Miller v. Shay

8 N.E. 419, 142 Mass. 598, 1886 Mass. LEXIS 385

Opinion

Field, J.

We understand that the defendant, in order to prove the quantity of sand furnished by the plaintiff, offered to show, by the men who made the mortar, how much sand was used with each cask of lime, and how many casks of lime were used in making the mortar, and that all the sand furnished was used for this purpose. This evidence should have been admitted. The defendant also offered the evidence of experts to show “ how much sand is used with a cask of lime in making such mortar as the defendant used with sand furnished by the plaintiff, no actual count being made or kept by the defendant otherwise.” If the sand was all used in making mortar, and if the mortar was all of the same or a similar quality, and the witnesses had examined the mortar, we see no objection to admitting this testimony, provided the experts could testify that the quantity of sand could be determined in this manner. A case might easily be supposed in which no account had been kept by anybody of the quantity of sand used in making mortar, and all the evidence on each side must be of this character, if any evidence is to be admitted.

Exceptions sustained.