Miller v. Stevens, 100 Mass. 518

Miller v. Stevens

100 Mass. 518

| Mass. | 1868

Grav, J.

The written contract between the parties does not show whether the word “ barréis ” is used as describing a quan*522tity merely, or a vessel of a certain kind and capacity; for “ barrels” might mean either a quantity or a vessel; and if the vessels intended were of a uniform size, the fixing of the price by the gallon would be equally adapted to either. Parol evidence was therefore admissible to show in which sense the parties intended to use the word; and the presiding judge rightly admitted testimony that refined petroleum was often sold in barrels, and that the usual size of such barrels was forty-two gallons. No evidence was offered that it was ever sold in any other way. The statute of Pennsylvania, prescribing the number of gallons to a barrel, as a denomination of liquid measure, does not apply to sales by kegs, casks or vessels of a particular kind. The evidence that the barrels exhibited by the plaintiff, and from which the defendants’ agent took samples, at the time of the plaintiff’s offer to deliver, were of the capacity of forty-two gallons; that in all the discussions between the parties concerning the delivery, no suggestion was made that such barrels were not what the contract required; and that the defendants at that time intended and were ready to receive those barrels if the oil was of the requisite fire test; was competent to show that the parties, at the time of making the contract, understood and intended to contract for such barrels of oil as a specific article of merchandise, and not to use the word “ barrel ” as the statute measure of quantity; and the question of the intention of the parties in that respect was rightly submitted to the jury. Noble Durell, 3 T. R. 273, 275. Smith v. Wilson, 3 B. & Ad. 728. Clayton v. Greyson, 6 Nev. & Man. 694; S. C. 5 Ad. & El. 302. Spicer v. Cooper, 1 Gale & Dav. 52; S. C. 1 Q. B. 424. Cullum v. Wagstaff, 48 Penn. State, 300. Bradford v. Manly, 13 Mass. 139. Putnam v. Bond, ante, 58. Stoops v. Smith, ante 63. Judgment on the verdict for the plaintiff.