of document in evidence held not prejudicial.

firmed.

Judgment affirmed.

ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ., concur.

WANAMAKER, J., not participating.

QUINN V. STANDARD OIL CO. OF NEW YORK et al.

(Supreme Judicial Court of Massachusetts. Hampden. May 22, 1924.)

1. Witnesses 248 (2)-Refusal to strike out words as irresponsive proper.

Where plaintiff was asked on crossexamination if he had not settled with another, claimed to be jointly liable, and replied that he had not settled, but had signed paper characterized by his lawyer as "covenant not to sue," court did not err in refusing to strike out "covenant not to sue" as irresponsive. 2. Compromise and settlement

23 (2)Plaintiff had right to show money paid by Insurer of one jointly liable not paid solely on account of liability of insured.

In action for injuries, where defendant charged that plaintiff had received full satisfaction in settlement with one claimed to be jointly liable, plaintiff had right to show money paid was in consideration of agreement under seal with insurance company, and not solely on account of any alleged liability of insured. 3. Evidence 174(1)-One of two duplicate originals admissible, without accounting for other.

One of two duplicate originals was admissible in evidence, without accounting for nonproduction of other.

4. Trial 207-Instrument containing declaratory clauses against defendant held admissible under proper instruction.

An instrument was not inadmissible, to show nature of settlement with another, because it contained declaratory clauses as to defendant's liability; all reasonable chance of harm being eliminated by instruction to disregard declaratory clauses as not constituting evidence.

5. Evidence 174(1)—Duplicate copy of unilateral covenant not to sue not admissible, without legal excuse for nonproduction of original,

Duplicate copy of a unilateral agreement under seal, a covenant not to sue, was not ad

Admission in evidence of duplicate copy of unilateral agreement under seal not to sue held not to injuriously affect substantial rights of defendant, under G. L. c. 231, § 132; it not being argued that such an instrument was not drafted, executed, and delivered.

7. Witnesses 379 (2)-Evidence excluded held competent for impeachment purposes, to show inconsistent statements.

Where witness denied that he told any one on particular day that he had told driver that he "cut in too quick," and that some day he would catch it for "turning in so quick" on automobiles, court erred in excluding testimony of another witness that he heard former witness say that he told driver that some day he would get it for "driving so close," and now he had got it; this having a legitimate tendency to impeach witness.

8. Municipal corporations 706 (6)-Negligence in operating truck held for jury.

In action for injuries resulting when defendant's truck, after striking an automobile, collided with a wagon, held, that court properly denied defendant's motion for directed verdict.

9. Trial 206 Judge may, but is not required to, give instruction based on particular view of conflicting evidence.

Where evidence of fact is conflicting, or different inferences of fact may be drawn properly from undisputed evidence, trial judge may, but is not required to, give instruction based on some particular view of a portion of such evidence.

10. Appeal and error 359-Proper method of allowing exceptions after resignation of judge.

Allowance of exceptions by judge who presided at trial after his resignation, and by another judge of superior court, was not proper procedure; G. L. c. 231, § 115, providing proper means for allowance.

Exceptions from Superior Court, Hampden County; Henry A. King, Judge.

Action of tort by William J. Quinn against the Standard Oil Company of New York and another for injuries received as result of collision. Verdict for plaintiff, and the named defendant brings exceptions. Exceptions sustained.

Houlihan, all of Springfield, for plaintiff. E. A. McClintock, D. B. Hoar, and R. D. W. H. Brooks, J. P. Kirby, D. H. Keedy, and C. Brooks, all of Springfield, for defendants.

follows:

"In consideration of the payment by Maryland Casualty Company, a corporation duly established according to law and having a usual place of business in Springfield, Hampden county, Massachusetts, of the sum of twenty-five hundred (2,500) dollars, the receipt whereof is hereby acknowledged, I, William J. Quinn of Longmeadow, said Hampden, county, hereby covenant not to sue one Jacob Chase (insured by said Maryland Casualty Company) on account of any matter or thing involved in any of the causes of action set forth in the suit now pending in the superior court within and for said county of Hampden, brought by me against the Standard Oil Company of New York and said Jacob Chase and being No. 16816 on the docket of said court. The said Quinn does not hereby nor in any manner whatsoever release the said Jacob Chase on account of any of said causes of action, any covenant herein on the part of said Quinn in favor of the said Chase being merely a covenant not to sue; the said Quinn also reserving all his rights in said action as against the Standard Oil Company of New York."

