Coombs v. Emery

14 Me. 404

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1837
• Status: Published

Opinion

After a continuance, the opinion of the Court was drawn up by

Weston C. J.

The stat. of 1821, ch. 160, in relation to wood, bark, and coal, section first, prescribes the length, width and height, to constitute a cord, of all cord wood exposed for sale. It is not however to be inferred, that the sale of wood, varying in length from that, which is thus prescribed, is unlawful; for the fourth section prescribes, that in ranges of wood upon a wharf, what it may want in length, shall be made up in height. The. third, fourth and fifth sections have reference to duties, and impose penalties, where sworn surveyors are appointed; and it does not appear that there were any such surveyors, appointed by the town of Bowdoinham. It does not appear to us, as the case is presented, that it was unlawful for the parties, to cause the quantity of wood to be estimated in any mode, satisfactory to them. If any mistake however has been made, the defendant ought not to be held liable to pay for a greater quantity, than he actually received.

The stat. of 1821, ch. 158, in relation to lumber, section third provides, that no shingles shall be offered for sale, except such as shall conform to the dimensions there given. The sale of such, as depart from the standard, is expressly inhibited. The sale therefore in Wheeler v. Russell, 17 Mass. R. 258, was in direct violation of the statute; and upon that ground held to be unlawful. That in relation to wood prescribes the dimensions of cord wood, ■ and what shall constitute a cord; but it does not make the sale of wood, varying from this standard, unlawful, or provide, that wood in any other shape or form, or by any other estimate, satisfactory to the parties, may not be a fail’ subject of contract. The parties may have misconceived the actual quantity, which may be set right upon another trial; but we perceive no evidence of such fraud or illegality in the contract, as deprives the plaintiff of a remedy at law.

Exceptions sustained.