69 Neb. 78 | Neb. | 1903
This was an action to recover from the plaintiff in error, Bixby, an alleged balance of $267.08 for- material and labor furnished in the construction of a brick building a,t Hardy, Nebraska. The parties will be designated plaintiff and defendant, as they were at the beginning of the litigation. Plaintiff’s account, as stated in his petition, amounted to $1,758.47. On this he admitted having received $1,517.37, and he brought suit for the remainder, with interest.
The defendant answered admitting four items of plaintiff’s account; admitted the furnishing of brick for the building but says that instead of 167,237 brick only 138,491 were furnished. Some other items were disputed and defects in the building were alleged causing damage in the sum of $500, and judgment was asked against the plaintiff in the sum of $527. There was a general as well as special denials in the answer, which was itself denied. On trial to
The sole error complained of is the giving of the following instruction:
“You are further instructed that if you shall find from the evidence that the plaintiff erected for the defendant under a verbal agreement a brick building, the walls of which were to be and were 14 inch hollow walls, and that no agreement was made between the plaintiff and the defendant as to the rule of measurement of the brickwork in such building, under the evidence in this case the plaintiff would be entitled to measure and receive pay for such building as a 14 inch solid wall. And if after the completion of the building a settlement was had, and through inadvertence or mistake the building was improperly figured to the injury of the plaintiff, such fact would not preclude his recovery in this action.”
The plaintiff simply alleges that he “furnished 167,237 brick laid in the wall” at $8 a thousand. The defendant says that it was agreed that the wall should be 14 inches in thickness and with a two inch air space and that the plaintiff agreed it should be figured as a 12 inch, and not as a 14 inch wall; that the plaintiff’s computation is for a 14 inch solid wall and that one-seventh must be deducted because of the two inch air space.
Plaintiff at the trial introduced, without objection from defendant, some evidence to prove a custom among masons to charge for the empty space in hollow walls in computing the number of the bricks laid; he says that it was computed so in this instance.
As above indicated, the sole error complained of is the instruction to the jury by the trial court, that under the evidence plaintiff would be entitled to measure'and receive pay for a 14 inch solid wall if no agreement as to the manner of ascertaining the number of brick was found. The evidence hardly seems to warrant so emphatic an instruction. It is certainly not a matter of judicial know!
In the present case the real question between the plaintiff and defendant is, what Avas intended by the phrase “$8 a thousand for brick in the wall” ?
It is not claimed on behalf of the defendant in error that any evidence tended to sIioav knoAAdedge of this usage on the part of the defendant, or that the contract was made with such a usage in vícav; such a custom among masons is testified to by the plaintiff and by two other witnesses. While there are some cases holding that no such usage can be shown in connectiofi with an express contract for brick at a certain price (Sweeney v. Thomason, 9 Lea (Tenn.), 359, 42 Am. Rep. 676), the better doctrine seems to be that such a custom or trade usage may be shoAvn as a means of ascertaining the intention of" the parties to a contract but never to tliAvart or control such intention. Kendall v. Russell, 5 Dana (Ky), 501, 30 Am. Dec. 696.
In First Nat. Bank of Hastings v. Farmers & Merchants Bank, 56 Neb. 149, it is held that such a usage of a particular trade to be available must be pleaded, and if denied must be proved. It seems clear that the court in undertaking to say that in the absence of a special -agreement as to the manner of measurement, the Avail and the air spaces should be counted as a solid one, is not Avarranted by the evidence. It was a question of the intention of the parties, an attempt to vary and control the ordinary meaning of the contract terms by means of a trade usage. In order to have the proposed effect, either knowledge of such usage on the part of the defendant, or such a general knoAvledge of it as to lead to a conclusive presumption that he knew of and contracted with reference to it, must have been shoAvn. 15 Century Digest, col. 1211; Irwin v. Williar, 110 U. S. 499. Neither of these appear in this case. It does not affirmatively appear that defendant was avvare of such usage, nor does it appear to have been so general and so well known, that he must be presumed to have contracted with reference to it, and the utmost Avhich plaintiff would be entitled to have under the evidence shoAvn here would be a submission of this question to the jury, and the taking of the jury’s finding as to whether or not the contract was made with reference to such a usage.
For this error, it is recommended that the judgment of the trial court be reversed and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the trial court is reversed and the cause remanded for further proceedings.
Reversed.