
    Major Foster et al. v. William Robinson.
    In case of a lease of farming lands, 'whether by deed or in parol, from the first of April in one year to the first of April in the next year, the contract of lease being silent in respect to an away-going crop, and containing nothing, either expressly or by fair implication, to negative a customary right of the tenant to such crop, a general custom, established in the place where the parties reside and the demised premises are situate, giving to the tenant the right to the away-going crop, annexes such right, by way of incident, to the contract of lease. ’
    *Error to the court of common pleas of Jefferson county. Reserved by the district court of said county.
    The original action was replevin for “ two stacks of wheat.”
    Plea, general issue.
    At the August term, 1851, of the court of common pleas, the cause was tried to a jury, who returned a verdict for the plaintiff below, and assessed his damages at five cents.
    The defendants below moved to set aside the verdict, and for a new trial, because the verdict was against the evidence, and because the court erred in admitting evidence, and in their charge to the jury; which motion the court overruled, and entered judgment on the verdict.
    On the trial, a bill of exceptions was taken by the defendants below, which was made a part of the record, and set out all of the evidence as well as the rulings of the court.
    This writ of error was prosecuted to reverse said judgment.
    The bill of exceptions discloses the following state of facts :
    In the fall of 1849, Robinson was in the possession of land that belonged to David Poster, one of the defendants below, under a contract.
    It does not appear, very clearly, what the nature of this contract was, further than that, by its terms, Robinson had the right to the possession of this land until the 1st of April, 1850.
    In the fall of 1849, Robinson contracted with one Peter Thomas 92] to put thirty acres of this land in wheat, on the ^shares. Thomas put in the wheat, and Robinson remained in possession until March, 1850, when he left, and the defendants below went into' possession of the land. At the harvest of 1850, the wheat put in by Thomas was cut and shocked — Thomas taking his share, and leaving Robinson’s share on the ground. The share left for Robinson was taken by the defendants below, and constituted the “two stacks of wheat ” which were the subject-matter of the action ofreplevin.
    On the trial of the case in the common pleas, Robinson, to maintain the action on his part, called a number of witnesses to prove that it was the custom, in the neighborhood of the locus in quo, for a tenant, from year to year, whose term expires on the 1st day of April, to have and take the away-going crop — the contract under which Robinson went into possession, being silent on this subject.
    To the admission of this testimony, the defendant below objected ■, but the objection was overruled by the court, the court deciding “that the plaintiff might give in evidence any general usage or custom in the neighborhood of the land in question, between landlord and tenant, as to way-going cropsto which decision the defendants below excepted.
    The defendants below requested the court to charge the jury as follows :
    “ 1. That a tenant under a lease from the 1st of April of one year, to the 1st of April of the next year, is not, by the law of Ohio, entitled to the way-going crops.”
    Which the court charged was the law.
    “ 2. That the evidence of a contrary custom in the locus in quo, being conflicting and contradictory, is not sufficient in law, to entitle the plaintiff to the way-going crop.”
    Which instruction the court refused to give, and charged that *such was not the law. And the court further charged the [9S jury as follows:
    *“ If the jury are satisfied, from the evidence in the cause, that the plaintiff was in possession of the farm on which the wheat in question grew, under a contract with the owner for the use and occupation of the farm from April 1, 1849, to April 1, 1850, and that there» was no express agreement between the plaintiff and the owner’ of the land, as to putting in a crop of wheat in the fall of 1850 ; and if the jury shall be well satisfied, from the evidence in the cause, that the general usage and custom where the land is situated, was, at that time, that the tenant,'under such circumstances, should have the away-going crop, the plaintiff will’ be entitled to your verdict.”
    To which charge the defendants below excepted.
    The plaintiffs in error assign as error:
    
      I. That the court erred in admitting the testimony as to custom.
    II. That the court erred in refusing to charge the second point requested by the defendants below.
    III. That the court erred in their instructions to the jury.
    
      Stanton & McCook, for plaintiffs in error.
    
      Moodey & Elliott, and J. S. Miller, for the defendant in error:
    This case presents the simple question, whether the court of common pleas erred in admitting evidence to prove a custom, that a tenant from year to year, whose term expires on the first day of April, is entitled to the away-going crop, where the lease is silent on the subject.
    The right to show such a custom was recognized in England, in the time of Lord Mansfield, in the case of Wigglesworth v. Dallison, 94] Doug. 201, and has been subsequently *affirmed by a uniform series of decisions. Hutton v. Warren, 1 Mees, & Wels. 466.
    In Pennsylvania, New Jersey, and Delaware, a lessee for a time certain, is, by the custom, entitled -to the away-going crop, though such right may not be recognized in the contract. Stultz v. Dickey, 5 Binn. 285; Diffedorfer v. Jones, cited by Justice Yates, Id. 289; Comfort v. Duncan, 1 Miles, 231; 2 Binn. 487; Demi v. Bossler, 1 Penn. 224; Biggs v. Brown, 2 S. & R. 14; Van Doren v. Everett, 2 South. 460; Templeman v. Biddle, 1 Harr. 522.
    In Maryland, also, this rule has been held. Dorsey v. Eagle, 7 Har. & Gill, 321.
    In Van Ness v. Pacard, 2 Pet. 138, the court, per Story, J., said : “Every demise between landlord and tenant, in respect to matters in which the parties are silent, may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies; every person, under such circumstances, is supposed to be cognizant of the custom and to contract with a tacit reference to it.”
    The doctrine of “ annexing incidents,” and the rule as claimed by defendant in error, is very clearly and fully recognized by Greenleaf, in his Treatise on the Law of Evidence. 1 Greenl. Ev., sec. 294.
    Reference is also made to Roberts v. Barker, 1 Cr. & M. 808; Wilcox v. Wood, 9 Wend. 346; Legth v. Hewit, 4 East, 154; Senor 
      v. Armitage, Holt, 197; Webb v. Plummer, 2 B. & Ald. 750; Holding v. Pigott, 7 Bing. 465.
   Brinkerhoff, J.

