
    Redwine v. Sides.
    
      Action on Account, for Services of Jack.
    
    1. Custom, or usage. — When a local custom or usage, relating to the subject-matter of a contract, is proved to be general throughout the county in which the contract was made, and in which the parties resided, they are presumed to have had knowledge of it, and to have contracted with reference to it, if it does not contradict an express term of the contract.
    2. Contract for services ofjach to marc. — Under a contract for the service of a mare by a jack, “to insure or no pay, and if mare is sold, the money is due at the time of the sale,” the money becomes due at the time of the sale, whether the mare is with foal or not.
    Appeal from the District Court of Colbert.
    Tried before tbe Hon. ”W. P. Chitwood.
    This action was brought by Thos. A. Sides against Mark Bedwine, and was commenced in a justice’s court. The plaintiff claimed $8.00 “for season of mare to plantiff’s^jack, on or about the 23d January, 1891,” and $15.00 due by account; but the only controversy was as to the former item. It was proved on tbe trial tbat tbe mare was put to tbe jack once in July, 1890, and was- not brought back a second time; tbat there was no express contract as to tbe charge, but tbe plaintiff bad posted a notice as to tbe terms of service, and tbe defendant admitted tbat be bad seen tbe notice and knew its contents. Tbe printed notice was in these words : “I will stand my jack at my residence this season, commencing April 1st, 1890, to insure or no pay; and if mare is sold, tbe money is due at time of sale. Every precaution taken to prevent accidents, but I give no insurance against tbe same.” Tbe mare was sold by tbe defendant in September, 1890, and tbe evidence was conflicting ■ as to whether she then was, or ever bad been, in foal by tbe jack. Tbe defendant contended tbat she never was with foal, and therefore be was not liable to pay for tbe service of tbe jack; while, tbe plaintiff’s contention was tbat the money became due and payable when tbe sale was made-, whether tbe mare was with foal or not. Tbe plaintiff introduced a witness who testified tbat be lived in tbe county, “knew tbe custom of standing horses in tbe county, and bad bandied horses for some time himselftbat when a mare was carried to a horse, it was customary to carry her during tbe season; tbat if she proved to be not with foal, tbe owner would have nothing to pay, but, if she was put to tbe horse only once, and was then sold or traded, be would have to pay for it. Tbe court admitted this evidence, against tbe Objection and exception of tbe defendant. On all tbe evidence adduced, tbe court rendered judgment for tbe plaintiff, and its judgment is here assigned as error, with tbe admission of tbe evidence objected to.
    Kirk & Almon, for appellant. •
    R. Armstrong, and Jackson & Sawtelle, contra.
    
   McOLELLAN, J.'

A jury not having been demanded, this cause was tried by the judge of tbe District Court, and this appeal presents “for review tbe ' conclusion and judgment of the court upon tbe evidence and in discharging this duty we are not allowed to indulge any presumptions favorable to tbe correctness of tbe trial court’s action. Acts 1890-91, pp. 605 et seq., § 15.

■Tbe usage or custom proved on tbe trial was, in our opinion, properly admitted and ■ considered by tbe court in reaching a conclusion as to tbe meaning of tbe contract between tbe parties. We understand from tbe evidence of the witness Walker that the usage or custom deposed to by bim was a general one in the county where the parties lived, the contract was made, and the services, to recover compensation for which under the contract this suit is prosecuted, were performed. This evidence, therefore, raises up a prima facie presumption, which no effort is made to rebut, that the parties knew of the usage thus pertaining to the subject-matter of their contract, and that they stipulated with reference to it in such way as to make it a part of their compact.— German Amer. Ins. Co. v. Commercial Fire Ins. Co., ante, 469.

The contract itself consisted of a notice posted by the plaintiff, setting forth the tenas upon which he would let his jack go to mares, the knowledge of defendant of the terms so advertised, and his acceptance of them implied from the fact he had his mare served without any special stipulations in respect thereto. The terms of the contract thus made, so far as involved in this case, were, that plaintiff was to receive for the services of his jack $8.00, to “insure or no payand that “if mare is sold, the money is due at time of sale.” This last clause, as interpreted in the light of the usage proved, means that if the mare, after being-served, is sold during the “season,” her owner (at the time of the service) would have to pay the fee of eight dollars, whether she were foaled or not; the stipulation doubtless being incorporated in view of the difficulty of ascertaining whether the mare is with colt consequent upon her sale and possible removal out of the neighborhood, and for the purpose of shifting the risk in that event on the owner, by whose act this difficulty is created, though, where no sale is made, the risk in this regard is taken by the owner of the jack. And this, it seems to us, is a just and reasonable construction of the clause in question, dissociated from the usage and custom shown by the evidence. We are unable, indeed, to find any field for the operation of this stipulation, if this be not a correct interpretation of it. It can not be held to mean only that where a mare is foaled, and the “insure or no pay” stipulation thereby filled, the fee shall become due and payable on a sale of the mare, since where that is the case, the -claim is due and payable as soon as the fact is ascertained,- whether the mare is sold or not, and the stipulation would in reality mean nothing. No other plausible or even possible operation for the clause suggests itself, or has been suggested to us; and our conclusion, both upon and without a consideration of- the usage, is, that upon a sale of the mare during the season, wbetber foaled or not, tbe owner becomes absolutely and unconditionally liable for tbe fee of eight dollars. It is uncontróverted in this case that tbe mare, after being served by tbe plaintiff’s jack, was sold during tbe “season” by tbe defendant; and it follows that tbe judgment rendered against him by tbe City Court must be affirmed.

Affirmed.  