No custom can be set up against the clear intention of the parties, nor against their express agreement; and no usage can be incorporated into a contract which is inconsistent with the terms of the contract. (Schoone v. Reeside, 2 Sumner, 567; 2 Parsons on Contracts, 546, note x.)
The office of usage or custom is to interpret the otherwise indeterminate intentions of the parties, and to ascertain the nature and extent of the contract, arising not from express stipulation, but from mere implications and presumptions and acts, of a doubtful and equivocal character, and to fix and explain the meaning of words and expressions of doubtful or various senses. (2 Greenleaf Ev., Sec. 251 and note 4.)
OPINION By the Court:
In this State the affidavits of jurymen cannot be received to impeach or defeat their verdict. The prohibition extends beyond cases of willful misconduct on the part of jurors, and to every case in which the affidavits are attempted to be used as ground for setting aside a verdict because of a misunderstanding of its effect by some or all of the jurors who united in its rendition. The only exceptions to this rule are those in which the Legislature has by express enactment authorized such attack upon the verdict by those who rendered it, and it is not pretended that the present case is within any such exception. (Boyce v. Cal. Stage Company , 25 Cal. 474.)
The provision in the contract referred to in the answer, to the effect that the wool should be " in good order" was a warranty. (Polhemus v. Heiman , 45 Cal. 573.) As the contract contained an express warranty, evidence might properly have been rejected of a custom, which was sought to be incorporated into the contract, and the effect of which, if any, would be to relieve the plaintiff of liability incurred by reason of the breach of his express warranty. The authorities cited by appellant do not sustain the propositions contained in the fourth and fifth instructions to the jury asked by him.
We have been enabled to find no substantial error in the rulings or charge of the court below, and the judgment and order are affirmed.