Corcoran v. Chess

Per Curiam : The plaintiff contracted to do certain mason-work at 13.45 per cubic yard. There was no dispute on the trial below as to the quality of the work; the contention was about its proper [359] measurement. The plaintiff claimed to be paid according to the rule known as “ masons’ measurement,” which, in building-stone piers, he alleged to be, measuring the girth of the pier, adding one half of the girth, and then multiplying by the height. This rule produces a very different result from that of the actual cubic contents of the mason-work, which is the rule contended for by the defendants. The plaintiff alleged, and called witnesses to show, a custom that mason-work was to be measured by the rule contended for by him. The evidence, however, failed to prove any such custom. It was at most a mere usage of the trade, neither ancient nor general enough to acquire the force of custom. Had there been such a custom, the parties must be presumed to have known of it, and to have contracted in view of it. In other words, the law would write such custom into their contract. It is not so with a mere usage of trade, recent in its date and not general in its application. The parties cannot be presumed to have contracted upon the faith, and with knowledge, actual or constructive, on the part of the defendants, of such usage; and their acquiescence therein must be shown before they can be affected by it. The contract is free from ambiguity. A cubic yard is a term well known to every one. It means twenty-seven cubic feet; and when the parties used this term in their contract, we must presume, in the absence of evidence to the contrary, they understood it in its ordinary and popular meaning. There being no disputed questions of fact in the case, the learned judge below was right in directing a verdict for the defendants. Judgment affirmed.