Whitehall Mfg. Co. v. Wise Brothers

[493] Opinion, Mr. Justice Green: The article which the defendants ordered was “ a car of No. 3 siding.” The defence set up against the plaintiff’s claim was that the lumber sent to them by the plaintiff was not No. 3 siding, but No. 4 siding. It is perfectly manifest from all the testimony that in the trade there was a very palpable difference between the kind of siding known as No. 3 and the kind known as No. 4. It is equally certain that the value of No. 4 was materially less than the value of No. 3. It is not questioned that if the kind sent to the defendants ivas No. 4, they were not legally bound to pay the price of No. 3 for it. In other words, the defendants, if the kind of lumber sent them was No. 4, were only bound to pay the price of No. 4. As we understand the charge of the learned court below, this was the way in which the case was delivered to the jury. Thus, in the charge the court said to the jury: “ Under all the evidence we have concluded to submit to you as a question of fact whether this lumber so delivered at that time to the Wise Brothers, was No. 3 siding or whether it was No. 4 siding. If it was No. 3 siding, although it may have been poor in quality and not as good as the other No. 3 that they may have received either from the firm, or from any other person from whom they were in the habit of purchasing, nevertheless they would be entitled to recover. If it was not No. 3 siding but was No. 4, and that is a fact that you must determine from all the evidence in the case, then the defendants would be entitled to deduct from the amount. claimed by the plaintiff whatever was the difference in value between the lumber received and No. 3 siding.” We can see no error in this. The jury was carefully admonished not only in this but in other portions of the charge, that if the lumber sent was of poor quality, but still was No. 3, the defendants would be bound to pay the full price of No. 3. But if it was No. 4 and not No. 3, the defendants were only bound to pay the price of No. 4. In every legal aspect of the case, this instruction was entirely sound. The complaint of the plaintiff in error is that in distinguishing between No. 3 and No. 4 siding, only a difference in quality is indicated by the witnesses and the court, and they comment specially upon the use of the word grade as distinguishing a “ kind,” when it really distinguishes only a quality. So far as the court is con [494] cerned, particular care was taken to indicate that the difference must be one of kind, and while the word “ grade ” was occasionally used both by the witnesses and the court, it was only used to designate the same subject as was expressed by the word “kind.” We can see no difference in the words themselves as expressive of the same idea. The word “ grade ” is perhaps somewhat more technical, but it is perfectly manifest that the classification of the lumber into numbered grades, as Nos. 1, 2, 3 and 4, was in the trade a practical division of it into different kinds. At any rate this was the sense in which the witnesses and the court used the word “ grade,” and the jury could not be misled by it. It is a mere play upon words to say that because “ grade ” means also “ quality,” therefore only quality was meant when the word grade was used, and the context both of the testimony and charge fully illustrates that no such confusion was intended, or expressed. It is true that No. 4 siding was in quality inferior to No. 3, and this was necessarily developed in the examination of the witnesses; but that circumstance does not alter, but rather confirms, the fact that in the trade No. 3 siding was one kind and No. 4 another. Some of the witnesses describe the distinction by defining the physical differences in the two grades. Thus William H. Ames, an expert witness for plaintiff, testifies: “ There are five grades of siding known to the trade. The No. 3 is distinguished from the others as follows : We grade white sap and good, sound knots into No. 3 ; shake and black sap goes into No. 4, or cull.” So that it would seem white sap and sound knots constituted No. 3, and black sap and shake or loose knots, No. 4. It is unnecessary to refine upon the distinction. It is manifest throughout the testimony, and the question was fairly and carefully submitted to the jury whether the lumber in question was No. 3 or No. 4 siding, and they have found it was No. 4 upon what seems to us ample testimony to that effect. This disposes of all the assignments of error, except the third and fourth, and in them there is no merit. Judgment affirmed.