19 Iowa 388 | Iowa | 1865
The plaintiff was examined as a witness in his own behalf, and stated, inter alia: “ My understanding was sixteen and one-half feet to the perch, and I never supposed tbe defendant understood it differently.” ■
“Plaintiff’s attorney,” so continues the bill of exceptions, “then asked the witness, if there was a custom among masons, as to the number of cubic feet constituting a perch of stone work. The defendant objected, for the reason that the statute fixes the number of cubic feet in a perch. The objection of the defendant was sustained by the court, for the reason, that custom could not be proven to conflict with an express statute ,• but the court further held, that the plaintiff might show an express or an implied contract to count sixteen and one-half feet to the perch, or he might show, that he, plaintiff, understood that he was working at sixteen and one-half feet per perch, and that defendant knew that fact, or had good reason to know it.” The plaintiff, against the defendant’s objection, was then
The statute (Title XIII, “Regulations pertaining to Trade, ch. 71,” Weights and Measures) provides (§ 1777) that “the ‘perch’ of mason work or stone is hereby declared to consist of twenty-five feet cubic measure.” It also contains the following general provision (§ 1.778) applicable to the subject in hand: “ Contracts in which no other scale or standard is expressed shall be taken to mean the above. (See corresponding provision, Blue Book, 1843, p. 655, § 7.)
Experience in all ages of the world has shown that this is a proper and even necessary subject of legislative regulation ; that in no other way can certainty and uniformity be secured. “ Divers weights and measures ” were deprecated by the wise king. Proverbs xx, 10. And similar grievances led to the declaration, in Magna Charta, that there should be but “ one weight and measure throughout the kingdom.” To secure uniformity, numerous statutes
It was especially proper that the legislature should fix or define a “perch” of masonry, for aside from statute, the amount is not only uncertain, but this uncertainty is of a most material character. Webster (Diet., Unabr., 1865, voce, perch) thus defines it: “ In solid measure, a mass sixteen and one-half feet long, or á foot each in height and in breadth, or sixteen and one-half cubic feet.” Worcester gives no definition in solid measure. Many of the arithmetics fail to define a “perch,” but one of the latest (Robinson, p. 169, 1860) says: “A perch of stone or of masonry is sixteen and one-half feet long, one and one-half feet wide, and one foot high,” or twenty-four and three-quarters cubic feet.” The new American Encyclopedia (voce, “ perch ”), after giving other definitions, adds: “In masonry, a perch, is equal to twenty-five cubic feet.”
To obviate this uncertainty, and to secure uniformity throughout the State, were the objects of the statute. If a man in Davenport contracts with an inhabitant of Leelaire for a perch of stone, or with his neighbor mechanic to lay up a perch, the statute binds both parties, and local customs, fixing a different measure cannot be set up, unless mentioned in the contract. To allow it to be done would nullify the letter and subvert the policy of the statute; would introduce that uncertainty and resulting litigation, which it was the manifest and wise design of the statute to remove and prevent.
Thus we regard the case upon principle. Counsel cited no authorities directly applicable, but our own examination has shown that our opinion is amply and uniformly supported by adjudications elsewhere. Thus the same view of precisely a similar question has been taken by the Supreme Court of Pennsylvania, in a case essentially the same as the one at bar.
For tbe reasons above given, tbe judgment of tbe District Court is reversed, and tbe cause remanded. Tbe District Court will give tbe plaintiff, if be asks it, leave, on such terms as to costs as it may deem proper, to amend bis petition and claim a reformation of tbe contract, which will be tried by tbe first method, unless tbe parties otherwise agree. When this issue is decided (whether tbe decision shall be in favor of a reformation of tbe contract or not), tbe court will then proceed to try tbe cause as one by ordinary proceedings, unless tbe parties stipulate for some other mode of trial.
Reversed.