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Statement of case.

The judgment should be reversed, and a new trial granted, costs to abide the event.

All concur, except Church, Ch. J., dissenting, and RAPALLO, J., not sitting

Judgment reversed.

49 464 112 595

49 484 114 144 114 193

John WALLS et al., Respondents, v. GEORGE BAILEY,

Appellant.

49 464 127 231

49 464 149 316

49 464 161 42+

49 464 170 1 99

Parties are presumed to contract in reference to a uniform, continuous and

well settled usage pertaining to the matters as to which they enter into agreement, where such usage is not in opposition to well settled principles of law and is not unreasonable. But where the usage is of a particular trade or locality, such presumption is not conclusive and may be rebutted by proof upon the part of one of the contracting parties that he

was ignorant of such usage. Plaintiffs contracted in writing to furnish the materials to do certain plas

tering for defendant upon his building in Buffalo at so much per square yard. They included in their bills and charged for the full surface of the walls, without deduction for cornices, base boards, or openings for dvors and windows. To support these charges they proved under objection that it was the uniform, well settled custom of plasterers in Buffalo so to measure and charge. Held, the evidence was proper, the usage not unlawful or unreasonable, and raised a presumption that defendant contracted

with reference to the usage. To meet this presumption defendant as a witness in his own behalf was

asked if at the time of contracting he had any knowledge of the custom claimed. The evidence was excluded. Held, error. (PECKHAM, J., dis

senting.) (The authorities upon the question as to when knowledge is necessary to

sustain a usage, collated and discussed.)

(Submitted February 12, 1872; decided May 28, 1872.)

APPEAL from judgment of the General Term of the Superior Court in the city of Buffalo, affirming a judgment in favor of plaintiff, entered upon a verdict.

This action was instituted to recover a balance alleged to be due to the plaintiffs for plastering the defendant's house. The

Statement of case.

work in question was done under a written contract, of which the following is a copy:

“ BUFFALO, N. Y., January 18, 1869. “We hereby agree to do the plastering work of house now being built by George Bailey, on Main street, at the prices named below, viz. :

“For one coat work, twenty-five cents per square yard.

“For two coat work with hard finish, thirty-three cents per square yard.

“ The prices to include all labor and cost of material, we paying said Bailey the invoice price for all laths purchased and supplied by him. All work to be done with the International Lime Company's’lime; the laths to be securely nailed before plastering, and all work to be done in a good, workmanlike manner, and to the satisfaction of said Bailey.

Plastering with hydraulic cement, forty-five cents per square yard, to be done in a good, workmanlike manner, and to the satisfaction of said Bailey.

WALLS & LECK."

The plaintiffs claimed that in determining the number of square yards for which they are entitled to pay, under the agreement, the openings, including doors and windows, are to be measured as plastering. That in rooms plastered with two or three coat work, the part of the work behind the cornice and base-board is to be measured as though actually plastered with two or three coats, though the same was only plastered with one coat.

This claim was based on the assumption that at the time the agreement was made it was the custom of plasterers in the city of Buffalo to measure and charge for openings; and for wall not plastered, where the same was covered by a cornice or base-board.

The court allowed proof of such custom to be given on the trial under defendant's objections. Defendant was called as a witness in his own behalf, and his counsel asked him this question: “When you made the contract had you any know

SICKELS --VOL. IV.

59

Statement of case

ledge of any custom in Buffalo of measuring openings in measuring plastering ?” This was objected to and the court excluded the testimony. The court charged that the contract was to be construed with reference to the custom of the place where made, that such custom must be reasonable and public, general and uniform, to which defendant excepted. The jury found a verdict for the full amount claimed by the plaintiffs.

Benjamin H. Williams for the appellant. The work was done under a contract clear and unequivocal, which could not be varied by parol proof of a custom. (Gross v. Criss, 3 Grattan (Va.], 26; Sanford v. Rawlings, 43 Ill., 92 ; Cox v. Heisley, 19 Penn., 243; Barnard v. Kellogg, 10 Wallace, 383; Thompson v. Riggs, 4 id., 679; Markham v. Jaudon, 41 N. Y., 235; Simmons v. Law, 3 Keyes, 393; Spartale v. Bencke, 10 C. B., 222; Blacket v. The Royal Exchange Assurance Co., 2 Crompton & Jervis, 244; Lombard v. Case, 45 Barb., 95; Beirne v. Dord, 1 Seld., 155; Whitmore v. South Boston Iron Co., 2 Allen, 52; Barlow v. Lambert, 28 Alabama, 710; Oelricks v. Ford, 23 How. [S. C.], 49; Beals v. Terry, 1 Sand., 127; Thompson v. Ashton, 14 Johns., 317; Martin v. Maynard, 16 N. H., 165; Vail v. Adams, 1 Seld., 155; Dykers v. Allen, 7 Hill, 498; Wheeler v. Newbould, 16 N. Y., 393; Merchants' Bank v. Woodruff', 6 Hill, 174; Mu. Safety Ins. Co. v. Home, 2 Coms., 235; Wescott v. Thompson, 18 N. Y., 363; Donnell v. Col. Ins. Co., 2 Sumner, 377; In re Reeside, 2 id., 567; 2 Barn. & A., 746; 7 J., 389; 6 Pick., 131; 1 Dal., 265; 3 Yeates, 318; 6 Bin., 417.) The custom is unreasonable, and courts have frequently refused to enforce such. (Thomas v. Graves, 1 Rep. Con. Ct., 310; Hinton v. Locke, 5 Hill., 437; Hill v. Portland, etc., R. R. Co., 55 Maine, 438; Dodd v. Furlow, 11 Allen, 426; Strong v. Grand Trunk R’y Co., 15 Mich., 206; Mussey v. Eagle Bank, 9 Met., 306; Stover v. Lessee, etc., 5 Binny, 416;,Bolton v. Colder, 1 Watts, 360; Miller v. Pendleton, 8 Gray, 548; Yates v.

