Gaunt, Maupin & Co. v. C. H. Pries & Co.

Ellison, J. — This suit was begun before a justice of the peace for walnut lumber sold to defendants on the following letter which was in answer to one from plaintiffs : “We buy at present, one inch walnut lumber, good log run, at forty-five dollars, delivered at our factory, merchantable measurement, but don’t like too much of thicker than one inch, because we can have all table and bed post we want at thirty-five dollars. If those prices do suit you, you may ship.” The verdict was for defendant in the circuit court, .and plaintiff brings the case here. The greater portion of the lumber was paid for and this action is for the balance alleged to be due, the dispute between the parties being as to the amount of lumber delivered under the terms of the purchase. This dispute involves the sufficiency of the evidence in support ■of the meaning of the terms “merchantable measurement.” There was but one instruction excepted to by plaintiff, and this one, of course, is all we can notice here. This instruction directed the jury, in determining what was meant by the term “merchantable measure [543] ment,” among persons dealing in that kind oi lumber, to include in that class of persons not only those who buy and sell, but, also, those who buy and manufacture, as well. I can see no valid objection to this. The one class of persons would know fully as well as the other the meaning attached to the term in dispute. Plaintiff contends that the evidence is insufficient to prove it was the custom to measure lumber, as contended for by defendant, and their statement of the law with reference to such proof is unquestionably correct. But I am of the opinion this case does not include in its issues a custom, but merely the meaning of a technical term. The question was as to the meaning of the term ‘ ‘ merchantable measurement,” as applied to walnut lumber. Evidence of witnesses engaged in buying, selling and manufacturing this kind of lumber was introduced to :show this meaning. This was proper. Cases of like nature have frequently been before the courts, and the holding is in accord with what I have stated. In Whittemore v. Coats (14 Mo. 9), “prime barley” was explained by merchants engaged in buying and selling, as well as by brewers, who might, in this connection, be called manufacturers, and thus this case is an authority for the court including manufacturers in the instruction complained of. The terms “excavation,” “induratedearth,” “hard-pan,” as used in railroad grading, were explained in Blair v. Corby, 37 Mo. 313. The judgment is affirmed. All concur.