RICE, C. J.
It is settled in this State, that it is permissible for the owner of a steamboat, when sued for the [621]*621loss of goods by fire, to show by parol, that the exceptive words, “ dangers of the river,” in a bill of lading, by custom and usage include dangers by fire. — Samspon & Lindsay v. Gazzam, 6 Porter’s R. 123; Hibler v. McCartney, at the last term, reported in 31 Ala. 501.
[2.] “ In mercantile contracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of those usages. They commonly reduce to writing the special particulars of their -agreement, but omit to specify these known usages, which are included, however, as of course, by mutual understanding. Evidence, therefore, of such incidents, is receivable. The contract, in truth, is partly express, and in writing; partly implied, or understood, and unwritten. Such contracts are very commonly framed in a language peculiar to those engaged in the particular trade out of which they arise.” “ The intention of the parties, though perfectly well known to themselves, would often be defeated, if this language were strictly construed according to its ordinary import in the world at large. Evidence, therefore, of mercantile custom and usage, is admitted to expound it, and to arrive at its true meaning.” ‘ ‘ But, in these cases, a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to, or inconsistent with, the written contract. Merely that it varies the apparent contract, is not .enough to exclude the evidence; for it is impossible to add any material incident to the written terms of a contract, without altering its effect, more or less.” Neither, in the construction of such contracts, will the evidence be excluded “because the words are, in their ordinary meaning, unambiguous; for the principle of admission is, that words, perfectly unambiguous in their ordinary meaning, are used by the contractors in a different sense from that.” The best test, by which to determine the existence or nonexistence of such repugnancy or inconsistency as will exclude the proposed evidence of the custom and usage, is, to inquire whether the explanation furnished by the evidence is “ such as, if expressed in the written contract, would make it insensible or inconsistent.” — Brown v. Byrne, 3 Ell. [622]*622& Bl. (77 English Com. Law Rep.) 704 ; Humfrey v. Dale, in the court of Queen’s Bench, January, 1857, reported in July No. 1857, of the American Law Register; Renner v. Bank of Columbia, 9 Wheaton, 581; Brown v. Brown, 8 Metc. R. 578 ; Smith & Holt v. Mobile Nav. and Mut. Ins. Co., 80 Ala. 167; Marine Dock and Mut. Ins. Co. v. McMillan & Son, 31 Ala. 711; same case, 27 Ala. R. 77 see, also, the notes to Wigglesworth v. Dallison, 1 Smith’s. Leading Cases, 677, 685; Barber v. Brace, 3 Conn. R. 10.
With the law as above laid down for our guidance, w& are now to consider, whether the court below erred in permitting the defendants, after the bill of lading had been read in evidence, reciting that the cotton was shipped on the steamer Pink Toney, to introduce evidence tending-to show, “ that the steamboat had a barge in tow, the water being low; that it was usual and customary, for boats to have and use barges in tow in low water; that this was known to the shipper, who was; the warehouseman, and who was present when the cotton was put on the boat; that it was. considered the usual privilege of' the boat so to carry it; and that it was the universal practice and understanding, when a boat had a barge in towr that the freight was to be put upon the barge or the boat.”
It is evident, that this evidence tended to-show a custom of the particular trade ; that the parties to this suit, at the time of the contract evidenced by the bill of lading, were cognizant of that custom; that they contracted with/ a tacit reference to it; and that, in fad, the very contract on which the plaintiff founds his right, was made with the usage or custom understood to be a term in it. “ To exclude-the usage, is to exclude a material term of the contract, and must lead to an unjust decision. It is (asLord Campbell, C. J., says) “the business of courts reasonably so to-shape their rules of evidence, as to make them suitable to-the habits of mankind, and such as are not likely to exclude the actual facts of the dealings between parties/ when they are.to determine on the controversies which grow out of them.” — See Humfrey v. Dale, supra.
It may be exceedingly difficult to draw the precise line-of distinction, between, cases-in which evidence of usage [623]*623and custom ought to be admitted, and cases in which it ought not to be'admitted; but there can be none in saying that there are cases in which such evidence must be received. And in perhaps the strongest English case against such evidence, Lord Denman, C. J., was not willing, in view of the authorities, to put his opposition to it in stronger language than the following : “ But the eases go no further, than to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract.” — Trueman v. Loder, 11 Ad. & Ell. 589; see, also, Barlow v. Lambert, 28 Ala, 704, which certainly goes no further than Trueman v. Loder.
