not reduced to writing, may be proved by oral evidence. Venafra v. Johnson, 1 M. & Rob. 316.

Although no oral evidence can be used to add to or detract from the description in a deed, or to alter it in any respect, yet such evidence is always admissible to show the condition of every part of the property, and all other circumstances necessary to place the court when it construes an instrument in the position of the parties to it, so as to enable it to judge of the meaning of the instrument. Baird v Fortune, 4 Macq. 127, 149, per Ld. Wensleydale; Accord. Magee v. Lavell, L. R., 9 C. P. 107, 112. See also Inglis v. Buttery, 3 Ap. Ca. 552, D. P. The same rule applies in the case of a will, vide, post, p. 30; and see Way v. Hearn, 13 C. B., N. S. 292; 32 L. J., C. P. 34; Newell v. Radford, L. R., 3 C. P., 52; and Lewis v. Gt. W. Ry. Co., 3 Q. B. D. 195, C. A. See, however, Stanton v. Richardson, L. R. 7 C. P. 428, 434, per Brett, J.

Mere words of description in a deed of conveyance, not operating by way of estoppel, may be contradicted by oral evidence; thus the lessee of land, described as "meadow," may prove it to have been arable in an action by the lessor for ploughing it up; Skipwith v. Green, 1 Stra. 610; or he may show that land described as containing 500 acres does not in fact contain so many; S. C. as reported Bac. Ab. Pleas I. 11; or contains many more; Jack v. M'Intyre, 12 Cl. & Fin. 151; Manning v. Fitzgerald, 29 L. J., Ex. 24.

In a settlement case, where the deed of conveyance stated the consideration of the purchase to be 281., oral evidence was admitted to show that the consideration was in fact 301. R. v. Scammonden, 3 T. R. 474; and that money, stated in a deed of apprenticeship to have been paid by J. M., was in fact parish money. R. v. Llangunnor, 2 B. & Ad. 616. In these cases, however, the oral proof was admissible, not on the ground of its consistency with the writing, but because the recital in the deed was res inter alios, which the parishes were not estopped from correcting even by testimony inconsistent with the writing. So a parish may show a settlement by renting a tenement R. v. Wickham, in parish B., though the lease describes it as in parish A. 2 Ád. & E. 517.

Oral evidence admissible to prove fraud, illegality, or error.] Where fraud is imputed, any consideration or fact, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction; B. N. P. 173; Paxton v. Popham, 9 East, 421; for fraud is a matter extrinsic and collateral, which vitiates all transactions, even the most solemn. Thus, in order to set aside a will, oral evidence may be given of what passed at the signing, and what the testator said, to show that his signature was obtained by fraud. Doe d. Small v. Allen, 8 T. R. 147. And, in general, matter which in law avoids an instrument, whether it be fraud, forgery, duress, illegality, &c., may be proved orally, however contradictory to its tenor, provided the pleadings be adapted to such evidence. See Doe d. Chandler v. Ford, 3 Ad. & E. 649; and 1 Smith's L. Cases, Collins v. Blantern, in notis.

Evidence is sometimes admissible to show a mistake in a writing; thus a contract, usurious on the face of it, might have been explained by showing it was made so by a clerical error. Anon., Freem. 253; Booth v. Cooke, Id. 264. So a house, misdescribed in a lease as No. 38, may be shown to be in truth No. 35. Hutchins v. Scott, 2 M. & W. 816, per Curiam. See also Hutchin v. Groom, 5 C. B. 515. But where a verdict and judgment were given in evidence to prove a public way, the court will not admit proof that the verdict was entered erroneously by the mistake of the officer. Reed v. Jackson, 1 East, 355. The record in the first action should have been amended

