suit, as his interest might appear; that up to January 15, 1898, he demanded the proceeds of the policy from the appellant, by virtue of his having liquidated the building and loan mortgage held by the Wayne International Building & Loan Association; that Annie Wiley assigned the policy to the appellee January 15, 1898, the consideration for the assignment being the paying off the building and loan mortgage; that up to January 15, 1898, Annie Wiley did not make any demand upon the appellant for the proceeds of the policy; that she did not at any time or in any manner give notice to the appellant of her loss by fire under the policy, and did not at any time furnish the appellant proofs, or make proofs to the appellant, of loss under the policy; that on the 15th of February, 1897, one Roscoe C. Griffith, who was not an agent of the appellant, wrote to the appellant about the policy, at the instance of the appellee, as a friend; that Griffith was not the agent or attorney of Annie Wiley, and she did not authorize or direct him to correspond with the appellant; that one Frank Ritchie replied to this letter about the 17th of February, 1897, and, on receipt of the letter in reply, Griffith gave it to appellee; that the appellee visited the office of the appellant, at the city of Chicago, about the 16th of February, 1897; that one John Stone, the adjuster of the appellant, in person denied liability of the appellant to the appellee about January 28, 1897; that at that time the appellee had an interest in the policy, by virtue of having liquidated the building and loan mortgage held by said building and loan association, and was then claiming the ownership or an interest in said policy by virtue of such liquidation of the mortgage; that appellee did not advise the appellant at any time that he was acting as agent for or on behalf of Annie Wiley in his negotiation for a settlement of the policy; that the appellant denied liability to Annie Wiley under the policy about January 28, 1897, to the appellee, and in a letter from Ritchie to Griffith about February 17, 1897, and by Stone in a letter to one Grady about January 29, 1897; that Annie Wiley on the 24th of January, 1897, was the sole and unconditional owner of the title to the real estate on which the house injured by fire was situated; and that the appellee, in his efforts to collect the policy, acted for himself. Our statute permits the plaintiff to plead generally the performance of conditions precedent, but it is a rule of pleading in this state that, where he intends to rely on an excuse for not performing, on the ground of waiver or negligence of the defendant, or a refusal on his part to perform, the particular circumstances constituting such excuse should be averred, as at common law, and, if the complaint allege full performance of the conditions precedent on the part of the plaintiff, he cannot recover upon evidence showing a failure to perform, with an excuse therefor. Purdue v. Noffsinger, 15 Ind. 386; Cromwell v. Wilkinson, 18 Ind. 365, 367; Insurance Co. v. Duke, 43 Ind. 418, 421; Insurance Co. v. Copehart, 108 Ind. 270, 273, 8 N. E. 285; Bowlus v. Insurance Co., 133 Ind. 106, 120, 32 N. E. 319, 20 L. R. A. 400. The plaintiff may proceed in one paragraph upon the theory of full performance of conditions precedent on the part of the plaintiff, and in another paragraph upon the theory of waiver of performance of particular conditions, as in Insurance Co. v. Copehart, 108 Ind. 270, 8 N. E. 285; but each paragraph must proceed upon some definite theory. Treating the complaint as proceeding, as is required, upon a consistent theory, and construing its averments most strongly against the pleader, we think it must be regarded as averring full performance by the owner of the property of all conditions precedent, without relying upon or sufficiently showing a waiver of any of them. The special findings of the jury are inconsistent with a recovery upon such a theory. What might have been the rights of the appellee by virtue of his payment or "liquidation" of the mortgage need not be considered. No reference is made in the complaint to the mortgage, or to his connection therewith. He sued as assignee of the owner of the property insured, and he could not recover unless she had a right of action at the time of the assignment, which was made about one year after the fire. Whether or not, before the assignment, the appellee stood in the position of the mortgagee, and whether or not, in the relation which he held up to that time, he was affected by defaults of the owner of the property, he certainly was affected, as assignee, by any default which would deprive the owner of the right to recover upon the policy. If she at the time of the assignment could not recover on the