SYLLABUS. With these observations given to you for your instruction and guidance, we leave the case now in your hands for you to render your verdict according to the law and the testimony. Verdict, guilty. HERMAN C. WOOD vs. CHARLES W. DICKERSON. Justice of Peace-Petition to Set Aside Judgment-Rule to Show Cause-Verification of Service of Summons-Certiorari. On a rule to show cause why a judgment should not be set aside because the transcript of the judgment filed in Prothonotary's office does not show that the service of summons was verified, the rule will be discharged. The petitioner has his remedy of certiorari. (October 30, 1900.) LORE, C. J., and GRUBB, J., sitting. James L. Wolcott for petitioner. William L. Gooding for respondent. Superior Court, Kent County, October Term, 1900. RULE TO SHOW CAUSE why judgment should not be set aside The defendant, Willis C. Dickerson, alleged in his petition the following: That on the third day of July, A. D. 1900, at Clayton, Dela OPINION. ware, John S. Casperson, a Justice of the Peace, rendered judgment by default against your petitioner and in favor of Herman C. Wood in an action of assumpsit for the sum of fifty-five dollars and twelve cents and costs of suit. That afterwards, to wit, on the twenty-fifth day of August, A. D. 1900, the transcript of said judgment was filed in the Superior Court of the State of Delaware in and for Kent County and upon said transcript, judgment was entered in said Court, said judgment being No. 141 to the April Term, A. D. 1900. That said transcript upon which said judgment was entered by default does not show that the return of the service of summons was verified by the constable's affidavit in writing. That said Justice of the Peace rendered said judgment against Charles W, Dickerson instead of against Willis C. Dickerson, the correct name of said defendant. The transcript of said judgment only was in Court. Mr. Gooding:-We admit that this Court in the exercise of equitable power, will inquire into the condition of the judgment; but we hold here that this ground of exception which is taken is simply a formal defect which does not go to the substance of the judgment and is not a defect upon which the rights of the parties could be determined. It is a judgment of this Court, and a proper remedy would be a writ of error on the face of the judgment. GRUBB, J. :-This is merely a transcript of the docket. It does not show that the service of the summons was verified as the statute requires before the judgment by default was rendered. But it does not follow that if we had the writ here and examined the same that we might not find that it was verified upon the writ. The best way to get at that is to take out a writ of certiorari to require the Justice to send up not only the transcript of the docket entries but the whole record with the writs themselves. LORE, C. J.:-Let the rule be discharged. The petitioner has his remedy of certiorari. SYLLABUS. SAMUEL W. DARBY, v8. SAMUEL W. HALL. Assumpsit-Construction of Written Agreement-Contract-Peaches I. The word "merchantable" in a contract for sale of peaches, defined. 2. That term in the contract in question has reference to the peaches on the farm of plaintiff, and the jury should consider it with reference to those peaches and others in that neighborhood and for that season. The peaches must have been deliv ered in usual size baskets, properly and fairly culled and packed in the manner usual and customary in the neighborhood by ordinarily prudent and careful men. 3. If the plaintiff delivered peaches not merchantable, after notice from the defendant that he would only pay for such peaches as much as he received for them, he could in such case recover only the amount the defendant received. 4. General and unrestricted payment made after complaint, operates as a waiver of such complaint. 5. Inspection and acceptance of merchandise at the place of delivery by an agent binds the principal. 6. If the contract was not annulled, it was in the plaintiff's option, after defendant's refusal to secure any more peaches, to leave the balance of the merchantable peaches in the orchard and sue the defendant for the contract price; or to sell them at the defendant's risk, and sue for the loss, if any resulted therefrom. (October 26, 1900.) LORE, C. J., and GRUBB, J., sitting. William T. Smithers and Henry Ridgely, Jr., for plaintiff. Richard R. Kenney and Arley B. Magee for defendant. Superior Court, Kent County, October Term, 1900. ACTION OF ASSUMSIT (No. 25, April Term, 1897). See facts in charge of Court. CHARGE. LORE, C. J., charging the jury: Gentlemen of the jury:-This is an act of assumpsit brought by Samuel W. Darby, the plaintiff, against Samuel W. Hall, the defendant, upon the following written agreement: "Dover, Del., June 13, 1896.-I have bought of S. W. Darby all his merchantable peaches grown on his farm near Frederica, to be delivered in usual size baskets, in merchantable order, on steamboat at Frederica, or if steamboat cannot receive them, then to be delivered at Felton on cars in due time for the day's fruit trains. I am to pay S. W. Darby the market price for the baskets, and twenty-five cents a basket clear of the baskets for the peaches in cash on each Saturday night during the delivery. "SAML. W. HALL." The plaintiff claims that under this agreement, there is due to him from the defendant the sum of $455.06 with interest thereon from September 11, 1896. This sum is made up of the following items, viz.: $395.50 as the unpaid balance of the price of 3596 baskets of peaches, delivered to the defendant on board the boat at Frederica; $34.61 being the loss on 770 baskets of peaches which it is claimed the defendant refused to receive, and were sold by the plaintiff to other persons at that much less than he would have received at the contract price of twenty-five cents a basket; and the further sum of $26.95, being the cost price of the 770 baskets which the defendant was to have furnished. The defendant, however, insists, that he only received 3120 baskets and not 3596 as claimed by the plaintiff; and that most of those received were not merchantable, and that they were received after notice to the plaintiff that for such as were not merchantable, the defendant would only pay so much as he realized from the sale thereof; and that he has so paid in full for all the peaches received. That by mutual consent, the contract in this case was annulled on CHARGE. the twenty-seventh day of September, 1896, which was before the alleged loss on sale of the 770 baskets to other persons; that he is in nowise liable for such loss or for the baskets in which such peaches were marketed. It is the duty of the Court, under the prayers of the respective parties, to interpret this contract, and announce the principles of law governing it. The word "merchantable" in a contract, means generally, vendible in market (2 Bouvier Dict., 400), and when unqualified in any way such is its general meaning. It would be difficult, if not impossible, to give an inflexible definition to the word merchantable. Much in each case would depend upon whether the article to be dealt in, is susceptible of a fixed and uniform standard, or is of a variable nature; and is also dependent upon the conditions and circumstances surrounding each case. If any particular fixed standard is sought, it should be expressed in the contract. By the terms of this contract, the defendant bought of the plaintiff, all his merchantable peaches grown on his farm near Frederica to be delivered in usual size baskets in merchantable order on steamboat at Frederica, etc. No particular size; no particular market value; no special standard of comparison is set out. It is only set out, that the peaches shall be merchantable, delivered in usual size baskets in merchantable order. The term merchantable in this contract has reference to the peaches on the farm of the plaintiff near Federica; and you are to consider it with reference to those peaches and others in that neighborhood and for that season. Should you be satisfied from the evidence, that the peaches delivered on the boat at Frederica, were merchantable, as we have heretofore defined it, and were delivered in usual size baskets in merchantable order; that is, properly and fairly culled and packed in the manner usual and customary in that neighborhood, by ordinarily prudent and careful men, then the plaintiff would be entitled to your verdict. In such case he would have fulfilled his contract. If you should believe from the evidence, however, that some |