Page:Federal Reporter, 1st Series, Volume 9.djvu/81

66 FEDERAL REPORTER. �1. As to shipment "from Glasgow." This is not a condition pre- cedent. If in anywise material it would be an independant covenant, not going to the whole consideration, and for a breach of which an action for damages would lie. But, in my judgment, it is not mate- rial. The purpose for whicb defendant made the contract was to secure, as soon as possible, a given quantity of a given quality of iron. �Whether the vessel carryiug it should depart from Glasgow or Leith was immaterial. �2. Shipment "as soon as possible" is a natural and important provision of the contract. It required shipment a3 soon as possible by any of the ordinary modes of transportation. Paroi testimony is not admissible to vary the language so that it may read "as soon as possible by sait." �Proof of a custom of merchants to ship by sail, unless specifically directed to ship by steam, is not admissible, nor can the plaintiffs be permitted to show by paroi what, in the opinion of merchants and business meh in Glasgow, the contract means. �3. The quality of the iron cannot be shown by proof of a custom of the foundry as to examining and marking. �It must be shown by the testimony of competent judges who have examined it. To be competent to testify as an expert upou this sub- ject a witness must show that he is skilled in the business of manu- facturing iron. �A clerk or book-keeper, although he may have been long employed in an iron foundry, and may have seen the business conducted, is not competent to testify as an expert unless he shows by bis testimony that he bas given the subject of examining and testing iron special attention and study, and bas had experience in that art. �If it appears that he relies upon the decision of others, or upon the marks on the iron, he is not an expert. Accordingly, the testimony of Lindsey, in so far as he gives his opinion as to the quality of the iron, or testifies as to the customary mode of determining the quality, is excluded. �In accordance with these conclusions I have passed upon the sev- eral objections to testimony, and have marked them "sustained" or "overruled." �McCbarx, C. J., subsequently charged the jury as follows: �Gentlemen of the jury : The counsel, in order to bring this case to a conclusion to-day, have eonsented that it may be submitted to you without oral argument on the charge which the court shall give you. ��� �