Clapp v. Thayer

112 Mass. 296

Opinion

By the Coubt.

The only exception taken is to the refusal to give the instructions prayed for, and we are of opinion that both, of them were rightly refused. Each of them requested the court to decide as matter of law what was purely a question of fact. It was for the jury to decide whether furnishing three hundred and thirty-one frames was a substantial compliance with a contract to furnish such frames “to the number of about four hundred; ” as well as whether frames weighing on the average twelve pounds the pair, substantially complied with a contract to furnish frames weighing ten pounds the pair. It is to be observed, as bearing upon the latter point, that the bill of exceptions states that there was evidence tending to show that there would be a variation (how much is not stated) from the patterns in ordinary castings. Exceptions overruled.