Opinion of the Court, per FOLGER, J.

Pyne, 6 Taunt, 445; Bowen v. Stoddart, 10 Met., 375; Jordon v. Meredith, 3 Yeates, 318; Cox v. Heisley, 19 Penn., 243.) Knowledge of the customs by the party sought to be charged must be shown, and the presumption of such knowledge may be rebutted. (Stevens v. Reeves, 9 Pick., 197; Kirchner v. Venus, 5 Jurist. [N. S.], 395; Berkshire Woolen Co. v. Proctor, 7 Cush., 429; Fisher v. Sargent, 10 id., 250; Wheeler v. Newbould, 5 Duer, 29; Caldwell v. Dawson, 4 Met. [Ky.], 121; Leonard v. People, 30 Ga., 61; Clayton v. Gregson, 5 Ad. & Ellis, 301.)

David F. Day for the respondents. The usage of plasterers in Buffalo was properly proven, and the contract is to be construed in reference to it. (2 Parsons on Con., 3d ed., 49; Sewall v. Gibbs, 1 Hall., 602; BRONSON, J., in Hinton v. Locke, 5 Hill, 437; see also, opinion of EARL, C., in Bradley v. Wheeler, 34 N. Y. R., 495; Eaton v. Smith, 10 Pickering, 150; Avery v. Stewart, 2 Conn., 69; Stultz v. Dickey, 5 Binn., 287; Dalton v. Daniels, 2 Hilton, 472; Coit v. The Comm. Ins. Co., 7 Johns., 395; Astor v. The Union Ins. Co., 7 Cowen, 202; Spicer v. Hooper, 1 Q. B., 424; Chanrand v. Augerstein, Peake’s N. R. Cases, 43; Cochran v. Petburgh, 3 Esp., 121; Evans v. Pratt, 3 M. & Gr., 759; Smith v. Wilson, 3 B. & A., 728; Conner v. Robinson, 2 Hilt. [So. Car.], 354; Hinton v. Locke, 5 Hill., 437; Baker v. McKelvay, 2 N. J., 165; Soutier v. Kelleman, 18 Miss., 509.) Defendant was bound to know the custom of the trade with which he dealt. (Whitehouse v. Moore, 13 Abb. P. R., 142; Pollock v. Stables, 12 Q. B., 765; Parsons on Contract, 3d ed., vol. 2, p. 57; Clayton v. Gregson, 5 A. & El., 302; Hinton v. Locke, 5 Hill, 437.)

FOLGER, J. The contract between the parties was in writing. By it the plaintiffs were to furnish the material for the plastering work of the defendant's house, and to do the work of laying it on. The defendant was to pay them for the work and material a price per square yard. Of course,

Opinion of the Court, per FOLGER, J.

the total of the compensation was to be got at by measurement. But when the parties came to determine how many square yards there were, they differed. The query was, the square yards of what? Of the plaster actually laid on, or of the whole side of the house, calling it solid, with no allowance for the openings by windows and doors?

And it is not to be said of this contract, that it was so plain in its terms as that there could be but one conclusion as to the mode of measurement, by which the number of square yards of work should be arrived at. It is in this case as it was in Hinton v. Locke (5 Hill, 437). There the work was done at so much per day. The parties there differed as to how many hours made a day's work. That is, what should be the measurement of the day? And there, evidence of the usage was admitted, not to control any rule of law, nor to contradict the agreement of the parties, but to explain an ambiguity in the contract. And the proof showing a usage among carpenters that the day was to be measured by the lapse of ten hours, it was held a valid usage; and the contract was interpreted in accordance with it.

So in Ford v. Tirrell (9 Gray, 401), the contract was to build the wall of an octangular cellar, at the rate of eleven cents per foot. The only question was as to the mode of measurement. The defendant contended that the inner surface of the wall should be the rule. The plaintiff claimed that an additional allowance should be made for the necessary work at the angles to support the building. It was held that the agreement as to the compensation was equivocal and obseure, and that it was competent to prove a local usage of measuring cellar walls, in order to interpret the meaning of the language, and to ascertain the extent of the contract.

So in Lowe v. Lehman (15 Ohio St., 179), in a contract to furnish and lay up brick at so much per thousand, the controversy was as to the proper mode of counting. Evidence of a local usage, to estimate by measurement of the walls, on a uniform rule, based on the average size of brick, making slight additions for extra work and wasteage, deducting for

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