When a custom or usage is once established, in absence of express provision to the contrary it is considered a part of a contract and binding on the parties though not mentioned therein, the presumption being that they knew of and contracted with reference to it.
Plaintiff rabbi sued for the balance of the contract price and refused to complete a contract to officiate services because defendant synagogue violated the orthodox practice of separate seating by sex during services. Before entering into the contract, defendant had adhered to separate seating. During negotiations, it was agreed that defendant would continue to require separate seating, which the court held were admissible statements bearing on plaintiff's intent and state of mind in entering into the contract.The court ruled in favor of plaintiff rabbi. On appeal, the court affirmed.
Did the parties contract on the common understanding that the defendant was an orthodox synagogue which observed the mandate of the Jewish law as to separate seating?
From the findings of the trial judge supported by the evidence it is clear that the parties contracted on the common understanding that the defendant was an orthodox synagogue which observed the mandate of the Jewish law as to separate seating. That intention was implicit in this contract though not referred to in the writing, and therefore must be read into it.