8. Trial On 29(1)-Statement by Judge that he O'NEILL V. ROSS.

should at close of argument ask counsel to

correct statement of fact held proper. (Supreme Judicial Court of Massachusetts.

Statement by judge during argument that Hampden. Oct. 18, 1924.)

he should at its close ask plaintiff's counsel to 1. Brokers Ou85(7)–Photograph of real es

correct statement of fact held proper, though tate held irrelevant to issue as to terms of nothing was later said as to fact to be cor

rected. contract.

In action to recover for services as broker, Exceptions from Superior Court, Hampden photograph of real estate was rightly excluded County; E. B. Bishop, Judge. as irrelevant on question whether contract was made as alleged.

Action of contract by Frank F. O'Neill

against John A. Ross for services as real es2. Appeal and error C 1056(1)-Exclusion of tate broker. Verdict for defendant, and

evidence concerning price paid by defendant plaintiff brings exceptions. Exceptions overfor land held harmless.

ruled. In action for brokerage services in negotiating purchase of land, there was no harmful R. P. & E. J. Stapleton, of Springfield, for error in exclusion of evidence as to price plaintiff. which defendant paid, there being no evidence J. W. Mason and A. J. Morse, both of tending to show plaintiff had any connection Northampton, for defendant. with sale of property by owner to defendant. 3. Appeal and error on 1052 (5)-Verdict for RUGG, C. J. This is an action by a real

defendant rendered evidence of price paid by estate broker to recover compensation for defendant for land as basis of amount of services alleged to have been rendered by compensation immaterial.

him to the defendant. The original declaraIn action for brokerage services in pur- tion contained two counts, in each of which chasing land for defendant, evidence as to price it was alleged that the plaintiff was empaid by defendant for land became immaterial as basis for ascertainment of amount of com- ployed by the defendant to negotiate for him pensation due plaintiff, on rendition of general the purchase of certain real estate, where verdict for defendant on merits.

fore the defendant owed the plaintiff either

a certain percentage on the price or a fair 4. Trial em 122-Argument of counsel as to and reasonable compensation. failure to recall witness to negative testimony

At the close of the evidence the judge given in rebuttal held improper.

ruled that there could be no recovery under Where there was radical contradiction in the declaration. That ruling was right. testimony of witness for each party, defendant There was no evidence to support the cause was under no obligation to recall his witness to testify again on same point to negative of action set forth in those two counts. categorically testimony of other witness in re

The only evidence tending to support any buttal, and argument of plaintiff's counsel urg- obligation on the part of the defendant to ing significance of fact of failure to recall wit- the plaintiff was to the effect that the latter ness was improper.

employed the plaintiff to secure from third 5. Trial em 133(1)-Rule stated as to duty of right to a conveyance in accordance with an

persons a release or cancellation of their judge to guard against improper argument.

agreement in writing with the owner of cerIt is plain duty of judge presiding over

tain land. jury trial to take note of improper argument and to neutralize its effect, but it is not prov

The plaintiff was allowed to amend his ince of court to confine arguments to partic- declaration by adding three new counts setular line of thought or within too narrow limits. ting forth in several forms of pleading a

cause of action, tending to support which 6. Trial C133(1)-Time stated for action by there was some evidence. The case was subjudge in stopping improper argument.

mitted to the jury on these additional counts Judge is not required to stop counsel at

alone. Every right to which the plaintiff moment of unwarranted argument, but may do so in a flagrant case.

was entitled thus was secured to him.

[1] The photograph of the real estate to 7. Appeal and error Om842(1)-Remark of which the plaintiff's cause of action related

judge concerning counsel's argument held not was excluded rightly. It had no bearing on ruling as to pertinent question of law whioh the question whether the contract was made could be subject of exception.

as alleged by the plaintiff. It was irrelevant Remark of judge to jury, on informing to any issue raised by the pleadings. counsel that argument was unwarranted, that,

[2] There was no harmful error in the exif defendant's witness had been recalled to clusion of the offer of evidence as to the testify again as to paper in further contradiction to plaintiff's witness on rebuttal, bis evi- price which the defendant paid for the purdence would have been excluded, was not ruling chase of the property. There was no eviof law by judge as to pertinent question of dence tending to show that the plaintiff had law arising at trial, and was not rightly sub- any connection with the sale of the property ject to exception.

by the owner to the defendant. That transFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

