The declaration contains a count in tort and a count in contract, alleging that both are for the same cause of action; and the defendants, after the plaintiff had rested his case, asked the court to require the plaintiff to elect which of the two counts he would rest his case upon. The court refused to do this, but allowed the plaintiff to go to the jury bn both counts. This ruling is excepted to. But the request was addressed to the discretion of the court, and the ruling was not subject to exceptions, Carlton v. Pierce, 1 Allen, 26. Sullivan v. Fitzgerald, 12 Allen, 482. Crafts v. Belden, 99 Mass. 535. In Mullaly v. Austin, 97 Mass. 30, the remark contained in the opinion, as to compelling the plaintiff to elect which count he would proceed upon, related to «two counts in contract, setting forth contracts inconsistent with each other, and not to a case like this.
2. The defendants further except to the admission of paroi evidence to prove a warranty, because a bill of sale was given, The bill given was a mere bill of parcels, and not such a contract as would exclude the paroi evidence. Hazard v. Loring, 10 Cush. 267. Boardman v. Spooner, 13 Allen, 353. Frost v. Blanchard, 97 Mass. 155.
*3763. The defendants further except, because the court declined to instruct the jury that there was no evidence that the sale was by sample. We think there was evidence on this point. Samples of the tobacco were exhibited as such, and the circumstances under which it was done were competent to be submitted to the 3'Ury"
4. The questions, whether there is anything in the condition of a case of old tobacco which makes it impossible for a purchaser to examine all the layers without injury; the proper method of examining a case of tobacco ; and whether buying by sample is a custom known to the trade; relate to matters which are best known to experts. The fact that it is a custom to buy in that way, though it may not prove that the sale in this case was made in this manner, tends to show that the plaintiff’s statement on the subject was not incredible, but might be true. The answer of Smith as to the proper method of examining a case, though it might be, as the defendants contend it is, so absurd as to destroy the force of his testimony, yet was not inadmissible, nor did it render the question inadmissible.
5. There was no variance. It was not necessary for the plaintiff to prove the whole claim alleged in his writ. Evidence to prove a sale of seven cases would be proper under a count alleging the sale of eight cases. So as to the warranty.
-6. The instruction given to the jury as to the short wrappers was correct. Under it, the jury would be required to find, in order to sustain the action, that the short wrappers were not substantially as good as those that had been exhibited as samples.
7. But the final exception must be sustained. The plaintiff had written a letter to the defendants, stating his claim against them and the grounds of it. It was dated October 7,1868. He had notified them to produce it, and as they did not do so he proved its contents by paroi. They afterwards put in the original. The plaintiff put in their reply to it. As evidence that he made a claim upon them, and of the time when he made it, his letter was evidence, and also of what the claim was. The defendants asked the court to rule that the statement made in this letter, as to what the plaintiff had sold the tobacco for, was *377no evidence of its actual value, which could be considered by the jury. But he declined so to rule, and said that it was in, and what its effect should be on the question of damages was for the jury and not for the court. He also said it was in the case as evidence, and he had nothing to say about it. We think the defendants were entitled to the ruling thus asked. Though the letter was in, it was not in for the purpose indicated in the request. The plaintiff could not thus prove the value of the property by his own statement.
Last exception sustained; the others overruled.