"ETCETERA."

Evening Post, Volume LXXVI, Issue 144, 17 December 1908, Page 8

"ETCETERA."

# • A MATTER OF USAGE. DECISION OF MAGISTRATE. The whole issue in a case decided by Dr. M'Arthur, S.M., to-day in reserved ' iudgment was as to what was the mean"ing of the word "etc.," and what did ib " include. • The plaintiff in the suit in question /was Harry Wilson Davies, and the defendant William George- Emery. The - defendant was a contractor for building a warehouse for Messrs. Irvine and Stevenson in Wellington, and the plaintin' was a snb-contractor for tho plumbing work under' the plaintiff. Under "the heading "Plumber," the specifica".tions provided that £120 should be allowed for gas fittings as directed with '.fittings complete. The amount in dispute was this £120, the other items be'mg extras and admitted. The total amount of the sub-contract, which was signed on the 24th April, " 1907, was £390. The. defendant subse- .. quently employed the plaintiff tor re\vard, no price being fixed, to instal and -fix certain gas services. The plaintiff -"•duly performed the contract, and cxcv cuted the extra work. He had received , from the defendant certain sums on .the contract. There waN still due, nc--cording to the statement of claim, the sum of £166 8s lid. This amount tho ".plaintiff claimed. The tender of tho plaintiff provided -for the fixing of spouting, downpipes, I'cMashinsr, gutters, yidging. skylights, -drainage, etc. • What did "etc." include? Plis Wor--ship said that when parties had entered ..■into written engagements with express • it was manifestly not desirable to extend them by implications, ",the presumption being that having exsome, they have expressed all .-the conditions, by which they intended •to be bound under that instrument. . • "It is only right, however," added his .Worship, "to observe that great caution -.'is requisite in dealing with it, for it ■is not of xinivevsal application, but '/depends upon the intention of the party >as discoverable upon the face of the '.instrument. Thus, 'if general words are .'used in a written instrument, it is nec•_^&ssary to determine whether these gen--eral words are intended to include other -Imatters besides such as are specifically .-.mentioned or to.be referable exclusively! -.to them, in which latter case only can '.the maxim be rightly applied. The '/general rule is that parol evidence is, except' m- certain cases, wholly inadmissible to show terms upon which a written instrument is silent, or that, when there is an express contract between parties, none can be implied." But, continued hw Worship, although the maxim ordinarily operated to exclude evidence offered' with a view of annexing incidents to written contracts, yet it had long been settled that in commercial transactions, extrinsic evidence of custom and usage was admissible for that purpose, but in no case could it be given in contravention thereof, and the principle of varying written contracts by the custom of trade had in many cases been distinctly repudiated. During the hearing he had ruled that certain evidence counsel for the defence wished to call as to the lustom of the trade was inadmissible. After citing a large number of cases in reference to the custom of tiades in reference to contracts his worship came to the meaning to be attached to the word "'etc." Counsel for the defence contended that "etc." included gas supply. The plaintiff produced other contracts in which "gas" was specifically included. Finally Dr. M'Arthur, after a judgment occupying about fifteen niinutes in the delivery, said :—"ln: — "In my opinion the evidence of usage in the trade cannot be admitted, and the expression 'etc. 1 does not include ths gas supply, but only things 'ejus generis* to those enumerated in the contract." _, Judgment was given for the plaintiff for the amonnt claimed, £166 8s lid, with costs, £10 17s. Of this amount £46 8s lid had already been paid into tourt. Mr. Grey appeared for the plaintiff, Mr .Blair for the defendant.