Jones v. Hoey

128 Mass. 585, 1880 Mass. LEXIS 159

Opinion

Gray, C. J.

The instruction given was correct. If the tobacco was sold by sample and by weight, without more' specific agreement, evidence of a general usage was admissible to show that the weight was to be computed as previously ascertained at the time of packing and marked on the cases, and not by the actual weight at the time of the sale. Bottomley v. Forbes, 6 Scott, 866; S. C. 5 Bing. N. C. 121. Barry v. Bennett, 7 Met. 354. Miller v. Stevens, 100 Mass. 518. The Gen. Sts. c. 51, § 17, cited for the defendant, providing that sales of goods by the hundredweight shall be construed to mean by the net weight, or one hundred pounds, and not by the gross weight, or one hundred and twelve pounds, contain nothing inconsistent with this.

Nothwithstanding the dictum in Boardman v. Spooner, 13 Allen, 353, 359, there can be no doubt, at the present day, that the circumstance that but one witness testifies to a usage is important only as bearing upon the credibility and satisfactoriness of his testimony in point of fact, and .does not affect its competency or its sufficiency as matter of law. Parrott v. Thacher, 9 Pick. 426. Vail v. Rice, 1 Selden, 155. Partridge v. Forsyth, 29 Ala. 200. Robinson v. United States, 13 Wall. 363.

Exceptions overruled.