Lake v. Clark

97 Mass. 346

Opinion

Chapman, J.

The question between the parties related to the particular property which was sold by the defendant to the plaintiffs, and not to that which was sold to other parties. The plaintiffs offered to show that the onions sent to other parties by the defendant were not ripe or properly cured, and were bad and worthless. But the judge held that in order to make this evidence admissible, it was necessary that it should appear that the other onions had been subject to the same conditions as those sold to the plaintiffs, and he found that there was no evidence of the fact. On that ground he rejected the evidence as to their quality. When the admissibility of evidence depends upon the decision of a preliminary fact of this character, the preliminary fact may be decided by the judge, unless in the exercise of his discretion he leaves it to the jury; and no exception lies to his decision. 1 Greenl. Ev. § 49. Gorton v. Hadsell, 9 Cush. 511. Upon the finding of the judge, the evidence as to the other onions raised a collateral issue, and was not admissible, because it was not pertinent to the issue on trial. Lincoln v. Taunton Copper Co. 9 Allen, 181.

The judge held correctly that the ruling which the plaintiffs’ counsel asked for in regard to an implied warranty, was not applicable to the present case upon any view of the evidence as stated in the report. Exceptions overruled.