Upon the argument of this rule, the' defendant’s counsel also discussed, to some extent, a motion in arrest of judgment; but as the adverse counsel refused to enter into that discussion until the question of a new trial was decided, I will restrict my remarks to the latter question.

The suit is for the price or consideration of 13,848 morus multicaulis mulberry trees, alleged to have been delivered by the plaintiff to the defendant, according to contract, on the 15th of November, 1839, at the rate of ten cents a tree. Assuming that, by the terms of the contract, the trees were to be' delivered, on the day above mentioned, at the house of the defendant, and were not to be less “ than a foot high,” that the price to be paid on delivery was ten cents a tree, we easily arrive at the questions involved in the case. On the trial the plaintiff proved, that on the 14th and 15th days of November, *1731839, he measured, counted, tied up in bundles and loaded on wagons, carried and delivered, the trees at the house of the defendant, in the city of Trenton; that the defendant was not at home, and his wife refused to receive them or permit them to be laid on his premises; and there being no one else there authorized to receive them, they were laid on the sidewalk in front of the defendant’s house. It further appeared in evidence that the defendant, on his return home the day following, caused them to be removed to his own cellar. "

The defendant now objects that this evidence does not establish a legal delivery; that there could be no delivery where there was no one duly empowered to examine the nature and quality of the article to be delivered, and to determine whether the same was or was not in conformity with the contract. There is no force or reason in this objection. The defendant was aware of the time and place, fixed for the delivery, and had given his written consent to it, and it was his duty to have been there at the time to receive tile trees, or to have left au agent to act in his place. He cannot evade his contract by absenting himself from home that day. The plaintiff did all be could, and all that the law bound him to do, to effect the delivery. He carried the trees to the place mentioned in the contract, on the day therein appointed, and there made the only tender and delivery in his power to make. There is no ground in this objection for a new trial.

But it is further objected, that the court below overruled legal and material evidence offered by the defendant on the trial. To got at the point of this objection, it is necessary to refer again to the written contract, which provides, in terms, that the trees to be delivered were not to be less than one foot high. The plaintiff proved that the trees delivered were one foot high, measuring 'from the top of the root to the top of the stem. The defendant then proved that, after his return home, he caused these trees to be counted and measured, and that, according to such measurement, there were only 9000 trees of a foot high and upwards, and that the test were rejected, as falling short of that measurement. The mode of measurement adopted by the defendant (according to the evidence) was *174from the top of the root to the extent of the ripe or hard wood, and not to the top of the stem. It became apparent, then, that the discrepancy in the count and measurement of the trees, by the different witnesses, arose from the different modes of measuring adopted by them. The defendant then offered to prove by witnesses that the mode adopted by him was the lawful and proper rule; that it was the rule well known and practised by all dealers in that article, from the commencement of the trade until the time when this contract was made; that this custom or usage of measuring mulberry trees, from the top of the root, or bottom of the stem, to the extremity of the matured or hard wood, was uniform and universal in the execution of all contracts for the sale and delivery of the article, made by dealers therein ; that the plaintiff himself and those from whom he had acquired his title to the trees in question, were dealers in the article, residing in the neighborhood where that usage prevailed, and were well acquainted with it.

All this evidence was offered with the avowed purpose of explaining the true intent and meaning of the parties to this contract touching the phrase, “ one foot high,” and not to alter, contradict, or even modify the terms of the contract.

This evidence was overruled on the trial, and I think erroneously. It is no answer to say, that “ tree ” is a word of precise and definite signification, or that a “ tree ” is a “ tree,” and can be nothing else, and that every body knows what a tree is. It is the qualification contained in the contract that wc are to consider in this case. The trees were to be at least a foot high. This involves the question of measurement, and how were they to be measured, while standing and growing in the ground, or after they had been dug from it? Were they to be measured from the extreme root to the extreme branch (both of which are parts of the tree), or in what other mode were they to be measured, in order to determine their height? It seems to me that the inquiry proposed by the defendant was legitimate and proper, and tended to settle an ambiguity in one part of the contract.

It is a well settled rule of law, that contracting parties *175are always presumed to make their contracts with reference to the general custom and usage that appertains to the subject matter of their contract, if any such general custom prevails, and all ambiguous terms or phrases used in expressing such contract may be explained by resorting to such general usage. And all terms and phrases employed by parties to express their intentions, if at all ambiguous, are to be construed in conformity with such usage, in order to arrive at their true intent and meaning. Doug. 513. It is not necessary that a usage of trade should have existed immernoriallv : it is sufficient if it is established, known, uniform, and reasonable, and not contrary to law. Its true office is to interpret the otherwise indeterminate intention of parties, and the nature and extent of their contracts, and fix and-explain the meaning of words. 2 Greenl. Ev. 251. The defendant’s offer was, to prove that the trade in mulberry trees was of recent origin in this country, and that the practice of measuring them in the manner pursued by him commenced with, and uniformly continued with the trade itself, as long as it lasted, and was known to all dealers in that trade. I think this offer ought not to have been overruled. The jury were called upon to decide whether the plaintiff’s or the defendant’s rule of measurement was lhe true rule, and they could do that satisfactorily only by being informed of the usage that appertained to the subject matter of the contract, and that usage was good evidence to explain the intention of the parties. 2 Star. Ev. 455.

But, apart from the reasonable and well settled principle of the law of evidence, the nature of the thing contracted for and the object of the parties rendered the evidence lawful. The defendant was the purchaser of these trees, and in his contract he provided that they should be one foot high. For what purpose? Why a foot high, rather than six inches high?. The plain and obvious answer is, that he might have a tree which, when divided into parts, would produce, when planted, a tree from every part, that is, that each part would vegetate. But all the witnesses proved that the part of the tree which did not consist of ripe or hard wood was entirely worthless, had not in itself a power of vegetation, but, as soon as the tree *176was removed from the ground, wilted and died. How, then, could the parties have contemplated that worthless part of the stem of the tree as a portion to be paid for by the terms of the contract.

I think the court erred in overruling the evidence offered by the defendant, as it had a legitimate bearing on the issue, and for that reason that the verdict should be set aside, and a new trial granted.

Carpenter and Ogden, Justices, concurred.

New trial granted.