Chamberlain & Co. v. Rankin

49 Vt. 133 | Vt. | 1876

The opinion of the court was delivered by

Pierpoint, C. J. A number of exceptions were taken to the rulings of the County Court that are not insisted upon in this court. It is only necessary now to consider such as are insisted upon. The defendant claims that the court erred in excluding the testimony of Greenbanks as to his custom, and the custom of wool-buyers generally in the vicinity, in respect to the manner of examining wool of the kind in question. The plaintiffs’ testimony tended to show, that the wool was represented by the defendant to be ordinary fleece wool, but that it was not; that a large quantity of wool taken from dead sheep, dung-locks and tag-locks, more than would ordinarily come from the sheep, had been rolled together and put inside of the better portions of the whole fleeces, and of the halves of the divided fleeces. If this was so (and the jury have found it to be so), it is no answer to say that the generality of wool-buyers would have detected the fraud, but some would not, for that is all the offer amounts to. If the offer had been to show that it was the universal custom of wool-growers to put such foreign substances into the fleeces, and the buyers so understood, it would have presented a different question. The plaintiff had the right to rely upon the representation that the wool was what it appeared to be — “ ordinary fleece wool,” and upon the good faith of the defendant that he was not practising a fraud upon him by concealing within the fleeces such foreign matter. We think the testimony was properly excluded.

It is urged by the defendant that the County Court erred in not charging the jury as requested, that the declaration of Bacon as to his knowledge of the quality of the wool, made some time prior to his making the purchase, should be regarded as testimony in chief, and not as impeaching testimony only. The declaration made by Bacon before the purchase, as to knowledge of the quality of the wool, would, undoubtedly, be evidence tending to show that he had such knowledge at the time of the purchase, and would be evidence in chief. But the declarations proved to have been made by Bacon have no tendency to prove that he had any knowledge of the defects in the wool that the plaintiffs brought their action to recover for, or made claim for on the trial. The plaintiffs conceded and proved that they knew that the wool was old, and the fiber impaired by time, and that some of it was unwashed, in short, that it was not good wool, but damaged, and this is all that the declarations of Bacon tended to show. No declaration was proved tending to show that he had any knowledge of the foreign matter concealed in the fleeces, hence the disposition made of the question by the County Court was correct.

The defendant further claimed, that inasmuch as the plaintiffs “ did not sell the wool separately, nor cleanse that portion which they claimed was inferior or stuffing, by itself, and so could not tell what they received for it,” and did not sell it until-after suit brought, the court erred in not charging the jury that such facts were to be taken against the plaintiffs. We think the charge as stated in the exceptions on this point is all that the defendant had the right to ask, and that there was no error in this respect.

Judgment affirmed.