
    Hinton vs. Locke.
    A usage or custom cannot be given in evidence for the purpose of controlling the rules of law; nor is such evidence admissible where it contradicts the agreement of the parties. Per Bronson, J.
    The case of Smith v. Wilson, (3 Barn, <J- Adol. 748,) commented on and doubt ed. Per Bronson, J.
    Evidence of usage or custom is admissible for the purpose of explaining ambiguous words or phrases in a contract.
    In an action to recover compensation for causing certain repairs to be made upon the defendant’s house, it appeared that he had promised to pay the plaintiff, who was a carpenter, twelve shillings per day for every man employed by him about the work. The plaintiff insisted at the trial that ten hours' labor constituted a day’s work, and that he was entitled to charge one day and a quarter for each natural day during which the men worked twelve hours and a half; and he offered evidence of a custom among carpenters to that effect. Held,, a valid cus. tom, and that the evidence was admissible.
    Error to the New-York commop pleas. Locke sued Hinton in the court below, and declared in assumpsit for work and labor &c. The cause was referred to a sole referee, who made a special report which presented the following case. The plaintiff wag a house carpenter, residing in the city of New-York. The defendant was an old resident of the city, where - he still carried on business, but now resided in the state of New-Jersey. In March, 1841, the parties made a contract in the city of New-York, by which the plaintiff agreed to furnish two workmen to make certain alterations and repairs upon the defendant’s house in New-Jersey, for which the defendant agreed to pay the plaintiff twelve shillings'ymr day for each man. The men were to be boarded by the defendant while doing the work, for which he was p be allowed $3 per week for epch man. The plaintiff furnished the men, who worked twelve hours and a half each day until the work was done. The defendant paid into court a sufficient sum to cover all the days the men were employed: but the plaintiff insisted that ten hours’ labor constituted a day’s work, and that he was entitled to charge one and one fourth day for every period of twenty-four hours within which the men wrought twelve and a half hours. He proved that it was the universal custom of carpenters in New-York, and in New-Jersey, where the defendant resided, to consider ten hours a day’s work, and if the workmen wrought two and a half hours each day more than the ten hours, it was considered one quarter of a day’s work. The workmen testified that the defendant was often present, and knew that they were making over time; but they said nothing to him on the subject. The defendant objected to proof of the custom, and after the proof had been given he insisted that he was not bound by the custom. The referee allowed the extra charge. The court below refused to set aside the report, and rendered judgment for the plaintiff. The defendant brought error.
    
      G. M. Speir, for the plaintiff in error,
    cited Rankin v. American Insurance Company, (1 Hall, 619;) Schooner Reeside, (2 Sumn. 567;) Noble v. Durell, (3 T. R. 271;) Anthon’s N. P. 59, note; United States v. Macdaniel, (7 Peters, 1;) 1 Holt’s N. P. 98, note; Goodyear v. Ogden, (4 Hill, 104;) Dawson v. Kittle, (id, 107,)
    
      E. H. Owen, contra,
    cited Sewall v. Gibbs, (1 Hall, 602;) Smith v. Wilson, (3 Barn, & Adol. 728;) Chit. On Contr. 20, 21; 2 Stark. Ev. 568.
   By the Court, Bronson, J.

No usage or custom can be set up for the purpose of controlling the rules of law; nor is such evidence admissible where it contradicts the agreement of the parties. I should, therefore, feel great difficulty in subscribing to the case of Smith v. Wilson, (3 Barn. & Adol. 728.) The defendant had covenanted to pay 60/. per thousand for all the rabbits in a certain warren; and in an action for the price, he was allowed to prove that the term thousand, as applied to rabbits, meant, in that part of the country, one hundred dozen—or twelve hundred. It is difficult to deny that this was a plain contradiction of the express contract of the parties.

But in the case at bar the usage or custom did not go to vary the contract. It went to explain and ascertain the intention of the parties in relation to a matter upon which the contract was silent. Usage can never be set up in contravention of the contract ; but when there is nothing in the agreement to exclude the inference, the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates; and the usage is admissible for the purpose of ascertaining with greater certainty what was intended by the parties. The evidence often serves to explain or give the true meaning of some word or phrase of doubtful import, or which may be understood in more than one sense according to the subject matter to which it is applied. Now here, the plaintiff was to be paid for his workmen at the rate of twelve shillings per day; but the parties have not told us by their contract what they meant by a day’s work. It has not been pretended that it necessarily means the labor of twenty-four hours. How much then does it mean 1 Evidence of the Usage or custom was let in to answer that question. And when we find a universal usage in this business to call ten hours’ labor a day’s work, we have arrived at the true meaning of the word day, as used in this contract. The parties intended that the stun of twelve shillings should be paid for every ten hours’ labor.

As this was a “ universal custom” where the defendant lived, the referee was well' warranted in finding that the defendant had notice of its existence.

Judgment affirmed.  