
    George W. White, Respondent, v. The Town of Ellisburgh, Appellant.
    
      A custom that the builder of an “iron bridge” may use wooden joists — directions given by a single highway commissioner — evidence to qualify a receipt—a new trial on the ground of newly-discovered evidence, refused.
    
    A bridge builder who brings an action against a town to recover for iron joists which he alleges were substituted for wooden ones in a bridge at the request of the highway commissioners who contracted for it, may give evidence of' a custom prevailing among bridge builders, that where a contract • for an “iron bridge” fails to specify the materials of which its joists are to' be constructed, these may, at the option of the builder, be made either of wood or iron; and may further testify as to directions given him by one of the commissioners in regard to the substitution, when it appears that this commissioner was in charge of the work and was merely carrying out the instructions and wishes of all the commissioners as a body.
    The effect of a receipt reciting a payment “ for bridge and material furnished,” which was given by the plaintiff to the defendant upon the alleged assurance of the latter that it was merely a receipt for the amount then paid and would not cut off his claim in any way, is properly a question to be determined, by the jury.
    
      A new trial, upon the ground of newly-discovered evidence, will not be granted where such evidence is not likely to change the result, and where it is not shown that it might not have been procured upon the trial had proper diligence been employed.
    Appeal by the defendant, The Town of Ellisburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 23d day of December, 1893, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes, and also from an order. of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 14th day of December, 1894, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.
    
      Watson M. Rogers, for the appellant.
    
      Irving Q. Ilubbs, for the respondent.
   Adams, J.:

On the 2oth day of November, 1889, the plaintiff entered into an oral contract with the defendant, through its commissioners of highways, to construct a “Whipple arch iron bridge” over a stream known as “Bear creek” in the town of Ellisburgh, and county of Jefferson. The structure was to be fifty feet in length, having a roadway of eighteen feet.in width, with plank flooring three inches thick, and capable of sustaining a weight of eighty pounds to the square inch. The contract price of the bridge, viz., four hundred and twenty-five dollars, has been paid, and this action is brought to recover the sum of ninety-six dollars, the actual cost of iron joists which it is alleged were substituted at the request of the commissioners in the place of the wooden ones contemplated by the original contract.

The plaintiff testified that, at the time the contract was entered into, it was not specified that the joists were to be of iron, and that by reason of this omission, custom left it optional with him to use wooden joists; but that subsequently he was informed by one of the commissioners that he and his associates had been ,considering the matter, and, as a result of their deliberations, they had determined to have him substitute iron joists in the place of the wooden ones, which he consented to do if paid the difference in their cost.

He further testified that, immediately upon receiving these instructions, he countermanded an order he had theretofore made for wooden joists and procured iron ones, which were subsequently used in the bridge.

This evidence, or so much of- it as relates to the substitution of ■ iron for wooden joists by direction of the commissioners of highways, was flatly contradicted by the defendant’s witnesses, who testified that it was one of the terms of the original contract that the joists were to be of iron. And the issue of fact thus raised was fairly and properly submitted to the jury, who rendered a verdict in favor of the plaintiff.

-We do no.t understand that any question is raised as to the adequacy of the evidence to' sustain this verdict, but it is contended that error was committed by the learned trial justice in the admission and rejection of • evidence, as well as in the refusal to charge certain propositions in accordance with the request of counsel, and that such error is so prejudicial as to require a reversal of the judgment and order appealed from'. . We shall endeavor, therefore, to consider such of the exceptions relied upon by the appellant’s counsel as possess enough importance to require an examination.

During the trial several witnesses were called who had had more or less experience in building different kinds of bridges, and they were asked the meaning of the term, “ iron bridge,”- when nothing is specified as to the - material of which the joists are to be constructed. This question, as asked of the several witnesses, was framed in various ways, but in each instance it was obviously designed to draw out an answer which, should show the meaning which custom had given .to these words. The defendant’s counsel objected to the question as often as it was asked, and, to the ruling of the court which permitted it to be. answered, an exception was duly taken. The answers of the several witnesses varied somewhat in phraseology, but they were all to the effect that, unless iron joists were specified, custom permitted the builder to use any rnaterial which was capable of carrying the stipulated weight; and it is now insisted, that the admission of this character of evidence constituted reversible error.

One of the rules of evidence which has obtained very general recognition, is that it is competent to prove custom or usage in relation to matters embraced in a contract, where the custom sought to be established is reasonable, well understood, not contrary to the terms of the contract and so far known to "the parties as to raise the presumption that the contract was made with reference to it. (Dana v. Fiedler, 12 N. Y. 40 ; Bissel v. Campbell, 54 id. 353; Newhall v. Appleton, 114 id. 140 ; Atkinson v. Truesdell, 127 id. 230.)

