Trespass on the case. Plea, the general issue, and trial by jury-

The declaration alleged that the defendant was possessed of a quantity of cord wood, which he proposed to sell to the plaintiff at one dollar per cord. That one hundred and sixty cords of the wood were piled in six tiers, or piles, in such manner that it was impossible for the plaintiff to inspect the four interior tiers; — that the two exterior tiers, and the ends and tops of the other tiers were of wood of good quality, sound, straight, and well splitthat the defendant represented to the plaintiff, that the four interior tiers were of wood of as good quality as the two outside tiers; and that the plaintiff, relying on the defendant’s representations, purchased said wood, and paid the defendant therefor. And the plaintiff averred that the four interior tiers were in every respect inferior to the two outside tiers, and were in fact composed of wood badly split and badly piled, rotten, unsound, and crooked, and of but very little value.

On the trial the plaintiff introduced testimony tending to prove the various allegations, as mentioned in his declaration. The defendant, among other testimony tending to prove that the whole of said six tiers was composed of good wood, offered to prove that the standing timber, from which said wood was cut, was “a good fair lot of timber.” To this the plaintiff objected, as not tending to prove that the four interior tiers of wood were of as good quality as the two exterior tiers. The court admitted the testimony, to which the plaintiff excepted. Verdict for defendant.

The question is as to the comparative quality of the interior and exterior portions of the block, and not as to the general average quality of the whole mass. The whole, in the situation in which it was when taken from the forest, might have been, when taken together, good wood, and yet the best have been selected to form the sample tiers. The evidence objected to was inadmissible, as being too frail, too remote and uncertain in its character, to afford any reasonable inference in reference to this point. 2 Stark. Ev. 381. So, it was inadmissible as not being the best in the power of the party to produce. Those who had seen the wood itself, or who had assisted in cutting, splitting, drawing, or piling it, would have been much better judges of its quality, than any one could be who had seen only the forest from which it was taken. 1 Stark. Ev. 102, 387.

If the evidence introduced by the defendant had a tendency to disprove any allegation in either count of the declaration, or to rebut any testimony offered by the plaintiff, it was properly admitted. Richardson v. R. Sf W. Tump. Co., 6 Vt. 497. It had a direct tendency to disprove the allegation that the wood was “rotten, unsound, and crooked,” and these were the principal facts upon which the plaintiff would be entitled to recover.

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