policy, the appellee must fail. It is specially found that before the assignment she did not make any demand upon the appellant for the proceeds of the policy; that she never in any manner gave notice to the appellant of her loss by fire under the policy, and never made or furnished proof of loss. Though there were negotiations between the appellee and the appellant soon after the fire, the appellee therein was acting, not as the representative of the owner of the property, but solely for himself, in the capacity of one who had liquidated the mortgage debt. If the inference is not, indeed, irresistible that between the appellee's assignor and the appellant there were no negotiations or communications directly or through representatives, and no waiver of notice and proof -of loss, it does appear affirmatively from the special findings that the appellee was not entitled to a recovery, as assignee of the insured, upon the cause of action shown by the complaint. The judgment is reversed, with instruction to sustain the appellant's motion for judgment. 1. In a contract for the delivery of paper, the court cannot, in construing it, read into it the word "net" after the words "53,000 pounds book paper," as that term has a fixed and definite meaning in commercial transactions. 2. Only the grounds of objection to the introduction of evidence can be considered on appeal which are presented to the trial court. 3. Evidence of a usage in a paper business that an order for 53,000 pounds paper, "37x48, 53 lbs. 500 sheets," means that the weight of wrapping necessary to safely transport it is to be included in the specified weight, is admissible to show what is meant by the terms used, and does not contradict the express terms of the contract. 4. Where a usage of a trade is shown to exist, it is presumed that persons engaged in that business contract with reference to it. 5. Where a party to a contract testified that he had had considerable experience in buying paper, and did not deny knowledge of a usage of the trade in buying paper, it is presumed that he had such knowledge. 6. A contract for the delivery of 53,000 pounds paper, on the basis of "37x4S, 53 lbs. 500 sheets," is not so plain as to the manner of weighing the paper as that there could be but one conclusion, and evidence of a custom as to the manner of weighing paper was admissible. Appeal from superior court, Marion county; J. L McMasters, Judge. Action by the Indiana Paper Company against J. A. Everett, Seedsman, on contract. From a judgment for plaintiff and refusal to grant a new trial, defendant appeals. Affirmed. Florea & Seidensticker, for appellant. W. E Jeffreys and M. E. Forkner, for appellee. ROBINSON, J. Appellee sued upon the following agreement: "Order from J. A. Everett, Seedsman. Indianapolis, Ind., Nov. 9, 1895. To Indiana Paper Co., P. O. City: Deliver to our printers, as instructed with later specifications. [Signed] J. A. Everett, Seedsman. 53,000 lbs. book paper, @ 3.75 per cwt. This paper is to match the paper in our 1894 catalogue for quality, finish, and appearance, except the color is to be white, like sample attached, marked 'J. A. E.,' and attached to this copy, marked 'C. E. G.' Weight to be on basis of 37x48, 53 lbs. 500 sheets. Specifications for size will be given early next week. Delivery to be made, Dec. 10th or before, 1⁄2 Jan. 1st or before. Terms, 90 days. Accepted: Indiana Paper Co., per Claude E. Geisendorf. 'C. E. G.' and J. A. E.' match as nearly as possible for color." It is averred that, after a part of the paper was furnished, appellant refused to accept any more, and refused to pay for the part delivered; that appellee then had on hand a quantity of the paper, which it had caused to be manufactured especially to fill this contract, and which was, because of its size and quality, unmerchantable. Appellant answered: General denial; payment; Rehearing denied, and special defense that, appellant desiring to publish a catalogue for 1896, appellee represented it would furnish the same kind of paper used in the 1894 catalogue, and, in consideration of such representations, appellant entered into the written agreement sued on, and thereby purchased from appellee 53,000 pounds of white book paper, of the same kind, class, grade, and quality that was used in its 1894 catalogue; that appellee knew the purpose for which the paper was to be used, and undertook that every 53 pounds delivered should make 500 sheets of paper 37 by 48,-no more, no less; that the paper appellant used was delivered to its printers and used by them before it learned of its quality, but, immediately upon learning of the quality and weight, it notified appellee not to deliver any more of that quality, but to deliver the paper purchased, which appellee failed to do; that 