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by leave of the court. But where a Nisi Prius record was put in evidence to prove damages in a suit against the plaintiff, and the postea did not show on which of two different counts the damages were in fact given, oral evidence was admitted to prove that they were recovered, substantially, on one of the counts only, this being no contradiction of the record, the verdict and damages having been entered generally. Preston v. Peeke, E. B. & E. 336; 27 L. J., Q. B. 424. Proof of a material and substantial error in the frame of a subsisting contract cannot in general be set up in an action upon it; Perez v. Oleaga, 11 Exch. 506; 25 L. J., Ex. 65; Solvency Mutual Guarantee Co. v. Freeman, 7 H. & N. 17 ; 31 L. J., Ex. 197; except by way of a claim for rectification under the J. Act, 1873, s. 24 (1-3), on the ground of common mistake. But there is no occasion to reform the contract where an agent is wrongly described as principal; Wake v. Harrop, 6 H. & N. 768; 30 L. J., Ex. 273; 1 H. & C. 202; 31 L. J., Ex. 451, Ex. Ch. ; or where it has been completely executed according to the intention of the parties; Steele v. Haddock, 10 Exch. 643; 24 L. J., Ex. 78; Luce v. Izod, 1 H. & N. 245; 25 L. J., Ex. 307; Vorley v. Barrett, 1 C. B., N. S. 225; 26 L. J., C. P. 1; or where the full performance has become impracticable by reason of the default of the plaintiff. Borrowman v. Rossel, 16 C. B., N. S. 58; 33 L. J., C. P. 111. And in such cases the mistake will afford a defence without rectification. As to when rectification will be ordered, see Story, Eq. Jur. §§ 152, et seq.

Oral evidence, when admissible to explain mercantile contracts and words of art.] Where the parties have contracted in writing, in many instances oral evidence is admitted to prove an usage affecting the contract, on the ground that, where such usage exists, the parties must be taken to have made their contract subject to its operation. And such evidence is sometimes admitted as explanatory of the language of the writing, and sometimes as superadding a tacitly implied incident. Thus, oral evidence is always admitted to show the sense in which, according to the custom of merchants, a mercantile contract is to be understood. See 1 Smith's L. Cases, Wigglesworth v. Dallison, in notis. In such a case it is unobjectionable to ask a witness whether there is any generally understood meaning of certain words among persons engaged in the particular trade or commerce under investigation. Robertson v. Jackson, 2 C. B. 412. And such a question must be put to the witness before he is asked what he understands by the written contract to which it is meant to apply the usage. Curtis v. Peek, 13 W. R., 230 M. T. 1861, Ex. Ch.

Where a ship was warranted to depart with convoy, evidence of usage was admitted to show that this meant convoy from the usual place of rendezvous. Lethulier's case, 2 Salk. 443. So, to explain the meaning of "days" in a bill of lading; Cochran v. Retberg, 3 Esp. 121; to show that the Gulf of Finland is considered by mariners to be within the Baltic; Uhde v. Walters, 3 Camp. 16; or the Mauritius to be an East Indian Ísland. Robertson v. Money, Ry. & M. 75. So evidence was admitted to explain the term "privilege" in a contract between shipowner and captain; Birch v. Depeyster, 4 Camp. 385; and to show the received meaning of "mess pork of S. & Co." Powell v. Horton, 2 N. C. 668. Where the captain of a ship agreed to convey a boat of certain dimensions for the plaintiff, evidence was admitted on behalf of the captain that the practice was to remove the deck of such boats when put on board. Haynes v. Holliday, 7 Bing. 587. Apparent variances in bought and sold notes may be reconciled by the evidence of brokers. Bold v. Rayner, 1 M. & W. 343; Kempson v. Boyle, 3 H. & C. 763; 34 L. J., Ex. 191, quoted post, Action for not accepting Goods. Where it was represented to an insurer that the ship would sail from St. Domingo in October, he was permitted to show in his defence that this was

