Holmes v. Whitaker

Citations

• 23 Or. 319
• 31 P. 705
• 1892 Ore. LEXIS 145

Syllabus

<p>1. Custom and Usage — Contkacts.— It is the settled law that extrinsic evidence of custom and usage is admissible to ascertain the intention and meaning of a contract, when the same cannot be ascertained from the language used, but never to vary or contradict the express terms of the contract, provided such usage or custom was known to the parties at the time of making the contract. McOuXsky v. Klosterman, 20 Or. 108, approved.</p> <p>2. Usage and Custom — Admissibility op Evidence.— In an action to recover money paid on a contract for the purchase of potatoes, on the ground of nondelivery and loss thereof, evidence of a general custom or usage of the purchaser to furnish the boat upon which they are delivered, and to notify the seller when the boat would be ready, and that plaintiff failed in these particulars, is admissible where the purchaser knew of the custom, and the contract is silent as to the consignee and the destination of the potatoes, or as to who should furnish the boat.</p> <p>3. Evidence to Prove Custom — Opinion Evidence. — A witness is competent to show custom or usage, although his knowledge is derived largely from his own experience and course of dealing, when it is sufficiently extensive to enable him to testify to the fact.</p> <p>4. Construction op Contract. — Where a contract provided that the potatoes i > should be delivered “ on board of a steamboat as fast as the weather will permit,” and that before delivery they should be weighed on the island where they were grown, and the main issue was as to whose duty it was to furnish the boat, it is error for the court to instruct the jury that “it is a fair inference from these provisions that plaintiffs would have some person there to see to the weighing of the potatoes, and to provide for their shipment. If they failed to do so, and defendants were ready and able to deliver them at a suitable time before they were destroyed by the flood, it would be the fault of plaintiffs, and they would be