Lastly, it must be remembered that no custom, however universal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation of contracts, it is an established rule, that no custom can be admitted which the parties have seen fit expressly to exclude. (w) Thus, to refer again to the custom of allowing grace on bills and notes on time, there is no doubt that the parties may agree to waive this; and even the statutes which have made this custom law permit this waiver. And not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implication; as by providing that the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their express agreement; and no usage can be incorporated into a contract, which is inconsistent with the terms of the contract. (x)

(w) Knox v. The Ninette, Crabbe, 534. See infra, n. (x).

(x) In the case of the schooner Reeside, 2 Sumner, 567, it was attempted to vary the common bill of lading, by which goods were to be delivered in good order and condition, the danger of the teas only excepted, by establishing a custom, that the owners of packet vessels between New York and Boston should be liable only for damage to goods occasioned by their own neglect But, per Story, J., "the true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words, in a given instrument, when the word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and, a fortiori, not in order to contradict them. An express contract of the parties is always admissible, to supersede, or vary, or control, a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled, or varied, or contradicted, by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties." See Blackett v. Royal Exch. Ass. Co. 2 Cromp. & J. 244; Hall v. Janson, 4 Ellis & B. 500; Foley v. Mason, 6 Md. 37; Hinton v. Locke, 5 Hill, 437; Grant v. Maddox, 15 M. & W. 737; Yates v. Pym, 6 Taunt 446; Keener v. Bank of United States, 2 Barr, 237; M'Gregor v. Ins. Co. of Perm. 1 Wash. C. C. 39; Sweet v. Jenkins, 1 R. I. 147 ; Linsley v. Lovely, 26 Vt. 128; Bliven v. N. E. Screw Co. 23 How. 420; Fay v. Strawn, 32 Ill. 205. A custom, that a tenant on quitting shall leave the manure to be expended upon the land, he being entitled to be paid for the same, is excluded by an express stipulation in the lease that the tenant "should not sell or take away any of the manure." The tenant is not entitled to recover the value of the manure so left. "It is altogether idle," said Lord Lyndhurst, C. B., "to provide for one part of that which was sufficiently provided for by the custom, unless it was intended to exclude the other part." Roberts v. Barker, 1 Cromp. & M. 806. See also Webb v. Plummer, 2 B. & Ald. 746. A custom of the country, by which the tenant of a farm, cultivating it according to the course of good husbandry, is entitled on quitting

Where the terms of a contract are plain, usage, even tinder that very contract, cannot be permitted to affect materially the construction to be placed upon it; but when it is ambiguous, usage for a long time may influence the judgment of the court, by showing how it was understood by the original parties to it. (y) l