| Mass. | Oct 23, 1891
On the facts found by the justice of the Superior Court, who heard the case without a jury, the only question open to the plaintiffs is whether the finding should, as matter of law, have been entered for the plaintiffs.
The plaintiff's seek to rescind the sale on the ground that the statement in the letter of May 15, 1888, that “ there is an occasional ham sour in the marrow,” amounted to an affirmation of the quality of the hams, and constituted a warranty that not so many as one third of the hams were sour in the marrow.
In the opinion of a majority of the court, this statement cannot be treated as such a warranty. The letter which contained the statement was merely a letter of instructions from the sellers to their agent. The expression used was a very indefinite one, “ an occasional ham.” See Logins v. Plympton, 11 Pick. 97, where the words “ good fine wine,” were said to be “ too uncertain and indefinite to constitute such warranty.” The expression dealt with a subject about which it was difficult, if not impossible, to have exact knowledge, namely, the condition of the marrow in the hams. It suggested to the agent to get the buyer (and this must mean the person proposing to buy) “ to try them off in body and marrow, and report best bid for them.” This was equivalent to saying that tests and a careful inspection would be necessary to ascertain what the condition of the hams was. The letter was a fair warning that some undetermined part of the hams was sour in the marrow.
All of the Justices agree that the exceptions should be overruled, and a majority of the court concurs in the reasons above given.
Exceptions overruled.