Miller v. Germain Seed & Plant Co.

222 P. 817, 193 Cal. 62, 32 A.L.R. 1215, 1924 Cal. LEXIS 287

• Court: California Supreme Court
• Decided: January 30, 1924
• Docket: L. A. No. 6985.
• Status: Published

Opinions

WILBUR, C. J.

The plaintiff purchased celery seed from the defendant. The seed turned out to be a different variety from that ordered. This action was brought to recover the damages suffered by the plaintiff. Judgment was rendered in favor of the plaintiff and the defendant appealed. The main question presented by the record is whether or not there was a warranty of the seed and a consequent responsibility for the damages suffered by the plaintiff.

The plaintiff was engaged in raising celery for the market and the defendant was engaged in the sale of seeds and plants. On March 16, 1920, the plaintiff ordered $20 worth' of celery seed of the Golden Yellow California stock, and on April 8, 1920, he ordered $12 worth of celery seed of the Golden Yellow Celery California stock. The orders were by letter. The defendant complied by forwarding two bags of celery seed. Aside from the address of the purchaser and seller, the only marking upon the seed was the following: “Germain. Germain Seeds Germinate. Seeds. Los Angeles, California.” The seeds were not the character of seed ordered but were of a variety known as Green celery seed. The two varieties of seed were indistinguishable one from the other and the celery plants could not be distinguished until approaching maturity; when the bleaching process was applied it was discovered by reason of the fact that they would not bleach properly that they were of the variety known as Green celery seed.

The plaintiff claimed to be damaged in the sum of $11,900, but the jury returned a verdict in plaintiff’s favor for the sum of $4,000 only. The most serious question raised by the appeal is as to whether under all the facts and circumstances shown in the case there was a warranty by the defendant of the character of seed supplied by it to the plaintiff. This question turns largely upon the claim of the appellant that under the general custom of seed dealers there is no warranty of the character of the seed sold and that the defendant in the conduct of its business makes every effort possible to apprise the purchaser of seed of that fact. The trial court instructed the jury that if there was a custom of nonwarranty on the part of seed dealers that the plaintiff could not recover upon the alleged warranty if he had notice ■or knowledge of such custom, but the trial court refused to instruct the jury as requested by the defendant that if there was a general custom of nonwarranty the plaintiff would be bound thereby even if he did not in fact know of such custom or usage. To state it more concretely the question arises upon the refusal of the trial court to give the following instructions proposed by the defendant:

“Where there is a general custom and usage appertaining to a business, which custom or usage is so universal in its application that it is presumptively known to all who have dealings in the business to which it is applicable, then I charge you, that unless there is a contract to the contrary, such general custom or usage is presumed to be taken into consideration by all parties in entering into the transaction, so that if in this case it should appear from the evidence that there is a general custom or usage of the seed trade that no seeds are warranted as to name, description, productiveness or other matter, and if you find from the evidence that such custom is so universal that it must be presumed to have been known by people who have transactions in the seed business, then I charge you, that such custom or usage is as much a part of the contract of purchase and sale as if it had been expressly so stipulated.”

“If you find from the evidence in this case that it is, and has been for many years, the general custom of the seed trade in the state of California not to warrant either the description, quality, productiveness or any other matter of seeds, then I charge you, as a matter of law, that the plaintiff in this case is presumed to have known such custom, and it will be presumed, in the absence of any express understanding to the contrary, that such custom is a part of any dealings in such trade or business, and in such case it is not necessary that there should be on or in the package containing the seed any notice of nonwarranty, nor is it necessary if such notice of nonwarranty is on, or in the package containing such seed that it be read by the buyer, because the custom of the trade is part of the contract unless excluded by an expressed agreement to the contrary.”

“If you find from the evidence in this case that it is the custom of the seed trade in California and has been the custom for many years not to warrant the description, quality, or productiveness of seeds bought or sold, and that this custom is a well-established one, and well known to those either buying or selling seeds, then I charge you, that notwithstanding the fact, if it be a fact, that the plaintiff may have not seen the disclaimer notice which the defendant used in his business, or if he did see it that he did not' read it, or even if the defendant entirely omitted to enclose one with the seeds, still the general custom and usage of the seed business would control the transaction unless there was an express contract to the contrary.”