(146 N.E.) action on the evidence was arranged entirely , fendant had rested, Southwick was recalled between the owner and the defendant, each by the plaintiff and testified in substance acting in his own interests and without the that, while he was in another office, the deintervention of the plaintiff. All that the fendant came across from the office of Mr. evidence tended to show in its aspect most Morse and said he would like the paper confavorable to the plaintiff was that he was taining his offer for the purpose of making a employed to secure from two persons the re-copy, that he gave the paper to the defendlease or extinguishment of such rights as ant and a few minutes later went to the ofthey had acquired under an earlier agree-fice of Mr. Morse, who was then alone, the ment with the owner to sell to them at a defendant not being present, and who was stipulated price the real estate in question. “making a copy but was adding something The excluded evidence was offered on the more to it after making his copy. ground that it was all a part of one transac- I went in a little later,

and I tion in the mind of the defendant to extin- could'nt get it. It wasn't to be found and guish the rights of the proposed purchasers had been mislaid.

Mr. Morse said under the earlier agreement and himself to it had been mislaid." buy the real estate from the owner. That [4] Plainly there was a radical contradicwas somewhat remote. Exclusion of the evi- tion in the testimony of these two witnesses. dence on the ground on which it was offered Mr. Morse, when called by the defendant, was at best discretionary with the trial had stated in clear terms that the only time judge.

he ever saw the paper was when both the [3] The evidence was not offered on the defendant and Southwick were present in ground that the price paid by the defendant his office. The witness Southwick, when reafforded a basis for the ascertainment of the called after the defendant had rested, gave compensation due to the plaintiff for his testimony of a totally different nature on services. The general verdict for the defend- the same point. The defendant was under ant on the merits renders the evidence im- no obligation to recall Mr. Morse to testify material on that issue.

again on the same point. Therefore, the arThe counsel for the plaintiff in his argu- gument of counsel for the plaintiff, urging ment to the jury stated :

the significance of the fact that Mr. Morse "Wkile he didn't mean to attack Mr. Morse's had not been recalled to negative categori. character, it was significant that Mr. Morse la cally the testimony in rebuttal given by the witness called by the defendant) didn't deny the witness Southwick, was unwarranted. specific statements of Mr. Southwick (the own [5, 6] It is the duty of the court to be solicer of the real estate before its sale to the itous at all times to guard against improper defendant and a witness called by the plaintiff] arguments to the jury. In appropriate in.' about the paper that Mr. Southwick got from stances undue zeal of a member of the bar Mr. Ross, and that Mr. Southwick said that he in behalf of a particular client ought to be went in there and Mr. Morse was adding something to the paper, and afterwards claimed that curbed by calling his attention to departures it had been mislaid and that Mr. Morse had from proper arguments founded upon the not denied these things."

evidence. The rights of parties must be pro

tected against the effect of arguments which The counsel was then stopped by the judge, are not warranted. The judge is not rewho stated that this argument could not be quired to stop counsel at the moment of his permitted, as Mr. Morse had testified to the offense. Judicial duty to see that there is fair only time he had seen the paper. The coun- trial may render that course desirable under sel then stated to the judge that Mr. Morse certain circumstances. The judge in a flagrant had not been recalled to deny the testimony case may rightly think that the only way to given to that effect by Mr. Southwick. The accomplish justice is to stop the improper judge thereupon said to the jury that he argument forthwith rather than to permit it should not have permitted Mr. Morse to be to proceed to a conclusion and later attempt recalled for that purpose because he had al- in his charge to counteract the baleful influready testified to the fact.

ence which in the meantime may have alThe course of the testimony as shown by ready warped the opinion of jurors. Much the bill of exceptions, was that Southwick, must be left to the discretion of the judge in when first called by the plaintiff as a wit- this respect. It is to be remembered that his ness, testified that the defendant gave him a is the trained mind charged with the heavy paper containing an offer for the real estate responsibility of seeing that the scales of and that he took it to the office of the wit- justice are even between the parties and inness Morse. After the plaintiff had rested, cline to the one side or the other only acMr. Morse was called as a witness by the de- cording to the weight of credible evidence, fendant. He testified in substance that the and that no foreign considerations be interonly time he ever saw the paper addressed jected in argument to affect their balance. to Southwick, signed by the defendant and it is the plain duty of a judge presiding over containing an offer for the real estate, was a jury trial to take note of improper arguwhen both Southwick and Ross were in his ments and to neutralize their effect. It is office on a specified occasion. After the de- his primary obligation to see that a fair

trial is had and that no undue advantage is on the mortgage, and that Southwick replied, taken by either side. Obviously it is not the 'Nothing;' that the court requested of Mr. province of the court to confine arguments to Stapleton to correct his argument. Mr. Staplea particular line of thought or within too ton declined to do so, and the court noted the narrow limits. O'Driscoll v Lynn & Boston exception of Mr. Keedy to that portion of the

