"The usage or custom that may have the force and effect of . . . an implied contract . . . must be clearly and definitely proven; and, where the evidence is uncertain and also contradictory, the usage or custom is not established."
How later courts described this case
- "The usage or custom that may have the force and effect of . . . an implied contract . . . must be clearly and definitely proven; and, where the evidence is uncertain and also contradictory, the usage or custom is not established."
Written by the judges who cited it.
The opinion
Browne, J.,
dissenting.
One of the issues submitted to the jury by the charge of the court, was whether or not the evidence showed and established a usage or custom in the manner in which the shipments of fertilizer by the plaintiff were delivered to and accepted by the defendant.
The jury by its verdict found that there was a definite and certain usage or custom, and our opinion of the mere •uncertainty of the testimony to establish this custom, does
*237
not- warrant, under the repeated decisions of this court, in criminal cases, the substitution of our view as to the weight of the testimony, for that of the jury.
All the questions of law contended for by the plaintiff in error are decided adversely to him by this decision, and the judgment is reversed solely on the question whether or not the evidence proved a usage or established custom.
This question was not raised by the plaintiff in error, either in the assignments of error or in his brief; no doubt, because the rule seemed too well settled, that the finding of a jury on a question of fact will not be disturbed if there is any substantial evidence to support it.
If that rule means anything it should be applied alike in civil and criminal cases, but if it is to be deviated from occasionally in civil cases, it might as well be abandoned.
I sometimes doubt the soundness of the rule, in view of the provisions of Section 2918, Revised General Statutes, 1920, which provides:
“It shall be the duty of the court on an appeal or writ of error to examine the record, to reverse or affirm the judgment, sentence or decree of the court below, or to give such judgment, sentence or decree as the court below ought to have given, or as to it may appear according to
law."
If, however, this court is so committed to the rule, that it will not interfere with the verdict of a jury on a question of fact where there is substantial evidence to sustain it, it seems to me that the judgment in this ease should be affirmed.