Chase's Patent Elevator Co. v. Boston Tow-Boat Co. , 155 Mass. 211 ( 1892 )

Morton, J.

1. The defendant has not argued the fifth and sixth requests, and we therefore treat them as waived.

2. At the conclusion of the charge, the defendant asked the court to rule that the mere delivery and acceptance of the elevator were no evidence of a waiver of the right to object to its want of capacity. The defendant also excepted to the direction in the charge, that if the defendant waived further trial, and accepted the elevator at Fall River, the plaintiff was entitled to recover. The court declined to give the ruling asked for, on the ground that it came too late. Aside from that, we think it was properly refused. It could not be said that acceptance of the elevator was no evidence of a waiver of its want of capacity. Acceptance of it might, and naturally would, imply that the terms of' the contract had been satisfactorily performed, differing in that respect from the receipt of it. Benjamin on Sales, § 139. It would, therefore, have been misleading to give the instruction as requested. Neither do we think that the exception to the direction in the charge above referred to was well taken. It is plain that the jury must have understood the court to mean that, if the defendant’s president was satisfied with the trial that had taken place at Fall River, and waived any further trial or proof that the machine fulfilled the contract, and accepted it, and wanted it delivered at once in Boston, and it was so delivered, then the defendant company would be liable on the contract. These instructions were correct, and it is clear that there was evidence which warranted the jury in finding for the plaintiff under them.

3. Notwithstanding the exclusion of the question to the witness Winsor as to his talk with Chase, it would seem from the exceptions that he testified in substance to what he stated to Chase; and one Humphrey, to whom Winsor said he referred Chase for more definite particulars on the matter, was allowed to testify fully as to his talk with Chase. So that, although the ruling was against the admission of the question, it would appear that the testimony was in fact introduced, and therefore that the defendant could not have been harmed by the ruling. But we think the ruling was correct. There was nothing in the contract that was ambiguous, or which required the admission of the previous conversations between the parties in order to understand and apply it to the subject matter. The present case differs in this respect from those which have been referred to by the defendant. The fact that the witness could not be found when the plaintiff withdrew his objection would not justify us in granting a new trial, because the defendant thereby lost the opportunity to put in testimony to the admission of which, on another trial, the plaintiff would still have the right to object. In Foster v. Thompson, 5 Gray, 453, relied on by the defendant, the excluded testimony was competent.

Exceptions overruled.