Mooney v. Howard Insurance

138 Mass. 375, 1885 Mass. LEXIS 199

Opinion

Morton, C. J.

The defendant insured the plaintiff “ on his stock of rags, old metals, bones, and barrels ” contained in his storehouse. The plaintiff is a junk-dealer, “ his stock ” consisting of old articles and materials, paper stock, pieces and fragments of all kinds, and it could not be particularly described in a policy or other contract without great prolixity. We think it was competent for the plaintiff to prove that, by a usage of the trade, the terms, “rags” and “ old metals” had acquired a broader signification than belongs to these words as commonly used.

* It was an application of the rule that, where words have two meanings, one common and the other peculiar and technical, it is competent to show that they were used in the latter sense. 1 Greenl. Ev. § 295. Macy v. Whaling Ins. Co. 9 Met. 354. Daniels v. Hudson River Ins. Co. 12 Cush. 416, and cases cited.

The usage upon which the plaintiff relied was not a particular or a local usage, but was a general usage of the trade. The defendant asked the court to rule “ that a usage or custom of a particular trade, in order to bind the defendant, must be proved by substantive evidence to have been known to it or its agent, and that it was not enough that the jury should presume such knowledge, if they found such a usage to have been of long continuance.” The court refused this ruling; and instructed the jury, “ that the plaintiff must prove that the alleged usage was known to the defendant, and that they would be warranted in finding that it was known to the defendant, if they found, upon all the evidence, that there was such a usage or custom, and that it was well defined, universal, uniform, and of long continuance.” We understand this to mean, that the jury might infer the knowledge of the defendant from the universality and long existence of the usage. A usage such as the instructions required having been proved, the defendant’s contract is deemed to have been entered into with reference to such usage, if known to it.

Underwriters insuring by certain words may fairly be presumed to know the mercantile meaning of those words; and the feet of a wide-spread and established use has at least a tendency to show that they had such knowledge. Howard v. Great Western Ins. Co. 109 Mass. 384. Croucher v. Wilder, 98 Mass. 322. Astor v. Union Ins. Co. 7 Cow. 202.

We are of opinion that the instructions given at the trial were sufficiently favorable to the defendant.

Exceptions overruled.

The plaintiff was permitted to prove a custom in the jnnk trade to include under the term “ rags ” all articles used in the manufacture of paper, and under the term “ old metals ” various articles, such as old rubber and old glass.