500 sheets would not weigh 53 pounds, was unfit for appellee's use, and worth not to exceed $2.50 per hundredweight; that appellant was compelled to go into the market, and pay $4.60 per hundredweight for paper to complete its catalogue, causing appellant a loss in a named sum, for which judgment is asked. Upon a trial by the court, appellee had judgment. Motion for a new trial overruled. The only questions discussed arise on this ruling. The contract must be construed as a whole. The contract calls for 53,000 pounds of paper to match the paper in the 1894 catalogue for "quality, finish, and appearance, except the color"; but this must be taken in connection with that part of the contract which says, "Weight to be on basis of 37x48, 53 lbs. 500 sheets." The contract does not necessarily mean that the paper shall be like the sample in weight. The quality, finish, and appearance are to be gathered from the sample, and we can only conclude that the parties did not intend that the weight should be so determined, because they made distinct provision for determining that in another way. We cannot read into the contract the word "net" immediately after "53,000 lbs. book paper," as argued by counsel. That term, in commercial transactions, has a fixed and definite meaning. Scott v. Hartley, 126 Ind. 239, 25 N. E. 826. The evidence upon some questions in issue was conflicting. This evidence we cannot weigh. Whether there was a substantial compliance with the contract by appellee was a question to be determined from all the evidence. The contract required the paper to match the paper of the old catalogue for quality, finish, and appearance. There is evidence that the paper furnished by appellee did this. There was a conflict as to whether the paper furnished reached the weight required by the contract. Appellant required that the weight should not exceed 53 pounds, and there is no evidence that it did. There is no evidence that any of it fell below 50 pounds. There is evidence that it is not possible to make all sheets alike in weight, and that 50-pound paper would print just as good a job as 53-pound paper, and unless the paper was put on the scales the difference would not be known. We cannot say that there is no evidence from which the court could say that there had been a substantial compliance with the contract by appellee. Appellant argues that appellee was permitted, over objection, to contradict the terms of the written contract by showing a usage in the paper trade as to the manner of weighing paper like that in question, and that such usage was not pleaded. No objection was made to the introduction of this evidence on the ground that it was not within the issues presented by the pleadings, but the ground of objection was that the evidence tended to contradict a written contract. But, as stated by the trial court at the time, the evidence was admitted, not to contradict the contract, but as an aid in its interpretation, by applying the usage of the particular business to the construction of the contract. Only the grounds of objection presented to the trial court can be considered on appeal. It was shown in evidence that 53,000 pounds book paper, weight to be on basis "37x48, 53 lbs. 500 sheets," have a particular meaning peculiar to the paper trade; that such an order means 1,000 reams, of 53 pounds to the ream; and that it was the usage, where a weight is specified, to include the weight of wrappings necessary to safely transport it, unless otherwise specified in the contract. The evidence of a number of witnesses experienced in the paper business that such a usage exists was not contradicted. As it was shown that the above provision has a particular meaning, always used, it is presumed the contract was made with reference to that meaning. It cannot be said that the evidence contradicts the express terms of the contract. The record shows that the evidence was admitted for the purpose of showing what was meant by the terms used, not to contradict the contract, but as an aid in its interpretation, by applying the rules of the particular business. Nor can it be said that such a usage is unreasonable, contrary to law, or opposed to public policy. In Morningstar v. Cunningham, 110 Ind. 328, 11 N. E. 593, it is said: "Parties who are engaged in a particular trade or business, or persons accustomed to deal with those engaged in a particular business, may be presumed to have knowledge of the uniform course of such business. Its usage may, therefore, in the absence of an agreement to the contrary, reasonably be supposed to have entered into and formed part of their contracts and understandings in relation to such business, as ordinary incidents thereto. Railway Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; Mooney