Albus v. Toomey

Citations

• 273 Pa. 303
• 116 A. 917
• 1922 Pa. LEXIS 569

Syllabus

<p>Custom, — Trade custom — Particular custom — Modification of contract by custom — Essential attributes of valid custom — Reasonable time — Presumption — Actual notice or knowledge — Evidence — Province of court and jury.</p> <p>1. A usage or commonly called custom so long persisted in as to be known and practiced by a community, is the law of the particular business in which it exists.</p> <p>2. It must be certain, continuous, uniform, notorious and reasonable.</p> <p>3. The parties must be presumed to have known it and acted in reference to it.</p> <p>4. There is no such thing as discretion in trade usages or customs, they are absolute or final, unless set aside by agreement or statute.</p> <p>5. Where it appears that the custom or usage has been lately established, with but few instances of its recognition, or it lacks other qualities to make it enforceable, the court should determine its nonexistence without submitting the question to the jury.</p> <p>6. The custom should be universal and uniform with respect to the territory covered by it, so that knowledge may be presumed.</p> <p>7. It must appeal to the courts as being reasonable, fair between persons engaged in the particular business, and not imposing unusual or oppressive conditions, or restrictive of the free and unlimited exchange of commodities.</p> <p>8. Particular customs are such as prevail in some county, city, town, parish or place.</p> <p>9. Knowledge of a local or particular custom may be shown by the receipt of actual information of the subject or from evidence of circumstances upon which an implied knowledge may be found.</p> <p>10. Where a person lives outside the place affected by a custom, presumptive knowledge does not apply, and actual knowledge must be shown.</p> <p>11. A custom of not examining dress goods until two or more months after their purchase, will not be sustained as a valid trade custom, where the evidence shows that it was unlimited in extent of territory, uncertain in its