
    Crane vs. Roberts.
    
      M agreed to pay for a quantity of hay, provided L should pronounce it raer» charitable; and L pronounced it “a fair lot, say merchantable ; not quite so good as I expected; the outside of the bundles some damaged by the weather.” Held, that R was not bound.
    This was assumpsit upon a written contract made at Bangor, for the delivery of from fifty to seventy tons of hay to the defendant in. Boston, for which he agreed to pay the plaintiff twenty dollars per ton. It was further agreed “ that Mr. Joseph R. Humbert shall examine the hay now remaining here, and ready to be shipped, and if he pronounces it a merchantable lot of hay, then this agreement shall he binding on both parties; but should he pronounce it an inferior lot, then this shall be null and void.”
    The plaintiff produced Humbert’s letter, addressed to the defendant, in these terms: — “ I have examined the hay agreeable to request of yourself and Mr. Crane, and must pronounce it a fair lot, say merchantable, although not quite so good as I expectedthe lot opposite Bangor, some of it, rather coarse, partially covered with boards, the outside of the bundles damaged some. The lot down at Stone’s place is not under cover as Mr. Hatch stated; the outside of the bundles damaged some by the weather. This lot was, before screwed, of a superior quality.” This letter, Weston J. before whom the cause was tried, did not consider as pronouncing the hay to be merchantable, within the terms of the contract; and directed a non-suit, with leave to move the court to set it aside.
    
      McCraw for the plaintiff.
    
      Cremleaf and Sprague for defendant»
   Mellen C. J.

in delivering the opinion of the court, observed that though Lumberfs letter was far from being explicit, and free from obscurity, yet they must regard the whole letter together, and not a part only, as the expression of his opinion; and if the decision which he at first seemed tó have given in favor of the plaintiff, was qualified and neutralized by what followed, the letter was, at best, but an equivocal approbation of the hay as merchantable. The qualifying language must have been used for some purpose ; and some of the facts stated certainly negatived the approbation cautiously stated in the. beginning. If part of a quantity of hay is damaged, the whole quantity cannot, with any propriety, be said to be merchantable. On such doubtful and contradictory evidence, the plaintiff cannot recover.

Plaintiff nonsuit.  