True v. Bryant , 32 N.H. 241 ( 1855 )

Bell, J.

The question raised by this case relates to the construction of the contract between the parties. The defendant contends that the plaintiff was bound to judge, at his peril, of the fitness of the timber, and should not have used it if not suitable. But we think this is neither the natural nor reasonable construction of the agreement. The defendants agreed “ to have the timber for the above articles sawed to a suitable size, and delivered at the shop occupied by the plaintiff, seasoned and fit for use, as soon as circumstances can admit.” If, then, the defendants, in violation of their contract, delivered timber unseasoned and unsuitable for use, the fault was their own, and the plaintiff would be in no degree answerable for defects in the manufactured articles, arising from such defect of the materials, provided he used proper skill and care in selecting the materials, and his work was properly done. His stipulation was “ to do the above work in as good and workmanlike manner as those heretofore done by him.”

The instructions then sought by the defendants were wrong, and therefore properly refused, while the charge of the court was correct in point of law, and expressed with caution and good judgment.

A further question relates to the entries in the plaintiff’s books of account, which were all made with a lead pencil only. In the case of Stone v. Sprague, 4 Foster 310, it was said by the learned judge who delivered the opinion of the court, that it had been held in numerous instances, where the law in transactions of private business requires a written memorandum, or the signature of a party, that a writing in pencil is sufficient. The authorities there cited, and those cited by the plaintiff, 12 Penn. (2 Jones) 168: 13 Met. 537, entirely support this doctrine and the ruling of the court below in this case. There must, therefore, he

Judgment on the verdict.