Testimony was introduced, by the defendant upon the subject of custom which would require the giving of these instructions if they are correct statements of the law. The question for determination then is, whether or not from the facts and circumstances shown there was a contract of warranty between the purchaser and seller of the seeds. If it was the general custom of all seed dealers, including the defendant, to refuse to warrant the character of the seed sold by them, and if the price for seed was fixed in view of this uniform custom it is evident that if we hold that the seller is; under the circumstances, liable upon a warranty of the character of the seed, we thereby hold the defendant to the terms of an agreement which it did not in fact intend to make. It is clear that if the purchaser of the seed had inquired of the seller whether or not it would warrant the character of the seed that the seller would have replied in the negative. It may be conceded that where a purchaser asks a seed dealer for a certain variety of seed and in pursuance of that request seed is furnished, that in the. absence of any additional facts the law will, from the transaction, imply a contract of warranty. This warranty partakes of the nature of both an express and implied warranty. It is express in the sense that it is based upon the express language used by the purchaser in his order or request, it is implied in the sense that results from the “circumstance that the request for seed is from a grower of celery to a seller of celery seed for the purpose of raising celery plants, and, therefore, the character of the seed is an essential and vital provision of the contract between the parties. It is, of course, conceded that if there had been a written warranty or an expressed oral warranty of the character of the seed, the custom of the dealer in other cases not to give such a warranty would have no bearing upon the terms of the express warranty. The question here is somewhat different, namely, whether or not in determining the contract between the parties we should consider not only the character of the business conducted by the purchaser and by the seller, but also the general custom of seed dealers not to warrant the character of seed sold by them.

The supreme court of the state of Wisconsin had occasion to consider the subject now before us in the case of Ross v. Northrup, King & Co., 156 Wis. 327 [144 N. W. 1124], in 1914. The court in that case said:

“There is still another insurmountable difficulty in the way of plaintiff’s recovery. The jury found that at the time of the sale there was 'a general custom in the Northwest, including Wisconsin, among seedsmen such as the defendants, to refuse to warrant seeds. ’ The jury also found that the plaintiff did not know of such custom. The jury made no such finding in reference to Morton. There is no evidence to show whether he knew of such custom or not. He did testify that he had no notice from any source that the defendant would not sell its seeds with a warranty. This might all be true and still the general custom such as the jury found might not only exist,- but Morton might have knowledge of it. It is probable that, had he been asked the direct question, he would have denied all knowledge of the custom, and we will assume that on the evidence referred to the court might have found lack of knowledge, and that it actually did so find.

“It is not the law that ignorance of a general trade custom relieves a party from the effect of it. If there was a general custom among seedsmen such as was found, Morton as a retail dealer in seeds was bound to know of it.

“ ‘The object of proving a general custom is not to contradict or change a contract made between the parties, but to interpret it to the court and jury as it was understood by the parties at the time it was made; and this evidence of a general custom, when it does not contradict or change the express terms of the written contract, is admitted for the purpose of showing what the real contract, between the parties was. . . . And, when it is clearly proven, the parties are supposed to have contracted with reference to such custom, unless such custom changes the express terms of the written contract.’ (Hewitt v. John Week L. Co., 77 Wis. 548, 556 [46 N. W. 822], and cases cited.)

“ ‘A uniform trade custom is readily accepted by courts to define what is ambiguous or is left indeterminate in a contract, where both parties have knowledge of the custom, or are so situated that such knowledge may be presumed, for the reason that the majority of such transactions are had in view of the custom, and the agreement on which the minds of the parties actually met will thereby be carried into effect. . . . Where the custom is proved to be known to both, it may even add terms to the contract. . . . Where the custom is general, it will be presumed to have entered into the contract, and one may be bound thereby although ignorant, unless the other party be shown to have knowledge of his ignorance.’ (Gehl v. Milwaukee P. Co., 105 Wis. 573, 580 [81 N. W. 663].)

“Replying to the argument of counsel in another case, that a custom in order to be binding must be known to both parties to the contract, or it must have existed a sufficient length of time to raise a presumption of knowledge, the court said:

“ ‘That rule of course prevails in case of an attempt to annex to a contract some incident not expressed therein, as in the case of Hewitt v. John Week L. Co., 77 Wis. 548 [46 N. W. 822], where the question was whether the owner of a sawmill, under his contract to saw logs by the thousand, was entitled to the slabs. There is a difference between evidence of usage to establish a custom for the purpose of annexing that as an incident to a contract, and the same bind of proof to show the meaning of some word or term used in a contract. In the latter situation the meaning of the term as understood at the time and place of the contract governs, whether both of the parties knew of such meaning or not. They are presumed to contract with reference to the meaning of words and terms used by them, as such words and terms are understood at the place of their contract.’ (Shores L. Co. v. Stitt, 102 Wis. 450, 455 [78 N. W. 562].)

