Welsh v. Huckestein

• Decision Date: 07 November 1892
• Docket Number: 252
• Citation: 25 A. 138,152 Pa. 27
• Parties: Welsh v. Huckestein & Co., Appellants
• Court: Pennsylvania Supreme Court

25 A. 138

152 Pa. 27

Welsh v. Huckestein & Co., Appellants

No. 252

Supreme Court of Pennsylvania

November 7, 1892

Argued October 3, 1892

Appeal, No. 252, Oct. T., 1891, by defendants, Huckestein &amp Co., from judgment of C.P. Westmoreland Co., May T., 1889 No. 42, on verdict for plaintiffs, Welsh & Blank.

Mechanics' lien for bricks furnished for building.

At the trial, before RAYBURN, P.J., of the 33d judicial district specially presiding, plaintiffs claimed that defendants were liable for 796,372 bricks, the number being ascertained by measurement in the wall. Defendants claimed that they were liable for only 603,131, which number they found by counting the bricks in the wall.

Plaintiffs introduced, under objection and exception, various testimony which tended to show the expression "measured in the wall" was a term in common use among brick makers, and that it meant to measure up the wall to get the number of cubic feet and take twenty-one and one half brick to the cubic foot. [1-5]

The court charged in part as follows:

["What is meant by 'measuring in the wall,' whether it is taking the number of cubic feet and allowing twenty-one and one half brick to the cubic foot, or whether it is counting the number of bricks long, the number of rows high and the number of bricks in thickness of this wall, and counting out the openings? To arrive at that, gentlemen, you will take into consideration from the evidence placed before you the kind of contract they would enter into, or what they meant by this kind of a contract, being men engaged in that kind of business, whether or not it is reasonable that they both, or either of them, would understand that brick were to be counted in the wall by the manner in which the defendants allege, or whether it was to be counted by so many brick to the cubic foot as the plaintiffs allege.] . . . .

"[In the defendants' testimony on that point there seems to be a good many persons called who had practical experience in that line -- in the way of measuring, counting brick in the wall to find out the material, who say the way is to count by actual count, as they call it -- counting the number of bricks long, the number of rows high and the number of bricks wide. These witnesses are from Allegheny county; the plaintiffs' witnesses are from this county. We will not undertake to say whether there should be any different usages in the trade in this county and Allegheny county. They seem to be almost contiguous vicinities, and it will be for you to say which of these claims is the correct one, whether it is right as stated by the witnesses for the plaintiff to measure the wall in accordance with this contract by taking cubic feet and allowing twenty-one and one-half brick to the cubic foot, or whether or not the claim of the defendants is the correct way of taking this under this contract -- that is, counting the brick as given by the witnesses of the defendants."]

Defendants' point, refused, was as follows:

"3. The evidence of the rule as to there being a custom among builders to ascertain the number of brick in a building by measuring the wall in cubic feet and ascertaining its contents in this...