Judges： Ctjeiam, Green, Heydrick, McCollum, Mitchell, Paxson, Sterrett, Williams
Filed Date： 1/3/1893
Status： Precedential
Modified Date： 11/13/2024
Pee Ctjeiam,
The principal contention in this ease was, whether, under the contract of 1889 the tonnage on which the gas bills were based was upon the steel billets that were used, that is, the raw material, or the product of it. The learned judge below instructed the jury that the tonnage was to be based upon the product. The able argument of appellant’s counsel has failed to satisfy us that this instruction was erroneous.
*25There were a number of other items in plaintiff’s claim, which it is alleged were not included in the contract, and for which the defendant company should pay. Some of these claims were sustained in part by the learned judge of the court below and others were submitted to the jury under fair instructions. We do not think it is necessary to discuss them in detail. The appellant complains of that portion of the charge of the learned judge, embodied in the seventh specification, in which he refers to the course of dealing between these parties. We do not think this reference objectionable. It was used to illustrate the construction placed upon this contract by the parties themselves ; when we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it.