A jury not having been demanded, this cause was tried by the judge of tbe District Court, and this appeal presents “for review tbe ' conclusion and judgment of the court upon tbe evidence and in discharging this duty we are not allowed to indulge any presumptions favorable to tbe correctness of tbe trial court’s action. Acts 1890-91, pp. 605 et seq., § 15.
■Tbe usage or custom proved on tbe trial was, in our opinion, properly admitted and ■ considered by tbe court in reaching a conclusion as to tbe meaning of tbe contract between tbe parties. We understand from tbe evidence of *569the witness Walker that the usage or custom deposed to by bim was a general one in the county where the parties lived, the contract was made, and the services, to recover compensation for which under the contract this suit is prosecuted, were performed. This evidence, therefore, raises up a prima facie presumption, which no effort is made to rebut, that the parties knew of the usage thus pertaining to the subject-matter of their contract, and that they stipulated with reference to it in such way as to make it a part of their compact.— German Amer. Ins. Co. v. Commercial Fire Ins. Co., ante, 469.
The contract itself consisted of a notice posted by the plaintiff, setting forth the tenas upon which he would let his jack go to mares, the knowledge of defendant of the terms so advertised, and his acceptance of them implied from the fact he had his mare served without any special stipulations in respect thereto. The terms of the contract thus made, so far as involved in this case, were, that plaintiff was to receive for the services of his jack $8.00, to “insure or no payand that “if mare is sold, the money is due at time of sale.” This last clause, as interpreted in the light of the usage proved, means that if the mare, after being-served, is sold during the “season,” her owner (at the time of the service) would have to pay the fee of eight dollars, whether she were foaled or not; the stipulation doubtless being incorporated in view of the difficulty of ascertaining whether the mare is with colt consequent upon her sale and possible removal out of the neighborhood, and for the purpose of shifting the risk in that event on the owner, by whose act this difficulty is created, though, where no sale is made, the risk in this regard is taken by the owner of the jack. And this, it seems to us, is a just and reasonable construction of the clause in question, dissociated from the usage and custom shown by the evidence. We are unable, indeed, to find any field for the operation of this stipulation, if this be not a correct interpretation of it. It can not be held to mean only that where a mare is foaled, and the “insure or no pay” stipulation thereby filled, the fee shall become due and payable on a sale of the mare, since where that is the case, the -claim is due and payable as soon as the fact is ascertained,- whether the mare is sold or not, and the stipulation would in reality mean nothing. No other plausible or even possible operation for the clause suggests itself, or has been suggested to us; and our conclusion, both upon and without a consideration of- the usage, is, that upon a sale of the mare during the *570season, wbetber foaled or not, tbe owner becomes absolutely and unconditionally liable for tbe fee of eight dollars. It is uncontróverted in this case that tbe mare, after being served by tbe plaintiff’s jack, was sold during tbe “season” by tbe defendant; and it follows that tbe judgment rendered against him by tbe City Court must be affirmed.
Affirmed.