Benson v. Hall
| Citation | 197 Mass. 517,83 N.E. 1036 |
| Parties | BENSON v. HALL. |
| Decision Date | 28 February 1908 |
| Court | United States State Supreme Judicial Court of Massachusetts |
John D. Mackay, for plaintiff.
Edward J. Parker, for defendant.
This is an action of contract to recover a balance alleged to be due for remodeling a barn into a dwelling house. The declaration contains two counts, one upon the contract, and the other upon an account annexed, while the answer was a general denial. At the trial in the superior court, before the late Mr. Justice Maynard and a jury, there was evidence that the work was performed in compliance with a set of specifications, which had been signed by the defendant, but not by the plaintiff. It was contended by the defendant, that although he had signed, yet his signature was intended only as an assent for the convenience of the plaintiff, to enable him to purchase lumber. He then introduced another set of specifications, under which it was claimed the work should have been done, accompanied by testimony, that the plaintiff agreed to perform the work as required by this set. In support of his claim that the first set should control, the plaintiff was then permitted, subject to exceptions, to show that the defendant had taken this set to a co-operative bank for the purpose of raising a mortgage. But there is nothing in this exception, as it was plainly competent for either party to put in evidence, the admissions by conduct of the other relating to the different sets, as forming a part of the testimony, upon which the jury were to decide between these conflicting claims.
The jury having returned a verdict for the plaintiff, the defendant filed a motion for a new trial, during the pendency of which the presiding judge died, and it came on to be heard before the Chief Justice, by whom it was denied. At the hearing, the defendant asked the court to rule that the verdict should be set aside, and a new trial ordered, because of the death of the judge before whom the case had been tried. The refusal to give this ruling presents the question raised by the second exception. It is the defendant's argument, that only the judge who presided could act, and his decease operated as an allowance of the motion. But while the defendant had asked for a review of the trial, and the judge to whom he applied was prevented by death from taking judicial action, the tribunal of which he was a member survived. The...
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