Hight v. Bacon

• Decision Date: 16 November 1878
• Citation: 126 Mass. 10
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mellen C. Hight & another v. H. S. Bacon & another

126 Mass. 10

Mellen C. Hight & another v. H. S. Bacon & another

Supreme Court of Massachusetts

November 16, 1878

Suffolk.Contract on an account annexed for leather sold and delivered.The answer contained a general denial, and alleged an agreement on the part of the plaintiffs that the leather was good, and suitable to be made into boots and shoes, and averred that it was not suitable for that purpose, but was worthless.

At the trial in the Superior Court, before Bacon, J., without a jury, it appeared in evidence that the plaintiffs were dealers in leather in Boston, and that the defendants were manufacturers of boots and shoes in Milford; that the leather was sold at the store of the plaintiffs; that the defendants had full opportunity at the time of purchase to examine the whole lot purchased, and did examine two rolls out of the twenty sold; and that the rolls examined were equal in quality to that of the bulk.

It also appeared that the leather was bought by the defendants for the purpose of being manufactured into boots and shoes; and that the plaintiffs, when the sale was made, supposed that such was the purpose for which it was bought, but nothing was said at the sale about this purpose, although an inquiry was made as to whether the leather would crimp; and that the leather appeared to be good leather, and was suitable for the purpose above stated, and both parties believed it to be suitable for such purpose.

The defendants put in evidence tending to show that the leather was rotten and unfit to be made into boots and shoes, and contained a latent defect, but was of some value; and offered evidence tending to show that there was a general and universal usage in the leather trade, that, when leather is sold as good leather, which appears like good leather, and it turns out to be rotten and nearly worthless, the buyer is not bound by the contract of sale, and may revoke it as in this case; but the defendants did not contend that there was any fraud on the part of the plaintiffs.The judge excluded this evidence, on the ground that such a usage would not be valid in this case.

Upon all the evidence in the case bearing upon the sale, the judge found that there was no express warranty; and, upon that part of the evidence which is stated above, ruled, as a matter of law, that there could be no implied warranty of the leather sold; and ordered judgment for the plaintiffs.The defendants alleged exceptions.

Exceptions overruled.

Defendants pro se.

E. O Shepard, for the plaintiffs.

OPINION

Colt J.

The judge before whom this case was tried found as a fact that there was no express warranty by the plaintiffs of the quality of the leather sold to the defendants; and ruled, as matter of law, that, on the evidence stated in the bill of exceptions, there could be no implied warranty binding upon the plaintiffs.

There was nothing at the time of the sale said by...