Welsh v. Huckestein & Co.

Per Curiam, The principal contention in this case was as to the mode of ascertaining the number of brick used by the defendants. The contract was not in writing and the parties differed in their recollection of it. This raised a question of fact which was fairly submitted to the jury. There was no question of “custom” in the case, in the ordinary meaning of the term. It was entirely competent to show by the testimony of persons in the trade what the expression “ measured in the wall ” means, and how such measurement is made. There is an expression in that portion of the charge embraced in the sixth specification which is not free from criticism, but we regard it as harmless. The effect of it was merely to leave the jury to find whether the brick were to be counted in tbe wall by the manner in which the defendants allege, or whether it was to be counted by so many bricks to the cubic foot as the plaintiffs allege. Judgment affirmed.