1884 PITT v. JONES. ascertain what was equivocal; or to annex particulars and incidents which, although not mentioned in the contracts, were connected with them or with the relations growing out of them; and the evidence in such cases is admitted, with the view of giving effect, as far as can be done, to the presumed intention of the parties." This is more shortly and more neatly expressed by Lord Denman, in Trueman v. Loder (23):-"Custom of trade has been supposed to form a virtual exception to this wellknown rule; but the cases go no further than to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract." This is in substance what is stated in Phillips on Evidence, and what appears from Lord Campbell's judgment, which I have referred to, viz.: that evidence of custom is allowable in order to explain the sense in which words are used, and to add terms not inconsistent with a written contract. In the case of Humphrey v. Dale (24), it was sought to make a broker or commission agent liable, by giving evidence of a custom that, by not disclosing the name of his principal, he might himself be looked to as the purchaser, although the contract was made with him as an agent. The custom was admitted, not to show that he was liable on a contract by which, on the face of it, he was not bound as principal, but to show that he made another contract that, if he did not disclose the name of his principal within a reasonable time, he would be held liable. In that case the effect of the usage was to make the defendant responsible on an implied contract, but here it is sought to alter the legal effect of a contract by evidence of witnesses called to establish a custom. Here the contract is clear, the rights of the parties are clear; but there, admitting that a broker acting for a principal would not be liable, it was held that, if he did not disclose the name of the principal, he might become liable. There was in that case no altering of the law, and no taking away of any right which the law gave under the contract. However that may be, the case came before the Court of Exchequer, who, by a majority of four to three, upheld the decision of the Court below. But the judges in the (23) 11 Ad. & E. 589. (24) 7 E. & B. 266; E. B. & E. 1004; 26 L.J., Q.B. 137; 27 L.J., Q.B. 390. minority were unusually decisive in the expression of their opinions against the soundness of the view taken by the majority of the Court. Two or three cases have been decided on the authority of that decision, and the last case cited by the defendants is that of Hutchinson v. Tatham (25), where Bovill, C.J., says, at p. 485: "The question, therefore, arises whether evidence is admissible to add a term not expressed in the contract, to the effect that, if the principal be not disclosed within a reasonable time from the signing of the contract, then the agent is to be personally liable. It is a general rule that evidence is admissible for the purpose of explaining the terms of a contract with reference to the usages of a particular trade, and of showing that a term, which primâ facie would have one meaning, may have, in such a trade, another well-understood meaning." The learned Chief Justice does not say that evidence of usage is admissible for the purpose of altering the legal effect of a contract, but only in order to explain the meaning of its terms. He then goes on to say:-" The question sometimes arises as to the meaning of a particular expression, but it also often arises as to whether, on a contract, which purports to be made by a party only as agent, he can be charged as principal." In that case there was nothing like what there is here an attempt to take the right to recover money from a person whom the law had declared to be entitled to it. It would be without precedent to allow so clear a right to be taken away by any evidence of custom. It would be as reasonable to admit evidence of a custom for the purpose of showing that, in certain transactions, the laws affecting real property should not be applicable. Further on His Lordship says:-" After the cases of Humphrey v. Dale and Fleet v. Murton, it seems to me impossible to contend that the evidence is inadmissible." That is certainly a somewhat singular remark, when we see what really was decided in Humphrey v. Dale. Brett, J., says: -"So strong do I consider the terms of this contract in this respect, taking the terms in the body and the signature together, that, were evidence offered to show that from the beginning the defendants were liable as principals, I should be prepared not to (25) L.R. 8 C.P. 482. 1884 PITT v. JONES. 1884 PITT บ. JONES. admit it; but the cases have lately gone very far as to the admissibility of evidence of custom. It is clear, however, that no such evidence can be admitted to contradict the plain terms of a document." Keating, J., says, that he agreed with Brett, J., that the present case goes somewhat beyond any case yet decided: "but still I think that it is fairly within the authority of Humphrey v. Dale and Fleet v. Murton." These are the principal authorities relied on in support of the defendants' contention. We are not bound in this Court by any decision, except that of the Privy Council; but we always pay the same deference to the decisions of English Courts which each of those Courts pays to the other; and to the Court of Appeal. Blackburn, J., in Humphrey v. Dale (26), throws out a hint as to the propriety of that case being taken to the House of Lords, and all the cases speak doubtfully of the decision in Hutchinson v. Tatham (27), in which the ruling of the Court of Appeal is not, to my mind, free from doubt. I am not bound, however, to go the length of questioning that decision, because I am of opinion that the facts of the case we are now considering do not fall