Gossler v. Eagle Sugar Refinery, 103 Mass. 331

Gossler v. Eagle Sugar Refinery

103 Mass. 331 | Mass. | 1869

Ames, J.

The only approach to a warranty in the sale to the defendants is to be found in the descriptive words “ Manila sugar,” contained in the bill of sale. Upon this point the jury were correctly instructed that, in deciding whether the article *334actually delivered corresponded to that description, they were simply to make up their minds whether it was such sugar as is usually known in commerce, under that name. Was it an article which in commercial language passes for, and is properly and usually known as, Manila sugar ? This question the jury have answered in the affirmative, and it therefore must be considered as an established fact that the defendants received what they undertook to buy, or, in the language of the court, they have got what they bought.

It appears that they bought the sugar for the purpose of re* fining it. They must be considered as having expected to find in it more or less of impurity. Their complaint is, that it has proved more impure than they expected to find it, and more so than sugar known under that descriptive name usually is, but they neither asked nor received any warranty as to its quality or purity, and they do not impute to the plaintiffs any fraud, or charge them with having made any representation except what appears on the face of the bill of sale, or with having had any knowledge as to the purity of the sugar that they did not communicate. They do not claim that they bought by sample, or that they were prevented from examining the property, or that it was not merchantable Manila sugar, or that they ever offered to return it. If they had doubts about the goodness of the article, or did not choose to run the risk of latent defects, they should have refused to purchase without a warranty upon these points. If the plaintiffs sold it as Manila sugar, in good faith and believing it to be so, without any warranty of its quality or purity, and if it actually was Manila sugar, as that term is understood in commerce, it is difficult to see why they are not entitled to be paid. The defendants made up their mind what they would give, and bought entirely on their own judgment. In the absence of warranty, or deceit or misrepresentation of any kind, on the part of the plaintiffs, it is difficult to see any ground on which the defendants can be relieved from their con tract.

The question addressed to the witness Lamb was unimpor tant and immaterial, and properly excluded. In regard to the *335witness examined as an expert, the question whether he should have been received as such was for the presiding judge to pass upon; and usually that question is left to his discretion. His decision upon it is not a matter of exception, unless a report of the entire evidence upon the point presents a question of law. Quinsigamond Bank v. Hobbs, 11 Gray, 250. Bierce v. Stocking, Ib. 174. Shattuck v. Stoneham Branch Railroad, 6 Allen, 115. The case does not disclose any sufficient reason for overruling the decision of the presiding judge upon this point. The cross-examination appears to have brought out a material qualification of what he stated in chief, as to the transaction which he described, but it does not appear that any ruling was asked for in relation to that testimony as given, or that its admission was injurious to the defendants in its bearing upon the question actually submitted to the jury by the court.

A majority of the court concur in the decision that the entry must be Exceptions overruled.