understood among merchants to mean between the 25th and the end of October, whereas the ship sailed on the 11th. Chaurand v. Augerstein, Peake, 43. Oral evidence may be given to explain the meaning of the word level in a mining lease; Clayton v. Gregson, 5 Ad. & E. 302; and of the words "across the country " in a wager on a race. Evans v. Pratt, 3 M. & Gr. 759. In a contract for the purchase of " 1,170 bales of gambier," it was held that it might be shown that by the usage of that trade a "bale" meant a compressed package, weighing about two cwt. Gorrissen v. Perrin, 2 C. B., N. S. 681; 27 L. J., C. P. 29. See also Taylor v. Briggs, 2 C. & P. 525. So where instructions were given by a principal residing out of England to his factor to sell corn, a custom in the London corn market to sell in the factor's own name is admissible to explain the instructions. Johnston v. Usborne, 11 Ad. & E. 549. On a sale of goods by a manufacturer who is not a dealer, evidence is admissible of a custom in the particular trade to deliver goods of another manufacturer. Johnson v. Raylton, 7 Q. B. D. 438, C.A. A sale of tobacco may be explained to be a sale by sample by the general usage of the trade, although the bought and sold notes are silent as to sample. Syers v. Jonas, 2 Exch. 111. So an engagement by a public singer for three years may be explained to mean three theatrical seasons. Grant v. Maddox, 15 M. & W. 737. In an action by a shipowner on a contract to pay freight at a certain rate per lb., defendant was allowed to show a custom of the trade at a particular port to allow three months' discount on freights on goods coming from certain ports. Brown v. Byrne, 3 E. & B. 703; 23 L. J., Q. B. 313. "After arrival" at a named island may be explained to mean after arrival at a place at sea some miles off the usual port, if it be a place of ordinary anchorage; and this is a question for the jury. Lindsay v. Janson, 4 H. & N. 699; 28 L. J., Ex. 315. Where by a charterparty the shipowner agreed to consign the ship to A. B., at Calcutta "on the usual and customary terms," a custom may be proved for consignee to procure the homeward freight on commission; Robertson v. Wait, 8 Exch. 299; 22 L. J., Ex. 209; but where the charter provides that the consignment is to be "free of commission," and says nothing of usual terms, the charterer cannot set up such custom by oral evidence in an action against the shipowner for not allowing the consignee to procure the homeward freight. Phillipps v. Briard, 1 H. & N. 21; 25 L. J., Ex. 233. "A full and complete cargo of sugar" may be explained to mean full and complete according to the customary mode of packing and loading sugar at the port where it is loaded. Cuthbert v. Cumming, 11 Exch. 405; 24 L. J., Ex. 310, Ex. Ch. So "regular turns of loading" or "in turns to deliver," may be explained by local usage. Leidemann v. Schultz, 14 C. B. 318; 23 L. J., C. P. 17 ; Robertson v. Jackson, 2 C. B. 412. So the custom of the port as to when lay days commence. Norden Steam Co. v. Dempsey, 1 C. P. D. 654. "Fifty tons best palm oil, with a fair allowance for inferior oil, if any," may be explained to be satisfied by the delivery of 50 tons, of which the greater part is inferior. Lucas v. Bristow, E. B. & E. 907; 27 L. J., Q. B. 364. A contract in writing to do stone and brickwork at the rate of "3s. per superficial yard of work 9 inches thick, and finding all materials, deducting all lights," was held not to exclude a custom in the trade to reduce all brickwork for the purpose of measurement to 9 inches in thickness. Symonds v. Floyd, 6 C. B., N. S. 691. So a contract to do certain work and to deliver "a weekly account of work done" was held not inconsistent with a usage in the building trade, that this clause related not to all the work contracted to be done, but to that part only which was of a particular kind. Myers v. Sarl, 3 E. & E. 306; 30 L. J., Q. B. 9. Where there was a written contract for the sale of shares at a certain price, "for payment half in two, half in four months," it was held, that evidence was admissible that the