v. Insurance Co., 138 Mass. 375, 52 Am. Rep. 277; Machine Co. v. Daggett, 135 Mass. 582; Fitzimmons v. Academy, 81 Mo. 37; Cooper v. Kane, 19 Wend. 386: Kelton v. Taylor, 11 Lea, 264, 47 Am. Rep. 284; 7 Cent. Law J. 383." There was evidence tending to show that appellant had knowledge of the usage in question. Mr Everett testified that he had "had considerable experience and quite varied experience in purchasing paper." From this evidence, and the fact that he did not deny knowledge of such usage, the court might conclude that he had such knowledge. It cannot be said of the contract that it was so plain in its terms as to the manner of weighing the paper that there could be but one conclusion. The total weight was to be "on the basis" of "37x48, 53 lbs. 500 sheets." In Walls v. Bailey, 49 N. Y. 464, a party who had contracted in writing to do certain plastering at so much per square yard,. charged for the full surface of the walls, without deduction for doors and windows and the like, and to support such charges he was allowed to prove a custom of plasterers in the city so to measure and charge. In Wilcox v. Wood, 9 Wend. 346, proof of a local custom, that a lease from the 1st day of May in one year to the 1st day of May in the succeeding year expires at noon of the last day, was held admissible. In Lowe v. Lehman, 15 Ohio St. 179, where a party contracted to furnish and lay brick by the thousand, a local custom as to how the number should be. estimated was held not unreasonable. In Ford v. Tirrell, 9 Gray, 401, a contract to build a cellar wall at a certain price per foot, evidence of the usage of measuring such walls was admitted. In Barton v. McKelway, 22 N. J. Law, 165, under a contract to deliver trees not less than one foot high, it was held proper to show a usage of all dealers that the length was measured only to the top of the ripe wood, rejecting the green, immature top. See, also, Soutier v. Kellerman, 18 Mo. 509; Lyon v. Culbertson, 83 Ill. 33, 25 Am. Rep. 349; Smith v. Clews, 114 N. Y. 190. 21 N. E. 160, 4 L. R. A. 392, 11 Am. St. Rep. 627; Fertilizer Co. v. White, 66 Md. 444, 7 Atl. 802, 59 Am. Rep. 186; Merick v. McNally, 26 Mich. 374; Featherston v. Rounsaville, 73 Ga. 617; Parks v. O'Connor, 70 Tex. 377, 8 S. W. 104; Lane v. Bank, 3 Ind. App. 299, 29 N. E. 613; Scott v. Hartley, 126 Ind. 239, 25 N. E. 826; Packing Co. v. Hartman, 126 Ind. 177, 25 N. E. 901. It is well settled that usage cannot be set up to contradict a contract. "But, when there is nothing in the agreement to exclude the inference, the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates, and the usage is. admissible for the purpose of ascertaining with greater certainty what was intended by the parties." Hinton v. Locke, 5 Hill, 437. Appellee sued upon the contract as made. When it is shown that the usage exists, it is presumed that the contract was made with reference to it. It is not sought to contradict. or vary the contract by the usage, but to in terpret it according to the usage which the parties are presumed to have had in mind when the contract was made. The usage itself was incorporated in, and became a part of, the contract sued on. Drudge v. Leiter, 18 Ind. App. 694, 49 N. E. 34; Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311; Leiter v. Emmons, 20 Ind. App. 22, 50 N. E. 40; Reissner v. Oxley, 80 Ind. 580. It is further argued by counsel that the amount of recovery is erroneous, the same being too large. It is unnecessary to set out the evidence bearing upon this question. Suffice it to say there is evidence to sustain the court's finding in the amount named, and for which judgment was rendered. Leaving out any question of interest, there is evidence to sustain the finding. From the whole record, we think the case was prop-❘ erly decided upon its merits. Judgment affirmed. (24 Ind. App. 603) CENTER TP., GRANT COUNTY, v. DAVIS. 1. Where it appears from a judgment that there was no recovery on a certain paragraph of the complaint, an assignment that the court erred in overruling a demurrer thereto will not be reviewed on appeal. 2. A complaint in an action against a township, which stated there was a highway in a certain road district which required repairs, and that the township directed the road supervisor to employ labor to repair the same, and that such supervisor employed plaintiff, who performed certain services at an agreed price, states a cause of action. 3. A specification that the court erred in overruling a demurrer to the complaint will fail where one paragraph of the complaint is sufficient. 4. Where the evidence showed that plaintiff worked on a highway of defendant township for 13 days at an agreed price of $5 a day, and that such services were performed over a year prior to the commencement of suit, a judgment for $68.90 was not excessive. 