
    Anderson v. Whittaker & Jeffries.
    
      Action for Breach of Contract for Erection of House.
    
    1. Custom opposed lo reason of no force.— Although reasonable customs not opposed to law or public policy, obtaining with respect to a particular trade in a locality where a contract is to be performed, known to the parties to such contract, may be looked to in the interpretation of the agreement; yet, if the alleged custom is one which honest, right minded men would deem unfair and unrighteous, it is not reasonable, and should not be allowed to exist.
    2. Same applied to the facts of this case. — Hence, where a contract provided that a house should be built in a workmanlike manner, and the proof showed that the brick on the outside walls were soft, the windows of uneven height from the floor, having large cracks above them, the floors uneven, and that light could be seen through the wall in many places, although skilled workmen testified that the house was built in a workmanlike manner as understood in that section of country, it was erroneous to charge the jury that the contract required that the house should be built in a workmanlike manner, construed according to the custom and usages of the section in which the contract is made.
    Appeal from DeKalb Circuit Court.
    Tried before Hon. John B. Tally.
    E. T. Taliaferro, for appellant.
    No brief came to hands of Reporter.
    Amos E. Goodhue, for appellee,
    cited 49 Ala. 465.
   MoCLELLAN, J.

— This action is prosecuted by Whitaker & Jeffries for the contract price of building a house by them for the defendant Anderson. One of the defenses was that plaintiffs undertook to build the house in a workmanlike manner and did not build it in a workmanlike manner to the damage and injury of the defendant in a sum which is stated and pleaded in recoupment against plaintiff’s claim. Defendant’s evidence supported this plea, going, as it did, to show that many soft brick were used in the exterior of the walls which the contract required to be built of hard brick, that the floors were not even or level, that the windows were at unequal distances from the floor, though intended to be on the same level and were not straight vertically, but out of plumb, that spaces were left between the window frames and the wall at the top, that apertures or cracks were left in the walls to the extent that “in one room day-light could be seen through the walls in seventeen places,” that inferior and old lumber was used and that neither the carpenter work nor the brick work was done in a workmanlike manner, &c. The evidence tended to show that “the witnesses who testified on the part of the defendant that the work was not done in a workmanlike manner were workmen who had been trained in their trades in New England, and had but little experience in building houses in the section of the country in which this contract was made and this house was built, and had resided there only a few months.” On the other hand, witnesses for the plaintiffs in this connection “were workmen who had performed work and obtained experience as workmen in the section of country of this contract and house, and were acquainted with the manner of doing such work in sucli section of country; and. these witnesses testified that the house was built in a workmanlike manner, but while some excuse is attempted for putting soft brick in the outside of the wall, and it is said they could be easily removed and the hard brick required by the contract substituted, and for leaving the interstices at the top of the window frames which was claimed to be a necessary allowance for the unusual settling of brick buildings incident to a peculiarity of the soil of this section, yet we do not find in this record any denial, excuse for or • explanation of the other defects which defendant’s evidence went to establish; and if there had been evidence for plaintiffs in this connection it was competent for the jury to find the facts in line with the tendencies of the evidence on behalf of the defendant. On this state of the testimony the court gave, at the request of plaintiffs, the following charge: “If a man in a given section of country contracts to build a house in a workmanlike manner that means a house built in a workmanlike manner construed according to the customs and usages of the section of country in which the contract is made,” and the giving of this charge is the subject-matter of the only assignment of error on this appeal. Customs and usages obtaining in respect of a particular business, trade or occupation in a given locality, known to the parties making a contract there which is to be performed there, or of such general prevalence and acceptance in the locality as to raise a presumption of knowledge, which is not rebutted, and which customs and usages are reasonable in themselves, and not opposed to law or public policy, may be looked to in the interpretation of such contract pertaining to the business or trade to which they apply, and the undertakings of parties will be construed by a reference to them on the theory that they entered into and became a part of the stipulations made.- — German American Ins. Co. v. Commercial Fire Insurance Co., 95 Ala. 469; Redwine v. Sides, 95 Ala. 567. And so a reasonable usage or custom as to the manner of building a house obtaining in a given section of the country may be looked to in determining what is meant by the requirement in a contract therefor that the house shall be built in a workmanlike manner. All this we may concede without committing ourselves to the correctness of the charge in question. We do not think the charge a sound exposition of the law. To the contrary, we are clear that the customs or usages to which the jury must have understood the charge to refer and to which we understand it to refer are entirely unreasonable and wholly inadmissible to give a meaning to the contract involved liere. Tlie testimony showed without conflict many and gross defects and insufficiencies in the construction of tlie house — defects and insufficiencies of such sort indeed as to render the house unfit for the habitation for which it was intended, or the jury might have found these to be the facts on a preponderance of the evidence if there was conflict (as to which we can not- affirm positively, owing to peculiar statements of the bill of exceptions). Any custom which would operate to convert these gross defects in the work done into work done in a workmanlike manner would be altogether unreasonable, bad and inadmissible. That the work was not done in a workmanlike manner is a conclusion which enforces itself on this evidence or this tendency of the evidence upon every possible conception of the meaning of tlie word “workmanlike,” whether shaded by reasonable custom or not. And the effect of the charge was to instruct the jury that they should find that this house was well and properly constructed not because it was so in fact, but because it was usual and customary in that section of the country to construct such houses with uneven and unlevel floors, with non-vertical windows, with bricks in the outer wall that had to be removed, with embrasures above the windows, with windows intended to be on the same level, at different heights from the floor, with so many holes in the walls of one room, where no holes were intended to be, that daylight could be seen at seventeen different places through the wall, &c., &c. If such custom or usage as this exists in and around Pt. Payne, it is a bad custom or usage, and the sooner it ceases to exist the better it will be for workmen there, whether native there or emigrants from New England. Tlie usage relied on is one which “honest and right minded men would deem unfair and unrighteous,” and hence is not a reasonable one. — Lawson Usages & Customs, 11, 12, 63; Paxton v. Coventry, 2 Frost & Tin. 131; Metcalf v. Weld, 14 Gray, 210; Clarke & Brown on Usages & Customs, pp. 24, 25, § 23 and note; Coleman v. Chadwick, 80 Pa. St. 81.

Tlie court erred in giving the charge quoted, and its judgment must be reversed. The cause is remanded.

Beversed and remanded.  