Now, it seems clear, that the evidence of usage and custom, offered in the present case, does not labor under the objection of introducing any thing repugnant to, or inconsistent with, the tenor of the written contract, in the sense in which we have above defined repugnancy or inconsistency — the sense in which that objection must be understood in cases of this hind. That evidence goes no further than to furnish “ the explanation of words used (in the bill of lading) in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract.” It tends to show that the words “ on the steamer,” used in the bill of lading, were used “in a new, peculiar, or technical sense ” in the particular trade; and that, by this new, peculiar or technical sfense, the barge towed by the steamboat in low stages of water, was included in the term steamer or steamboat, so far at least as to secure to the commander of the boat the privilege of stowing the cotton on either the boat or barge. If the explanation or addition, thus derived from the evidence of the custom, had been expressed in the bill of lading, it would not have rendered the bill of lading insensible or inconsistent. It is obvious, that the hill of lading would not be rendered insensible or inconsistent, by the expression therein of the privilege to the commander of the steamboat to stow the cotton on the boat, or on the barge towed by her, in accordance with the custom.
[8.] Applying the law as above laid down to the ease as [624]*624presented by tbe record, it is tbe opinion of a majority of tbe court, that there is no error, except in tbe charge first excepted to. That charge is understood by a majority of tbe court to authorize a verdict for tbe defendant, upon proof of “tbe universal practice and understanding of persons employed in navigating said river,”
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RICE, C. J.
It is settled in this State, that it is permissible for the owner of a steamboat, when sued for the [621]*621loss of goods by fire, to show by parol, that the exceptive words, “ dangers of the river,” in a bill of lading, by custom and usage include dangers by fire. — Samspon & Lindsay v. Gazzam, 6 Porter’s R. 123; Hibler v. McCartney, at the last term, reported in 31 Ala. 501.
[2.] “ In mercantile contracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of those usages. They commonly reduce to writing the special particulars of their -agreement, but omit to specify these known usages, which are included, however, as of course, by mutual understanding. Evidence, therefore, of such incidents, is receivable. The contract, in truth, is partly express, and in writing; partly implied, or understood, and unwritten. Such contracts are very commonly framed in a language peculiar to those engaged in the particular trade out of which they arise.” “ The intention of the parties, though perfectly well known to themselves, would often be defeated, if this language were strictly construed according to its ordinary import in the world at large. Evidence, therefore, of mercantile custom and usage, is admitted to expound it, and to arrive at its true meaning.” ‘ ‘ But, in these cases, a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to, or inconsistent with, the written contract. Merely that it varies the apparent contract, is not .enough to exclude the evidence; for it is impossible to add any material incident to the written terms of a contract, without altering its effect, more or less.” Neither, in the construction of such contracts, will the evidence be excluded “because the words are, in their ordinary meaning, unambiguous; for the principle of admission is, that words, perfectly unambiguous in their ordinary meaning, are used by the contractors in a different sense from that.” The best test, by which to determine the existence or nonexistence of such repugnancy or inconsistency as will exclude the proposed evidence of the custom and usage, is, to inquire whether the explanation furnished by the evidence is “ such as, if expressed in the written contract, would make it insensible or inconsistent.” — Brown v. Byrne, 3 Ell. [622]*622& Bl. (77 English Com. Law Rep.) 704 ; Humfrey v. Dale, in the court of Queen’s Bench, January, 1857, reported in July No. 1857, of the American Law Register; Renner v. Bank of Columbia, 9 Wheaton, 581; Brown v. Brown, 8 Metc. R. 578 ; Smith & Holt v. Mobile Nav. and Mut. Ins. Co., 80 Ala. 167; Marine Dock and Mut. Ins. Co. v. McMillan & Son, 31 Ala. 711; same case, 27 Ala. R. 77 see, also, the notes to Wigglesworth v. Dallison, 1 Smith’s. Leading Cases, 677, 685; Barber v. Brace, 3 Conn. R. 10.
With the law as above laid down for our guidance, w& are now to consider, whether the court below erred in permitting the defendants, after the bill of lading had been read in evidence, reciting that the cotton was shipped on the steamer Pink Toney, to introduce evidence tending-to show, “ that the steamboat had a barge in tow, the water being low; that it was usual and customary, for boats to have and use barges in tow in low water; that this was known to the shipper, who was; the warehouseman, and who was present when the cotton was put on the boat; that it was. considered the usual privilege of' the boat so to carry it; and that it was the universal practice and understanding, when a boat had a barge in towr that the freight was to be put upon the barge or the boat.”
It is evident, that this evidence tended to-show a custom of the particular trade ; that the parties to this suit, at the time of the contract evidenced by the bill of lading, were cognizant of that custom; that they contracted with/ a tacit reference to it; and that, in fad, the very contract on which the plaintiff founds his right, was made with the usage or custom understood to be a term in it. “ To exclude-the usage, is to exclude a material term of the contract, and must lead to an unjust decision. It is (asLord Campbell, C. J., says) “the business of courts reasonably so to-shape their rules of evidence, as to make them suitable to-the habits of mankind, and such as are not likely to exclude the actual facts of the dealings between parties/ when they are.to determine on the controversies which grow out of them.” — See Humfrey v. Dale, supra.
