Freeman v. Hedrington

• Decision Date: 07 January 1910
• Citation: 90 N.E. 519,204 Mass. 238
• Parties: FREEMAN et al. v. HEDRINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 238

90 N.E. 519

FREEMAN et al. v. HEDRINGTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

COUNSEL

Hale & Dickerman and Jas P. Richardson, for plaintiffs.

P. B Kiernan, for defendant.

RUGG J.

This is an action to recover the price of horses sold and delivered by the plaintiffs to the defendant. The superior court directed a verdict for the defendant, on the ground that the action was prematurely brought. The writ was dated and an attachment made on March 27, 1908. The only evidence came from one of the plaintiffs, who testified, respecting the term of credit, that the defendant said, when purchasing the horses, which was on March 18th or 19th and on March 23d that at the 1st of the coming month he would pay, and that the witness was willing to wait until then. On re-direct examination, he testified that the defendant said: 'Now I want those horses and I will pay about---- He didn't put it exactly the 1st day of the month; he put it the 1st of the month. * * * I will pay you about the 1st of the month.' Notwithstanding that the weight of the testimony as disclosed on the record taken as a whole seems strongly to show an agreement that the payment should be on the 1st of April, yet the witness did testify that the promise, to which he assented, was to pay 'about the 1st of the month.' The plaintiffs are entitled to have the case considered on the theory that the jury might have taken the view most favorable to them; that is, that the promise was to pay about the 1st of April. The construction of the contract depends upon the meaning to be attributed to 'about.' It is a word of somewhat flexible signification, which may very with the circumstances and the connection in which it is employed. But when used in such a sense as to become a part of a contract, it denotes approximation to exactness. It allows a play within somewhat narrow limits, the oscillation depending in some degree upon the subject to which it is applied. While it gives a margin for some excess or diminution, it cannot reasonably be intended to include a very large fraction of the whole touching which it is used. As to time in the immediate future, it would ordinarily be understood as indicating a near approach to definiteness.

In the case at bar with reference to the date mentioned the first sale was made not earlier than 14 days, and the second 9 days before April 1st, while the action was begun 6 days before that date. The word 'about' cannot be reasonably interpreted to cover so...