Clark v. Perry , 17 Me. 175 ( 1840 )

The opinion of the Court was by

Weston C. J.

Two parcels of lime casks are charged, delivered at different times, sixty at each time. That number, in the aggregate, is very bulky, but singly, easily managed by one individual. It seems they constituted two loads. It might require two to load them conveniently; but it does not appear that they were sold, until they arrived in Thomaston, the residence of the defendant. In unloading there, the aid of two persons would be convenient, if not necessary ; but this might be easily accomplished by the plaintiff and the defendant, the seller and the purchaser. The intervention of any other person was not necessarily required.

The statute of 1833, c. 83, requires, that each cask shall be branded with the name of the manufacturer. This being done, they may be sold and transferred from one person to another, at pleasure. The plaintiff may not have been the manufacturer. Nor is the use of the cask evidence, that he, who uses them, bought them of the individual, whose name is branded upon them. In the admission of this kind of testimony, in its application to any given article, it has been found necessary to leave a discretion in the presiding Judge. Leighton & al. v. Manson, 14 Maine R. 208. We cannot say, that upon this point it has been transcended.

In admitting the plaintiff to testify, that the price charged was a fair one, a greater latitude may have been indulged, than the necessity of the case required; but the article itself, so extensively used in the towns furnishing lime, must have had a regular market price. It does not appear to us, that justice requires, that the verdict should be disturbed upon this objection.

Exceptions overruled.