There were ten witnesses, flour merchants for many years in the city, who state that they knew of no such usage.

It will thus be seen, from a careful analysis of the evidence, that the defendants wholly failed to prove any general or established usage or custom of the trade in Baltimore, as claimed in the defense. Every witness called on their behalf fails to prove facts essential to make out the custom in the sense of the law; on the contrary, most of them expressly disprove it. They express opinions upon the subject of a margin as a right to be exercised in their own business, but admit that it is not founded upon any general usage; and none of them speak of its having been claimed or exercised in his own business but in one or two instances. Whether a usage or custom of the kind set up existed in the trade in Baltimore, was a question of fact to be proved by persons who had a knowledge of it from dealing in the article of flour. Opinions of persons, as to what rights they might exercise in their own business in respect to time contracts, fall far short of any legal proof of the fact, especially when they admit that there was no general usage of the kind known to them.

Then, as to the precise limit or character of the custom claimed, the opinions of the witnesses are various and indefinite. The margin, they say, must be reasonable, but the pretended usage contains no rule by which a reasonable margin may be determined. It is said the amount may be referred to merchants. But there is no evidence that this is a part of the custom, or that any such mode of adjusting it ever occurred in the trade. Some of the witnesses state, that the margin must be a sum of money sufficient to make the party safe according to the state of the market. One states. that, at the time the demand was made in this case for a margin, flour had fallen, and the price lower than the price in the contract; yet this, in his judgment, did not affect the right to make the demand, as the general opinion among dealers was, that the price would advance; that there were great fluctuations in the price, and that, in such a condition of things, a reasonable margin would depend upon the extent and character of the fluctuations, and upon the speculative ideas of the future value of flour.

The broker of the defendants, who purchased this flour, s'ates his view of the reasonableness of the margin, which is the difference between the intrinsic value of the flour and its specu'ative value; by intrinsic value, he says he means the cost of the production; and

by speculative value, the price at which it was rating above its ntrinsic value; and to a question what, in his opinion, would be a reasonable margin under the custom, when flour in the market was lower than the contract price, he answered that he considered the demand reasonable in this case, because he believed flour was going up to $12 per barrel. It would be difficult to describe a custom more indefinite and unsettled.

MERCHANTS INS. Co. v. PRINCE, Supreme Court of Minnesota, 1892 (50 Minn. 53).

Gilfillan, C. J.: This is an action by an insurance company against its agents for premiums alleged to have been received by them on policies issued by it through them as its local agents in St. Paul. It is conceded that the authority of the defendants as agents was terminated by plaintiff in the spring of 1890, though there seems some question as to the exact date of the withdrawal of authority. They had been its local agents some ten years. The real controversy in the case is upon the claim of defendants to a right, after their agency was terminated, to cancel policies issued by it through them within a certain period, say since the date of their last report to the company; not to cancel them for the benefit of the company, or because its interests might require it, but to do so in their own interest, and so that they might turn over the insurance represented by the policies to some other company of which they might have the agency. There was no attempt to prove any express contract between the plaintiff and defendants to continue the authority of the latter to cancel policies after the termination of their agency generally. But that right or authority is claimed by reason of an alleged custom in the insurance business in St. Paul. Evidence to prove such a custom was introduced by defendants.

The plaintiff makes the point that the evidence was not sufficient to establish such a custom. We will not, however, consider that point, but come to the question presented by an instruction to the jury pursuant to the defendants' fifth request, as follows: "If you find from the evidence that it was a common, recognized custom in St. Paul at the time here in question that, upon the change of agency, the retiring agent canceled and took up all policies already paid for if he saw fit, as a part of the closing of the agency, you will find for the defendants as to those policies." The custom referred to is characterized in defendants' fourth request, likewise given and excepted to, thus: "That agents, in case of change in

agency, considered the business worked up and secured by them belonged to them, to the extent that, at least, took up all policies issued or delivered since the making of the last correct report pending the change of agency." As one of the witnesses for the defendants testified, the agent generally considers the business he works up as his own, and does with it as he sees fit. The proposition that any part of the business done by an agent for his principal, and for doing which the principal pays him, belongs to the agent, rather upsets our notions of the rights growing out of the relation of principal and agent. Is such a local custom valid? Is it reasonable? For, if unreasonable in the legal sense, it is not valid. While a custom may not be reasonable merely because it is not contrary to any established rule of law, there is a uniform concurrence of authorities that, in the legal sense, it is to be deemed unreasonable if it be opposed to the policy of the law, as where it tends to unsettle well-established rules of law, established for the protection of the rights of parties. Thus of a usage that a factor may pledge the goods of his principal (Newbold v. Wright, 4 Rawle, 195); that the master of a vessel may sell the cargo without necessity (Bryant v. Commonwealth Ins. Co., 6 Pick. 131); to charge interest where the statute provides none shall be charged (Henry v. Risk, I Dall. 265); authorizing a landlord to re-enter for a forfeiture in a manner different from that provided by law (Stoever v. Whitman, 6 Binn. 417); requiring two thousand two hundred and forty pounds for a ton where the statute provides two thousand pounds. shall be a ton, unless otherwise specified in the contract (Evans v. Myers, 25 Pa. St. 114; Green v. Moffett, 22 Mo. 529); that when a seller of goods receives the consignee's note without the buyer's indorsement, the latter is discharged, and the maker of the note alone. is responsible (Prescott v. Hubbell, 1 McCord, 94); so of a usage contrary to the rule caveat emptor: Barnard v. Kellogg, 10 Wall. 383; Dickenson v. Gay, 7 Allen, 29. The cases of Johnson v. Gilfillan, 8 Minn. 395 and Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, are in the same line.

