Wheeler v. Nurse

20 N.H. 220

• Court: Superior Court of New Hampshire
• Decided: July 15, 1849
• Status: Published

Opinion

Wilcox, J.

By the terms of this contract, the defendant was to return the same sheep which he received. He had no right to return other sheep of a like quality. The plaintiff proposed to show that the contract in fact was, that he should return the same sheep, or the same number of sheep as good; and he proposed to establish this, first, by the parol declaration of the parties at the time, and, secondly, by proof of a custom or usage among farmers to that effect.

As to parol declarations, it is too clear for argument that they cannot be received to qualify or add to the written contract.

There are cases where usage may be received to aid in the construction of a contract; but this is only where there is an ambiguity or uncertainty in the contract itself, or where the evidence relates to some incidents as to which the contract is entirely silent.

Where the terms of a contract are express and certain, usage cannot be received to give a different effect to the contract from what its terms clearly import; because, whatever usage may exist, the parties may contract as they please. They may disregard the usage altogether; and it is to be inferred that such is their intention where the language of the contract is fixed, certain and determinate in its character.

Judgment on the verdict.