
    Theodore Miller, Respondent, v. John A. Fischer, Appellant.
    Third Department,
    January 4, 1911.
    Custom and usage — contract — usage of particular locality — knowledge of contracting party—when existence of custom and knowledge for jury.
    Parties are presumed to contract with reference to a uniform, continuous and well-settled usage "or custom pertaining to the matters as to which .they enter into agreement, where such usage is not in opposition to well-settled principles of law, is not unreasonable, or in contradiction to the - express terms of the contract, whether written or oral, and the contract must be specific to exclude ' such presumption. ' .
    But where the custom applies only to the business in a particular locality," the party claiming that the custom should be read into the contract is under the burden of showing that the other party knew of its existence.
    The questions as to whether such custom exists and whether a contracting party had knowledge of it are for the jury. .
    Appeal by the defendant, John A. Fischer, from a judgment of the County Court of Ulster county, entered in. the office of the clerk of said county on the 13th day of January, 1910, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      William D. Brinnier, for the appellant.
    
      Andrew J.Cook. and N. Frank O' Reilly, for the respondent.
   Houghton, J.:

The plaintiff is a canal boatman, and in December, 1908, was using his boat for carrying coal at Astoria, N. Y. On the nineteenth of that month he telegraphed the defendant, who was engaged in the ice business at Rondout, asking for the best price of a load of ice to New York city. The defendant answered by telegram on the twenty-first, saying that for a good boat with hatches he would pay $100 for a load delivered in New York, requesting an answer. The plaintiff claims that he answered by postal, which the defendant says he never received, saying that he had a good boat, that he accepted the offer and would bring his boat up as soon as he could. On the thirty-first lie sent another postal, saying that he was leaving for Rondout that night and requesting defendant to provide'a place for ' the boat on arrival. This postal the defendant did receive and did provide a place for the mooring of the plaintiff’s boat in Rondout creek. Shortly thereafter the defendant fitted up the plaintiff’s boat with runs for the loading of ice when it should form in the creek. The defendant claims that merchantable ice did not form that winter and hence that plaintiff’s boat was not loaded. About the first of March hope of merchantable ice forming was abandoned and the plaintiff demanded his pay, which the defendant refused. Whereupon this action was brought in the City Court of Kingston for the stipulated $100-as'damages, .and resulted in a judgment for the defendant. The plaintiff took an appeal to the County Court of Ulster county demanding a new trial, which resulted in a direction of verdict by the court for plaintiff, and from such judgment the defendant appeals to this court.

The defendant’s contention on the trial was that there was a custom amongst boatmen and ice dealers in that- locality7, known to the plaintiff, to the effect that boats engaged for the transporting of ice should-not be paid for unless ice should form of sufficient thickness to be marketable.

The.learned trial court ruled that the contract was specific and that proof of custom was immaterial.

We are of opinion this was error. Assuming that the telegrams- and writings which passed between the parties constituted a binding written contract, still the terms - are not so specific that it can be said as matter of law that it was not ma.de with reference to a well-

known and uniform custom of the business. Parties are presumed .to contract in reference to a uniform, continuous and .w.ell-settled usage or custom pertaining to the matters as to which they enter into agreement, where such usage is not in opposition to well-settled principles of law and is not unreasonable and hot in contradiction of the express terms of the contract, whether such contract be written or oral. ( Walls.v. Bailey, 49 N. Y. 464; Rickerson v. Hartford Fire Insurance Co., 149 id. 307 ; Schipper v. Milton, 51 App. Div. 522.) The custom which the defendant claimed did exist related to the particular business of carrying natural ice and applied only to a particular locality, and it was necessary to show that the plaintiff had knowledge of its existence, which the defendant attempted to do and mad § prima facie proof thereof. Of course parties can specifically contract irrespective of a well-known custom prevailing in the business to which the contract relates; but when they do not so.specifically contract they aré presumed to contract with reference to such custom and its terms are read into the contract, not as varying its terms, hut as amplifying them. Whether such custom existed and whether the plaintiff had knowledge of it and, therefore, contracted with reference to it, are questions of fact which should have been submitted to the jury. The direction of verdict against the defendant was, therefore, erroneous and must he reversed.

All concurred.

judgment and order reversed and new trial granted, with costs to appellant to abide event.  