only $500 instead of $1,000, and, instead of securing subscriptions of wheat and cash of the value $1,000, they had furnished such subscriptions of the value of $200 only. The defendants allege that plaintiff failed to perform his part of the agreement, in several particulars, and seek to recover back the money paid him.
The conclusion we have reached makes it necessary for us to refer to only one of these matters. The contract provides that plaintiff is to operate this mill as a steam flouring mill, doing custom work. The defendants aver plaintiff had not, up to the time the answer was interposed, operated a custom flour mill at New Rockford. The mill which plaintiff was to operate was a roller mill. It is undisputed that the words “custom work,” when used with reference to such a mill, have a meaning different from that which attaches to them, as applied to the old fashioned grist mill. One of the witnesses who was sworn on this point said that “a custom mill is a mill that takes in farmer's grain, and grinds it, for a certain amount of toll. A roller mill gives the farmer back the equivalent of the flour from his own grain. The small old fashioned mill grinds the farmer's grain. The large mill, even if it is stone mill, exchanges. The meaning of ‘custom work,’ as applied to roller mill, is that the farmer gets a certain amount of flour, bran, and shorts for a given number of bushels of wheat. A roller mill gives the equivalent, instead of the flour, from the identical grain. A roller mill gives the equivalent, instead of the flour from the same grain, because there are too many machines for the different products of grain. The mill is too complicated.” It was undisputed that, in the operation of this mill, custom work was done, according to the significance of these words as applied to a roller mill. There was therefore nothing to submit to the jury on this point; and yet the court, after stating to the jury the fact that the defendants had put in issue the fact whether custom work was done by the mill, submitted to the jury the question whether the mill was operated as a custom mill. To this portion of the charge the plaintiff
N. D. R.—18.