These are but a few of the cases that might be cited to the same effect. But where the rule of law is established, not merely to define the rights of parties under particular circumstances, but to protect those rights by enforcing good faith and fair dealing between them, the reason for excluding local usage to the contrary of the rule is still stronger. The requirement of good faith is the basis

of the rules of law governing the duties of an agent to his principal. The agent is held to the utmost good faith in the business of his principal, and, to secure this, he is not permitted to place himself in a position antagonistic to the interest of his principal, nor to secure any advantage to himself from the business without the full and free consent of the principal. It was because such a usage would tend to subvert this principle of the law of agency it was held in Farnsworth v. Hemmer, 1 Allen, 494 and Raisin v. Clark, 41 Md. 158 that a usage permitting an agent employed to sell or exchange property to take commissions from both seller and buyer was void.

There could be no question that, pending his agency, an agent of an insurance company authorized to issue policies cannot, without the consent of the company, treat the business represented by policies issued through him as in any sense his business, or the business of any one but his principal; and, if he has authority to cancel policies, he could only exercise it for the benefit of his principal. A usage that he might cancel policies for his own advantage would be so subversive of all the principles underlying the rules of the law of agency as to be void. Defendants do not claim otherwise. Their claim amounts really to this: that by the usage, upon the revocation by the company of the revocable authority conferred on the agent, a part of the business, conceded to be that of the company up to that time, becomes the business of the agent, so that he may do with it what he pleases, and that as to that part of the business the revocation clothes him with power that he did not have before. The proposition would justify a custom that any agent, as soon as his authority should be withdrawn, might at once, for his own advantage, undo, so far as it could be undone, all the business that he had done for his principal.

The rules of law established to secure and enforce good faith in fiduciary relations are so necessary and so salutary that no local custom to the contrary can be sustained. Order reversed.

MILLER V. MOORE, Supreme Court of Georgia, 1889 (83 Ga. 684). Bleckley, C. J.:. . . It was not competent to vary the general law of the State, raising a warranty in favor of the purchasers, by showing a local usage in Augusta operating upon the corn trade, to the effect that the acceptance of corn in bulk, and paying for it after inspection, were considered as waiving or releasing all claim upon the seller to answer for any defects of quality. Doubtless the

custom is binding upon those who have recognized it in their own transactions, and thus adopted it for their own dealings; but persons who have not done so are entitled to stand upon the general law. Jones, Com. & Tr. Cont. 122, 123; Hatcher v. Comer, 73 Ga. 418; Thompson v. Ashton, 14 Johns. 316; Barnard v. Kellogg, supra; Yates v. Pym, 6 Taunt. 446.

HOLMES V. JOHNSON, Supreme Court of Pennsylvania, 1862 (42 Pa. St. 159).

The opinion of the court was delivered, March 10th, 1862, by Read, J. The plaintiff and defendants in this case are all coloured persons, and, on the trial below, the defendants offered to prove, "That in the region from whence these people came, the Eastern Shore of Maryland, it is not the custom for coloured people to form legal marriages; that marriage among them is the exception. and not the rule; that the majority of them cohabit promiscuously, and that this mode of promiscuous cohabitation is the custom there among free coloured persons as well as slaves;" which offer the court rejected.

A custom, however ancient, if contrary to morality, religion, and the law of the land, cannot be a legal one, and it is clearly unreasonable, and cannot be compulsory. Tried by this standard the rejection of this offer to prove such a custom so contrary to the moral sense of a Christian community was eminently proper. There are however, other objections to the proposed custom as stated in the offer, which it may be proper to consider:

These persons came, according to the evidence, from near Snow Hill, on the Pocomoke river, in Worcester county, which adjoins Accomac county, on the Eastern Shore of Virginia. By the census of 1850, the slave population in the five lower counties, including Worcester, numbered 21,718, while the free coloured amounted to 14.544. In 1790, the whole number of slaves in Maryland was 103,036, whilst the free coloured were only 8,043; whiles in 1850, the slaves were 90,368, and the free coloured 75.723; and in 1860, the slaves had decreased to 85,382, and the free coloured no doubt, had increased at least to an equality, for the aggregate free population had increased 153.517 in that decade.

Now, as there is no legal marriage amongst slaves (opinion of Daniel Dulany, I Maryland Rep. 561; Jackson v. Lervey, 5 Cowen 402, 403), it would have been easy for any gentleman coming from the lower part of the Eastern Shore of Maryland to have proved a