“The case at bar is in its facts very much like one recently decided by the Supreme Court of Iowa, from which we quote the following:

“ ‘The alleged liability of the Younkerman Seed Company may be considered first. The evidence that a general custom, such as pleaded, prevails in the seed trade was conclusive. The particular package had the printed matter thereon, and, though this may not have been noticed, the sale is presumed to have been negotiated with reference to the general custom of the trade. . . . This being so, a warranty that the seed was true to name could not be inferred, and the court rightly found in favor of the Younkerman Seed Company.’ (Blizzard Bros. v. Growers' C. Co., 152 Iowa, 257 [132 N. W. 66, 67].)”

The supreme court of Iowa rendered a decision to the same effect which is cited and quoted in the decision by the supreme court of Wisconsin (Blizzard Bros. v. Growers' C. Co. supra).

The rule seems to be uniform that a party to a contract may be bound by a custom not inconsistent with the terms of the contract, even though he is ignorant of the custom, if that custom is of such general and universal application that he may be conclusively presumed to know of the custom. (See 2 Page on Contracts, sec. 604, p. 925.) The author of this text-book states the rule in that regard as follows : “To be regarded as part of a contract, however, the usage or custom must have both of the foregoing elements. (1) It must be actually or constructively known; and (2) it must be consistent with the contract. If either of these elements is lacking the usage or custom cannot be regarded as part of the contract. If the usage is neither actually or constructively known to one of the parties to the contract, it is not binding upon him.”

In the case of Rauth v. Southwest Warehouse Co., 158 Cal. 54 [109 Pac. 839], it was assumed that a seller of seed would be bound by “a custom or usage so notorious that defendant must be presumed to have known it, for actual knowledge was not shown, to the effect that the term ‘barley’ did not include barley exactly like the common bearded variety ordinarily grown in Orange County. ...”

The rule that a person will be presumed to have contracted with reference to a general custom or usage whether he knew of that custom or not has frequently been invoked. In Steidtmann v. Joseph Lay Co., 234 Ill. 84 [84 N. E. 640], it was said (pp. 88, 89): “A person entering into a contract in' the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. (Collins Ice Cream Co. v. Stephens, 189 Ill. 200 [59 N. E. 524]; Chisholm v. Beaman Machine Co., 160 Ill. 101 [43 N. E. 796]; Leavitt v. Kennicott, supra.) And this is so whether he knew of the custom or not. (Samuels v. Oliver, 130 Ill. 73 [22 N. E. 499]; Taylor v. Bailey, 169 Ill. 181 [48 N. E. 200]; Lyon v. Culbertson, 83 Ill. 33; Doane v. Dunham, 79 Ill. 131; Bailey v. Bensley, 87 Ill. 556.) Such general custom and technical meaning of words may be proved without being specially pleaded. (Stewart v. Smith, 28 Ill. 397; Lowe v. Lehman, supra.) The evidence offered should have been admitted."

The court of appeals in Maryland, in Lyon v. George, 44 Md. 295, said:

“The defendant not being able to offer direct proof of the contract between himself and the plaintiffs, was seeking to establish it by indirect and circumstantial evidence. The usage offered in evidence, had certainly an important bearing upon the issue on trial. Where uniform and well established, it has been held to shape the contracts of parties, and serve as a guide to their true meaning and understanding. However well established, it may undoubtedly be controlled by a special contract, but in the absence of evidence of such special contract, where services are rendered, and a uniform usage is shown to exist in regard to such services, it will be presumed that they are rendered in accordance with the usage. In Given v. Charron, 15 Md. 507, the identical question arose. There the action was brought to recover for an alleged wrongful dismissal of the plaintiff from the employment of the defendant. No direct evidence was offered of the contract between the parties. But to show what the contract was, the plaintiff proposed to offer testimony of a usage among dry-goods jobbers, such as the de.fendant, in regard to the terms upon which they employed their clerks. This court speaking through Le Grand, O. J., say in regard to the admissibility of the evidence: ‘We think the testimony was properly admitted. It was pertinent to the contract declared upon, and a link in the chain of evidence, to establish a custom existing among dry-goods jobbers, as to the time for which they were to be understood as employing clerks, when nothing was said in regard to it.’ In Renner v. Bank, 9 Wheat. 581 [6 L. Ed. 166, see, also, Rose's U. S. Notes] , evidence of the usage of banks in the District of Columbia, in regard to the day of demanding payment upon bills of exchange and promissory notes, was held to be admissible for the purpose of explaining the understanding of parties as to their contracts. This authority was recognized and followed in Bank v. Magruder, 6 H. & J. 180, and in Bank v. Fitzhugh, 1 H. & G. 248.