within any one of those cited by the defendants. This is not a case of annexing some incident to a contract, or or explaining some of its terms, but the defendants are seeking to alter the contract, by taking away a right acquired under it. That being so, I am of opinion that I was right in the view which I took. Granting the cases cited by the defendants to be good law, I think they do not apply. To hold otherwise is, in my opinion, equivalent to handing over to a body of traders the right to say what the legal effect of a certain document shall be-a course not warranted by any authority with which I am acquainted. As to the policy of admitting evidence of custom, several judges and text writers have over and over again expressed adverse opinions. In Robinson v. Mollett (28), Mellor, J ., says: "I have always understood that limit to be, that such evidence is admissible only to explain mercantile expressions, and to add incidents or to annex usual terms and conditions which are not inconsistent with written terms between the parties." (26) 7 E. & B. 266; E. B. & E. 1004; 26 L.J., Q. B. 137; 27 L.J., Q.B. 390. (27) L.R. 8 C.P. 482. And in 2 Taylor on Evidence is the following quotation from the judgment of Lord Denman, in Trueman v. Loder (29) :-" Again, what can be more difficult than to ascertain as a matter of fact how far the prevalence of what is called a custom in trade is to justify a verdict that it forms part of every contract? Debate may also be fairly raised as to the right to bind strangers by customs probably unknown to them; a conflict may exist between the customs of two different places; and supposing all these difficulties removed and the custom fully proved, still it will almost always remain doubtful whether the parties to the individual contract really meant that it should include the custom." And again, the late Mr. Justice Storey has expressed the same sentiment. He says: "I own myself no friend of the almost indiscriminate habit of late years of setting up particular usages in almost all kinds of business or trade, to control, vary, and annul the general liabilities of parties under the common law as well as in commercial law. It has long appeared to me that there is no small danger in permitting such loose and inconclusive usages and customs, often unknown to particular parties, and always liable to great misunderstanding, misrepresentation, and abuse, to outweigh the well-known and well-selected principles of law." I put my judgment on this broad and simple ground, that this contract, although not in writing, clearly made out that the defendants' testator employed the plaintiffs, and that they agreed to undertake the sale of this property. The legal effect of that contract was that if they found a purchaser, even although they did not persuade him to purchase, still, if he became a purchaser, they were entitled to be paid their commission, not a commission of 1 per cent., but what an agent would be entitled to as a usual thing, just as a contractor would be entitled to the usual price of so much brickwork. Under these circumstances, evidence was sought to be introduced for the purpose of showing that although the law gave them the right to be paid their commission, yet by some custom of trade that right was taken away. That cannot be done without directly setting aside the law. I think, therefore, that I was right in ruling as I did, and that the Rule ought to be discharged. (29) 11 Ad. & E. 589. 1884 PITT v. JONES. 1884 PITT v. JONES. WINDEYER, J. I regret that I am constrained to differ from His Honour the Chief Justice in the conclusion at which he has arrived; but upon a question in dealing with which judges in England have, from time to time, given their judgments with doubt and hesitation, and with some conflicts of opinion, it is not surprising that we, like them, find difficulty in coming to a common conclusion satisfactory to every reasoner. I entirely agree with His Honour as to the dangers surrounding the admission of evidence of custom; but, on the other hand, I cannot help seeing that the exigencies of our modern life of business activity, and its ever-multiplying forms of commercial enterprise under varying conditions of locality and trade, may make the admission of such evidence absolutely necessary in order to secure the due administration of justice between persons carrying on business, rather with the view of practically furthering what they conceive their mutual interests than with a desire to maintain traditional common law principles governing the transactions between them. To use the words of Lord Campbell, in Humphrey v. Dale (30):—"It is the business of Courts reasonably so to shape their rules of evidence as to make them suitable to the habits of mankind, and such as are not likely to exclude the actual facts of the dealings between parties when they are to determine on the controversies that grow out of them." Though it may be very proper that evidence of custom which is to override the common law should be closely watched, and little weight attached to it, unless it conclusively proves the existence of the custom sought to be established, it cannot be doubted, as pointed out by Chief Justice Best in Lord Falmouth v. George, that "custom is a local law which supersedes the general law, in accordance with the maxim, Consuetudo ex certâ causâ rationabili privat communem legem." If properly established, therefore, it is no objection to a custom that it is in opposition to the law generally governing the rights of parties. In this case the facts are as follow:-The plaintiff, an agent in Sydney, was employed to sell a station in Queensland, no express terms as to the conditions of payment being mentioned. (30) 7 E. & B. 266; E. B. & E. 1004; 26 L.J., Q.B. 137; 27 L.J., Q.B. 390. |