Crowley v. O'Donnell
| Decision Date | 26 May 1921 |
| Citation | 238 Mass. 475 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JEROME F. CROWLEY & another v. EDWARD O'DONNELL & another. |
March 29, 1921.
Present: RUGG, C.
J., DE COURCY PIERCE, CARROLL, & JENNEY, JJ.
Evidence Declarations of deceased persons. Practice, Civil Exceptions.
An exception to the exclusion of a memorandum in the handwriting of a deceased person, made before the commencement of an action on trial which was offered in evidence under G.L.c. 233, Section 65 must be overruled where there is nothing to show that the declaration was made in good faith and upon the personal knowledge of the declarant and there is no finding by the judge as required by statute that the excluded declaration was so made.
CONTRACT with a declaration in two counts, the first count being upon a parol agreement to recover a balance of $655 with interest, alleged to be due for labor and materials furnished in the construction of the Codman Square Theatre in Boston, and the second count being upon an account annexed to recover $150 alleged to be due for extra labor and materials furnished in the construction of the same building. Writ in the Municipal Court of the City of Boston dated February 10, 1919.
The defendants filed a declaration in set-off, described in the opinion. Upon removal to the Superior Court, the action was tried before Morton, J. Material evidence, including evidence offered by the defendants and excluded by the judge subject to the defendants' exception, is described in the opinion. The jury returned a verdict for the plaintiffs in the sum of $876.08; and the defendants alleged exceptions.
The case was submitted on briefs. W. J. Patron, for the defendants.
R. W. Light, for the plaintiffs.
The plaintiffs brought this action of contract to recover for labor and materials supplied the defendants. The defendants filed a declaration in set-off, alleging that, on the plaintiffs' failure fully to perform the contract, they hired another contractor to whom they paid the sum of $793, which sum they asked to set off against the plaintiffs' claim; the plaintiffs' contention was that the work for which the defendants claimed a set-off was no part of the plaintiffs' contract.
At the trial the defendants offered a letter written by the plaintiffs to the architect in charge of the construction of the building dated May 16, 1918, showing that there was due for work done in...
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...Elevated Railway, 210 Mass. 500, 96 N. E. 1040;Horan v. Boston Elevated Railway, 237 Mass. 245, 247, 129 N. E. 355;Crowley v. O'Donnell, 238 Mass. 475, 131 N. E. 70. Declarations of a deceased person, to be admissible under the statute, must also relate to facts within the personal knowledg......
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