“The objection to the admissibility of the evidence, that its offer was not accompanied with an offer to prove that the usage was known to the plaintiffs cannot be sustained. The defendant was under no legal obligation to offer such proof. The contract was entered into with a member of the plaintiffs’ firm, since dead, and the knowledge of the usage, on his part, when the agreement to employ the defendant as agent was made, will be presumed in law. This doctrine is so strongly recognized in Bank v. Fitzhugh, supra, that it may now be considered a settled question in this State, and it is unnecessary to refer to other cases in support of it.”

The supreme court of Michigan, in Austrian & Co. v. Springer, 94 Mich. 343 [34 Am. St. Rep. 350, 54 N. W. 50], said: “The rule is that the custom must be one so well settled and notorious as to raise the presumption- that it was known to buyer and seller. Mechem, Ag. Sec. 348. This presumption was not, therefore, rebutted by defendant’s testimony that he was not aware of such custom, although it might have been, had the custom been shown to have been a purely local one. This was shown to be a general custom pertaining to the glass trade in this country, and not confined to any particular locality, as was the case in Pennell v. Transportation Co., 94 Mich. 247.”

In Laver v. Hotaling, 5 Cal. Unrep. 534 [46 Pac. 1070], this court held that the custom or rule of an architects’ association fixing their compensation was not binding upon a layman ignorant of the rule, but distinguished the case from the rule concerning a general custom as follows: “It was not accompanied by any proof that the rule or usage of architects was known to the defendant at the time of the alleged contract with plaintiffs, nor that it was so generally accepted and acted upon by the public as to give it the standing of a custom, reasonable, uniform, and notorious, knowledge of which was to be imputed to him. In the absence of such complementary proof, the law, as we understand it, does not allow that a rule for professional guidance, adopted by organizations or societies of the members of any profession, is competent evidence in their favor in controversies with lay employers regarding the quantum of their compensation. . . . We do not deny the principle illustrated by Sewell v. Corp., 1 Car. & P. 392, Thomas v. Brandt (Md.), 26 Atl. 524, and other cases, that, if there is a general usage, applicable to the charges of a particular profession, it may be looked to in order to determine the compensation to be paid by one who employs an individual of that profession; but we hold that such a usage cannot be proved for that purpose against laymen by showing a rule adopted within the profession only.”

This court in a number of cases has held a party to a contract bound by general usage or custom, although he did not know of it. We have held that a general usage cannot become ineffective merely because of an actual or professed ignorance of that custom (Nicoletti v. Bank of Los Banos, 190 Cal. 637 [27 A. L. R. 1479, 214 Pac. 51]). In that case we said:

“This court in Davis v. First National Bank of Fresno, 118 Cal. 600 [50 Pac. 666], held that the usage of the bank to send its commercial paper to its correspondent banks for collection was binding upon the customer, even if he was ignorant of the usage and made no inquiries in reference thereto. In. that regard the opinion states as follows:

