Pike v. Fay

101 Mass. 134

Opinion

Wells, J.

We think the evidence offered by the defendant was properly admitted.

If the sale was made by sample, the description of the sample was competent upon the question whether the article tendered corresponded with that offered for sale. Hogins v. Plympton, 11 Pick. 97. So also the descriptions given verbally by the defendant’s agent, and the corresponding descriptions of the article delivered, were competent upon the question whether they were the same article. Stoops v. Smith, 100 Mass. 63. But such evidence must be confined to the question of identity in kind, and not extended to comparisons in degree or quality. It is admissible only when the writing does not distinctly define the article to be delivered, so as to enable its identity to be seen upon the face of the transaction. It does not appear that “white willow cuttings” were such an aiticle as would be known and recognized by that description merely, so as to enable the jury to determine what would be a sufficient and proper fulfilment of the contract, without further evidence.

If the defendant relied upon the defence of deceit by false representations, the testimony of other persons in Natick who had received cuttings from the same general lot, sent there for delivery to the defendant and themselves without discrimination, tended to show the falsity, in fact, of the representations alleged to have been made. The plaintiff might rely, for his proof of performance on his part, either upon the tender of the specific lot offered to the defendant, or upon his offer and the defendant’s refusal to accept his proportion of the general lot at the depot in Natick. It does not appear that the plaintiff elected upon which he would rely. It was open to the defendant, therefore, to offer testimony applicable to either aspect of the case. In one aspect, the testimony of the other persons in Natick applied directly to the same cuttings which were offered to the defendant in fulfilment of the contract with him.

But so far as the representations upon which the defendant relies were of a promissory nature, relating to what would be in the future, and so far as they were expressions of opinion, .hey are not fraudulent, so as to avoid the contract, unless the plaintiff or his agent knew them to be untrue, or made them for the purpose or with the intent to deceive.

Most of the representations relied on, and to which the evidence of falsity applied, were of this character. The ruling of the court in this respect was therefore erroneous.

Exceptions sustained.