Abbott v. Walker

• Decision Date: 05 January 1910
• Citation: 204 Mass. 71,90 N.E. 405
• Parties: ABBOTT v. WALKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 71

90 N.E. 405

ABBOTT v. WALKER et al.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1910

COUNSEL

F. N. Newell, for petitioner.

C. H. Poor and E. S. Abbott, for respondents.

OPINION

SHELDON, J.

1. The declarations of Mrs. Witham which were admitted in evidence were made by her upon the petitioner's land while she was its owner. They were competent against her and against those who, like the petitioner, claim under her. Daggett v. Shaw, 5 Metc. 223; Plimpton v. Chamberlain, 4 Gray, 320; Tyler v. Mather, 9 Gray, 177, 182; Chapman v. Edmands, 3 Allen, 512, 514; Pickering v. Reynolds, 119 Mass. 111; Simpson v. Dix, 131 Mass. 180, 185; Flagg v. Mason, 141 Mass. 64, 67, 6 N.E. 702; Rowell v. Doggett, 143 Mass. 483, 488, 10 N.E. 182; Holmes v. Turner's Falls Co., 150 Mass. 535, 544, 23 N.E. 305, 6 L. R. A. 283; Com. v. Henchey, 196 Mass. 300, 301, 82 N.E. 4. In many of these cases the person who made the declarations was shown to be dead, and that fact was sometimes adverted to by the court; but in others his death was not shown; and we are not aware of any case in which proof of death was decided to be necessary before admitting evidence of such declarations against the declarant and those claiming under him in disparagement or limitation of their title. Such declarations were held to be competent in England, although the person who made them was not only alive, but was actually present in court when the testimony was admitted. Woolway v. Rowe, 1 Ad. & El. 114. The same principle is maintained in Deming v. Carrington, 12 Conn. 1, 30 Am. Dec. 591; Beecher v. Parmele, 9 Vt. 352, 31 Am. Dec. 633, Smith v. Powers, 15 N.H. 546, 563, and Treat v. Strickland, 23 Me. 234, 238.

It may be granted that such declarations, unaccompanied by any act which they characterized or explained, would be incompetent at common law in favor of their maker or his grantees. Flagg v. Mason, 8 Gray, 556; Osgood v. Coates, 1 Allen, 77; Morrill v. Titcomb, 8 Allen, 100; Hayden v. Stone, 121 Mass. 413. But that is not the question here. See Gray v. Kelley, 190 Mass. 184, 188, 76 N.E. 724. We cannot doubt that the evidence of Mrs. Witham's declarations was rightly admitted.

2. The respondents had a verdict, and the petitioner moved for a new trial. After argument thereon, the justice denied this motion, and filed a memorandum to the effect that he did not think that the amount at stake justified an order for a new trial. The petitioner contends that a new trial could not be refused for this reason.

We need not consider whether the exceptions are properly before us upon the certificate of the justice; for we are of opinion that they could not in any event be sustained. The motion was addressed wholly to the discretion of the judge. Rowse, Petitioner, 195 Mass. 216, 80 N.E. 822; Reeve v. Dennett, 137 Mass. 315, 318. His memorandum is not a part of the record, and we cannot assume that he acted solely upon the ground therein stated. Boyd, Petitioner, 199 Mass. 262, 85 N.E. 464. We have no right to revise the exercise of his discretion in refusing to grant a new trial.

We do not at all intimate that the fact that only a very small amount is in dispute may not often be an adequate reason for refusing a new trial that otherwise might be granted. Boyden v. Moore, 5 Mass. 365, 371. And see the cases collected in 29 Cyc. 838.

Exceptions overruled.