Mulliner v. Bronson

Citations

• 114 Ill. 510
• 2 N.E. 671

Syllabus

<p>1. Contract—construed—as to right of buyer, to determine as to the quality of goods purchased and delivered. A contract for the sawing, and delivery to the purchaser, of lumber, providing that he should measure the same when delivered, and that he should measure and pay for only such as was absolutely clear, and suitable for a certain purpose, while it gives the buyer the right to measure the lumber and pass upon its quality, does not make him the sole judge, and his d.ecision beyond review. In such case, he is bound to receive and measure such of the lumber as complies with the contract, although in his judgment it is not of the proper quality.</p> <p>2. Evidence—to show quality of lumber delivered. In a suit upon a contract for the sawing and delivery of lumber to the defendant at his yard in a city, containing a clause that defendant should measure the same' after its delivery, and only such as was absolutely clear and would work into tobacco boxes, there is no error in admitting the testimony of witnesses who saw the lumber after it was sawed, in .the timber, and when it was being shipped, to show its quality when delivered. If injured while being shipped, such fact might be shown.</p> <p>3. Exceptions—when necessary—in case of remarks of the trial judge, claimed to have been improper. After a cause had been reversed for misconstruction of a contract, and on the second trial the court remarked, in the hearing of the jury, without anything to call for the same, that he had not changed his opinion as to the proper construction of the contract, but that the Appellate Court had decided the question and the court was bound to follow the decision, but no exception was taken to such remark, it was held, that the defendant, by failing to except thereto, waived all objection that might have been made to what was said by the court.</p> <p>4. Instruction—whether leaving construction of a verbal contr-act to the jury. An instruction in a suit to recover for lumber sawed