Ryland, Judge,
delivered the opinion of the court.
The questions in this case involve the proper construction of the contract, and also the meaning, as therein used, of the word “ ton,” under the statute. We have no doubt hut that, under the contract and proof made in this case, the plaintiff is entitled to have pay for the hemp delivered, and received by the defendant, according to its value ; not according to the contract price. The contract was broken, not fulfilled ; and, although the plaintiff delivered and the defendant received hemp, *537yet the price agreed upon in the contract' is not to govern in estimating its value at the time of its delivery and acceptance, but the real value of the article delivered and received is to be the criterion. Under this view of the law, then, the third instruction given by the court for the plaintiff, fixing the contract price as the value of the hemp, is erroneous ; but this error does not prejudice the defendant in this case, for the proof shows, beyond doubt, that this contract price was less than the real value of the hemp ; so the defendants have been benefit-ted, not injured by this error, and can not complain thereof. Again, although this third instruction given for the plaintiff is incorrect, yet its error is rendered innoxious by the 6th instruction given for the defendant. There was but one instruction given for the plaintiff — the third — as set forth in the statement of the case, and but one refused for the defendants — the 5th— as mentioned in the statement.
It was competent for the defendants to set up by way of defence the breach of this contract on the part of plaintiff, and the rule for assessing the damages is well laid down in- the 6th instruction given by the court for the defendants. There is no error, then, in these instructions upon this view of the case; and had this been the whole dispute between these parties, we, in all probability, should have never seen this case.
But there is another cause of complaint, and, we presume, the chief one ; it is the meaning of the word “ ton,” as given by the court to the jury. The court informed the jury that, under our statute law, a ton of hemp meant 2000 pounds avoirdupois, and not 2240 pounds. On this point, too, the law is for the plaintiff, and was properly laid before the jury. In February, 1841, the legislature declared, by express statute, that “hereafter, when sales of hemp shall be made, the delivery of one hundred pounds avoirdupois weight shall be considered as the delivery of one hundred weight, any custom or usage to the contrary notwithstanding.” (Sess. Acts, 1841, p. 86.) In 1845, (R. C. p. 1077,) the legislature again say: “ The hundred weight shall consist of *538one hundred pounds avoirdupois, and twenty such hundreds shall constitute a {ton.’ ” Here is the statute law of the land since 1841, and shall it be proved away by custom ? The lawmakers struck at this custom, this usage, and by law abolished it. Now when parties make contracts about hemp, they can easily agree to pay or to take so much money for so many pounds of hemp ; but if the bargain be only by the “ ton,” then the law says what the “ ton” is, and no proof will he admitted about custom or usage or understanding — the contract can be proved, and when proved, if there appear a buying and selling by the hundred weight or by the ton, the law fixes a meaning to these terms; and when the law is appealed to for the remedy, it applies its own meaning. Let the judgment therefore be affirmed;
the other judges concurring.