Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1892-03-25
WrNDHAM COUNTY COURT.

Action assumpsit to recover for quanti-
ty of ash lumber sold by the plaintiff to the
defendants. The plaintiff resides in Mari
boro and the defendants in lIinsdale, N. H.,
and are manufacturers of the Granite State
Moving machine. The evidence of the
plaintiff tended to show that in January,
1880, he was employed by defendants to
purchase for them some ash lumber; that
he spent seven or eight days in doing so,
procuring them some lumber which was
delivered the same season, for which SER
vice he claimed to recover SIS. That i'm
January, 1890, he sold the defendants 1887
feet of good ash lumber for which defend
ants contracted to pay him S45 per thou
sand to be delivered the following fall and
winter. That in September he delivered
1867 feet, and in December $3.50 feet, in all
amounting to S49037 making the entire
bill for which he claimed to recover S505.37
and interest from Dec "a, 1890. That the
lumber which he delivered defendants was
nice quality second growth ash and well
worth the contract price. His evidence
further tended to show that soon after the
first delivery of lumber the defendants wrote
him in substance that something was wrong
about the lumber, and he called on de-
PENDANTS at their place of business and as
certained that there were a few of the plank
that were badly checked and some crooked
and not hardly up to the contract, where
! upon he informed defendants that he would
deliver the rest of it and requested them to
| inspect it, and if there was any that was
not up to the contract to lay it aside as his
/ lumber and he would take care of it, for
/ he only wished them to have such as they
contracted for. That in fact they accepted
and used his entire delivery, and Dec. "a,
| when he called on them for settlement,
/ they complained of the quality and offered
| him $50 for portion thereof and $40 for
| the balance. That he refused to accept of
| anything less than the $40, contract price
for the whole, and hence the suit was
brought.
The evidence of the defendants tended
to show that they never employed plaintiff
to purchase lumber for them. That they
had written him to furnish them some
lumber if he had it, and that subsequently
on two or three occasions he had fur
nished them with the lumber. That they
always understood they were dealing di-
rectly with him and settled and paid him
| therefor the price agreed on. That he had
never presented them with any bill for ser
vices or asked them to pay any such charge
/ for services, and were not owing him the
SIS or any other sum for services rendered.
with plaintiff, to be delivered the next fall
and winter, 1000 feet of second growth
white ash, three inches thick and II feet
long, to be used by them for poles to their
moving machines; 800 feet y inches thick
and II feet long for moving machine shafts,
cross-bars, etc, and 500 feet II inches
thick II feet long for eveners, whiiletrees,
picker sticks, etc. That the threeinch
plank for poles was to be of sufficient width
to cut one or more poles therefrom without
including the heart, and that it all was to
be of second growth white ash, straight
grained, free from knots and checks, and
in all respects to be First class lumber
That they were to pay him $40 per thou
sand, which was an extra price for first
class lumber even, and if it was as good
and nice as plaintiff represented they would
not be particular if there should be little
more than 5000 feet in all. That in plain
titf's first delivery there was quite guam
tity of plank that were badly checked
some too narrow for cutting poles there
from, some were crooked and could not be
used for the purposes for which they were
bought, and but few of the lot were what
the contract called for, that is, frst-cass
lumber. Defendants wrote plaintiff that
the lumber he had sent them was not such
as they contracted to receive, and that they
were dissatisfied with it. Whereupon plain
tiff called on them, looked over the lumber,
heard their complaints, admitted that some
of it was not up to the contract, but said
to them that he wanted they should take
his lumber, that the balance should be
better and fully up to the contract, and if
not found to be upon inspection and meas
urement he would make it all right with
them; that they never had any trouble
growing out of their previous deals and
would not in this matter. That defendants
upon plaintiffs assurances reluctantly ac-
cepted his proposition and received the
balance, which was not up to the contract
in quality, although considerably better
than the first lot delivered That on meas
urement and inspection the quantity was
9466 feet in all. That upon the average,
take it all together, it could hardly be
called second-class lumber if divided into
four classes, and not up to II if taken in
three classes. That there was a large
amount of waste in working it up, and
were compelled to use it for many purposes
not contemplated in the contract That its
fair value was only about $50 per thousand.
That plaintiff never told them to sort the
lumber, and such part as was not up to
the contract in quality to lay aside as plain
tiff's lumber, for had he done that a large
amount thereof would have been rejected
by them. Verdict for plaintiff, S426.j6
Waterman, Martin d Hit for plaintiff
Haskins & Stoddard for defendants.
Alice W. GOOdeU rs. EHhind Watt
Action, ejectment for certain dwelling
house and lot in the village of Harmony
vile in Townshend. The evidence showed
that in 1865 a Mr.. Woodward and wife
conveyed the premises in question to Elijah
Bartlett and Mary Bartlett, who was his
second wife That there was no issue
born to them, and that Elijah died in 1876,
leaving surviving Mary, his widow, three
children of age, one of whom was the de-
PENDANT Elthina, and three grandchildren,
the issue of a deceased daughter. That
his widow, Mary, continued to occupy the
premises until her death in June, 1889,
leaving surviving the plaintiff, who was her
granddaughter by a former marriage and
her only heir. That after the death of her
grandmother the plaintiff continued to oc-
cupy the premises until April, 1881, when
she was dispossesscd by the defendant enter
ing in her absence, setting her goods ont of
the house, and has retained the possession
ever since The plaintiff claimed title
through her grandmother, Mary, who, it
was cOntended, took a homestead interest
therein upon the death of Elijah, and,
although never set ont to her, it descended
to the plaintitf as only heir. 1t was CON
ceded that the premises were of value
less than $500 The defendant had, pre-
vious to her taking possession, and after
the death of her step-mother, received IA