Latta v. Da Roza

California Court of Appeal Sep 17, 1929 No. Docket No. 3694.Published

Before: Thompson

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Holding. The court affirmed the judgment, holding that while evidence of a special trade custom was inadmissible against defendants who lacked knowledge of it, the judgment was supported by independent evidence of an oral agreement for hauling services and sufficient proof of agency.

Issues

Whether evidence of a special trade custom is binding on a party who lacks knowledge of said custom.
Whether the evidence sufficiently supported the judgment against the co-defendant wife based on agency.

Disposition. affirmed

Quotations verified verbatim against the opinion

“To bind one who is not engaged in the trade or occupation which employs the usage relied upon, proof of his actual knowledge of the usage is necessary, unless it is so commonly accepted that the public is presumed-to recognize its existence.”

“The authority of one spouse to act for another may be established by circumstances, and as between husband and wife requires much less evidence to establish agency than is ordinarily required.”

[608]

THOMPSON (R. L.), J.

This is an appeal from a judgment for a balance due on a written contract “to lay 12 inch pipe on the property of Edw. L. da Roza at 45 cents per foot ...” There is a conflict of evidence regarding the number of feet of pipe which was actually laid. It is contended the evidence does not support the judgment against the defendant Roma V. da Roza. The chief controversy, however, is concerning the admission of testimony affecting an alleged trade custom respecting the construction of the term “to lay,” which is employed in the contract.

The written contract was silent regarding the hauling of the pipe. Without objection the plaintiff testified: “This written contract did not contain all the agreements had with da Roza. Mr. da Roza was to haul the pipe, but later, because he was so busy, hired me to haul the pipe and all materials on a tonnage basis.” Over objection on the part of defendants the witness Hartman was permitted to testify that he had been in the pipe business many years and was familiar with the usages and customs of the trade and that the term “to lay” did not include a hauling charge. In response to this testimony the defendant Edward da Roza testified : “That said contract was the only contract entered into between the parties hereto; that under such contract plaintiff agreed to and was to haul and lay the pipe for 45 cents a foot; (that) I am not, and never was familiar with the customs or usages of pipe dealers or pipe laying contractors.” The record contains no further testimony respecting the defendants’ knowledge of the alleged trade custom.

The general trade meaning of expressions is controlled by the express contract of the parties.

(Browning

McNear,

158 Cal. 525 [111 Pac. 541].) In view of the conflict of evidence respecting the charge for hauling pipe, the judgment should be affirmed, unless the foregoing evidence as to the trade custom was incompetent and prejudicial. Clearly, the challenged evidence in the present case affects a special trade usage, which is presumed to be known by and binding upon those who are engaged in that particular trade or calling. (25 Cal. Jur., p. 419, sec. 4; 27 R. C. L., p. 162, sec. 10.) When a usage is not general in character, but, upon the contrary, is local and confined to a particular trade or occupation, it is binding upon those not

Latta v. Da Roza

AI Brief

THOMPSON (R. L.), J.

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THE COURT.

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