¶1delivered the opinion of the Court:
¶2The court is of opinion that the judgment in this case ought to be affirmed. The sum of the testimony - is that the defendant during the war entered into correspondence with the plaintiff, a lumberman of Maine, with a view to the purchase- of lumber of various kinds, among the rest, cedar and spruce shingles.' The contract rested in correspondence between the defendant here and the plaintiff in Maine. . During the intercourse of the parties seven orders were made and ■ responded to.
¶3We think that the dealings between the parties settled the question whether the custom of reckoning a thousand shingles by measurement, instead of by actual count, was binding upon the defendant. It appeared that cedar and spruce shingles were thus reckoned by mercantile usage everywhere, and that the defendant contracted with a distinct knowledge of its existence. As to the last exception, that the judge in his charge assumed a fact as proved as a basis for the jury’s consideration, the fact was mentioned as illustrative, and in the whole argument and evidence had been admitted as a fact in the case.
¶4Judgment affirmed.