Massachusetts Supreme Judicial Court January 15, 1871 (Upton v. Winchester)

Morton, J.

The plaintiffs’ evidence tended to prove that the defendants purchased of them a quantity of plank, lying in two ranges in the plaintiffs’ mill yard, consisting almost entirely of oak, but containing a little ash, and that the defendants, knowing that a part of it was not oak, agreed to pay $23 per thousand feet for the plank in the two ranges, according to a survey which had been made.