Martin v. Hall

• Citation: 26 Mo. 386
• Parties: MARTIN, Appellant, v. HALL, Respondent.
• Decision Date: 31 March 1858
• Court: United States State Supreme Court of Missouri

26 Mo. 386

MARTIN, Appellant,

v.HALL, Respondent.

Supreme Court of Missouri.

March Term, 1858.

1. In order that a custom or usage of trade may enter into and affect the construction of an agreement, it must be shown to be so general and well established that the parties must be presumed to have had knowledge of it and to have contracted with reference to it.

2. Where the trial of an issue of fact, in a case arising under the practice act of 1849, does not require the examination of a long account, it is improper to refer it against the objection of one of the parties.

Appeal from St. Louis Court of Common Pleas.

This was an action to recover a balance of $677.50 alleged to be due plaintiff for work and materials furnished at defendant's request. The cause was tried before a jury, who found for plaintiff and assessed his damages at $751. The court set this verdict aside and referred the cause against the objection of plaintiff. The referee heard the cause and found against the plaintiff.

Shreve and Cline & Jamison, for appellant.

Dick and Carroll, for respondent.

RICHARDSON, Judge, delivered the opinion of the court.

The principal questions in this case are questions of fact that arise on the plaintiff's motion to review the finding of the referee. It is insisted, first, that the defendant should be charged with the number of bricks delivered to him by the plaintiff as ascertained by a measurement of the walls of the building, and not according to an actual count of the quantity as taken from the kiln; secondly, that the defendant should be charged for scaffolding; and, thirdly, that the defendant was improperly credited with the order for two hundred dollars drawn by the plaintiff on Salisbury's agent, in favor of Smith, and paid the defendant.

The referee found that the plaintiff furnished two hundred and ten thousand one hundred and eighty-nine bricks to the Lowell Hemp Works, one hundred thousand of which were furnished to Salisbury, and the remainder to the defendant. The proof is amply sufficient to show that the actual quantity by count is properly stated in the finding, but the plaintiff claims that he is entitled to have that number increased ten per centum on the whole number delivered by another and different method of calculation. A witness testified that he measured the walls of the building and that they contained, by his measurement, two hundred and thirtythree thousand five hundred and forty-three bricks; that his method of measurement was by allowing so many bricks to the superficial foot, according to the thickness of the wall--namely, “fourteen bricks to the foot in a nine inch wall, and twenty-one bricks to the foot in a thirteen inch wall;” that the difference between kiln count and measurement in the wall is about ten per centum in favor of wall measurement, and, “in the absence of express contract, the method is...