1); for such evidence would defeat the statute, and introduce that uncertainty, which it was the object of the legislature as far as possible to suppress. Where the rent for a house was specified in a written agreement to be twenty-six pounds a year, and the landlord in an action for use and occupation proposed to shew by parol evidence, that the tenant had also agreed to pay the ground-rent, the Court refused to admit the evidence (2). * So, where a tenant, having paid the land-tax, brought an action to recover it back from his landlord, and gave in evidence a written memorandum of agreement in the plaintiff's hand-writing, which specified the rent and terms, but was silent respecting the payment of taxes, the defendant offered parol evidence, that, previously to the drawing up

(1) Binsted v. Coleman, Bunb. 6.5. Parteriche v. Powlet, 2 Atk. 383. Meres v. Ansell, 3 Wils. 275. Wain v. Warlters, 5 East, 10.

(2) Preston v. Merceau, 2 Black. 1249.

* In the case of Preston v. Merceau, above cited, Mr. Justice Blackstone, after stating, that the Court could neither alter the rent nor the term, the two things expressed in the agreement, is reported to have added, “ that with respect to collateral matters it might be different; the plaintiff might shew, who was to put the house in repair, or the like, concerning which nothing is said.” But this opinion is not consistent with the principle established in Meres v. Ansell (3 Wils. 275.), Rich v. Jackson (4 Bro. Ch. C. 515.), Powell v. Edmunds (12 East, 6.), and several other cases above mentioned, which plainly shew, that parol evidence is not admissible either to vary or add to the terms of the written agreement. To add a new term, or to define what was before indefinite, is in effect to make a material variation.