194 Mass. 136 | Mass. | 1907
1. We are of opinion that on the facts stated in his report the master cannot be held to be wrong in finding as a fact that the sale was not a sale by sample. The specimen shown the defendant’s agent Ellicutt, on September 26, was not called a sample by the plaintiff; and, although that sent to the defendant by express on September 27 was spoken of in the plaintiff’s letter as a sample, that did not prevent the master from finding that the sale made was a sale of the coal as the plaintiff received it from the dredgers, whether better or worse than the specimens. See in this connection Weston v. Barnicoat, 175 Mass. 454. For this reason the statute of Pennsylvania enacted April 13, 1887, relative to sales by sample, does not apply.
2. The master found that the coal shipped answered the description of the coal which the defendant agreed to buy and pay for. When the plaintiff delivered this coal at his own expense on board the cars at the shipping point near Harrisburg, consigned to the defendant as directed, he had done all he was required to do to entitle himself to the contract price. The title passed to the defendant, and he owed the plaintiff the price agreed upon. See Dr. A. P. Sawyer Medicine Co. v. Johnson, 178 Mass. 374.
Decree affirmed.
