Murchie v. Cornell

• Decision Date: 25 November 1891
• Citation: 155 Mass. 60,29 N.E. 207
• Parties: MURCHIE et al. v. CORNELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 60

29 N.E. 207

MURCHIE et al. v. CORNELL et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1891

COUNSEL

Walter Clifford and Henry H. Crapo, for plaintiffs.

H.M Knowlton and Arthur E. Perry, for defendants.

OPINION

HOLMES J.

The plaintiffs agreed to sell, and the defendants agreed to buy a cargo of ice of 360 tons, to be shipped from Pembroke, Me. From some of the evidence it would seem that the ice was not identified by the contract, but was to be supplied and appropriated to the contract by the plaintiffs, the sellers. From other parts of the testimony it might be inferred that the ice was identified by the contract, but at a time and under circumstances when the defendants had no opportunity to inspect it before shipment. The judge instructed the jury generally that there was an implied affirmation that the ice was of such a kind that it could be shipped, transported by sea, and discharged at New Bedford, as contemplated by the contract, and no other implied affirmation or warranty. If the instruction is wrong in either view which the jury might have taken of the facts, the exceptions must be sustained and it is unnecessary to consider whether the implication would be more extensive in the former case than in the latter.

In some contracts of the latter kind, when the sale is of specific goods, but the buyer has no chance to inspect them, the name given to the goods in the contract, taken in its commercial sense, may describe all that the purchaser is entitled to demand. So it was held with regard to "Manilla sugar" in Gossler v. Eagle Sugar Refinery, 103 Mass. 331.

But in many cases like the present the inference is warranted that the thing to be furnished must be not only a thing of the name mentioned in the contract, but something more. How much more may depend upon circumstances, and at times the whole question may be for the jury. If a very vague, generic word is used, like "ice," which, taken literally, may be satisfied by a worthless article, and the contract is a commercial contract, the court properly may instruct the jury that the word means more than its bare definition in the dictionary, and calls for a merchantable article of that name. If that is not furnished, the contract is not performed. Warner v. Ice Co., 74 Me. 475; Swett v. Shumway, 102 Mass. 365, 369; Whitmore v. Iron Co., 2 Allen, 52, 58.

In a sale of "Manilla hemp," like that of the sugar in Gossler v. Eagle Sugar Refinery, it was held in England that the hemp must be merchantable. Jones v. Just, L.R. 3 Q.B. 197; Gardiner v. Gray, 4 Camp. 144 ; Howard v. Hoey, 23 Wend. 350, 351; Merriam v. Field, 39 Wis. 578; Fish v. Roseberry, 22 Ill. 288, 299; Babcock v. Trice, 18 Ill. 420. See Hight v. Bacon, 126 Mass. 10, 12; Hastings v. Lovering, 2 Pick. 214, 220.

2. The plaintiffs put in evidence tending to show that ...