
    Park & Iverson, plaintiffs in error, vs. The Piedmont and Arlington Life Insurance Company, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Contracts — Evidence—Usages and Customs. — When parties, make an express contract which is plain, evidence of usage and custom is inadmissible to control, vary or contradict it. (R.)
    
      2. Same — Same.—Where, during the trial of a case, it becomes necessary to prove the general custom in the life insurance business as to the commutation of renewals in favor of discharged agents, the proper question would be, “What is the general or universal usage and custom in the life insurance business as to the commutation of renewals,” etc.? (R.)
    *Assumpsit. Insurance agents. Custom. Examination of witness. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.
    The Piedmont and Arlington Eife Insurance Company brought assumpsit against Park & Iverson for $5,000 00, alleged to have been collected by them as the agents of said company at Columbus, Georgia, from January 1st, 1868, to January 1st, 1871, for which they had failed to account. The defendants pleaded the general issue, payment, and set-off of $2,500 00 alleged to be due to them for commutation of renewal premiums, on policies obtained by them, after their discharge as plaintiff’s agents.
    Upon the trial, the plaintiff read in evidence a portion of an. answer by th.e defendants to a bill filed by the plaintiff against them, in which was set forth the following account as correct:
    “Amount received from first payments. $4,595 12'
    Amount received from renewals ...... 4,931 89
    $9,527 01
    
      
    
    Due company..................... $1,986 80.”
    The answer also contained the following admission, to-wit: "Their compensation for services, fixed by contract with the complainant, was twenty per cent, of and upon all sums collected for first year’s insurance, and seven and one-half per cent, of and upon all sums received by them for continued renewals of policies — that is, yearly renewals of policies issued through these defendants as agents as aforesaid.
    Plaintiff closed.
    John F. Iverson, one of the defendants, testified, that in April 1869, the plaintiff employed the defendants as agents *in the life insurance business, under a contract to pay twenty per cent, on policies issued by said company on applications made through the defendants, and seven and onelialf per cent, on renewals on said policies; that in said contract, nothing was said about the interest of defendants in renewals made on said policies after the discharge of defendants. The following questions were then propounded successively to the witness, and upon objection made by counsel for plaintiff, the objection was sustained, and exception on the part of defendants noted.
    1st. “Whether he knew of any custom in the life insurance business as to the commutation of the value of renewals on discharging agents?”
    2d. “Whether he knew of any custom of the plaintiff in the life insurance business to allow discharged agents the commuted value of renewals?”
    3d. “Whether he knew of any usage in the life insurance business as to the commutation of the value of renewals on the discharge of agents, and what such usage was, if there was any?”
    4th. “Whether he knew of any usage of plaintiffs in their life insurance business as to the commuting the value of renewals on discharging agents?”
    5th. “What was the usual and customary commissions received by agents in the life insurance business?”
    6th. “What the services of Park & Iverson as agents of the Piedmont & Arlington Fife Insurance Company were reasonably worth ?”
    7th. “Why were the defendants discharged?”
    The witness further testified that the plaintiff had sent one Meade to settle with them and to discontinue the agency; that on or about the 27th of January the defendants paid to Meade $356 00, and were to have a full settlement on the next day; that on the succeeding day they required Meade to allow them the commuted value of renewals, and on his stating that he had no authority to take such a course, the defendants declined to settle; that on the succeeding day they were discharged. That the rates of commissions were fixed by correspondence. *That the value of the renewals was about $2,500 00.
    Hampton S. Park, the other defendant, testified substantially as Iverson. The same questions were proposed to be asked him as were propounded to the preceding witness, and on objection made, were excluded by the Court.
    Other evidence was introduced, not material to an understanding of the decision of the Court.
    The charge of the Court was as follows, to-wit:
    “The defendants alleged that there was a special contract between them and the plaintiff, and so the plaintiff admitted. The plaintiff alleged that the special contract was that the defendants were to have twenty per cent, on the first year’s insurance and seven and one-half per cent, while the policies existed. The defendants, on the other hand, contended that the contract was that they were to have twenty per cent, on the first year’s insurance and seven and one-half per cent, on renewals of policies while they existed, and a commutation value in case they were discharged. This is a question for the consideration of the jury, and for the purpose of determining it they would look to the whole evidence, and if upon consideration of it they should be of opinion that the contract was as alleged by defendants, the defendants, if they had been discharged, would be entitled to have and receive a commuted value.
    “If, at the time suit was commenced, the plaintiff was indebted to the defendants, they should find for the defendants, but if the defendants were indebted to the plaintiff, then they should find for the plaintiff.”
    To which charge the defendants excepted. The defendants requested the Court to charge the jury as follows: “If the de-
    fendants were appointed agents of the plaintiff under a contract between the plaintiff and defendants, that they, the defendants, were to receive twenty per centum commissions on all policies issued by the company to persons who applied for said policies through said defendants, as agents, and seven and one-half per centum on renewals of said policies, and nothing was said in said contract limiting the interest of said *defendants in said renewals to the time said defendants continued to act as agents, and if it further appears that plaintiff has discontinued defendants as agents, defendants do not thereby lose their interest in the renewals.”
    The Court refused to charge as requested, and the defendants excepted.
    The jury returned a verdict for the plaintiff for $1,98680, with interest from March 1st, 1871.
    The defendants assign error upon each of the aforesaid grounds of exception.
    R. J. Moses; M. H. Beandeord; D. T. Downing, for plaintiffs in error.
    Ingram & Craweord, for defendant.
    
