#### SOMERBY *v.*TAPPAN.

Mechanic’s liability for bad woik — chimneys—implied contract — customs, the rules of governing them — evidence—declaration of partner — damages.

A mechanic undertaking a job in the way of his trade at the common price, impliedly engages to bring to the work the common skill of his profession, and to do the work in a workmanlike manner; if he fail, he is liable to the injury his employer sustains.

The design of a chimney is to carry off smoke, and it should be so constructed as to effect this object. If, when the doors and windows are shut, the smoke escapes into the room to the annoyance of its inmates and the injury of the furniture and house, the builder is liable. Work done under the employees own direction, as to the manner, is done on his responsibility, and the mechanic is not liable for its defects.

Customs, to be recognized by law and affect contracts, must be ancient, accord with law, have continued without interruption, be certain, reasonable, consistent, peaceably acquiesced in, compulsory, not contrary to the public good, or injuiious to the many, and only beneficial to the few.

What facts constitute a custom or usage is a matter of law.

The declaration of a co-partner upon the subject of a partnership transaction, is evidence against his partner.

A jury in assessing damages may considera]! the items of injury and expense, and add interest on the expenditures to make the party whole.

Assumpsit for so negligently constructing the chimneys of a house, that they were useless. Pleas.

1. Non assumpsit, with a notice, that before suit the defendant offered to repair without charge.

2. Settoff for work and labor.

It was agreed at the bar, that the house was built by the defendant at the usual rate, and that all the work but the chimney flues was well done.

Evidence was introduced to show the chimney flues to be varying in size in the same flue from eight inches square to three feet ten inches by seven, while the usual sized flue for such sized rooms was twelve by sixteen inches. That these chimneys smoked so badly, *571that the plaintiff had to pull them down and rebuild the whole three stories; for the expense of which and the injury to the house, furniture, and paint by the smoke and work, he sought to recover compensation.

The defence introduced evidence to show,

1. That the work was done under the particular direction and upon the responsibility of the plaintiff.

2. That the defendant offered to repair.

3. And of a number of bricklayers to prove a custom in Cincinnati, to call first on the bricklayer doing the defective job to alter, before any other person is called on.

*Mr. Warren,*thought it the general usage among bricklayers, for the builder in the first instance to alter a defective job. He had known but one exception.

*Mr. Marsh*had lived here near four years, had heard it was the custom of the place when the house is occupied to call the builder first to repair any defects in the work. It is usual for bricklayers not to interfere with another’s job until that is done — he does not know how this rule is received in community.

*Mr. Rand,*had been called on where he had worked to repair, and would think it hard if not called on, but could not say how community understood this. He knew of no custom, to prevent another workman from altering the work if he chose.

*Mr. Talbot,*thought it usual for the employer to call on the builder to repair any defects, and that it was so generally understood. Had attempted to cure chimneys other than those he erected. If the employer selects an incompetent workman, he thought he ought to bear the injury for employing such a workman.

*Mr. Early,*thought it the custom for the employer to call on the builder first, to repair defects, and had refused to alter until he knew the builder had refused.

*Mr. Thorp,*knows no custom — his employers sometimes call on him, and sometimes on others, to repair.

*Fox*and *Storer,*

*to the*jury for the plaintiff.

*V. Worthington*and *Gazlay,*for the defendant.

The latter asked the Court to charge the jury that the admissions of Woldrom, the defendant’s partner, were to be disregarded in charging the defendant.

Wright, J.

to the jury. It is admitted that the defendant erected a house for the plaintiff at the usual prices, and that all the woi'k was done well except the chimney flues. When a mechanic undertakes to build a house at the common price, the law charges him with the knowledge usual to the trade he exercises, and im*572plies an undertaking on his part to do the work in a workmanlike manner; and if he fail to do so, he is liable for the injury his employer sustains. The real controversy between these parties is as to the structure of the chimney flues. The design of a chimney in a dwellinghouse is to carry off the smoke, and it is quite as necessary that the smoke should be carried off in cold weather, w'hen the comfort of the occupants of the house requires the doors closed, as in the summer, when they may be open. It is a selfevident proposition, therefore, that.a chimney does not answer its main design, if, when the doors and windows are closed, the smoke, instead of being carried off by the chimney, escapes into the rooms to the annoyance of the inmates, and the injury of the furniture and house.

