Rogers v. Hayden

39 A. 283, 91 Me. 24, 1897 Me. LEXIS 124

• Court: Supreme Judicial Court of Maine
• Decided: November 5, 1897
• Status: Published

Opinion

Haskell, J.

Assumpsit for the contract price of stone sold and delivered. The contract was to deliver on or near the premises where, defendant was building a cellar wall certain stone at an agreed price per cubic yard. The plaintiff claimed the contract included certain two-faced stone at $3.75 per cubic yard and that by reason of a local usage the stone were to be measured as solid wall after they had been laid. The defendant claimed the contract price was $3.50 per cubic yard measured when delivered. The verdict was for plaintiff, manifestly including the quantity measured as masonry. Defendant asks to have it set aside as against evidence and because it is excesssive.

The contract fixed the price per cubic yard delivered. That meant cubic yards of stone, not of masonry. That meaning ' cannot be varied by local usage, unless it be uniform, reasonable and known to the parties, so they may be presumed to have contracted with reference to it. Marshall v. Perry, 67 Maine, 78; Schooner Reeside, 2 Sum. 567. The measure in the wall was over 102 cubic yards, on the dump about 58. Certainly a usage that might nearly double the quantity of goods sold must be unreasonable. Better have honest measure and fair price.

Motion sustained.