Dexter v. Thayer

• Decision Date: 11 September 1905
• Citation: 189 Mass. 114,75 N.E. 223
• Parties: DEXTER v. THAYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 114

75 N.E. 223

DEXTER v. THAYER.

Supreme Judicial Court of Massachusetts, Barnstable.

September 11, 1905

COUNSEL

Thos C. Day, for plaintiff.

H. H Baker and H. P. Harriman, for defendant.

OPINION

MORTON, J.

This is an action of trespass in regard to the boundary line between two adjoining estates belonging to the plaintiff and defendant. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the exclusion of certain evidence, and to the refusal to give certain rulings that were requested, and to instructions that were given.

The evidence that was excluded related to conversations between the husband of the plaintiff, and the husband, since deceased, of the defendant, and her son, in regard to the establishment of the line claimed by the defendant. They occurred in the absence of the defendant, and were excluded evidently on the ground that the court was not satisfied that the husband of the plaifntiff had authority to act for her as her agent. This was a preliminary question, on which the finding of the presiding judge was conclusive, unless it appears that the evidence did not warrant the finding as matter of law. Walker v. Curtis, 116 Mass. 98, 101; Stevens v. Miles, 142 Mass. 571, 8 N.E. 426; Smith v. Brown, 151 Mass. 338, 24 N.E. 31. The plaintiff's husband was not a witness, or, so far as appears, present, and she was called by the defendant and examined before the testimony that was excluded was offered. Taking her testimony as a whole, it is plain, it seems to us, that it cannot be said as matter of law that the finding of the presiding judge was wrong. The purport of it is that there was an arrangement for an exchange of lands between herself and her husband and the defendant and her husband, with a view to establishing the line in question as the defendant and her husband wanted to have it established, and that the arrangement never was carried out by the defendant, and that in whatever was done in reference to this line she acted with her husband. It cannot be said that her assent to a question put to her, in the course of her examination by defendant's counsel, that whatever was done with reference to the bound stones and the division line with her husband was with her consent, necessarily so far controls her testimony as a whole as to make the preliminary findings of the presiding judge wrong as matter of law.

The remaining question...