argument." Railroad, 180 Mass. 187, 62 N. E. 3; Commonwealth v. Brownell, 145 Mass. 319, 14 N. It appears from the record that this was E. 108; O'Brien v. Boston Elevated Rail. error in that, although the question as statway, 214 Mass. 277, 101 N E. 365. But the ed was asked of the witness Southwick, he learned, wise and impartial judge, who dis- did not reply, "Nothing," and was not percharges the duties of his office, is the direct- mitted to answer the question at all. The ing spirit and dominating force of a trial to plaintiff, however, took no exception to the the end that a just result be reached. The statement of the judge at the close of the arconduct of the judge in this respect in the gument. The only exception was taken by case at bar was not open to exception. counsel for the defendant, which of course is Whitney v. Wellesley & Boston Street Rail- | now immaterial. The only exception of the way, 197 Mass. 495, 502, 84 N. E. 95; Com- | plaintiff was to the statement by the judge monwealth v. People's Express Co., 201 during the argument that he should at its Mass. 564, 580, 581, 88 N. E. 420, 131 Am. close ask him to correct a statement of fact. St. Rep. 416; Commonwealth v. Richmond, There was a manifest error in the argument 207 Mass. 240, 250, 93 N. E. 816, 20 Ann. Cas. of the plaintiff's counsel in thạt the question 1269; Tildsley v. Boston Elevated Railway, was asked of the witness Southwick but was 224 Mass. 117, 119, 112 N. E. 499; London v. excluded on objection by the counsel for the Bay State Street Railway, 231 Mass. 480, plaintiff. Hence he had no right to make 121 N. E. 394; Commonwealth v. Dyer, 243 the argument. Commonwealth v. Coughlin, Mass. 472, 508, 138 N. E. 296, and cases there 182 Mass. 558, 563, 66 N. E. 207. The statecollected.

ment of the judge, to which the plaintiff ex[7] The remark to the jury, that if Mr. cepted, was correct and proper. Counsel for Morse had been recalled to testify again as the plaintiff did not then ask to be advised to the paper in further contradiction to the as to the nature of the fact which, the judge witness Southwick, his evidence would have said, he would be asķed to correct. Nothing been excluded, was not a ruling of law by appears to have been said in the charge on the judge as to a pertinent question of law the subject and no exception was taken by arising at the trial and hence was not right- the plaintiff on that point. ly subject to exception. It was a hypotheti The other exceptions do not require dis·cal statement based upon a condition which cussion one by one. Randall v. Peerless Mocould not come into existence. It is not in- tor Car Co., 212 Mass. 352, 386, 99 N. E. 221; timated that, if the occasion had arisen re- Commonwealth v. Dyer, 243 Mass. 472, 507, quiring a ruling upon the point, the suggest- 138 N. E. 296. The record has been exam. ed ruling would have been open to legal ob- ined with care and no reversible error is dis jection.

covered. [8] The judge further said to the jury at

Exceptions overruled. the same colloquy during the argument of the plaintiff's counsel:

“I shall, at the end of the argument call your attention to another fact which I shall ask

BLANCHARD LUMBER CO. V. MAHER. you to correct."

MAHER v. BLANCHARD LUMBER CO. The plaintiff's counsel excepted to that re

(Supreme Judicial Court of Massachusetts. mark. At the conclusion of the argument in

Hampden. Oct. 18, 1924.) behalf of the plaintiff there was a conference at the bench during which the judge made a

1. Reference om 105-Motion for directed ver. statement to the stenographer, but not to the

dict based on rulings on law in auditor's rejury, as follows:

port held properly denied.

Where auditor's report, which finds gen“You will note that in the course of Mr. erally for one party in certain sum, is read to Stapleton's argument he made a statement to jury, motion by such party at close of all the the effect that the jury would notice that Mr. evidence for directed verdict in accordance with Keedy asked Mr. Southwick the amount for terms of auditor's report is rightly denied; which the second mortgage was written, but law of case being for court, and it being for that he did not at any time ask Mr. Southwick jury to pass on all evidence under suitable the amount which was due; that Mr. Keedy instructions. signified his objection to that argument to the court, and the court said that he would at 2. Evidence Ow460(11)-Parol evidence held the close of Mr. Stapleton's argument ca!l it to

admissible to explain scope of words descripMr. Stapleton's attention, and call his atten

tive of quality of goods sold. tion to the fact that Mr. Keedy asked of the Parol evidence held admissible to show that witness Southwick how much had been paid | buyer and seller mutually understood that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) words "shall be dry," in one order, were ap- , 125 N. E. 299; Boston Box Co., Inc. v. Shaplicable to all spruce ordered, though other piro, 248 Mass. — 144 N. E. 233. orders were silent on matter, in view of con

