
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Shearer, Summers and Wilson, JJ.
    THE CHARLES KUHL ARTIFICIAL STONE CO v. MARTIN MACK.
    A custom claimed among cuntraetors to help themselves to each other’s material unreasonable and not binding, but competent to prove absence of criminal intent.
    
      Jerome D. Greed, for the Plaintiff in Error.
    
      Geo. W. Hardacre, contra.
    Error to the Court of Common Pleas of Hamilton County.
   The defendant in error recovered a judgment for $385, damages for malicious prosecution on a oharge of taking a small quantity of the Kuhl Company’s material in completing a cement sidewalk contract, a line of work in which the Kuhl Company and Mack were competitors. Error was claimed in the admission of testimony as to a general custom prevailing among contractors of helping themselves to each other’s material when a small quantity was needed to complete a job.

The reviewing court holds that while suoh a custom is unreasonable as a-rule of property, and therefore not binding, yet it was competent for the purpose for which it was evidently introduced — 'that is, as tending to prove a lack of criminal intent.

Judgment affirmed.  