      
      Contracts — Evidence — Usages and Customs. — In the case of Stamey v. W. U. Tel. Co., 92 Ga. 616, 18 S. E. Rep. 1008, the plaintiff alleged in his declaration that a local usage of the defendant authorized its messengers delivering telegrams to receive answers for delivery at the company’s office for transmission. It was held that if such usage was unknown to the sender of the telegram, they did not act, and could not have acted, on it; and if they had known of such usage, and, nevertheless, entered into a written agreement by which the messenger should act as their agent for the sole purpose of carrying the message to the company’s office for transmission, they and the plaintiffs in error were thereby estopped from showing such usage, because custom or usage, while admissible to explain an ambiguous written agreement, is inadmissible if repugnant to or inconsistent with a clear, express agreement.
      Same — Same.—“Frequently contracts for less rates than those allowed either by law or usage, does not make a universal binding custom which by implication is presumed to enter into the contract and form a part thereof. These are but individual habits of dealing. Contracts may be made for less rates than those prescribed by custom or law, and in that event they would be valid.” Robertson v. Wilder, 69 Ga. 347, principal case cited with approval.
      Same — Same.—“In so far as any local usage was inconsistent with the express terms of the contract, it was irrelevant and inadmissible.” Merchant’s Nat. Bank v. Demere, 92 Ga. 742, 19 S. E. Rep. 38, citing with approval the principal- case.
      Same. — Principal case cited with approval in Emery v. Atlanta, etc., Exchange, 88 Ga. 321, 14 S. E. Rep. 556.
    
   Warner, Chief Justice.

This was an action brought by the plaintiff <*&„mst the defendants to recover a sum of money alleged to have been received by them as agents of the plaintiff, in the life insurance business. On the trial of the case, the jury found a verdict for the plaintiff. The main question in issue between the parties at the trial, was whether the defendants should be allowed their set-off to the plaintiff’s demand and for commutation of renewed premiums oh policies obtained by them after their discharge as plaintiff’s agents.- The plaintiff proved by the sworn answer of the defendants that the contract between them and the plaintiff was, that the compensation for their services was to be twenty per centum of and upon all sums collected for first year’s premium insurance, and seven and one-half per centum of and upon all sums received -by them, for continued renewals of policies. On the trial, one of the defendants was sworn as a witness in his own behalf, and the question was propounded to him, “Whether he knew of any custom or usage in the life insurance business as to the commutation of the value of renewals on discharging agents?” Objection being made to the question by the plaintiff, the Court sustained the objection, and the defendants excepted. *The defendant’s counsel also asked the witness if he knew of any usage in the life insurance business as to the commutation of value of renewals on the discharge of agents, and what such usage was, if there was any? which being objected to, the Court sustained the objection, and defendants excepted.

The contract of the parties in this case was, that the defendants should receive for their services twenty per centum on all sums collected by them for first year’s premium .insurance, and seven and one-half per centum on all sums received by them for continued renewals of policies. This contract is plain and explicit; there is no doubt or ambiguity as to the meaning of it, or as to the intention of the parties; but it is contended the evidence was admissible to annex an incident to the contract, by the proof of usage or custom. But in all cases of this sort the rule for admitting the evidence of usage or custom must be taken with this qualification, that the evidence be not repugnant to, or. inconsistent with, the contract.

Although evidence of a general usage or custom of any business or trade, when it is of universal practice, may be admissible to explain what is doubtful, it is not admissible to contradict what is plain, as where.a policy was made in the usual form, upon a ship, her tackle, apparel, boats, etc., evidence of usage that the underwriters never pay for the loss of boats slung upon the quarter outside of the ship, would not be admissible: Greenleaf’s Evidence, volume 1, sections 292-294. In the case of the schooner Reeside, 2 Sumner’s Reports, 567, it was held that an express contract of the parties is always admissible to supersede, vary or control a usage or custom, but that an express contract could not be controlled or varied, or contradicted by a usage or custom. The rule is, that when parties make an express contract, as in this case, which is plain, evidence of usage and custom is inadmissible to control, vary or contradict it.. Nor do we think the questions propounded to the witness were strictly legal questions to prove a general usage or custom. The questions propounded to the witness were: “Do you know of any usage or custom in the life insurance business as to the commutation *of renewals,” etc.? The proper question would have been, “What is the general or universal usage and custom in the life insurance business as to the commutation of renewals,” etc.? The usage or custom to be binding, must be a general one, and of universal practice, as applicable to that particular business: Code, section, 1. In looking through this entire record, we find no error in the rulings of the Court, or in its charge to the jury, or in its refusal to chargé as requested, in view of the evidence contained therein, and the verdict was right under the law and facts of the case.

Let the judgment of the Court below be affirmed.  