5. Where there is evidence which will sustain the judgment of the trial court, the weight thereof will not be reviewed on appeal. Appeal from superior court, Grant county; Hiram Brownlee, Judge. Action by Herman L. Davis against Center township, Grant county, to recover for work on highway. From a judgment in favor of plaintiff, the defendant appeals. Affirmed. H. M. & G. M. Elliott, for appellant. St. John & Charles, for appellee. COMSTOCK, J. This action was brought by appellee against appellant to recover the sum of $65 alleged to be due appellee for services performed by him for appellant upon a public highway in road district No. 2, Center township, Grant county, Ind. The complaint upon which the cause was tried consisted of three paragraphs, the first and second being amended paragraphs. The cause was put at issue by general denial, tried by the court without the intervention of a jury, and a judgment rendered in favor of appellee for $68.90. The errors assigned are that the court erred: (1) In overruling appellant's demurrer to the third paragraph of the complaint; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the court erred in overruling appellant's motion for a new trial. The third paragraph of the complaint is based upon a written order of the supervisor of road district No. 2 drawn upon the trustee of Center township for 13 days' labor with two teams for $65, which labor, it is alleged, was performed upon a highway of said township at the instance and request of the said supervisor, which order the trustee verbally accepted and promised to pay, but which he wholly failed and refused to pay. It affirmatively appears, however, that the judgment of the court was not rendered upon this paragraph, and it is therefore unnecessary to consider the first specification of error. The second specification of error challenges the sufficiency of the complaint. The first amended paragraph of complaint alleges, in substance, that at the time thereafter named -the fall of 1895-Herman L. Davis was the supervisor of road district No. 2, Center township, Grant county, Ind., and that Daniel E. Wilson was the trustee of said township; that there was a certain highway in said road district, to wit, College avenue, whereon it became necessary to perform labor in repairing the same; that, the same being known to the township trustee, he directed said supervisor to perform such labor as was necessary to put the same in repair; that in pursuance of such order from the trustee, Davis, as supervisor, employed plaintiff to repair said highway, and that pursuant to such employment the plaintiff performed labor on said highway with two teams of horses with two horses each and drivers therefor for 13 days, under the direction of said supervisor, and that the work and labor was of the value of $2.50 per day for each of said teams and drivers, making an aggregate of $65, for which the township became indebted to him in said sum. It further alleges that when the work had been completed the supervisor accepted the same, and executed to the plaintiff a written order to the said trustee for the payment of said sum; that he presented such order to the trustee, and demanded payment there. of, but the trustee refused, and still refuses, to pay, and that the debt is due, and wholly unpaid. Counsel for appellant claim that this paragraph is defective for the following reaIt does not allege that the highway in question, at or before the time of the work alleged to have been done thereon, was out of repair, nor that the trustee had knowledge that it was in need of improvement. It does not show that all the persons liable for work in that road district had been called out by the supervisor during the year to work on the highways therein; nor that all such work had sons: been performed upon the highways in that district which should have been performed by the persons whose duty it was to work thereon; nor that all the commutation money that had been collected by the supervisor of the district had been expended on the highways of his district; nor that there were no road funds on hand with which to make repairs on said road; that it fails to allege that the supervisor was unable to have said work done out of commutation money he might have in his hands, or which he might collect from persons who had not worked out their statutory time on the highways; that it fails to allege that the supervisor was unable to call out persons and secure the performance of such labor by the citizens of the road district, as he was in law bound to do; that it does not state facts showing the condition of the highway, nor state facts showing on what part of said highway the labor was performed, or that the plaintiff performed