Brown v. Leach

Morton, J. We think that the defendant’s exceptions must be overruled. 1. The bill of exceptions does not show that the ruling rejecting the testimony of the witnesses, as to the quality of the forty or fifty spokes selected as a sample of the whole lot, was encneous. The testimony was offered for the purpose of showing that the whole lot was of inferior quality. Before a small portion of th( spokes could be used as a sample to characterize the whole lot, it must be made to appear that it was a fair sample. This is a preliminary question, to be decided by the presiding judge. And his decision cannot be revised by this court, unless he reports all the facts upon which it is founded, and it appears clearly to be wrong. Lake v. Clark, 97 Mass. 346. Rich v. Jones, 9 Cush. 329. It does not appear, in this case, that the persons who selected the [368] small lot of spokes, which was claimed to be a sample, were experts or competent to form an opinion as to the comparative quality or value of the lot selected and the remainder of the spokes. The presiding judge had the right to reject the testimony offered, upon the ground that the small lot was not shown to be a fair sample of the whole. The point now argued by the defendant, that the testimony was admissible, because it was competent to show, in diminution of damages, that any one or more of the spokes were of inferior quality though all the rest were good, was not taken at the trial, nor ruled upon, and is not open to him under this bill of exceptions. 2. The defendant made James S. Brown his agent to communicate a message to the plaintiff, and we think that, within the fair meaning of the bill of exceptions, he authorized him to communicate the whole of his offer, as well as that part relating to the exchange of a carriage. The communication made was substantially the same as that authorized, and was therefore admissible. Camerlin v. Palmer Co. 10 Allen, 539. 3. The instructions given by the presiding judge were in accordance with the adjudications in this state. If the plaintiff, by words or acts, deceived the defendant as to the quality or value of the goods sold, yet the defendant could not maintain an action cf deceit, if the goods were open to his observation, and he could by the use of ordinary diligence and prudence ascertain their quality. He should use reasonable diligence to ascertain their quality,'or protect himself by a warranty. The same principle applies, when the purchaser seeks to avail himself of the deceit m defence of a suit for the price of the goods, or in reduction of damages. Brown v. Castles, 11 Cush. 348. Gorden v. Parmelee, 2 Allen, 212. Veasey v. Doton, 3 Allen, 380. Mooney v. Miller, 102 Mass. 217. Exceptions overruled.