The plaintiff then offered, and the judge received in evidence subject to the exception of the defendant, Exhibit 13, which reads as follows:

"This agreement, made this eighth day of December, A. D. 1922, by and between Maryland Casualty Company, a corporation duly established according to law and having a usual place of business in Springfield, Hampden county, Massachusets, hereinafter also called 'company,' and William J. Quinn, of Longmeadow, said Hampden county, witnesseth:

"Whereas, the said Quinn has brought an action against Standard Oil Company of New York and one Jacob Chase in the superior court for said county of Hampden, which action is now pending and is #16816 on the docket of said court; and

"Whereas, said company has issued to said Chase a policy of insurance covering the liability, if any, of the said Chase on which the said Quinn seeks to recover in said suit; and "Whereas, by the terms of said policy the said company has a right to compromise any suit against the said Chase, whether groundless or otherwise; and

"Whereas, it appears that the liability to the said Quinn is the liability of said Standard Oil Company of New York:

"Now it is agreed that on the payment to the said Quinn by the said company of twentyfive hundred (2,500) dollars the said Quinn will discontinue the said action as against the said Jacob Chase, but only as against the said Jacob Chase, reserving all his rights in said action as against Standard Oil Company of

New York.

"And the said Quinn hereby covenants that he will not on account of any of the causes of

action set forth in said suit nor on account of any matter or thing which is the basis of any of said causes of action at any time hereafter bring suit against the said Jacob Chase.

"The said Quinn does not hereby nor in any manner whatsoever release the said Jacob Chase on account of any of said causes of action, any covenant herein on the part of the said Quinn in favor of the said Chase being merely a covenant not to sue.

"And the said company agrees to pay forthwith to the said Quinn the sum of $2,500. "In witness whereof, the said Quinn has caused these presents to be signed and sealed in his name and behalf by McClintock & Hoar, his attorneys, thereunto lawfully authorized and the said company has caused the same to be executed in its name and behalf by Green & Bennett, its attorneys, thereunto lawfully authorized the day and year first above written." [2] The exceptions must be overruled. der the charge of the defendant that the plaintiff had received $2,500 in full satisfaction of the injury sustained by him, the plaintiff clearly had the right to show that the money paid by the insurance company was paid in consideration of his agreement under seal with the insurance company and that it was not paid to him solely on account of any alleged liability of Chase.

Un

[3, 4] The agreement, Exhibit 13, is a bilateral instrument under seal; it is one of two duplicate originals and as such was admissible in evidence without accounting for the nonproduction of the other. Peaks v. Cobb, 192 Mass. 196, 77 N. E. 881. The contention of the defendant that it was inadmissible because it contains certain declaratory clauses harmful to the defendant is not sound, because all reasonable chance of harm was eliminated immediately by the instruction to the jury to disregard the statement

that:

Under

"It isn't any evidence that it is so. this, Mr. Quinn got some money; the insurance company got out of the case. They can't establish liability on the Standard Oil Company, if one or both says they are not liable. That depends on what you say on the facts and on the law as given to you. No evidence on that. So you will ignore those upon that point-those two clauses. Whether this is a covenant not to sue or whether it is a full settlement, it is going to you, and I am going to give you the principles of law, so far as I understand them, as stated by the Supreme Judicial Court."

