193 Mass. 518 | Mass. | 1907
The plaintiffs’ cause of action, whether against the defendant, or the railroad company, was for a failure to deliver the peaches either according to the contract of sale or of carriage, and the order that the actions should be tried together rather than separately was not only proper but discretionary with the trial court. Springfield v. Sleeper, 115 Mass. 587. Burt v. Wigglesworth, 117 Mass. 302. Commonwealth v. Robinson, 1 Gray, 555. Commonwealth v. Miller, 150 Mass. 69. Commonwealth v. Bingham, 158 Mass. 169. Within the scope of
The exceptions to the exclusion of evidence and to the instructions to the jury, not having been argued, require no comment, and there remain the exceptions to the requests for rulings so far as they were not given. But of these only the eighth, ninth, fourteenth, sixteenth, seventeenth and eighteenth are now urged. In dealing with them an embarrassment arises because the bill of exceptions does not purport to contain all the evidence, but it is plain that the principal issue was to ascertain the contract between the parties, the terms of which appear to have depended wholly upon the conflicting testimony of the plaintiffs’ buyer, and of the defendant. Upon either view the jury were correctly instructed that if the agreement as alleged by the plaintiffs was proved they would be entitled to recover if there had been a breach by a failure to deliver at Boston, or, if this agreement had not been proved, then, if the contract was, as the defendant contended, only to indorse properly the bills of lading, and give the necessary orders to the carrier that the cars should be sent to Boston con
Exceptions overruled.