Howland Pulp Co. v. Jessup & Moore Paper Co.

Opinion bv

Orlady, J.,

The plaintiffs seek to recover for certain rolls of “ F sulphite, gross at eighty-five and three tenths per cent dry, at $2.10 per hundred lbs.” The affidavit alleges that when the pulp, bought from the plaintiffs and billed at eighty-five and three tenths per cent air dry test, arrived at the mills, it was found to be only seventy-five and seven-tenths per cent air dry test, making an excess of nine and six tenths per cent of moisture, which in the two consignments aggregated a sum which was definitely ascertained, and which made a total offset of $262.77. It is apparent from the plaintiffs’ - statement of claim that the defendant was to pay only for the net weight that the pulp would, have if eighty-five and three tenths per cent dry. The quality of the sulphite was admittedly good, but the defendants’ contention is that by reason of nine and six tenths per cent excessive moisture, for which the plaintiff’s were not entitled to recover, the amount claimed was erroneous. The rate per hundred ($2.10) was to be ascertained by allowing for a certain amount of moisture, and deducting the excess from the gross weight. It follows that the dispute is not as to the quality of the article, but as to the quantity, both sides agreeing that a deduction was to be made from the gross weight to the extent of the moisture. The fact is sufficiently alleged and clearly susceptible of proof, and must be disposed of by jury.

The judgment is reversed, and a procedendo awarded.