James v. Josselyn

• Decision Date: 05 July 1876
• Citation: 65 Me. 138
• Parties: EDWARD B. JAMES et al. v. MOSES F. JOSSELYN.
• Court: Maine Supreme Court

65 Me. 138

EDWARD B. JAMES et al. v. MOSES F. JOSSELYN.

Supreme Judicial Court of Maine.

July 5, 1876

1875.

ON EXCEPTIONS from the superior court.

ASSUMPSIT on account annexed for coal in the spring of 1873, in four items amounting to $35.55. The justice, after the evidence for the plaintiffs was out, ordered a nonsuit and they excepted.

T B. Reed, for the plaintiffs.

S. C Strout & H. W. Gage, for the defendant.

BARROWS J.

After the plaintiffs had offered evidence tending to show the sale and delivery by them upon the defendant's orders of several little lots of stove coal as charged in the account annexed, and had rested their case, the defendant moved for a nonsuit for want of proof of a compliance with R. S., c. 41 § 13, which provides that in all sales of coal not made by the cargo the seller shall cause the coal to be weighed by a sworn weigher who shall make a certificate thereof to be delivered to the purchaser, " unless the parties otherwise agree" ; and prohibits the maintenance of a suit for the price of the coal in the absence of such agreement unless the seller shall have delivered such weigher's certificate to the buyer before bringing his action.

Thereupon the court upon motion of plaintiffs' counsel allowed the case to be reopened in order to obviate the objection.

It turned out that the coal was not weighed by a sworn weigher but by the plaintiffs' book keeper, who laid certificates of the weight on the window sill of the office for the drivers of the coal carts.

The only remaining question was whether there was evidence sufficient to authorize the jury to find that the parties had " otherwise agreed" --i. e., that they had agreed to dispense with the sworn weigher and his certificate. All that the plaintiffs' counsel claim as having a tendency to show such an agreement is testimony that the defendant had bought coal more than once of these plaintiffs within the year next previous to the time when this bill accrued and had seen it weighed in the same way on their scales--had always accepted their weight; and, the fall before, on the presentation of this account had proposed to give his note for it.

But in reply to the direct question put by the court to the plaintiff, " Was there any agreement between your firm and Mr. Josselyn as to who should weigh this coal" --the plaintiff answered, " No sir; nothing whatever was said about it," and upon further questioning ...