You, have heard how these chimneys were- constructed, and how they answered their design in carrying off the smoke, and also the opinion of the witnesses as to how such flues ought to be built —-also the manner in which they were rebuilt, and the effect of the change. The questions presented to you on the plaintiff’s case are —were these chimneys skilfully built ? Did they carry oil-the smoke ? If not, and injury ensued, then, did the failure result from the want of skill in the structure ? If either of the two first questions are affirmatively made out by the evidence, you need inquire no farther, but find for the defendant. If resolved in the negative, or- if one is negatived, and the other affirmed, the plaintiff is entitled to your verdict, unless some one of the points of the defence are established, apd you will then have to examine those points upon the evidence.

The first position assumed in defence is, that the work was done according to the plaintiff’s own direction. You will weigh the evidence on this point, and if it be true that the plaintiff took upon himself the responsibility of directing and controling the work in the .particular complained off, he has no right to come upon the defendant for any defect in workmanship. It is his own fault, not that of the defendant. If the defendant has failed to establish this point to your satisfaction, he next assumes

That there is a general custom or usage in the city of Cincinnati, that when a bricklayer is employed to erect a chimney, and it prove defective, for the employer first to, call on the builder to repair the defect, before' he has a right to call in another workman. To support this assumption the testimony of a number of bricklayers has been introduced, which you will carefully examine.

The books tell us that ‘ custom is a law not written, established by long usage and the consent of our ancestors. No law cap *573oblige a free people without their consent; so whenever they consent and use a *certain rule*or method as a law, such rule or method has the power of law; if it is universal, it is *common law;*but if *particular*to this or that place, it is custom;’ (3 *Salk R.*192.) A custom to be obligatory must be ancient, so that the memory cannot reach back to its beginning. Must accord with law and have continued without interruption. ' Must be certain, reasonable, have been peaceably acquiesced in, consistent, compulsory, not left to the option of men to use or not. But a custom contrary to thejjublic good, or injurious only to the multitude and beneficial only to some particular persons, is repugnant to the law of reason and consequently void (2 *Danv. Ab.*224,7,) and the usage of no class of citizens can be sustained in opposition to established principles of law: (6 *Mass. R.*477; 10 *Mass. R.*26.) You will apply theselegal principles to the facts you have in evidence. Was this alleged custom ancient, in accordance with law, and of uninterrupted continuance ? Was it known to community, certain, reasonable, and peaceably acquiesced in ? Was it compulsory — mutually operating upon all persons ? If-the usage relied upon lack any of these essential ingredients, it cannot excuse the defendant. Taking all that the witnesses have said on the subject as time, we think it falls short of establishing a custom that will exonerate a workman from damages for the nonperformance of his contract to do work as a workman should. The common act of courtesy which induces a man to call on his mechanic to rectify what is amiss in his job, does not establish a custom to exonerate the trade from responsibility for bad work. The utmost length such a usage could avail would be to reduce the damage from the sum paidj to what the mechanic could have performed the work for: but we do not think it can be carried even to that length.

We are asked to charge you that the admissions of Woldrom, as to the defendants preventing him from making the repairs, are not evidence against the defendant — we cannot give you the charge. In our opinion the law makes the declaration of a partner evidence against his co-partner.

If you find for the plaintiff, you will assess his damages to a sum sufficient to remunerate him for the injury he has sustained; and you are at liberty to take into your estimate of the injury, the’ money paid out to put the chimneys and house in the condition they would have been, if the work had been well done; also the inconvenience and interruption of the plaintiff in the enjoyment of the, *574premises, the loss of its use, the injury to the furniture, and whatever else entered into the injury he actually sustained, and you can add to the expenditures interest from the time they were made.

Verdict for the plaintiff and judgment.