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seller was by usage not bound to deliver the shares until the appointed time for payment unless the buyer chose to pay for them earlier. Field v. Lelean, 6 H. & N. 627; 30 L. J., Ex. 168, Ex. Ch. See the case of Spartali v. Benecke, post, p. 24, and observations thereon. The usage of a particular port, that the underwriters are not liable for general average in respect of the jettison of timber stowed on the deck can be annexed to a policy making the underwriter liable for general average without restriction. Miller v. Tetherington, 6 H. & N. 278 ; 30 L. J., Ex. 217; 7 H. & N. 954 ; 31 L. J., Ex. 363, Ex. Ch. By a bill of lading of wool freight was to be paid "at the rate of 80s. per ton of 20 cwt. gross weight, tallow and other goods, grain or seed, in proportion as per London Baltic printed rates; evidence was admitted to show that by the usage of the trade this meant that 80s. per ton of 20 cwt. of tallow was to be taken as the standard by which the rate of freight on all other goods was to be measured. Russian S. Navigation Trading Co. v. Silva, 13 C. B., N. S. 610. The question whether a cargo "for shipment in June" was satisfied by a cargo which was loaded half in May and half in June, was held by Martin, B., and Lush., J. (dub. Kelly, C. B., and Blackburn, J.), to be a question for the jury; Alexander v. Vanderzee, L. R., 7 C. P. 530, Ex. Ch. See observations on this case in Shand v. Bowes, 2 Ap. Ca. 455, D. P. So, on a sale of goods to be paid for in from "six to eight weeks," the question of the length of credit thereby allowed was left to the jury, the words apart from usage being insensible. Ashford v. Redford, L. R., 9 C. P. 20. A written agreement at a yearly salary and a bonus at the year's end in case of the employer's approval, may be qualified by proof of a trade custom to dismiss at a month's notice. Parker v. Ibbetson, 4 C. B., N. S. 346; 27 L. J., C. P. 236; and see post, Action for wrongful dismissal.

With reference to the evidence necessary to support an alleged usage, it was said in Ghose v. Manickchund, 7 Moo. Ind. App. 263, 282, that "there needs not either the antiquity, the uniformity, or the notoriety of custom, which in respect of all these becomes a local law. The usage may be still in course of growth; it may require evidence for its support in each case; but in the result it is enough, if it appear to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract." The usage must be shown to be certain and reasonable, and so universally acquiesced in that everybody in the particular trade knows it, or might know it if he took the pains to inquire. Plaice v. Allcock, 4 F. & F. 1074, per Willes, J.; Foxall v. International Land Credit Co., 16 L. T., N. S., 637, cor. Byles, J.

Where it is attempted to engraft on a contract some usage of a particular trade or local custom, the opposite party is at liberty to disprove the usage or custom by the like evidence, and for that purpose to show other previous transactions in like cases between the same parties wherein the supposed usage or custom was not acted on. Bourne v. Gatliffe, 3 M. & Gr. 643.

If the usage exists, and it is not inconsistent with the written contract, it is precisely the same as if it were written in words attached to the contract and it cannot be got rid of by proof of an oral agreement to waive or vary it. Fawkes v. Lamb, 31 L. J., Q. B. 98. See also Burges v. Wickham, 3 B. & S. 669; 33 L. J., Q. B. 17; Clapham v. Langton, 5 B. & S. 729; 34 L. J., Q. B. 46, Ex. Ch.

