Hess v. Shurtleff ( 1906 )

Whether the witnesses who were permitted to testify to the usage of business in the fur trade possessed the requisite qualifications to authorize the admission of their testimony was a question of fact for the trial court. Pattee v. Whitcomb, 72 N.H. 249, 253; Stewart v. Stearns,63 N.H. 99, 107. As neither the evidence upon which they were found qualified nor the facts testified to by them are reported, the only question as to the sufficiency of the evidence to authorize the findings made arises from the fact that the witnesses were all retail dealers. It is obvious that knowledge of the usage of trade between wholesale and retail dealers would not be confined to wholesale dealers, but must be equally known to the other parties to the contracts to which the usage relates. It cannot, therefore, be held as matter of law that retail dealers might not have such knowledge of the usage in question as would qualify them to testify, or that their testimony might not be sufficient to authorize the conclusion as to the existence of the usage found by the court.

It does not appear that the plaintiffs' claim as to the ground of their exceptions correctly states the evidence. But if it be assumed that the evidence did not establish the plaintiffs' knowledge of the usage, and that it was insufficient as matter of law to bind them by a contract or consignment such as the defendant set up, the verdict for him will not be affected. The plaintiffs alleged a contract of sale, and could recover only by showing that the defendant agreed, expressly or by implication, to buy the goods. Whether the evidence authorized a finding that the plaintiffs were bound by the contract set up by the defendant was immaterial, and no such finding was made. The failure of the plaintiffs to establish the contract set up by them requires the verdict which was rendered, without regard to the insufficiency of the evidence to establish the contract set up by the defendant. If there was in fact no contract, no agreement as to sale or consignment, the plaintiffs could not recover.

Exceptions overruled.

All concurred.