[5, 6] The instrument, Exhibit 12, called a covenant not to sue, is a unilateral agreement under seal, and as such was not admissible in evidence as an original, or as a copy of the original without a legal excuse for the non-production of the original, which was delivered to and was in the possession of the insurance company. Goodrich v Weston, 102 Mass. 362, 3 Am. Rep. 469; 2 Wigmore Ev. §§ 1233, 1234. The agreement provides for such covenant and it is not argued that in fact such an instrument was not drafted,

"But it is open to the same objection as the other. * Bettigole, you will remember says he didn't say it. These people say he did say it."

[7] During the trial one Bettigole testified in substance for the plaintiff that he was going south on Main street in an Oakland roadster which contained but one seat; that Chase was sitting on the left of the car driving; that Bernstein was in the middle and that he was on the right hand side nearest the Standard Oil truck; that as they were passing the truck it was on its right hand side of the street; that they were probably eight or ten feet away from it before they turned-before the truck turned-that he did not remember whether they turned to the left of the truck or not; that they were right close to it when they got struck; that he could not say as they were passing the truck where they were with reference to the southbound track; that they were right close to the truck; that they were on the southbound track; that the only thing he noticed as they were passing the truck was that they got hit by the truck; that he did not see the truck turn before they were actually struck; that he did not see the truck make a turn to the left in the direction of the automobile; that the front wheels of the auto were doing the turning; that the back part of the auto was opposite those front wheels when the front wheels of the truck turned; that the distance between the auto and the truck as the auto was passing was 10 feet, 22 feet, 4 feet, and, as finally stated, 5 feet; that when the auto was struck by the truck the auto was turned a little, just going to get away from the truck; that the blow of the truck was not a hard blow and did not turn the auto. In cross-examination the witness, in reply to a question which is not in the record, said:

"I did not say to anybody there that day in substance, 'I told Chase he cut in too quick, that some day he would catch it for turning in so quick on automobiles.' I might have said that at some other time to Chase when I was riding with him."

To the question: "Did you tell anybody that day in substance this: 'I told Chase that some day he would catch it for turning in so quick ahead of automobiles, and now he has caught it'?" the witness answered, "I did not."

As material evidence and in contradiction of Bettigole's testimony last quoted, the defendant offered to prove by one Fogg that he (Fogg) heard "Bettigole say that he told Chase that some day he would get it for

The court then asked, "What do you say he will say?" and the attorney for the de

fendant answered:

"He will say that Bettigole said at the time, I told Chase he would get it some day for driving too close to automobiles, and now he has got it.'"

Returning to the question and answer of Bettigole, it appears that Bettigole denied that on the day of the accident he told Chase "he cut in too quick, that some day he would catch it for turning in so quick on automobiles," although he admitted that he might have said it some other time to Chase when he was riding with him. Bettigole also denied on the same cross-examination that he told anybody that day in substance:

"I told Chase that some day he would catch it for turning in so quick ahead of automobiles. and now he has caught it."

As applied to the entire examination of the witness, no substantial distinction in meaning can be drawn between the phrase "cut in too quick" or "turning in so quick ahead of automobiles" and the phrase “driving too close to automobiles." The fact which the defendant sought to develop by the testimony of witness and by the cross-examination of Bettigole was that it was forced out of its proper course against the vehicle of the plaintiff because Chase drove his automobile in passing the truck of the defendant "too close." If the jury should find that Bettigole in substance made any one of the declarations which he denied, the defendant might fairly argue that such statement was inconsistent with his testimony above quoted and had a legitimate tendency to impeach his credibility as a witness. Robinson v. Old Colony Street Railway, 189 Mass. 594, 76 N. E. 190, and cases cited. The evidence should have been admitted, and the exception must be sustained.

[8] The motion of the defendant at the

close of all the evidence for a directed verdict was denied rightly.

Excluding all testimony for the defendant and having regard to the evidence in its aspect most favorable to the plaintiff, the jury would be warranted in finding that the plaintiff, Quinn, at the time of the accident, in the exercise of due care, was driving a wagon southerly on Main street in the city of Springfield, that one Newton, driving a fully loaded Standard Oil tank truck weighing about six tons, was likewise driving on Main street and at some time overtook Quinn; that Chase, driving an automobile, came up on the left of the truck and was passing it;