per cent. in case he had to work upon damaged cargo.
Assuming that the evidence was sufficiently definited to establish the existence of such custom, it cannot affect the contractual relations of these parties, for two reasons:
First. There is no evidence that the parties contracted with reference to it. Nor can this be presumed from the mere existence of the custom, since it is concededly a local custom and one of the parties was a nonresident and there is nothing to show that he knew of it. The rule is that such knowledge cannot be presumed, without proof, except in the case of a custom prevailing generally in the trade or business in which both parties are engaged. Chateaugay Ore & Iron Company v. Blake, 144 U.S. 476, 12 S. Ct. 731, 36 L. Ed. 510; Isaksson v. Williams (D.C.) 26 F. 642; The City of Atlanta (D.C.) 17 F.2d 311.
Second. The evidence of the custom, if accepted, would be in contravention of the terms of the written contract. The contract does not expressly refer to payment for discharging damaged cargo, but that does not mean that that point is not covered. Had the agreed rates been fixed for discharging sound cargo, there would, of course, have been a hiatus which might have been supplied. But the consideration is to be paid for "Discharging Corkwood," and that includes damaged as well as sound corkwood. Evidence of a custom will not be received upon a matter as to which the contract has spoken. Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987; Dewitt v. Berry, 134 U.S. 306, 10 S. Ct. 536, 33 L. Ed. 896.
The claimant may therefore have a decree of dismissal, with costs.
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