The principal contention of the seller is versation before orders were made and cor that there was error in the admission of respondence following, as against contention that contract may not be varied by parol.

evidence because it varied the terms of the

contract in writing between the parties, and 3. Principal and agent om 103(6)-Ostensible that, if it had been excluded, the auditor's

powers of agent held, on record, his real pow. report would have been conclusive. The sellers.

er's salesman, one Amidon, interviewed the Ostensible powers of agent of seller of lum. buyer's president at its place of business conber when dealing with buyer, seller having of cerning the

sale of lumber, and was informed fered ne evidence of any limitation of the agen- that the company desired to purchase “out cy, held, on the record, his actual powers.

spruce boards." The jury would have been 4. Trial 296 (1)-Complaint as to instruction warranted in finding on all the evidence, that without merit where other instructions to Amidon was acquainted with the nature of same effect were not excepted to.

the buyer's business, which substantially conException to portion of charge was without sisted in making boxes for paper manufacmerit, where other instructions to same effect turers to be used in the shipment of high were not excepted to.

grade paper, and that the buyer intended to Exceptions from Superior Court, Hampden use the boards in the manufacture of the County; Richard W. Irwin, Judge.

boxes, which must be dry or the paper would Actions of contract by the Blanchard Lum- deteriorate. The buyer thereupon gave five ber Company against Thomas C. Maher, trus-orders prepared by Amidon to which he tee in bankruptcy of the Aker-Allen Lumber signed the seller's name, for "one million out Company, Inc., and by the latter against the spruce boards,” dated respectively April 9, former. Verdicts for defendant in first case 12, 19, 21 and May 1, 1920. The orders, with and plaintiff in second case, and the Blanch the exception of the order of April 21, which ard Lumber Company brings exceptions. Es contained the words “ship dry,” made no

reference to the condition of the lumber. ceptions overruled.

During the period covered and before any Gaston, Snow, Saltonstall & Hunt, of Bos-lumber was shipped, there was correspondton (Edward C. Thayer, of Boston, of coun

ence between the parties relating to the orsel), for Blanchard Lumber Co.

ders and their acceptance. The seller wrote T. O. Maher and G. J. Scanlon, both of the buyer April 13– Holyoke, for Thomas C. Maber.

We have your several orders which Mr. Ami. BRALEY, J. The first action is to recover? don has sent in of the 250,000' of boards. We

can probably take 150,000 perhaps more. We damages for the failure of the Aker-Allen will let you know later. There is very slight Company to accept and pay for lumber which possibility of our being able to put through the plaintiff alleges it agreed to buy. The the 1x3, but we will try. second action is to recover damages from the Blanchard Company for non performance of This refers only to the order of April alleged contracts to deliver lumber of the 19, calling for "50 M. up out boards." The kind and quality ordered. The cases, which buyer replied April 23: were tried together, having been referred to "That our files may be complete we wish an auditor, upon the coming in of his report you would advise us as soon as possible if we a trial was had to a jury, which returned are to understand that the following stock has a verdict for the plaintiff in the second case, been accepted by you on sales slips left with and a verdict for the defendant in the first us by your Mr. Amidon, No. 395. April 4th, 6 case, and the cases are here on exceptions of

cars 2x5 and wider Out Spruce resawed and P the Blanchard Company. We shall refer to 1x3, and wider Out Spruce P I S 45 M Out

IS 13x16" @ $15.25. No. 394 April 9th 50 M. the Blanchard Company as the seller and to Spruce Boards P I S. All at 45.25. No. 396 the Aker-Allen Company as the buyer.

April 12th 250 M feet Out Spruce Boards PIS [1] The auditor having found generally in @ $45.25. No. 402 April 21st 1000 M ft 1x4 and favor of the seller for $9,673.69, the report wider Out Spruce Boards P IS @ $45.25. was read to the jury, and the plaintiff in the All stock to be shipped when dry. first case rested, and the buyer having intro- have a prompt reply. duced evidence in defense of the first action

The seller in an undated letter apparently and in support of the second action, the seller written April 29 used this language: at the close of all the evidence moved for a directed verdict "in accordance with the

"Again referring to your order for the one terms of the auditor's report." The motion side 13.18. We believe that we have another

million feet of out spruce boards dressed 1 was denied rightly. The law of the case

party lined up to take practically all of this was for the court, and the jury were to pass order. This would be for summer shipment. on all the evidence under suitable instruc- Please advise us how late in the season we tions. Zembler v. Fitzgerald, 234 Mass. 236, may have to clean up the order."

