Rodgers v. Jones

• Decision Date: 14 September 1880
• Citation: 129 Mass. 420
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John L. Rodgers & another v. Frederick Jones & another

129 Mass. 420

John L. Rodgers & another v. Frederick Jones & another

Supreme Court of Massachusetts

September 14, 1880

Argued November 18, 1878

Suffolk.

Exceptions overruled.

S. B Ives, Jr. & G. L. Huntress, for the plaintiffs.

E. D Sohier, (F. C. Welch with him,) for the defendants.

Gray C. J. Colt & Morton, JJ., absent.

OPINION

Gray, C. J.

This is an action of contract to recover the price of a lot of rough calfskins, alleged to have been sold and delivered by the plaintiffs to the defendants.

The testimony introduced by the plaintiffs at the trial was to the following effect: On Wednesday, November 6, 1872, the lot of calfskins in question was piled, apart from other goods, in the plaintiffs' warehouse, when Frederick Jones, one of the defendants, came in with one Kuebler, (a currier, who was to curry the skins when the defendants bought them,) and made an oral agreement with John L. Rodgers, one of the plaintiffs, to purchase the entire lot, at a certain price per pound for the merchantable skins, and two thirds that price for the "culls" or damaged skins; and then said to Kuebler, "I have bought this lot of skins, and I want you to stay and see them put up; but I don't wish you to take them away before Friday or Saturday, because in the mean time I want to ascertain in regard to my insurance." Kuebler answered that he would send his team and take the skins on Saturday. Jones then left the warehouse, and Kuebler remained and assorted about half the skins, throwing them over and separating the merchantable from the damaged skins, and then went away, and the plaintiffs assorted the rest of the lot.

The expression "putting up the skins" means assorting, bundling and weighing. The skins are first assorted by putting the merchantable skins in one pile, and the damaged ones in another. They are then put in bundles, taking out every twentieth merchantable skin as a test, and weighed. The test skins are then weighed by themselves, spread to dry for at least twenty-four hours, and then reweighed, and the amount of shrinking on the whole lot is ascertained by a calculation based upon the shrinking of the test skins.

The plaintiffs put up this lot of skins in the usual way. The test skins were spread to dry from Thursday night to Saturday morning, and then reweighed, and the weights entered on the plaintiffs' books, and the plaintiffs set the whole lot of skins apart by itself in bundles marked with the defendants' initials. On Saturday, November 9, Kuebler came into the plaintiffs' warehouse, was told that the skins were ready for him to take, and was asked whether his team would be there soon, and he answered that it would not. Nothing further took place, and during the following night the skins were destroyed by fire.

The plaintiffs offered evidence that on Wednesday, after Jones had left their warehouse, and after Kuebler had ceased assorting the skins and before he went away, the following...