It may be exceedingly difficult to draw the precise line-of distinction, between, cases-in which evidence of usage [623]*623and custom ought to be admitted, and cases in which it ought not to be'admitted; but there can be none in saying that there are cases in which such evidence must be received. And in perhaps the strongest English case against such evidence, Lord Denman, C. J., was not willing, in view of the authorities, to put his opposition to it in stronger language than the following : “ But the eases go no further, than to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract.” — Trueman v. Loder, 11 Ad. & Ell. 589; see, also, Barlow v. Lambert, 28 Ala, 704, which certainly goes no further than Trueman v. Loder.
Now, it seems clear, that the evidence of usage and custom, offered in the present case, does not labor under the objection of introducing any thing repugnant to, or inconsistent with, the tenor of the written contract, in the sense in which we have above defined repugnancy or inconsistency — the sense in which that objection must be understood in cases of this hind. That evidence goes no further than to furnish “ the explanation of words used (in the bill of lading) in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract.” It tends to show that the words “ on the steamer,” used in the bill of lading, were used “in a new, peculiar, or technical sense ” in the particular trade; and that, by this new, peculiar or technical sfense, the barge towed by the steamboat in low stages of water, was included in the term steamer or steamboat, so far at least as to secure to the commander of the boat the privilege of stowing the cotton on either the boat or barge. If the explanation or addition, thus derived from the evidence of the custom, had been expressed in the bill of lading, it would not have rendered the bill of lading insensible or inconsistent. It is obvious, that the hill of lading would not be rendered insensible or inconsistent, by the expression therein of the privilege to the commander of the steamboat to stow the cotton on the boat, or on the barge towed by her, in accordance with the custom.
[8.] Applying the law as above laid down to the ease as [624]*624presented by tbe record, it is tbe opinion of a majority of tbe court, that there is no error, except in tbe charge first excepted to. That charge is understood by a majority of tbe court to authorize a verdict for tbe defendant, upon proof of “tbe universal practice and understanding of persons employed in navigating said river,” to carry cotton on tbe barge in tow, without proof that any word or phrase of tbe contract bad, by virtue of a lawful custom, come to be understood in a sense which gave tbe carrier a right to carry on tbe barge. That charge makes the case turn upon the practice of the carriers, and their understanding of that practice, varying the contract; and not upon the right of the carrier, under the contract, when explained and expounded in inference to, tbe peculiar meaning of its words, as established by a valid custom. And in this respect, that charge was erroneous.
As tbe cause must be remanded for another trial, we deem it proper to say, that we do not wish to be understood as passing upon the sufficiency of the evidence to establish the customs in dispute. We decide nothing more than that the evidence objected to was, on account of its tendency, admissible; and that, in view of tbe evidence, all tbe charges and refusals to charge were appropriate and free from error, except the first charge, the error of which we have above pointed out. For that error, the judgment is reversed, and the cause remanded.
STONE, J.
In Trueman v. Loder, 11 Adol. & Ellis, 589, it was said by Lord Denman, that “ the cases go no farther, than to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the -written contract.” As I understand the testimony in this case, it makes no attempt or pretense that the words “ on the steamer Pink Toney" were used in a sense different from their ordinary meaning. I think the testimony, properly construed, proves nothing more than a habit with steam-boatmen, in low water, to carry cotton at their option either on the boat or on the barge in tow. It falls far short of proving that these words, in mercantile usage, [625]*625bad a well-known meaning peculiar to tbe trade. — See Brown v. Byrne, 3 Ell. & Bl. 702.
I think the term, attempted to be interpolated, is repugnant to. and inconsistent with, the express terms of the written contract. The contract binds the boat-owners to carry the cotton on the boat. The custom relied on would relieve them from carrying the cotton on the boat. This is not the interpolation of a term, consistent with the terms of the written contract. — See Thorpe v. Sughi, at the present term, and Smith & Holt v. Mobile Navigation and Mutual Insurance Co., 30 Ala. 167.
I do not think “ a universal practice and understanding on the Alabama river, among persons employed in navigating the said river, that when a boat had in tow a barge, to put cotton on the boat or the barge; and if the jury further believe there was not any greater risk to the owners of the cotton by putting it on the barge, and if the cotton on the barge took fire by accident, and without any fault or negligence of the. officers of the boat,” entitled the defendants to a verdict.
I do not think the universal practice and understanding, among persons employed in navigating said river, and the equality of risks' on the boat and the barge, are sufficient ingredients to constitute a binding custom. If this be law, it would seem to follow, that universal practice and understanding among a particular class of contracting parties, that they are permitted to violate an express term of the contract, if the violation involve no probable injury to the other party, authorizes them thus to violate their contract; and the fact that such violation does result in damage to the other party, will impose no liability on the party thus violating his contract, unless, in addition to such violation, he was also guilty of negligence. I cannot assent to such test of liability.
I concur in the general statement of legal principles as declared by the chief-justice. I think a controlling fault in the drift of the evidence is, that it substitutes the habit of boatmen for a custom of trade. — See Barlow v. Lambert, 28 Ala. 704; Bazin v. Liverpool and Philadelphia Steamship Co., Law Register for June, 1857, p. 459.