155 Mass. 60 | Mass. | 1891
1. The plaintiffs agreed to sell, and the defendants agreed to buy, a cargo of ice of three hundred and sixty tons, to be shipped from Pembroke, Maine. From some of the evidence it would seem that the ice was not identified by the contract, but was to be supplied and appropriated to the contract by the plaintiffs, the sellers. From other parts of the testimony it might be inferred that the ice was identified by the contract, but at a time and under circumstances when the defendants had no opportunity to inspect it before shipment. The judge instructed the jury generally that there was an implied affirmation that the ice was of such a kind that it could be shipped, transported by sea, and discharged at New Bedford, as contemplated by the contract, and no other implied affirmation or warranty. If the instruction is wrong in either view which the jury might have taken of the facts, the exceptions must be sustained, and
In some contracts of the latter kind, when the sale is of specific goods, but the buyer has no chance to inspect them, the name given to the goods in the contract, taken in its commercial sense, may describe all that the purchaser is entitled to demand. So it was held with regard to “ Manila sugar,” in Gossler v. Eagle Sugar Refinery, 103 Mass. 331.
But in many cases like the present, the inference is warranted that the thing to be furnished must be not only a thing of the name mentioned in the contract, but something more. How much more may depend upon circumstances, and at times the whole question may be for the jury. If a very vague generic word is used, like “ ice,” which taken literally may be satisfied by a worthless article, and the contract is a commercial contract, the court properly may instruct the jury that the word means more than its bare definition in the dictionary, and calls for a merchantable article of that name. If that is not furnished, the contract is not performed. Warner v. Arctic Ice Co. 74 Maine, 475. Swett v. Shumway, 102 Mass. 365, 369. Whitmore v. South Boston Iron Co. 2 Allen, 52, 58.
In a sale of “ Manilla hemp,” like that of the sugar in Gossler v. Eagle Sugar Refinery, it was held in England that the hemp must be merchantable. Jones v. Just, L. R. 3 Q. B. 197. Gardiners Gray, 4 Camp. 144. Howard v. Hoey, 23 Wend. 350, 351. Merriam v. Field, 39 Wis. 578. Fish v. Roseberry, 22 Ill. 288, 299. Babcock v. Trice, 18 Ill. 420. See Hight s. Bacon, 126 Mass. 10, 12; Hastings v. Lovering, 2 Pick. 214, 220.
2. The plaintiffs put in evidence tending to show that the defendants never notified them of any defect in the quality or condition of the ice until after this suit. To meet this the defendants offered a protest signed and sworn to by one of them on the day the ice arrived. This protest was no evidence that the statements contained in it were true, or that the defendants’ story was not false. So far as the plaintiffs’ evidence was intro-' duced for the purpose of showing such an acceptance of the ice as to bar the defendants from alleging that it did not satisfy the contract, (Morse v. Moore, 83 Maine, 473, and Gaylord Manuf. Co. v. Allen, 53 N. Y. 515, 519,) the protest of course had no
