Pray v. Burbank

12 N.H. 267

• Court: Superior Court of New Hampshire
• Decided: December 15, 1841
• Status: Published

Opinion

Up ham, J.

Where the plaintiff sues in assumpsit for articles to a certain extent, or in a certain quantity, which, as the claim is made, would for that cause show a defence to the suit, he would be clearly bound, unless the contrary appear, to the claim as set up by him.

But where such claim is contested, or becomes a matter of evidence to the jury, a less amount may be recovered. The defendant may contest such claim, and reduce it by evidence ; or, if objected to, the parties may reduce it by agreement, either to save trouble on this point or to obviate complaints made.

The parties are clearly competent to agree that if the plaintiff is to recover, he shall recover only for a less sum, or less quantity, than he has declared for; and to the extent of the agreement thus made the jury would be bound to find, where the matter is committed to them.

Such was the agreement and finding of the jury in this case ; and the sale of wood as here made is thus fixed at less than a cord, and we are not aware of any principle in the construction of this statute by which it can be regarded as greater in quantity.

The sole question, then, for consideration in the case is, whether a sale of a less quantity of wood than a cord is within the prohibition of the act to prevent fraud in cord wood exposed to sale. We have already holden, in a former trial of this case, 10 N. H. Rep. 377, that the statute having imposed a penalty on the sale of wood, both on the buyer and seller, except when surveyed by a sworn surveyor, a sale within the provisions of the act was prohibited by implication ; and, being illegal, the seller could not maintain an action for the price of the wood.

The question whether a sale of a less quantity than a cord of wood was prohibited, except on competent admeasurement, did not then arise, but is to be determined here on such construction as we may give the statute.

The act on this subject was designed to cause an uniformity of measure in cord wood. To attain this object, it was not necessary that every small lot and parcel of wood, less than a cord, should be surveyed by a sworn surveyor. There is no fee fixed for the survey of a less quantity than a cord, and a penalty upon all sales of a cord of wood would fully effect the general object designed.

There is by the statute no penalty or prohibition for the sale of any less quantity than a cord. The act provides that if any person, in any town or place in this state, where there is any wood measurer appointed and sworn, shall sell any wood by the cord, which is not measured by a wood meas-urer, the person selling, and the person purchasing the same, shall severally forfeit and pay for every cord of wood so bought and sold, thirty shillings, to be recovered before any justice of the peace, not interested in the penalty — the one half of which sum shall be for the use of the town or place in which the same is so bought and sold ; the other half to the use of the person suing for the same.

This is a distinct provision against a sale of a given quantity. It cannot be said here that the greater includes the less ; for there is no offence except in the sale of the quantity specified, and that quantity not having been sold, there is no breach of the act.

The plaintiff is, therefore, entitled to recover.

Judgment on the verdict.