
    Ebenezer Morton versus Royal Fairbanks.
    In an action of the case for fraud in making shingles, the original declaration alleged a contract on the part of the defendant to make a certain quantity of shingles for the plaintiff, and the plaintiff filed a new count alleging that by the contract he was to furnish the defendant with suitable materials for making the shingles. It was held, that the amendment was not for a new cause of action, and therefore was allowable.
    On the trial of such action a parcel of the shingles was brought into court, and the judge having decided, on inspection, that they were not shingles but mere chips, a new trial was granted, because this was a question of fact which should have been left to the jury to determine.
    Although the defendant might lawfullyhave refused to make the shingles unless the materials furnished by the plaintiff were suitable, still he was not obliged so to refuse, and in defence to such action he has a right to prove that the shingles were as good as could have been made out of the materials furnished.
    This was an action on the case for a fraud in the perform anee of a special contract, alleged to have been made by the defendant with the plaintiff, to manufacture a certain quantity of shingles for the plaintiff. The cause was tried in the Court of Common Pleas, before Strong J.
    Before the case came on for trial, the plaintiff moved to amend by filing two new counts containing the allegations that the plaintiff was to furnish suitable materials for making the shingles, and that he did furnish such materials. The defendant objected that the amendments were for new causes of action, but the judge allowed them to be filed.
    Among other evidence introduced by the plaintiff to show a fraud in the manufacture and packing of the shingles, a trunk full of what was alleged by the defendant to be shingles, was brought into court and exhibited to the court and jury. These were proved to have been taken out of the bunches of shingles made by the defendant for the plaintiff. Upon inspection of them the court considered that they could in no sense be deemed shingles ; that no prudent person would ever think of using them as shingles, upon any building ; that they were mere chips. The defendant contended, that it was the province of the jury, and not of the court, to determine the nature of the things brought into court in the trunk, and whether they were or were not to be considered as shingles. But the judge ruled that as it was apparent by inspection, that they were not shingles, and there was no doubt about it, it was proper that the court should decide the question.
    
      Sept, 27th
    
    The defendant offered to prove, in defence of the whole action, as well in respect to the shingles brought into court as to those which were not brought into court, that the plaintiff furnished the materials, and that they were so bad that no better shingles could be made out of them ; and he stated as- one ground of his motion, that the plaintiff had alleged in his writ that he was bound to furnish suitable materials. The judge ruled, that as to those which were brought into court, such evidence would not be a defence ; that if the materials were so bad that no better shingles could be made of them, the defendant should not have used the timber at all; but that the defendant might introduce the evidence and have the benefit of it so far as it would operate, with respect to those shingles which were not brought into court, in mitigation of damages, and as a defence pro tanto, if the evidence should be sufficient. The defendant declined introducing the evidence, unless it could be admitted as a defence to the whole action.
    It was proved that the shingles were delivered to the plaintiff in bunches, that the outsides of the bunches appeared well, and that the plaintiff, at the time of the delivery and until he had paid the defendant, had no knowledge that any of the shingles were defective.
    The jury found a verdict for the plaintiff.
    The defendant filed exceptions to the foregoing decisions of the judge.
    
      Billinas, and J. W. Clark,
    
    supported the exceptions.
    
      
      Sept. 30th.
    
    
      Wells, for the plaintiff,
    cited in regard to the amendments, Ball v. Claflin, 5 Pick. 303 ; Swan v. Nesmith, 7 Pick. 220.
   Per Curiam.

The original declaration was for fraud on the part of the defendant, in the manufacture of a quantity of shingles for the plaintiff. The new counts vary from it, in stating in addition, that the plaintiff was to furnish the defendant with suitable materials for making the shingles. We are of opinion that this is not setting forth a new cause of action. The first counts implied the same thing ; otherwise the action would have been for fraud in the sale of the shingles. The amendment, therefore, was rightfully permitted in the court below.

The second exception relates to the decision of the judge, that the articles brought into court were not shingles. The defendant contended, that whether they were shingles or not, was a qestion of fact for the jury, and that his rights were not .to be affected by the circumstance of the evidence being more ■ or less strong on that question ; but it was ruled, that as the point was clear upon inspection, it was to be decided by the court. As the jury would have the whole case before them, this may seem to be a speculative objection ; but we think that in strictness the point thus decided was a question of fact, and the jury may have been unduly influenced, for they may have considered themselves not at liberty to find contrary to the decision of the court.

The third exception is taken to the rejection of certain evi - dence. The defendant offered to show that the shingles were as good as could have been made from the materials furnished. By the contract as stated, the plaintiff was required to furnish suitable materials. The judge ruled that the evidence was inadmissible, because it was the duty of the defendant not to use the materials furnished, if they were not suitable. On this point we are of opinion that the decision was erroneous. The defendant was not bound to work up unsuitable materials, but he might do so-if requested, and if the shingles were as good as could be manufactured out of such materials, the plaintiff could have no ground of complaint.

These two last exceptions are sustained, and a new trial is granted, to be had at the bar of this Court. 
      
       See Kester v. Stokes, 3 Miles, 67; Cunningham v. Day, 2 Serg. & R. 1; Diehl v, M'Glue, 2 Rawle, 337; Brown v. Crump, 6 Taunt. 300 ; Lobdell v. Baker, 2 Metc. 469; Mixer v. Howarth, 21 Pick. 205; Bishop v. Baker, 19 Pick. 538; Heridia v. Ayres, 12 Pick. 334.
     
      
       See Tufts v. Seabury, ante, 140; Davis v. Jenney, 1 Metc. 223; Curl v Lowell, 19 Pick. 25.
     