Upton v. Winchester

Morton, J. The plaintiffs’ evidence tended to prove that the defendants purchased of them a quantity of plank, lying in two ranges in the plaintiffs’ mill yard, consisting almost entirely of oak, but containing a little ash, and that the defendants, knowing that a part of it was not oak, agreed to pay $23 per thousand feet for the plank in the two ranges, according to a survey which had been made. The defendants denied this, and their evidence tended to prove that they entered into negotiations with the plaintiffs for the purchase of the oak plank contained in the two ranges, but that no contract of purchase was ever completed, and that they never bought any of the plank, and never talked of buying any of it, except the oak. In this state of the evidence, the defendants offered to prove that the said two ranges of plank embraced maple and beech, besides oak and ash, and the number of feet of each kind; and they also offered evidence to show the market value of oak plank at [331] the.date and place of the alleged contract; but the court rejected the evidence. We are of opinion that this evidence should have been admitted. If this contract was conceded to be as claimed by the plaintiffs, thin evidence would be inadmissible; but the issue between the parties was whether the defendants had made such a contract. Upon this issue, it was competent for either party to show what was the contents of the two ranges. If they contained a large proportion of plank of small value, like maple or locust, the inference fairly to be drawn might be that the defendants had not made the contract as alleged. It would show an improbability in the plaintiffs’ claim. For the same reason the evidence to show the market value of oak plank was competent. If it was $23 per thousand feet, or less, it would tend to show a probability that the contract was not as claimed by the plaintiffs. Either fact offered to be proved by the defendants might reasonably have an influence on the minds of the jurors, and aid them in deciding the issue. Bradbury v. Dwight, 3 Met. 31. Lee v. Wheeler, 11 Gray, 236. As there must be a new trial, it is not material to consider in detail the exceptions to the instructions given at the trial. As, however, the question of variance may arise at the next trial, it is proper to say that the declaration, as it stands, is not supported by proof of a special contract that two ranges, containing different kinds of plank, should be delivered and received as oak. Colton v. King, 2 Allen, 317. Exceptions sustained.