Citation Numbers: 125 Mass. 443
Judges: Morton
Filed Date: 10/21/1878
Status: Precedential
Modified Date: 6/25/2022
The principal question presented by the bill of exceptions is, whether there was sufficient evidence to justify the verdict of the jury, which allowed to the defendant a considerable part of the amount claimed by him in set-off. There was evidence that the defendant had been dealing with the plaintiffs for nearly two years, during which period he had purchased of them goods to the amount of between seven and eight thousand dollars, being stock used by him in the manufacture of shoddy; that during this period he and the men in his employ had noticed that there was an unusual shrinkage in the stock used by him, estimated to be 20 to 25 per cent.; that in August, September and October, 1876, he caused to be weighed about fifteen bales of the stock sent him by the plaintiffs, and found the weight of every bale to be much less than the weight marked thereon by the plaintiffs; that one of these was a bale delivered in January, 1875, which had remained in the defendant’s storehouse, the others having been delivered about the time they were weighed; and that the defendant had no means of ascertaining the exact deficiency in the weight of the goods sold him by the plaintiffs, except in the cases where he had weighed the bales, but made up his account in set-off by estimate from the several bills of the plaintiffs and from his books. One of the defendant’s men testified that he noticed that one grade of stock
The plaintiffs asked the court to rule, in substance, that the defendant could recover, under his declaration in set-off, only for such deficiencies as he had proved by actually weighing the stock or the products, and that the evidence would not warrant the jury in finding any larger sum in his favor. The judge read the request to the jury, but qualified it as follows: “ I do instruct you that you must not proceed upon conjecture and suspicion, but I do not instruct you that the mode suggested is the only way that the defendant might get at the loss or short weight. If upon a fair consideration of all the evidence in the case, including the auditor’s report, you are able to ascertain the loss or short weight, in any other way than that suggested in the plaintiffs’ request for instruction, you are at liberty to do so. And if you find that there was an intentional purpose on the part of the plaintiffs to defraud the defendant by short weight on the items of the account they have sued on, then that is a fact you may properly consider in connection with the whole evidence in the case, in deciding whether there was short weight on the other goods previously sold to the defendant by the plaintiffs, and which are included in the defendant’s declaration in set-off.” We are of opinion that the ruling requested was properly refused, and that the case was submitted to the jury under correct instructions.
The evidence in the case would justify the conviction in the minds of the jury that the plaintiffs, throughout their dealings with the defendant, had been acting under a deliberate, systematic scheme to defraud him by overmarking the weight of the goods sold to him. It is true that the exact amount of which the defendant has been defrauded cannot now be ascertained
The only other exception taken was to the ruling of the court permitting the defendant to ask the plaintiff Harris, upon cross-examination, whether he was the partner of the plaintiff, C. Herrman, whether Adolph Herrman was not his real partner, and how much capital he put into the partnership ?
We do not deem it necessary to discuss the question, whether, under the pleadings in this case, it was competent for the defendant to deny the partnership of the plaintiffs as alleged by them. If we assume that it was not competent, yet the bill o-i exceptions does not show that the plaintiffs were in any way prejudiced by the questions. The answers are not given, an'd as the verdict was for the plaintiffs, it is clear that they were not aggrieved by the error, if there was one.
jExceptions overruled.