Appeal
from district court, Missoula county; F. H. Woody, Judge.
DE
WITT, J. (after stating the facts).
There
is no question but the evidence supports the verdict. It
stands undenied that the services were rendered at the
special instance and request of the defendant, and that they
were worth the amount charged. The only point in the case is
the exclusion by the court of certain testimony offered by
the defendant. The defendant's counsel offered to prove
by defendant and one other physician that there was a custom
prevailing among physicians and surgeons in Missoula and
vicinity that, unless there is a special agreement to the
contrary before the services are performed, for which an
assistant is called, such as plaintiff, that the
"assistant," so called, is to look to the patient
and not to the principal physician or surgeon for his pay.
This proffered testimony was rejected by the court, and error
in such action is assigned. The contract of the parties
stands practically admitted by the testimony to be that the
defendant employed the plaintiff to perform the services, and
the facts in evidence show a contract between plaintiff and
defendant. Defendant was liable for plaintiff's services.
The offer was made to prove a custom or usage to the effect
that the defendant was not liable at all, either primarily or
secondarily. We are of the opinion that this testimony was
properly excluded.
It is
said by Dixon, C.J., in Lamb v. Klaus, 30 Wis. 94
quoting and approving Foye v. Leighton, 2 Fost. (N
H.) 75, that: "A usage explains and ascertains the
intent of the parties. It cannot be in opposition to any
principle of general policy, nor inconsistent with the terms
of the agreement between the parties; for it incorporates
itself into the terms of the agreement, and becomes a part of
it. It must be known and established. It must appear to be so
well settled, so uniformly acted upon, and of so long a
continuance, as to raise a fair presumption that it was known
to both contracting parties, and that they contracted in
reference to it and in conformity with it." The supreme
court of Maryland uses the following language upon this
subject: "The authorities all hold that a usage, to be
admissible, must be proved to be known to the parties, or be
so general and well established that knowledge and adoption
of it may be presumed; and it must be certain and uniform.
Foley v. Mason, 6 Md. 51; Second Nat. Bank of
Baltimore v. Western Nat. Bank of Baltimore, 51 Md. 128;
Bank v. Grafflin, 31 Md. 520; Patterson v
Crowther 70 Md. 125, 16
Atl. 531." Exhibition Co. v. Pickett (Md). 28 A. 279. In
the case of Park v. Insurance Co., 48 Ga. 601, the
offer was to prove a certain usage or custom in the life
insurance business. The question propounded to witness was:
"'Do you know of any usage or custom in the life
insurance business as to the commutation of renewals,
etc.?' The proper question would have been, 'What is
the general or universal usage and custom in the life
insurance business as to the commutation of renewals,
etc.?' The usage or custom, to be binding, must be a
general one, and of universal practice, as applicable to that
particular business." The court also said: "The
contract of the parties in this case was that the defendants
should receive for their services twenty per centum on all
sums collected by them for first year's premium
insurance, and seven and one-half per centum on all sums
received by them for continued renewals of policies. This
contract is plain and explicit. There is no doubt or
ambiguity as to the meaning of it, or as to the intention of
the parties; but it is contended the evidence was admissible
to annex an incident to the contract by the proof of usage or
custom. But in all cases of this sort the rule for admitting
the evidence of usage or custom must be taken with this
qualification that the evidence be not repugnant to or
inconsistent with the contract." We find the following
in 1 Rice, Ev. p. 278: "Custom and usage are resorted to
only to ascertain and explain the meaning and intention of
the parties to a contract when the same could not be
ascertained without extrinsic evidence, but never to
contravene the express stipulations; and, if there is no
uncertainty as to the terms of a contract, usage cannot be
proved to contradict or qualify its provisions. Barnard
v. Kellogg, 10 Wall. 383; Bradley v. Wheeler,
44 N.Y. 495; Wheeler v. New Bould, 16 N.Y. 392;
Walls v. Bailey, 49 N.Y. 464. In matters as to which
a contract is silent, custom and usage may be resorted to for
the purpose of annexing incidents to it. Hutton v.
Warren, 1 Mees. & W. 466; Wigglesworth v. Dallison,
1 Doug. 201. But the incident sought to be imported into
the contract must not be inconsistent with its...
