Whitney v. Thacher

| Mass. | May 8, 1875

Wells, J.

The only question upon the instructions, which has been pressed in argument here, is that arising upon the provision, in the written memorandum of sale, in these words”: “ To average by invoice 440 pounds gross per bale or no sale.” The ten bales first weighed averaged about 450 pounds, and all were over 440 pounds in weight. The defendants asked for instructions that if the goods averaged more than 440 pounds per bale, the plaintiffs could not recover. This was refused, and the jury were instructed that such an excess as that named would not enable the defendants to avoid the contract for that cause. This question we understand to be independent of the buyer’s option reserved in the contract, about which no point is presented here.

The position of the defendants is that the provision of the contract as to the average weight is a warranty, to be strictly and literally complied with. Assuming it to be so, we are of opinion that the construction of the clause adopted by the court at the trial was the correct one, to wit, that it was a warranty only against deficiency in weight. That appears to us to be the natural sense of the terms used, and is confirmed by the fact that the price was to be determined by the number of bags, and not by the weight, Upon this interpretation of the contract, it was not contended that the excess in weight was so great or essential as to constitute a substantial difference or want of identity in the article that was the subject of the sale.

The exception on account of the evidence admitted to show the fall in the price of gunny bags is presented in several aspects. 1. We see no reason why merchandise brokers in Boston, members of firms doing business and having houses established both in Boston and New York, might not properly be admitted to testify as to the market value, at a particular date, of an article of merchandise with which they were familiar, even though their knowledge was chiefly obtained from “ daily price current lists and returns of sales daily furnished them in Boston from their New York houses.” It is not necessary, in order to qualify one to give an opinion as to values, that his information should be of such a direct character as would make it competent in itself as primary evidence. It is the experience which he acquires in the ordinary conduct of affairs, and from means of information such as are usually relied on by men engaged in business, for the conduct of that business, that qualifies him to testify.

2. An unaccepted offer, as an isolated transaction, is not competent evidence upon the question of value. But in a market regularly attended by buyers and sellers, an offer as well as a sale of an article of recognized uniform character, constantly bought and sold in that market so as to have a place upon the daily price current lists, may serve to show that the market value of that article did not then exceed the price at which it was offered. It is admissible because of its publicity, and the presumption of the presence of dealers ready to purchase, and who would have done so if the offer had been below the market value. That dealers are themselves guided in their transactions by such indications of the state of the market makes the fact one that may properly be considered in evidence.

3. The objection that this evidence did not tend to show the value of similar goods in bond and for gold, is not tenable, at most, it only touches the weight and effect of the testimony. The fact that the sales quoted were for currency, “ duty paid by the seller,” does not necessarily imply that the goods were not in bond at the time. If they were so, the difference in both respects was a mere matter of computation. If they were not, and that fact would make any appreciable difference in the market value, we see no reason why witnesses who were engaged in the trade might not readily estimate that element of difference, and we must presume that they did so. There is nothing in the case to show that they were not competent for that purpose.

The objection to the testimony on this point, as taken at the trial, does not appear to have been upon the ground that it was hearsay. Exceptions overruled.