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The opinion of the court was delivered by

Woodward, J.

The question discussed under the fir'st assignment of error was whether a farm tenant whose lease bound him to feed, on the farm, all the hay and fodder made there, might give in evidence a custom of the country which allows tenants to take away as much hay at the termination of their lease as they brought upon the premises at the beginning of the term. The plaintiff 'alleged that when he leased the premises of Longnecker in 1852, he brought there twenty-five tons of hay and straw, and that he had on hand in the spring of 1857, when he became the tenant of Killinger, who,had purchased the place of Longnecker, fourteen tons of hay which Killinger refused to let him remove in the spring of 1858. In order to charge Killinger with these fourteen tons, he proposed to prove the custom alluded to. The court rejected the offer, and the argument before us was upon the competency of such evidence to control the terms of the lease.

On turning to the record, however, it does not appear that the court rejected the offer because usage or a custom might not be proved to control the construction of a written agreement. The objection taken to the evidence when offered was, “ that the hay on the place at the commencement of Bitzer’s tenancy under Killinger, was included in the claim of the plaintiff in the last trial between him and the defendant, and passed upon by the jury in that case.”

This was the objection which the learned judge sustained, and this it is fair to infer was his reason for rejecting the plaintiff’s offer. He may well have thought that the custom mentioned was a reasonable one, and consistent with the terms of the lease, but if the plaintiff had been paid for his hay by his recovery in the former suit, this was a very substantial reason for rejecting a second claim for the same hay. It is apparent, therefore, that neither the assignment of error nor the argument in support of it, is addressed to what was the actual ruling of the court.. *47Whatever the judge may have thought about the custom, he evidently meant that the plaintiff should not be twice paid for his hay.

But it is said he had no right to assume to himself the decision of the point whether the plaintiff had been allowed for his hay in the prior suit; that it was a question of fact, and-should have been submitted to the' jury. What has been adjudicated in a prior suit is often a question of fact, which, on account of the looseness of our pleadings, has to he subjected to parol evidence and referred to a jury, hut when it is determinable by the pleading, it is always a question of law for the court: Finley v. Han-best, 6 Casey 195.

The prior suit in this instance was between the same parties, was founded upon the common counts in indebitatus assumpsit, was tried upon a bill of particulars furnished by-the plaintiff, and the verdict for the plaintiff of ¡¡>666.40 had been rendered on the morning of the very day the court tried this suit. The trials succeeded each other, the same judge presided in both, and he had his notes of evidence fully before him. Now, under such circumstances, no jury could ascertain as well as that judge, whether the plaintiff had recovered for his hay in the former suit. The bill of particulars which in our practice has become an informal part of the pleadings, certified him that the plaintiff claimed for the hay, and in view of all that had just transpired under his own eyes, he refused to let the plaintiff claim for it again. Doubtless he decided the point of fact rightly.' Are we to reverse him because he did not set the jury to blundering .about it ? Assuredly not. ;We will presume rather that it appeared sufficiently from the pleadings, including the hill of particulars, that what, the plaintiff claimed in this action he had got in the former suit. Nor does it lie with the plaintiff to object that this part of his claim accrued subsequently to the bringing of the former suit, for if he introduced the claim into that suit without objection from the defendant, it is too late now for either of them to complain that it was passed upon. The judgment in the prior suit had not been rendered when this case was tried, but was entered before judgment in this suit, so that there is no ground to complain that the court, when they rendered the judgment we are now reviewing, held the plaintiff concluded as to the hay by the former recovery.

There is nothing in the second error. The defendant had a right to his set-off. He had not precluded himself from using it by having made use of it in the other suit before arbitrators, because the plaintiff appealed from the award. If he had let the award stand, or if the defendant had appealed, the set-off could not have been used in the subsequent suit. But when the first suit was arbitrated, there were no pleadings on the record — of *48course no set-off alleged of record — and though evidence of set-off was given, the plaintiff appealed from the award, and brought the defendant to a trial de novo, when he did not introduce his set-off in that suit, but reserved it for this case, where we think he had a right, under the circumstances, to use it.

These are the only errors alleged, and we see no reason in either of them for reversing the judgment.

The judgment is affirmed.

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