Foye v. Patch

• Decision Date: 05 January 1882
• Citation: 132 Mass. 105
• Parties: Edward Foye v. Paul D. Patch
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 105

Edward Foye v. Paul D. Patch

Supreme Court of Massachusetts

January 5, 1882

Argued November 1, 1881 [Syllabus Material]

Essex. Tort in two counts. The first count was for the conversion of a quantity of bricks, alleged to be the property of the plaintiff. The second count was for the conversion of a number of cords of wood also alleged to be the property of the plaintiff. The answer denied that the bricks and wood were the property of the plaintiff, and that the defendant had converted the same. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

The plaintiff introduced evidence tending to prove that the bricks and wood were his property at the time of the alleged conversion. The defendant, against the plaintiff's objection, was then allowed to introduce evidence that the bricks were made by the plaintiff in performance of a written agreement between the plaintiff and Charles Dustin, by which the plaintiff agreed to make the bricks for Dustin; that the wood was the property of Dustin; and that the defendant was the executor of Dustin, and in said capacity of executor sold the property in question for the purposes of his trust. To the admission of this evidence, under the pleadings, the plaintiff excepted.

The defendant claimed title to the bricks under said written agreement, which purported to be signed by Dustin, by the plaintiff with his mark, and by E. N. Cummings as an attesting witness. Cummings was out of the Commonwealth at the time of the trial. The plaintiff, who could not read or write, but who had seen and was familiar with Cummings's signature, was asked, on cross-examination, if he though said signature was in Cummings's handwriting; and he answered "I think it is." The plaintiff excepted to the admission of this evidence.

The plaintiff was shown said written agreement, and testified that he made his mark on the agreement, but that he did not know its contents, and that it was neither read to him nor did he ask to have it read to him, nor was it explained to him. The defendant offered no evidence that it was so read or explained. There was evidence of a settlement by the plaintiff with Dustin, and the signing of papers relating to such settlement by the plaintiff, having reference to, and upon the basis of, said contract. To the admission of the agreement in evidence under these circumstances the plaintiff excepted.

The defendant offered in evidence the record of an action in the Haverhill Police Court, commenced by writ dated in 1875, in which the present plaintiff was the plaintiff and James N West was the defendant. The declaration in said action was in trover, for the conversion of thirty-seven cords of wood, and judgment was rendered therein for the defendant. The defendant also offered evidence tending to show that when he, in his capacity of executor, for the purposes of his trust, sold by auction the property claimed in this action, he sold two and a half cords of wood to one Health, who employed West to haul the same. J. P. Jones, Esq. testified that he was employed by Patch to defend the action against West, and did defend the same for Patch, as the defendant in interest; that the defence was, that the wood hauled by West, not exceeding three cords, was the property of Patch, as executor of Dustin's will, but he could not remember on what grounds the plaintiff claimed to own the wood, nor on what ground he defended, except that he remembered putting in evidence that the plaintiff had admitted that Dustin owned all the wood in question in that case.

The defendant contended that, with this evidence, said judgment was a bar to the plaintiff's claim for the wood sued for in this action; and the judge, against the plaintiff's exception, so ruled, and directed the jury that the plaintiff was not entitled to recover for any wood sold by the defendant as executor. The plaintiff had introduced evidence tending to prove, and it was not controverted, that Patch sold about thirty-five cords of wood by auction, of which that sold to Heath was a part.

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

Verdict set aside as to the second count, and a New trial granted as to that only.

S. B. Ives, Jr. & W. H. Moody, for the plaintiff.

B. B. Jones, (H. Carter with him,) for the defendant.

Field J. Morton & Allen JJ., absent.

OPINION

Field, J.

The evidence that the bricks were made for Charles Dustin, and that the wood was the property of Dustin, and that the defendant, Paul D. Patch, "was the executor of Dustin, and in said capacity of executor sold the property in question for the purposes of his trust," was plainly introduced to show that the property in the bricks and wood, at the time of the alleged conversion, was in Paul D. Patch, as said executor, and tended directly to disprove the allegation of the declaration, that the bricks and wood were the property of the plaintiff. This evidence was therefore admissible under the pleadings. Verry v. Small, 16 Gray 121. Rodman v. Guilford, 112 Mass. 405. Warren v. Ferdinand, 9 Allen 357. Hill v. Crompton, 119 Mass. 376.

That the plaintiff could not read or write was a fact that went to the weight, but not to the competency, of his testimony in regard to the genuineness of the signature of Cummings.

The written agreement was admissible in evidence, although the plaintiff testified "that he did not know its contents, and that it was neither read to him, nor did he ask to have it read to him, nor was it explained to him." There was evidence that the plaintiff had made a settlement, and had signed papers relating to such settlement, "having reference to, and upon the basis of, said contract," and this evidence alone would require that the agreement should be admitted in evidence, and the question submitted to the jury whether the plaintiff had executed or ratified the agreement under such circumstances that he was bound by it. But, apart from this evidence, as there was no evidence of any fraud practised upon the plaintiff, the agreement was admissible. The jury might have disbelieved the plaintiff's testimony, although the defendant offered no evidence that it was so read or explained, or might have believed that, although the plaintiff's testimony was literally true, yet the written agreement correctly set forth the agreement as actually entered into between the parties; and it is unnecessary to consider whether a person who cannot read or write is, in the absence of any fraud or imposition practised upon him, conclusively presumed to assent to a written contract which he has executed, but which he did not ask to have read to him, and which was not read to him. See Trambly v. Ricard, 130 Mass. 259.

The record of the action in the Haverhill Police Court, and of the judgment therein, with the oral testimony relating to the issues tried and determined in that action, were introduced in evidence for the purpose of showing that the property in the wood was, at some time, in Paul D. Patch, and therefore was not in the plaintiff, and, if competent, was admissible under the answer, which denied that the wood was the property of the plaintiff; because it tended directly to disprove the plaintiff's case. But the exception is taken, that, as this judgment was introduced in evidence under a general denial contained in the answer, and was not specially set out in the answer, it is not conclusive evidence of anything, but only evidence to be submitted to the jury, to be considered and weighed by them.

Under the rules of pleading formerly used in this Commonwealth, and while special pleas in bar were permitted, it was held that a former judgment, to be conclusive, must be specially pleaded in bar, unless the party relying on it as a defence has had no opportunity of so pleading it, in which case it was...