115 Mass. 361 | Mass. | 1874
The present action, which was for the price o, provisions bought upon the order of the defendants, by the plaintiffs, as brokers or commission merchants, was defended (the pro*
Upon the question what the mercantile usage was in reference to this at Milwaukee, the act of the State of Wisconsin incorporating the Chamber of Commerce there, and the regulations of the Chamber framed under the act, were competent. One of the objects of this Chamber was “ to establish and maintain uniformity in the commercial usages of the city; ” and while undoubtedly usages might exist not recognized by this Chamber, the fact that this body of merchants had passed general regulations upon the subject of the inspection of provisions, describing many kinds and qualities, which did not prescribe any inspection of such provisions as those the price of which was the subject of controversy in this case, (which was the use the plaintiffs apparently sought to make of it,) had some tendency to show that the usage claimed by the defendants was not in existence there; and although these rules were adopted three years before the transaction in question, there was no evidence that they were not in full force at the time.
The defendants also object to that portion of the 8th answer in Planldngton’s deposition, which concerns the usage as to the duty of the broker, as not' responsive to the interrogatory, which was as to the duty of the vendor or packer in such sales, upon the ground that, no notice being given by this interrogatory that the inquiry related to any such subject, they had no opportunity to cross-examine upon it. The answer, however, in this matter seems to have related directly to that which was the subject of controversy between the parties, and it was competent for the presiding judge in his discretion to admit it. It may be that 4 full examination of the whole deposition, which is not before us, showed that the attention of the defendants was fully called to the subject matter of it by other interrogatories, and certainly
Nor do we think the 9th interrogatory to the same witness, or the answer thereto, objectionable. It is an inquiry substantially how, under the usage of Milwaukee, a transaction for a purchase such as this was is there conducted, from its inception to its conclusion, by the broker and packer, and what acts constitute a full performance by each of his duty under that usage. It calls directly for a statement of all the acts which each one does in such a transaction, and not for any opinion upon the usage. The statement of the answer to which the defendants especially object, “the responsibility of putting up the meat right rests with the packer,’’ is not, as contended for by the defendants, an opinion on matter of law, but a mode of stating, as a matter of fact, that, whether he may properly do so or not, the broker in this respect depends upon the packer.
In answer to the claim of the defendants that the provisions were not properly prepared for shipment, it was competent for the plaintiffs to show that they were so, and that the damage was occasioned by another cause, the weather, of which the defendants took the risk when they ordered them to be sent by the plaintiffs. The witness was a person engaged in the trade in the course of which these goods were bought, and must be considered as having that general knowledge upon the subject which results from experience in it. It was therefore competent to inquire of him what would be likely to be the effect of the weather upon provisions packed as these were directed to be. There is a large class of facts in regard to which judgment or opinion is all that can be expressed; Commonwealth v. Dorsey, 103 Mass. 412, and cases cited; and the judgment of a man whose business was that of a dealer in the articles as to which inquiry was made, was proper to be considered by the jury.
Whether, on cross-examination of the defendants’ witnesses, the plaintiffs should have been permitted to inquire as to the reputation and standing of Plankington & Armour, of whom the plaintiffs bought, need not be considered, as the exceptions do not show what replies were made to such inquiries, or that they could have been in any way unfavorable to the defendants. Fuller v
Exceptions overruled.