It has been said that the words " usage of trade" are to be understood as referring to a particular usage to be established by evidence, and perfectly distinct from the general custom of merchants, which is the universal established law of the land, which is to be collected from decisions, legal principles and analogies, not from evidence in pais, and the knowledge of which resides in the breast of the judge. 1 Smith, L. Cases, 7th ed., p. 610; 8th ed.

p. 610. Thus, in Suse v. Pompe, 8 C. B., N. S. 538; 30 L. J., C. P., 75 ; Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., C. P. 289, evidence of a general custom was not admitted to contradict the law merchant. That law has, however, been gradually developed by judicial decisions, ratifying the usages of merchants in the different departments of trade; Goodwin v. Robarts, L. R., 10 Ex., 337, 346, per Ex. Ch.; and "where a general usage has been judicially ascertained and established it becomes part of the law merchant which courts of justice are bound to know and recognise." Id. citing Brandão, v. Barnett, 12 Cl. & F. 805, per Lord Campbell. It is not easy to define the period at which a usage so becomes incorporated into the law merchant. See further 1 Smith's L. C. 8th ed., pp. 606-8. also Kidston v. Empire Marine Insurance Co., L. R., 1 C. P. 535; L. R., 2 C. P. 357, Ex. Ch.

See

Proof of the usage of trade is not admissible to contradict the plain words of an instrument not used in a technical sense; as where a policy of insurance was "on the ship till moored at anchor 24 hours, and on the goods till discharged and safely landed," evidence of a usage that the risk on the goods, as well as the ship, expired in 24 hours, was held inadmissible to qualify the unequivocal words of the policy. Parkinson v. Collier, Park. Ins. 6th ed. 416. So where a charterparty provides that the vessel is to deliver at H., << or so near thereto as she could safely get," a custom that the charterer should take delivery at H. only is excluded. Hayton v. Irwin, 5 C. P. D. 130, C. A. See also The Alhambra, 6 P. D. 68, C. A. So a contract for payment in money cannot be explained to mean payment in goods; but it may be shown that goods were in fact accepted as cash in the particular transaction. Smith v. Battams, 26 L. J., Ex. 232. So where goods are sold under a memorandum to be paid for by bill, oral evidence is inadmissible to show that bill means approved bill. Hodgson v. Davies, 2 Camp. 530. So in an action on a warranty of "prime singed bacon," oral evidence was rejected of a practice in the bacon trade to receive bacon in some degree tainted as "prime singed bacon." Yates v. Pym, 6 Taunt. 446; 2 Marsh. 141. So oral evidence is not admissible to explain the meaning of the words "More or less" in a mercantile contract; semble, Cross v. Eglin, 2 B. & Ad. 106; or to show that "cargo" and "freight" apply to passengers as well as goods; Lewis v. Marshall, 7 M. & Gr. 729; or to show that boats on the outside of a ship, slung upon the quarter, are not protected by a marine policy in the usual form on the ship and furniture; Blackett v. R. Exchange Assur. Co., 2 C. & J. 244; or to show a custom within the port of London that the insurers of jettisoned goods are only liable for the share of the loss cast upon the owner of jettisoned goods in the general average statement; Dickenson v. Jardine, L. R., 3 C. P. 639; or to show that a contract to sell ware potatoes" means a certain sort of "ware potatoes;" Smith v. Jeffryes, 15 M. & W. 561; or that, on a contract to sell wool "to be paid for by cash in one month, less 5 per cent. discount," the vendor has a lien on it for payment by usage of the trade; Spartali v. Benecke, 10 C. B. 212; 19 L. J., C. P. 293; Godts v. Rose, 25 Î. J., C. P. 61. The case of Spartali v. Benecke, supra, was a good deal observed upon by the Ex. Ch. in Field v. Lelean, 6 H. & N. 627; 30 L. J., Ex. 170; ante, p. 23; but the difference of opinion is not as to the principle, but as to the meaning of the contract and the effect of the custom. See also Phillipps v. Briard, 1 H. & N. 21 ; 25 L. J., Ex. 233; ante, p. 22. Oral evidence of what the parties meant by a provision in the sale of a cargo, that " 14 days are to be allowed for delivery," was not admitted; but if evidence of a general usage explaining those words had been offered, it would perhaps have been admissible. Sotilichos v. Kemp, 3 Exch. 105. In a contract for the sale of tallow by defendant in the name of a broker who was his known representative, the

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