Long v. . Davidson

Davis, J., (after stating the case.) Whether the contract was that the bricks were to be laid at $2.40 per thousand “ wall count, solid measure,” as insisted by the plaintiff, or whedier nothing was said about “wall count, solid measure,” and the number of brick was to be ascertained by actual count as insisted by the defendants, and about which there was conflicting evidence, was a question properly left to the jury, and all the exceptions of the defendants, both to the evidence and to the charge of the Court, may be comprehended in the single question — if the contract -was that $2.40 per thousand, “wall count, solid measure,” were to be paid for laying the bricks — is it competent for the plaintiff to show what was meant by those words? Did they have a confined and limited local meaning, unknown to the defendant, and different from the ordinary meaning which the words would import? Or did they have an established, uniform and universal meaning amongst those who used them? Are there two meanings conveyed by the words, one limited and local, and the other general-and universal? *175 “A mere local usage,” as was said by Ruffin, C. J., in Jones v. Allen, 5 Ired., 473, cited by counsel for defendant, “ in a small part of the country, cannot change the law,” but if there is an “ established, general custom, that would in truth, be the law.” The question in that case was whether the hirer of a slave (who had employed a physician to attend the slave when sick) or the owner, was liable for the medical bill. There was no evidence of an established, general custom, but the plaintiff, in that case, proposed to show “ that in the section of the country where the hiring took place, it was the custom” for the owner to pay for medical attendance; this was not allowed, and the same was held 'to be law in Cooper v. Purvis, 1 Jones, 141. If the contract was that the building was to be erected of brick at $2.40 per thousand, “ wall count, solid measure,” it must be that something was meant by the term used, and there is no conflict in the testimony as to what that meaning was, nor does it appear from the evidence that they had any other meaning. So far from being a local meaning, different from the general meaning, it appears from the evidence that they have one established meaning, universally understood among brick-masons and contractors. If the terms are only used in a particular trade or science or calling, the meaning must be gathered from the testimony of persons acquainted with the trade or science or calling in which the terms ate employed, and it is for the jury to ascertain the meaning of the terms used; but when the terms of the contract are ascertained, the construction of the contract is a matter for the Court. Silverthorn v. Fowle, 4 Jones, 362. It is true the defendant says that no such contract as is alleged by the plaintiff was made, and “ that he knew nothing of any such rule for counting brick as was alleged;” but if the terms of the contract were as alleged by the plaintiff, *176 it was the misfortune of the defendant to have agreed to pay $2.40 per thousand, “ wall count, solid measure,” in ignorance of the meaning, and the only meaning, as appears from the testimony, conveyed by the terms used in making of the contract, and without informing himself of the fact that they had, at least, one meaning. Affirmed.