majority">Smith, Justice,

delivered the opinion of the Court : (1)

The Circuit judge erred in this case, in refusing to permit the witness, the engineer upon the road, to answer this question, which was asked by the defendants : “ Whether or not there had been any excavation executed by Hobbs, in the meaning of that term as applied to the work in the contract ? ” Nothing is more certain, where terms of art are used in contracts, if there be any doubt as to the sense in which they are used, and ought to be applied, that resort is to be had to the opinion of professional men, to ascertain the technical meaning attached to them by those most conversant with their use. (2)

The instructions asked by the defendants’ counsel were erroneously withheld. It is apparent, that the plaintiff, as a sub-contractor, had engaged to perform the work in the same manner as his principal ; and that the terms of that contract, in every thing but price, were to govern. The manner of the execution of the contract directly refers, to the specifications and plans, and is to be under the immediate orders and directions of the Acting Commissioner’s engineers.

The instructions should, therefore, have been given. In reference to the plea of covenants performed, the decision was erroneous. The plea, where it is not sustained, admits no more than a right to recover nominal damages.(3)

The judgment is reversed, with costs ; and the cause remanded, with instructions to award a venire de novo in the Circuit Court.

Judgment reversed.

Note. Where a new word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any branch of business, or to any particular class of people, evidence of usage is admissible to explain and illustrate it, and that evidence is to be considered by the jury ; and the province of the Court then is, to instruct the jury what will be the legal eifect of the contract, as they shall find the meaning of the word, modified or explained by the usage. Eaton v. Smith et al., 20 Pick. 150.

Wilson, Chief Justice, was not present on the argument of this cause.

3 Stark. Ev. 1032.

5 Wend. 113, 114.

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