Prescott v. Battersby

• Decision Date: 04 January 1876
• Citation: 119 Mass. 285
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John H. Prescott & another v. George Battersby & another

119 Mass. 285

John H. Prescott & another v. George Battersby & another

Supreme Court of Massachusetts

January 4, 1876

Argued November 5, 1875

Essex. Contract for goods sold and delivered. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on the findings of an auditor, which were to be taken as an agreed statement of facts, and were in substance as follows:

The plaintiffs were, when the items set forth in their bill of particulars were sold and delivered, dealers in lumber in Lawrence, in this Commonwealth. The sales declared on were made in Lawrence. A part of the items declared on are boards and dimension lumber sold and delivered by the plaintiffs to the defendants. All of said boards and dimension lumber were brought into this state from other states of the Union by the plaintiffs for sale in the city of Lawrence, and were sold by the plaintiffs to the defendants, as to quantity or measure by the surveyor's marks, so called, on the boards and lumber, put on before said lumber and boards were brought into this state. Said boards and dimension lumber were not surveyed, measured or marked by a surveyor or other person in this state, or by any person having any authority or appointment under the laws of this state.

Section 15 of the city charter of the city of Lawrence provides that the city council may make by-laws with suitable penalties for the inspection, survey, measurement and sale of lumber, wood coal and bark, brought into the city for sale. The city council of the city of Lawrence has never made any by-laws under said section of its charter, nor any by-law, regulation or ordinance whatever for the inspection, survey, sale or measurement of lumber; but said city council has annually for several years, in the manner and form provided by the city charter and by-laws for the election of officers generally, duly elected officers designated as surveyors of lumber in the city of Lawrence, who, after being sworn by the city clerk to faithfully and impartially discharge their duties as surveyors of lumber in the city of Lawrence, have acted as practical surveyors of boards and other lumber in said city when called upon so to do, and at the time of the sale of said boards and dimension lumber by the plaintiffs to the defendants there were such duly elected and sworn officers in the city of Lawrence.

If the above facts are a bar to the plaintiffs' claim, then at the date of the writ there was nothing due the plaintiffs from the defendants. If said facts are not a bar, there was due the plaintiffs from the defendants, at the date of the writ, the sum of $ 1577.48.

Judgment for defendants.

W. S Knox, for the plaintiffs.

E. T. Burley, for the defendants.

Endicott, J. Colt & Morton, JJ., absent.

OPINION

Endicott

Towns are required at their annual meetings to choose one or more surveyors of lumber. Gen. Sts. c. 18, § 31. The provisions of this section apply to cities, so far as they are not...