“ ‘The court should also have permitted the defendant to show by the witnesses, which it called for that purpose, the usage of banks in regard to the collection of paper presented by persons who were unknown to them, and that the defendant conformed to that usage (Warren Bank v. Suffolk Bank, 10 Cush. 582). If such usage was reasonable and did not contravene any principles of law, the fact that the defendant followed it would tend to show that it exercised reasonable care in seeking to collect the draft. One who gives a draft to a bank to collect is held to have an implied knowledge of its usage in collecting drafts, so far as such usage does not contravene any rule of law. (Morse on Banking, sec. 9; Bank of Washington v. Triplett, 1 Pet. 25 [7 L. Ed. 37, see, also, Rose's U. S. Notes].) “The fact that one deals with the bank without taking the trouble to inquire as to its system will raise the implication that he already knows and is satisfied with that system. It is clear that if a person hands over a note to a bank for collection, without any species of remark as to the course to be pursued, the bank is not bound to thrust upon him a statement of its intended course and to retain him until the whole theory has been expounded to him, when his conduct unmistakably shows that either he already knows it, or else he does not desire to know it. Either he knows and approves it, or he voluntarily trusts to the wisdom of the bank at his own deliberately assumed risk of its sufficiency. In such a case the bank not only has a right to assume, but it is even positively bound to assume, that his desire is that the ordinary and established usage be pursued.” ’ (See, also, San Francisco National Bank v. American National Bank, 5 Cal. App. 408 [190 Pac. 558].)”

There seems to be no good reason why the rule applied in the case of Nicoletti v. Bank of Los Banos, supra, and in the cases therein cited, should not apply to the purchase of seeds from a person engaged in the business of selling seed.

In connection with the effect of custom upon the transaction here in question, it is suggested, however, that inasmuch as the warranty of the seller of seed to the buyer of seed is an “express” warranty, that such warranty cannot be contradicted or modified by a custom of the seed trade not to warrant their seed sold. This suggestion requires a consideration of the meaning of the term “express warranty” as applied to sales of personal property. In Benjamin on Sales, seventh edition, sections 610, 613, pages 610, 611, 612, it is said:

“See. 610. A warranty in a sale of goods is not one of the essential elements of the contract, for a sale is none the less complete and perfect in the absence of a warranty. But it is a collateral undertaking, forming part of the contract by the agreement of the parties express or implied. [Foster v. Smith, 18 Com. B. 156; Mondel v. Steel, 8 Mees. & W. 858; Street v. Blay, 2 Barn. & Ad. 456; Chanter v. Hopkins, 4 Mees. & W. 399.] It follows, therefore, that antecedent representations made by the vendor as an indiicement to the buyer, but not forming part of the contract when concluded, are not warranties. . . .

“Sec. 613. No special form of words is necessary to create a warranty. It is nearly two hundred years since Lord Holt first settled the rule, in Cross v. Gardner [Carth. 90; 3 Mod. 261; 1 Show. 68], and Medina v. Stoughton [1 Ld. Raym. 593; L. Salk. 210], which Buller, J., in 1789, laid down in the opinion given by him in the famous leading case of Pasley v. Freeman (3 Term Rep. 51, at p. 57; 2 Sm. L. C., p. 74 (ed. 1887)], as follows: ‘It was rightly held by Holt, C. J., and has been uniformly adopted ever since, that an affirmation at the time of a sale is a warranty, provided it appear in evidence to have been so intended. ’

“And in determining whether it was so intended, a decisive test is, whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion, and to exercise his judgment. In the former case there is a warranty, in the latter not.”

Our Civil Code (section 1763) defines a warranty in somewhat different terms, as follows: “A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present or future.” This general statement is broad enough to cover mere representations of any fact, unless the word “assures” is given a more limited meaning than the word “represents.” The general statement in section 1763 of the Civil Code is also limited by the provisions of the next section (1764), as follows: “Except as prescribed by this article, a mere- contract of sale or agreement to sell does not imply a warranty.” The rule for determining whether a representation of a fact is to be treated as an assurance to the buyer, that is as a warranty, is stated in the articles on “Sales” in Cyc., as follows (35 Cyc., pp. 374, 375) -.

“4. Intention of Parties. An affirmation made by the seller with respect to the thing sold amounts to a warranty if it appears to have been so intended and understood by the parties, and not as a mere mattér of opinion or judgment. The rule is broadly stated in most decisions that a mere affirmation does not constitute a warranty unless shown to be so intended and understood by the parties, and not as a mere matter of opinion; that in the contract of warranty, there must be an agreement of the minds of the contracting parties as in all other contracts. And while there are decisions to the effect that the actual intent of the seller to warrant the thing sold is immaterial if the affirmations made—whether written or oral—and relied on by the buyer as an inducement to purchase, import a warranty, that the seller is responsible for the language he uses, . . . The true aim in construing every agreement, that of warranty included, is of course, to reach the real intention of the parties to it. This is accomplished, not by taking what they may afterward say their intentions were, but what they appear to have been from the words employed, the occasion of using them, and all accompanying facts and circumstances explanatory thereof. ...”

