OPINION ON REHEARING.
Since the filing of the foregoing opinions a petition for a rehearing has been filed by counsel for appellee, in which they controvert the fact upon which the first and main point of the majority opinion is based. They say “It is not 1/rue that a/ny testimony under that head was gi/oen to the jwry.” The record recites, as they admit, that the court below overruled defendant’s objection and “decided that *629the plaintiff might show Toy parol what the custom was under such contracts, cmd what the amerage of a lot of hogs making up the general amerage of 225 pounds per head to make up the general amerage as specified in the written contract. And the witness, with other witnesses, game evidence as to what such amerage should Toe to compl/y with the contract.,” Tbe record also shows that appellant duly excepted to this ruling. In the petition for rehearing it is attempted to show by argument that the evidence objected to was not in fact received. However reasonable this argument may appear, yet in the face of the direct and positive statement in the record that such evidence was gimen by several witnesses against the appellant’s objection, we must follow the statements found in the record. Again, appellee’s counsel claim that if the- evidence “ is not found in the record the recital must be taken as untrue.” Not so. It was not necessary to embody the evidence given on this point. The character of the evidence is stated, and it is stated positively and unequivocally, that the evidence was received. This is sufficient to enable this court to review the ruling of the court below admitting the evidence.
It is insisted by counsel in their petition for rehearing, that this testimony could not and did not work any prejudice to the appellant, since the court, in the seventh and eighth instructions, construed the contract so as to render the evidence unnecessary. We have seen, in the opinion first filed, that the court erred in charging the jury in these instructions to the effect, that under the contract it was only necessary that the 65 hogs should be of the amerage weight of 225 pounds each. The court erred in the first place in admitting evidence to show that by a custom among dealers such was the proper construction of the written contract, and then erred in so construing it in the charge to the jury.
From the record it would seem that the court based its construction of the contract upon this evidence of custom which we hold was improperly admitted. If this be correct, then the admission of the evidence of custom was prejudicial to the *630appellant, and if the court gave the seventh and eighth instructions as the law, independently of this evidence, the appellant was thereby prejudiced. It is said, however, that there was no proper exception taken to these instructions. This may be conceded, but there was proper exception taken to the evidence improperly admitted, which presents the same question for our determination, namely, the proper construction of the written contract. We find and hold that the court below erroneously permitted a wrong construction to be put upon it by parol testimony, and then followed that wrong construction in its charge to the jury. That these rulings were substantially prejudicial to the appellant there can be no doubt, and the exception to the admission of the evidence sufficiently saved the question to require us to pass upon it.
The petition for rehearing must be
Overruled.