There was a motion for new trial after verdict in the court below, which was overruled; but this ruling was not excepted to ; it is not especially assigned for error, nor is there any general assignment of error; it may, therefore, be considered as out of the case.

*The charge which the court below was asked by the defend- [95 ant to give to the jury in the trial, and the refusal of which is made the ground of the first assignment of error, seems, in effect, to have required from the court an expression of opinion on the weight and credibility of testimony. If so, it was certainly right for the court to refuse it. And if this was not its object, the point was fairly covered by the charge which the court did give, and there was no error in the refusal.

But the principal question here presented is, whether, in case of a lease from the 1st of April of one year to the 1st of April in the next year, the contract of lease being silent in respect to an away-going crop, and containing nothing to negative, either expressly or by fair implication, a customary right of the tenant to such crop, a general custom, established in the place where the demised premises are situate, giving to the tenant a right to the away-going crop, annexes such right, by way of incident, to the contract of lease ?

The affirmative of this question was directly held by the court of Kings Bench in Wigglesworth v. Dallison, Douglass, 190, and which was afterward affirmed on error. In that case Lord Mansfield, delivering the opinion of the court, said : “We have thought of this case, and we are all of the opinion that the custom is good. It is just; for he who sows ought to reap, and it is for the benefit and encouragement of agriculture. It is, indeed, against the general rule of law concerning emblements, which are not allowed to tenants who know when their term is to cease, because it is held to be their fault or folly to have sown, when they knew that their interest would expire before they could reap. But the custom of a particular place may rectify what otherwise would bo imprudence or folly. The lease being by deed does not vary the case. The custom does *not alter or contradict the agreement in the case; [96 it only superadds a right which is consequential to the taking, as a heriot may be due by custom, although not mentioned in the grant or lease.”

In Hutton v. Warren, 1 Meeson & Welsby, 466, decided in the court of exchequer as late as 1836, and involving a similar question, the English cases up to that time are reviewed, and the doctrine of Wigglesworth v. Dallison is reaffirmed. Parke, B., there says: “ It has long been settled that in commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life in which known usages have been established and prevailed; and this has been done upon the principle of presumption, that, in such transactions the parties did not mean to express, in writing, the whole of the contract by which they intended to be bound, but a contract with reference to those known usages.”

The like doctrine is held in Pennsylvania; and it would seem that, in that state, no proof of local custom is required, because the customary right of the tenant to the away-going crop is recognized as being established throughout the state. Briggs v. Brown, 2 S. & R. 14; Demi v. Bosler, 1 Penn. 224; 1 Miles, 229; Comfort v. Duncan; Stultz v. Dickey, 5 Binn. 285. So in Delaware. 1 Harrington, 522, Templeman v. Biddle. The doctrine of Wigglesworth v. Dallison is also recognized in Maryland; Dorsey v. Eagle, 7 Gill & J. 331; by the Supreme Court of the United States, in Van Ness v. Pacard, 2 Pet. 148; and, so far as we can ascertain, has not been denied by any of the courts of this country. The question, as applied to contracts of lease, seems not to have been, heretofore, de97] cided by the Supreme Court in this state; but in Wayne *v. Steamboat General Pike, 16 Ohio, 421; Steamboat Albatross v. Wayne, Id. 513, and Inglebright v. Hammond, 19 Ohio, 337, the general doctrine was recognized as applicable to contracts of bailment.

The doctrine of Wigglesworth v. Dallison seems to have been uniformly held, whenever or wherever the question has been presented. It appears to us to be reasonable and just in itself, and tends to the promotion of agriculture; and we can see no reason why contracts of lease should not, as well as mercantile contracts, be construed in reference to general and well-established customs prevalent where the parties to the contract reside, and the subject-matter of the contract is situate. We are of opinion, therefore, that there was no error, either in the admission of the testimony excepted to, or in the charge of the court to the jury.

Judgment affirmed.

Bartley, C. J., and Swan, Bowen, and Scott, J.T., concurred.  