"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"
Fisher v. Congregation B'nai Yitzhok
Plaintiff, a rabbi, came to Philadelphia to audition before a committee representing defendant, a Hebrew congregation at a synagogue there. They signed a contract, under which plaintiff agreed to officiate as cantor "for the High Holiday Season of 1950" in exchange for $1,200, but which did not specify the parties' beliefs.
At the time, defendant was an Orthodox Jewish congregation, as their charter said, and thus separated seating by gender. However, in between signing defendant's contract and the performance thereof, defendant abandoned their orthodox seating practices and began to practice mixed seating. When plaintiff was informed of this, he refused to officiate as cantor because such a thing would violate his beliefs. It was then so near the holiday season that plaintiff was only able to secure employment for one service elsewhere for $100.
Plaintiff then brought suit for the balance of the contract price.
Trial court entered judgment for the plaintiff in the sum of $1,100.
Was it implied in the contract that men and women would sit separately?
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Defendant's rabbi told plaintiff that the congregation followed the orthodox way of conducting their services and that they would continue to do so in their new synagogue. While the rabbi cannot speak as an agent of the congregation, this shows that plaintiff believed and intended this to be a part of the contract.
The parties contracted with the common understanding that men and women would sit separately. Affirmed.