Let us

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The buyer answered:

for which the boards were bought, and that "Your letter of the 29th received, and we the lumber must be dry, was therefore adtrust that you have made arrangements to take missible. The cases of Stackpole v. Arnold, care of us on the Spruce Outs, and we can use 11 Mass. 27, 6 Am. Dec. 150, De Friest v. these any time this year, but we prefer that Bradley, 192 Mass. 346, 78 N. E. 467, and all shipments be made before September 1st | Glackin v. Bennett, 226 Mass. 316, 115 N. E. if you can so arrange it."

490, are plainly distinguishable. It was undisputed that the seller season

[3, 4] The Blanchard Company also exceptably delivered and the buyer received “out ed “to such portions of the charge as stated spruce boards” called for under the orders that the contract was evidenced by the conof April 9 and 19 and May 1. Delivery un- versations of the parties.” It is argued that der the orders of April 12 and 21 began the the parol evidence rule is substantive law, first part of July and continued until October. and the question can be raised even if there But the full quantity of lumber named in was no evidence that Amidon was without these orders was not shipped because the authority to bind the plaintiff. The judge buyer declined to accept further shipments, gave all the plaintiff's request, and it does claiming that the boards were unusable.

not appear that his attention was directed [2] The jury under appropriate instruc- to this defence. The Blanchard Company, tions could find that the contracts consisted as previously said, rested its case in each acof the statements to Amidon, and the orders. tion solely on the contention, that the orders Leavitt v. Fiberloid Co., 196 Mass. 440, 82 alone constituted the contract, which could N. E. 382, 15 L. R. A. (N. S.) 855; Davis v.

not be varied by extrinsic evidence. It ofCress, 214 Mass. 379, 382, 101 N. E. 1081, fered no evidence of any limitation of Amiand cases cited. There also was evidence don's agency, and his ostensible powers when that a representative of the seller at its dealing with the buyer were on the record place of business told the president of the his real powers. Danforth v. Chandler, 237 buyer, who complained that the “boards were

Mass. 518, 130 N. E. 105; Howard v. Haynot fit for boxes to crate paper because the ward, 10 Metc. 408, 419, 420; Sayleš v. lumber was wet and green”; “that the Quinn, 196 Mass. 492, 82 N. E. 713; Howard boards were not up to what the Aker-Allen v. Fall River Iron Works Co., 203 Mass. Lumber Company had asked for, what the 273, 277, 89 N. E. 615. The judge moreover Blanchard Lumber Company had intended gave further instructions to which no exto ship, and for the Aker-Allen Lumber Com- ceptions were taken, as follows: pany to handle the boards and do the best

“It was my intention to tell you, and I now they could with them, and that the Blanch- do so, that the contract entered into between ard Lumber Company would reimburse the parties was made up of a memorandum them." There was further complaint that signed by Mr. Amidon agent of the defendant the boards as delivered were “wet and Blanchard Company, and conversations begreen” to which the response was, that the tween the parties,—the agreement and the talk seller would reimburse the buyer for “any that went with or inspired the memorandum. loss which they were put to either in market that-I don't understand that the contract was

That contract was not made up in any form price," or for drying the boards so that they made with any formally drawn document, with could be used. The jury could say that the statements in legal phraseology, and of technirepresentatives of the parties mutually un- cal character, but was done in an offhand way. derstood that the words "Ship dry” in the Mr. Amidon comes in, meets these men, they order of April 21st was applicable to all the talk about it, and the Aker-Allen Company lumber. It also could be found, even on the said, 'I will take so much lumber if it is dry auditor's report, that after receiving the lumber, and what we need it for is for paper orders, and before any shipment, the seller companies box business.' And the agent took was informed by the correspondence that all

out his memorandum book and puts down the stock was to be shipped when dry. The or

contract. I think that is the way the contract

was made between the parties.” ders, the statements to Amidon, and the correspondence, were all to be considered. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, We have examined all the exceptions, in 208, 105 N. E. 607. The evidence introduced so far as not waived, and, finding no error, by the buyer to which the seller excepted, the entry must be, that Amidon was informed of the purpose Exceptions overruled.

« ForrigeFortsett »