any specified work ordered by the trustee. The reading of this paragraph as above set out shows, though not in direct terms, that the highway was out of repair, and that the trustee had knowledge that it needed improvement. It does not show on what part of the highway the work was performed, nor that any specific act was ordered by the trustee. A motion to make the complaint more specific would have called the attention of the court to these alleged defects. Its sufficiency is questioned for the first time in this court. Alf intendments are taken in favor of the pleader when challenged for the first time in an appellate court, and its defects, if any, such as might be supplied by proof, are cured by the judgment. Railway Co. v. Stoddard, 10 Ind. App. 281, 37 N. E. 723. The other objections to the complaint are based upon sections 6818, 6819, 6822, 6824, 6828, 6829, 6843, 6844, 6851, Burns' Rev. St. 1894, relating, respectively, to the oath, duties, etc., of supervisors, designating who shall be required to work on highways; providing for notice by the supervisors to each person in his road district liable to work on the highways; providing for commutation money, and how the same may be used; providing for repairs on the highway, and how they shall be made, for the disbursement of the road fund, for the supervisor's report, and for the disposition of unexpended funds. Section 6834, Id., providing for the collection of road tax, and section 6835, Id., are also referred to. The section last named provides that: "Such trustee shall order the expenditure of such tax in the improvement of the highways thereof, under such regulations as he may deem expedient for the public interest, and for this purpose shall pay such sum, on the order of the supervisors of the township, for work done by them under the direction of the trustee; said order or orders drawn upon the trustee shall distinctly state the services performed by the person or persons to whom said order is given." The foregoing objec tions are not well taken. Appellee alleges the performance of necessary work upon a public highway of the township under the authority and direction of the proper officer, and the knowledge of the township trusteeof the want of repair of the road, and his authorization of the work in words sufficiently definite to bar another action for the same cause. It alleges that he procured from thesupervisors the order on the trustee authorized by section 6835, supra, of the statute, which was the evidence to the trustee of the performance of the work. These allegations were sufficient to put appellant upon its defense. If there were elements of fraud or improper conduct upon the part of the supervisor or the appellee, they were matters of defense. This specification of error is addressed to the entire complaint. It must, therefore, be sustained as to each paragraph, or fail as to all. Holding the first paragraph sufficient, it is not necessary to consider the second. The third and last specification of error is the action of the court in overruling appellant's motion for a new trial. The motion for a new trial sets out four reasons. The first and second reasons are upon the ground that the damages assessed were too large. The judgment was for $68.90. Evidence uncontradicted shows that appellee worked 13 days with two teams, for which he was to be paid, by agreement with the supervisor, $5 per day. There was evidence that the services rendered were worth $5 per day. The work was performed in September, 1895. Suit was commenced in March, 1897; judgment rendered in January, 1898. The court evidently allowed one year's interest on the claim at the rate of 6 per cent. The judgment was not excessive. The third reason for a new trial is that the decision of the court is not sustained by sufficient evidence; the fourth, that the decision of the court is contrary to law. As to these reasons, it is only necessary to say that an examination of the record discloses that there was evidence fairly sustaining the judgment of the court, and, being within the issues, it is not contrary to law. Counsel for appellant very ably discuss the evidence, claiming that its preponderance is against appellee. Appellate courts, as has often been said, cannot weigh the evidence, and must accept the judgment of the trial court when the evidence fairly tends to support it. Finding no error for which the judgment should be reversed, it is affirmed. (24 Ind. App. 648) NIXON et al. v. COLVERT. (Appellate Court of Indiana. May 18, 1900.) CHATTEL MORTGAGES-CROPS-DELIVERY TO MORTGAGEE-PAYMENT-APPLICATION. Where wheat was delivered to a chattel mortgagee, sufficient to satisfy his claim under the mortgage, but no application of the proceeds was made until after the mortgagor had sold |