
    Rafert v. Scroggins.
    CONTRACT.—Custom.—A custom cannot be introduced in evidence to control an express contract. To prove a custom, it must be shown that it has been established for a considerable length of time, or that it was of such standing as to raise a reasonable presumption that the parties contracted with reference to it.
    APPEAL from the Morgan Common Pleas.
   Worden, J.

This was an action by Scroggins against Rafert on an account for work and labor. Issue, trial by the court, finding and judgment for the plaintiff Motion for new trial by defendant overruled, and exception.

Two points are made by the appellant for a reversal; first, that the court excluded competent-evidence offered by the defendant; and, second, that the damages assessed are excessive.

The most of the work done by the plaintiff for the defendant was done in the business of house building, and while the plaintiff was learning the trade of a house carpenter. There seems to have been a contract between the plaintiff and defendant as to the compensation to be paid by the defendant to the plaintiff for his work, but there is a little disagreement as to the precise terms of the contract. On the trial, the defendant offered to prove, by several practical house carpenters, that there was a customary rule existing in that locality among house carpenters and mechanics relating to apprentices, which was, that the apprentice was required to work while learning the trade, and that he received his instructions and boarding free, receiving no other pay for the first year, fifty dollars for the second year, and seventy-five dollars for the third year. This evidence, on objection being made, was excluded.

A, Ennis, for appellant.

W. R. Harrison and W. S. Shirley, for appellee.

It may well be doubted whether a custom can be held valid unless it be coextensive with the boundaries of the State. Harper v. Pound, 10 Ind. 32. However this may be, a custom cannot be introduced to control the express contract of the parties. Atkinson v. Allen, 29 Ind. 375. The proof offered fell short of showing a valid custom in another respect. It did not show that the custom had been established for any considerable length of time, or that it was of such standing as to raise a reasonable presumption that the parties contracted with reference to it. Wallace v. Morgan, 23 Ind. 399.

There was no error in excluding the evidence.

We do not feel justified in disturbing the judgment on the evidence. There was evidence tending to sustain the finding for the full amount found, viz., seventy-five dollars. There have been two trials of the cause; one before a justice of the peace, where the suit was commenced, when the plaintiff recovered one dollar and forty-five cents more than the recovery in the court of common pleas, to which the cause was appealed.

The judgment below is affirmed, with costs.  