Sawtelle v. Drew
| Decision Date | 07 March 1877 |
| Citation | 122 Mass. 228 |
| Parties | Eli A. Sawtelle v. Thomas Drew |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 20, 1876
Suffolk. Contract for breach of a written agreement to hire the plaintiff's house. The answer contained a general denial, and alleged that the agreement was "based upon conditions, stipulations and promises" made by the plaintiff, both before and after making the agreement, that the house should be cleansed, and that it was not so cleansed.
At the trial in the Superior Court, Gardner, J., against the plaintiff's objection, permitted the defendant to put in evidence tending to prove "that a universal custom and usage prevailed in the locality in which said house was situated, by force of which a lessor was required to cleanse a leased house before the lessee entered into possession of it." There was no evidence in the case that the plaintiff had any knowledge of the alleged custom and usage other than that which all persons might be presumed to have if it did in fact exist. The defendant contended that, after the agreement was written, the parties made another agreement, by which the cleansing of the house by the plaintiff should be made before the defendant took possession; and upon this there was conflicting evidence, as there was also on the point whether there was any consideration for this new agreement. The case was submitted to the jury under instructions not objected to. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.
Exceptions sustained.
S. A. B. Abbott & C. T. Lovering, for the plaintiff.
P. Thacher & S. Thacher, for the defendant, submitted the case without argument.
OPINION
It is altogether probable that the ruling complained of in this case was wholly immaterial and had no influence upon its decision. It does not, however, so certainly appear upon the bill of exceptions as to authorize the court to say that it could have had no such influence. The evidence to which objection is made related to a custom or usage, and it is necessary to apprehend precisely what was the custom which the defendant offered to prove; and it is offered in these words, "that a universal custom and usage prevailed in the locality in which said house was situated, by force of which a lessor was required to cleanse a leased house before the lessee entered into possession of it." It would be hypercritical, perhaps, to construe the phrase "the locality in which said house was situated" to mean any other than the vicinity or neighborhood, or perhaps town or city, in which the house was. Giving the phrase this construction, we are to inquire: First, Is this the subject of a custom? And, Second, If it be a proper custom, is it one of which all parties are bound in law to take notice?
A custom, within the meaning of the law, if general, is incorporated into and becomes a part of every contract to which it is applicable; if local, of every contract made by parties having knowledge of or bound to know its existence. It must be certain, definite, precise and...
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Conahan v. Fisher
...Such a custom would be a bad one.’ As matter of the strict authority of decisions, the case at bar on this point is governed by Sawtelle v. Drew, 122 Mass. 228, where it was held that a custom to engraft upon an agreement to hire a house, a custom that a lessor was required to clean a house......
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Fritz v. Western Union Tel. Co.
... ... Me. 78; Chalearegay, etc., Co. v. Blake, 144 U.S ... 476; Rindskoff v. Barrett, 14 Iowa 101; Higgins ... v. Moore, 34 N.Y. 425; Sawtelle v. Drew, 122 ... Mass. 228; Isaksson v. Williams, 26 F. 642; ... Flatt v. Osborne, 33 Minn. 98; Johnson v ... Gilfallin, 8 Minn. 352; ... ...
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Portland Postal Employees Credit Union v. U.S. Nat. Bank
...the bank would honor orders drawn on the plaintiff's account. There was, however, an implied contract between the parties. In Sawtelle v. Drew, 122 Mass. 228, it is "A custom, within the meaning of the law, if general, is incorporated into and becomes a part of every contract to which it is......
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Howard v. New York, N.H.&H.R. Co.
...& Maine R. R., 153 Mass. 188, 26 N. E. 446;Massell v. Boston Elevated R. R., 191 Mass. 491, 78 N. E. 108. See in this connection Sawtelle v. Drew, 122 Mass. 228;Brady v. New York, New Haven & Hartford R. R., 184 Mass. 225, 228, 229, 68 N. E. 227;Conahan v. Fisher, 233 Mass. 234, 124 N. E. 1......