In this case the evidence discloses that not only was there a prevailing usage among bridge builders in regard to the material employed for joists, which was reasonable in its character, but the plaintiff testified that upon a former occasion when he was about to build another iron bridge for these same commissioners, he stated to them that “ if they wanted and expected to get iron joist, to be sure and have it mentioned; for a contract for an iron bridge without that was especially mentioned that the joist was to be iron, would go without saying that the joist would be wood,” and Mr. Decker, one of the commissioners and a witness for the defendant, testified that he “undei’stood, before making this contract, that a contract for a Whipple arch bridge, if silent as to joist, would .permit the the contractor to use such as he saw fit,” and for that reason he was particular to have iron joists mentioned at the time the contract was made. In view of these circumstances, and more especially of the , testimony just quoted, it is difficult to see upon what theory it can be claimed that evidence of custom was harmful to the defendant, even if there were any question as to its competency, and we think there was not.

The plaintiff was also permitted, over the defendant’s objection and exception, to detail a conversation which he claims to have had with Commissioner Decker some three or four weeks after the contract had been entered into, in which, as he says, he was directed to substitute iron for wooden joists, and it is insisted that this evidence was incompetent for the reason that its effect was to permit one commissioner to modify the original contract without the concurrence of his associates. It is to be noted, however, and this, as we think, furnishes a complete answer to the defendant’s contention in tins regard, that the plaintiff was only attempting to prove a direction received hy him during the progress of his work, from one of . •the commmissioners, who expressly stated that such direction was given after consultation with, and by. the authority of, his co-com-' missioners. In other words, Decker, was the commissioner who appeared to have personal supervision of this particular piece of work. In giving directions to the plaintiff he simply assumed to carry out the instructions and wishes of all the commissioners as a body; and there is nothing in the record to show that in so doing he was acting beyond the scope of his authority.

The plaintiff was likewise permitted to testify that he countermanded an order which he had given for wooden joists, and it is claimed that the exception to the ruling of the court in this particular presents error. We are unable'to assent to this. proposition. Evidence had been given, without objection, that wooden joists had been ordered; and, with this fact appearing, we do not see how it helped the plaintiff or harmed the defendant to supplement it with the further statement that the order was subsequently countermanded.

The only remaining exceptions which we deem it necessary to consider are -those taken to the refusal of the court to charge in accordance with certain requests of the defendant’s counsel. The defendant had introduced in evidence a receipt, which was given by the plaintiff, and which read as follows :

“ $449.53. February 12, 1890. Ellisburg.
“ Received of the commissioners of highways four hundred and • twenty-five dollars for bridge and material furnished for Bear Creek, Twenty-four 53-100 dollars for extra work on abutments.
“G. W. WHITE.” '

At the conclusion of the charge of the learned trial justice he was asked to instruct the jury that this receipt raised a presumption of the-.payment of the entire contract price of the bridge. This request was declined, the court stating that he would leave that question for the jury to determine'.

The plaintiff had testified that when asked to sign this receipt he . read it over and stated to the commissioners that it was not drawn exactly as he would like it, but that he did not suppose it would cut off his claim in any way as it appeared to be only a receipt for the money that was then to be paid him, and that he was thereupon assured by the commissioners that that was all it was designed for. We think that with this evidence in the case the plaintiff was entitled to have the jury consider the same in connection with the receipt .itself, and then to determine for themselves what effect should be given to the receipt without the aid of any construction by the court. (Mosel v. Frank Brewing Co., 2 App. Div. 93.)

Later on the court was requested to charge the jury that, irrespective of any parol evidence of the transaction, the receipt would raise a presumption of payment of the entire contract price of the bridge. This request was likewise refused, the trial justice saying that he would leave it for the jury to determine what effect should be given to it without any construction by him. We think that the court very properly declined to charge in accordance with this last request, for, as has already been shown, there was some parol evidence which the jury had a right to consider in connection with the giving of this receipt, and which the court could not properly ignore. The last request, therefore, involved nothing more nor less than an abstract proposition which had no relation to the circumstances of this case, and which the court was consequently under no obligation to charge.

The defendant’s appeal also brings up for review an order of the Special Term denying a motion for a new trial upon the ground of newly-discovered evidence, which evidence it appears is of no material value, except as it may tend to contradict certain facts testified to by the plaintiff. After reading the affidavits upon which the motion was founded, we are convinced that they fail to show that the evidence which the defendant seeks to avail itself of is of such a character as to justify the court in assuming that it would probably change the result if another trial were had. Nor does it appear that proper diligence was employed upon the former trial to procure ■ this evidence, although ample opportunity was afforded the defendant so to do after its materiality had become manifest by the testimony of the plaintiff. We conclude, therefore, that no sufficient reason is furnished for granting a new trial upon any of the grounds relied upon by the defendant.

Judgment and order denying the motion for a new trial affirmed, with costs, and the order of the Special Term denying the motion for a new trial upon the ground of newly-discovered evidence affirmed, with ten dollars costs.

All concurred. '

Judgment and order affirmed, with costs, and order of the Special Term denying motion for a new trial upon the ground of newly-discovered evidence affirmed, with ten dollars costs. 
      
      
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