Dutton v. Shaw

Campbell, J.:

In this case Shaw had sold and delivered to Dutton several lots of staves, all at a price fixed by a contract, whereby Shaw was to deliver and Dutton to accept all the staves to be got out by Shaw in 1863.

After all the staves had been delivered, Shaw sued Dutton upon the contract, and the case went to judgment. During the trial Shaw failed, by reason of the absence or drunkenness of a witness, to prove an item of two thousand five hundred and forty-six staves, and that item he withdrew from the jury. He now sues Dutton to recover for the item thus withdrawn.

This item being within…