Jones v. Hoey

• Decision Date: 29 June 1880
• Citation: 128 Mass. 585
• Parties: George H. Jones v. Mary E. Hoey
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 585

George H. Jones v. Mary E. Hoey

Supreme Court of Massachusetts

June 29, 1880

Suffolk. Contract upon a promissory note, dated February 7 1878, signed by William A. Hoey, payable to the order of, and indorsed by, the defendant. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions, in substance as follows:

The note was given in payment of a quantity of leaf tobacco sold and delivered by the plaintiff to William A. Hoey at the date of the note. The answer contained a general denial, set up specially a partial failure of consideration, a sale by sample and warranty of quality and quantity, a breach of both, and claimed damages by way of recoupment. The sale was admitted to be by sample. The evidence as to the weight quality and quantity of the tobacco was conflicting.

The plaintiff was permitted to testify, against the defendant's objection, that he had been engaged in the tobacco business in Boston for twenty years; that, during that time and before, there was a universal custom in the tobacco trade to buy and sell tobacco by the "marked weights," that is, the weight marked upon the box at the time the producer packed it, and before the tobacco passed through the process of sweating; that, when tobacco was sold by actual weight, a special price was always set; and that, in this case, the tobacco was sold in the usual course of trade. The plaintiff was the only witness who testified to the existence of the alleged usage or custom. William A. Hoey testified for the defendant that he purchased the tobacco of the plaintiff at the actual weight, and not by the weights marked on the cases; and that he did not know of the alleged usage.

The defendant asked the judge to instruct the jury as follows: "In a sale of leaf tobacco by sample by the pound, unless a sale by 'marked weights' is agreed to by the parties, in construing the contract of sale, the law implies actual weight as the weight understood by the parties; and a custom or usage among dealers in tobacco to sell by marked weights cannot be established by the testimony of one witness."

The judge refused so to rule; and, after instructing the jury in terms not excepted to as to the nature of the evidence required to establish the fact of a custom or usage, gave the following instruction: "If the jury believe there is a general and universal usage and custom among dealers in leaf tobacco in Boston and vicinity to buy and sell tobacco by marked weights, then if, when the sale as in this case is made by sample, nothing...