¶1delivered the opinion of the court.
¶2From the statement, it will appear that the instructions, which the *15eourt gave for the plaintiffs below, afford the only question, which will demand our consideration.
¶3This was a contract, for the delivery of 3000 bushels of ‘‘prime bailey.” The main question before the court and jury below was in relation to the words “prime barley.”
¶4There was testimony tending to show the distinctions used among merchants in the quality of barley. There were choice, prime, good, fair and inferior. The proof showed that the first quality was called choice; the next prime, &c. These distinctions were clearly shewed by the testimony of the merchants, who had been in the habit for years of trading in this and other grains. There also was some evidence on the part of brewers, which tended to show that they used the word prime in relation to barley as the first quality.
¶5There was proof conducing to show, that the plaintiff below had within the time limited by his contract, tendered to the defendants the amount or quality contracted for; there was also evidence tending to show the quality of the barley tendered was “prime,” and there was also evidence tending to show the quality was not “prime.” The testimony for the plaintiff showed, that at the date of the contract, “choice barley” was bringing in the market from $1,05 to $1,10 per bushel. Prime was selling at $1,00. Before the time for delivery under this contract expired, the market had undergone a change, and choice barley was selling at from 90 to 95 cts. per bushel, and prime at 75 cents.
¶6The witness Hallam states that he made the tender for the plaintiff to the defendants, which was rejected — all except some 97 bushels; and that he then sold apart of the barley thus rejected to the defendants at 75 cents, which was the highest price then paid for “prime” barley. He afterwards made other tenders of different quantities, also rejected. He took the rejected barley and sold some to Wainright, and some to Ulrici for 85 cents per bushel. This witness states that, in a conversation with one of the defendants, Mr. Pegram, the defendant said to him, if the price had not fallen, there would have been no difficulty about the matter. The court gave the instructions as set forth above, and the appellants rely upon those given for the plaintiff below as the ground for reversal.
¶7I will not copy the instructions here again — I cannot see any objection to the first instruction given. There is surely nothing improper in referring to the usage of merchants as to the terms employed by them in this contract. The parties were merchants, commission merchants, employed for years ásit appears from the evidence in buying and selling grain, barley among other kinds. They were presumed to know other *16kinds — they were presumed to know the meaning of the words “primé barley,” as well as to know the distinctions of that kind of grain used by those employed in buying and dealing.
¶8The second instruction was not incorrect — the defendant had instructions given to the jury embracing the same principle; if there was any thing wrong intrinsically in the second instruction, the error in this case has been removed by the first instruction given for the defendants below. These two instructions both point the jury to the same principié of ascertaining the meaning of the parties to their contract. In this case then, there has been no injury done to either party by either of these instructions. There is no ground as I can see for objection to the third instruction given above. I find from the bill of exceptions that the witnesses, Pomeroy and Jackson, gave their meaning of the words “prime barley, among merchants,” to be, “good sound merchantable barley.” This then warranted the instruction given as the third. There is no objection to the other instructions and I pass them by. The only remaining point is the act of the court in calling back the witness Hallam, in order to ascertain from him what was the evidence he had given in relation to the amount of barley tendered under the contract.
¶9Upon the motion for a new trial.there was a diiference between the counsel as to what was the testimony of the witness Hallam in this particular. The court very properly called Mr. Hallam back and ascertained from him the fact in dispute.
¶10There is nothing wrong in this act of the court, and there was nothing improper in refusing to let the defendant’s counsel re-examine Hallam.
¶11The plaintiff was not testifying again to the jury; nor testifying again in the cause. A dispute arose as to what he had stated, and he was merely call to state what had before been said by him.
¶12In making out bills of exceptions, I see no other mode so sátisfactory to a judge as that of again calling and learning from the witness the part in dispute about what he had sworn on the trial, so that it might fairly appear in the bill of execeptions. I cannot see any reasonable objection to the course pursued here by the judge, and I cannot see how he could have acted otherwise.
¶13From the whole record in this case, I find the court very properly and very fairly put the matters in issue before the jury; and they having found a verdict in my opinion consonant to the merits and justice of the case, I am disposed to let it stand.
¶14The judgment of the court below is therefore affirmed.