| Mass. | Sep 15, 1870
It was within the discretion of the court, and according to the usual practice in this Commonwealth, to permit the plaintiff to introduce evidence in support of the issue to be maintained by him, after the defendants had produced evidence to meet the case made by the auditor’s report. Morgan v. Morse, 13 Gray, 150. The auditor’s report, it is true, is only primd facie evidence, and does not change the burden of proof, but the plaintiff may in the first instance rest his case upon it, and, if it is attempted to control or impeach it by other evidence offered by the defendants, may be permitted to put in evidence in reply, in support of his own case.
The judge was in substance requested to instruct the jury, that, if the parties contracted for the delivery of wood to be all of a particular quality, and the plaintiff delivered wood intermixed with that of inferior quality, the defendants’ would not be obliged to accept it; and if it was not accepted, the plaintiff could not recover. There was evidence in the case which made this instruction proper; but the jury were told, instead, that if the parties contracted for wood of a particular quality, and the plaintiff delivered a quantity of wood which was not of the quality contracted for, intermixed with that which was called for by the contract, the plaintiff might recover for the latter. The exceptions show, indeed, that, in addition to this, instructions were given as to what would authorize the inference of an acceptance of the wood, which were not objected to. And it may be possible, or even probable, as the plaintiff argues, that the jury must have found, upon the pleadings and evidence in this case, that there was an acceptance of the wood for which they charge the defendants in their verdict. But this cannot be left to conjecture. And the difficulty is, that, as the instructions stand, with the accompanying request of the plaintiff, the- jury were permitted to find for the plaintiff, without either finding ail