No just reason appears for disturbing the judgment in this case. The evidence, as to the terms of the employment of plaintiff and the rate of his compensation, was conflicting, and the alleged causes that led to the plaintiff’s discharge were fully controverted. ' These were the only issues in the action, and they were submitted to the jury with proper instructions from the court, and there is ample evidence to support the finding of the jury upon all the issues raised.
The part of the charge of the court in regard to the defense of immoral conduct, to which our attention has been called, is not, under the circumstances, open to criticism. Although this defense is pleaded in the answer, the defendant is his testimony has not assigned immoral conduct as one of the causes of the discharge. He has given his testimony fully as to the causes which led him to discharge the plaintiff. On his examination as a witness he swore in regard to this matter as follows: “I discharged Mr. Preyer because I had found to my own satisfaction that he neglected my business. He was late in the morning. He would leave the store earlier in the evening than he should. I also learned that- he had been lending my property, for which he received benefit only to himself. I found he only spent an hour or two on the last Sunday he was there, and he left in the store a boy who was not familiar. with the business, and on those grounds I discharged him. Question. Were there any other reasons particularly? Any other times? Did you have a memorandum of any of those acts? Answer. Yes, sir; upon several occasions I satisfied myself by observing that he was not attending to my business, and one particular evening was Tuesday, September 6th. It was his regular night at the store. He left the store at half past five to go to supper, and he returned at half past seven, and stayed at the store. At a quarter after eight he left for the evening, and did not return.” It must be assumed that the court in making the remark complained of in the charge had in view the testimony of the defendant, and the fact that immoral conduct was not claimed by him in his testimony as a ground of discharge. But even if the defendant had testified differently, and bad assigned this as a cause of discharge, we think the court charged the jury fully, fairly, and correctly on this subject.
An éxception was taken to the exclusion of a question asked by the defendant’s counsel in regard to the custom of the defendant’s establishment as to making tickets when a bicycle was let. To render a custom binding upon an *73employe, actual knowledge oí it must be shown. Such custom, if it is relied ■on as such, must form a part of the contract of employment, or in some way be made known to the employe. But the defendant could not have been prejudiced in any way by the ruling of the court upon this question, for the reason ■that he testified that lie gave to the plaintiff special directions in regard to his duties, and instructed him as to making cash or credit tickets for the bicycles which were loaned. The judgment and order appealed from should be affirmed, with costs.