Latta

This is an appeal from a judgment for a balance due on a written contract “to lay 12 inch pipe on the property of Edw. L. da Roza at 45 cents per foot ...” There is a conflict of evidence regarding the number of feet of pipe which was actually laid. It is contended the evidence does not support the judgment against the defendant Roma V. da Roza. The chief controversy, however, is concerning the admission of testimony affecting an alleged trade custom respecting the construction of the term “to lay,” which is employed in the contract.

The written contract was silent regarding the hauling of the pipe. Without objection the plaintiff testified: “This written contract did not contain all the agreements had with da Roza. Mr. da Roza was to haul the pipe, but later, because he was so busy, hired me to haul the pipe and all materials on a tonnage basis.” Over objection on the part of defendants the witness Hartman was permitted to testify that he had been in the pipe business many years and was familiar with the usages and customs of the trade and that the term “to lay” did not include a hauling charge. In response to this testimony the defendant Edward da Roza testified : “That said…