This court has adopted the rule as stated in Benjamin on Sales and in Cyc. In McLennan v. Ohmen, 75 Cal. 558 [17 Pac. 687], it is said: “To create an express warranty the word ‘warrant’ need not be used, nor are any particular words necessary. Any affirmation made at the time of the sale as to the quality or condition of the thing sold will be treated as a warranty, if it was so intended, and the purchaser bought on the faith of such affirmation; and whether it was so intended and the purchaser acted upon it, are questions of fact for the jury.” (Italics ours.)

This decision followed the earlier case of Polhemus v. Herman, 45 Cal. 573, where the rule was stated as follows: “It is certain that no particular words are necessary to create a warranty. Any affirmation made at the time of sale as to the quality or condition of the thing sold will be treated as a warranty if it was so intended.” (Italics ours.) (See, also, Hackett v. Lewis, 36 Cal. App. 687, 688 [173 Pac. 111], and Firth v. Richter, 49 Cal. App. 545 [196 Pac. 277].)

It is established by the foregoing authorities that in order that the sale shall be upon a warranty there must be two factors present,-—-first, an affirmation of a fact by the seller with reference to the thing sold, and, second, an intention on the part of the seller that his affirmation shall be a warranty to the buyer. The affirmation of the fact is shown by direct evidence, and the intent to warrant is inferred from the facts and circumstances surrounding the sale. In the case of the sale of seed for planting, the description of the seed by the seller is an affirmation of a-fact concerning the thing sold. From the fact that seed is sold for planting and that the description of the seed is therefore a vital element in the contract, the intent, on the part of the dealer, to warrant that vital fact to the buyer is inferred. We have thus the two essentials of a warranty. If, however, there is a general custom among sellers of seed not to warrant the seed sold by them, we cannot, in the face of this universal custom, infer an intent on their part to warrant the seed from the facts and circumstances of the sale, because among these facts and circumstances is the custom of nonwarranty, which precludes the inference of an intent to warrant. In such a ease the proof of the custom does not contradict or vary the terms of an express warranty, but establishes that there never was any (express) warranty at all, for the intent to warrant was absent. It is conceded in this case that if the purchaser knew of the custom he could not recover, and the court so instructed the jury. This being conceded the only remaining question is whether a purchaser who contracts with dealers in seed is bound by such a general custom of the seed trade, even if ignorant of the custom. A customer cannot by his mere ignorance of a general custom of nonwarranty impose upon a dealer a contract of warranty which he never intended to make and which the slightest inquiry would disclose to the purchaser was not intended to be made.

Our code points to the same conclusion we have reached by a consideration of the decisions from this and other states, and from the fundamental principles involved in the transaction. “A contract is either express or implied” (Civ. Code, see. 1619). “An express contract is one, the terms of which are stated in words” (Civ. Code, sec. 1620). “An implied contract is one, the existence and terms of which are manifested by conduct” (Civ. Code, sec. 1621). So far, then, as a warranty is based upon the language used by the parties, it is an express contract, and so far as it is “manifested by conduct,” it is an “implied contract.” From other code sections it is clear that in determining whether or not a contract of warranty is to be thus implied we may consider general custom or usage. “A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates” (Civ. Code, sec. 1647). “However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract” (Civ. Code, sec. 1648). “Stipulations which are necessary to make a contract . . . conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention” (Civ. Code, see. 1655). (Italics ours.) “All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded” (Civ. Code, sec. 1656). '(Italics ours.)

The foregoing code rules are laid down “For the purpose of ascertaining the intention of the parties to a contract, ...” (Civ. Code, sec. 1637). It is clear, then, that general custom or usage must be considered in determining the intent of the parties, and are in effect a part of the contract unless the contract manifests a contrary intention (Civ. Code, see. 1655, supra).

It should be noted that we are discussing proposed instructions to a jury concerning a general custom, and not an undisclosed custom of an individual seller, or a purely local custom, of which the buyer was ignorant.

The court erred in refusing the defendant’s proposed instructions.

Judgment reversed.

Myers, J., Waste, J., Kerrigan, J., and Lennon, J., concurred.