Rodman v. Guilford

Endicott, J. 1. The evidence offered by the defendants, to which the plaintiffs except, was competent. The declaration alleged that the defendants owed the plaintiffs for one log of rosewood cut into squares, at a certain price per pound, and evidence was offered of the contract. The defendants were allowed to prove a different contract; that they bargained for the delivery of perfect squares only; and that instead of receiving the number of pounds of squares alleged, they received a less number, and of these only 176 pounds were according to the contract. This evidence, if believed, fairly meets and rebuts the plaintiffs’ case, it tends directly to sustain the defendants’ denial, and was admissible under their answer denying each and every allegation of the declaration. Knapp v. Slocomb, 9 Gray, 73. Verry v. Small, 16 Gray, 121. Warren v. Ferdinand, 9 Allen, 357. 2. After the admission of this evidence, the presiding judge ruled that the plaintiffs could recover for the 176 pounds of rosewood identical in description and quality with that purchased, if the defendants had set apart the same and had it in their possession, notwithstanding a portion of the rosewood received by them was not according to the contract. To this ruling the defendants except, but we think it was correct. By the defendants’ evidence it appears that they received that number of perfect squares, such as they had bargained for, and which they had set 407 apart and weighed. It is immaterial that they received other squares not according to the contract, which they were not bound to take. Whatever squares, of the quality purchased, the jury should find were delivered to the defendants at the place agreed upon, the plaintiffs are entitled to recover for, and they are not obliged to show an acceptance by the defendants. Nichols v. Morse, 100 Mass. 523. The case is clearly to be distinguished from Brewer v. Housatonic Railroad Co. 104 Mass. 593, cited by defendants. There the jury were permitted, erroneously, to return a verdict for the plaintiff, without finding either an acceptance or that wood of the quality required by the contract was delivered at the place agreed upon. Exceptions of hath parties overruled.