The opinion of the Court was by
Weston C. J.The contract declared on, stipulates for the delivery of a certain quantity of pine merchantable clapboards, at Providence, within a specified time. By the testimony of the deponent, Smith, which was objected to, it appears that at Augusta, this species of lumber embraces two qualities, clear, which is the best kind, and merchantable, which is the poorest kind. Whether the term, merchantable, used in the contract, is to be referred to Augusta, where it was made, or to Providence, where the clapboards were to be delivered, it does not appear that a different classification of qualities exists at these places. If the lumber forwarded was merchantable at Augusta, nothing appears in the case to show, that they were not equally so at Providence. We are of opinion therefore, that the deposition of Smith was admissible. It was as well entitled to be received as the opinion of witnesses at Worcester, all of which was left to the jury, to determine whether the lumber delivered was,, or was not, merchantable, as required by the contract.
As to the necessity of having the clapboards surveyed, according to the provisions of the Statute of 1821, c. 158, no such question was raised at the trial, or instructions upon this point given or requested.
By the contract, the lumber was to be delivered to James M. Earl, at Providence. This designation, as well as Earl’s deposition, was evidence to be left to the jury, that he was the *381agent of the plaintiff, to receive the delivery. This being found, the Judge was well justified in instructing the jury, that if he received them under the contract, it would be evidence of performance on the part of the defendants.
Exceptions overruled.