Featherston v. Rounsaville & Brother

Jackson, Chief Justice. This suit was brought by plaintiff in error against defendants in error for damages for bad meat sold the former by the latter. There was some controversy about the contract, but the weight of evidence is, that by it the meat was to be fully cured. 1. The complaint is that the court instructed the jury to confine themselves to the evidence to ascertain the meaning' of those words. The words were used in a particular trade — the sale and purchase of bacon or pork sides. This avus the subject-matter of this trade, and under the Code, section 4, in respect to statutes which would apply, Ave think, to contracts, the words are to have the meaning attached to them by experts — that is, persons in the trade— where such words are descriptive of the classification of meats, or cotton, or articles of the sort in the particular trade. This is just such a case, and the judge rightly confined the jury to the evidence, which is that of those engaged in the trade, and as such, experts in the sense of the statute. 2. Another ground of error is, that the court instructed jury that if the contract was that the meat had been salted over thirty-five days, and was merchantable and fit for the purpose sold, then plaintiff could not recover. The contract being, according to plaintiff’s version, for fully cured meat, and the evidence, uneontradicted, being that meat salted thirty-five days is, in the trade, fully cured, and that being by the plaintiffs’ Avitness, we are at a loss to see error in the charge, if the first charge above considered be right, Avhich confined the jury to the eAddence to ascertain the meaning of those Avords. 3. The neAvly dicovered evidence consists of testimony to the effect that meat salted sixty days is “ fully cured,” and that length of time is the meaning, and not thirty-five; but this is testimony of other experts or dealers in the [620] trade, and we cannot say that the court below abused its discretion in not granting a new trial thereon. It should have been in, perhaps, with proper diligence, on the trial, and it would be interminable to try a case again and again, as evidence on the point tried might accumulate. Judgment affirmed.