Dutton v. Bennett

• Decision Date: 10 June 1926
• Citation: 256 Mass. 397,152 N.E. 621
• Parties: DUTTON v. BENNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 397

152 N.E. 621

DUTTON

v.BENNETT.

Supreme Judicial Court of Massachusetts, Middlesex.

June 10, 1926.

Exceptions from Superior Court, Middlesex County; W. A. Burns, Judge.

Action of contract by Francis O. Dutton against Anna M. Bennett for breach of contract to sell wood and timber. Verdict for plaintiff, and defendant excepts, and plaintiff excepts to order denying his motion to dismiss defendant's exceptions. Plaintiff's exceptions overruled, and defendant's exceptions overruled in part and sustained in part.

M. G. Rogers, of Lowell, and W. F. Barrett, of Haverhill, for plaintiff.

E. M. Bennett, of Boston, for defendant.

CROSBY, J.

The only question presented by the plaintiff's exceptions is whether the court erred in denying his motion to dismiss the defendant's exceptions ‘for the reason that the written notice given to counsel for the plaintiff on the day of the filing of the bill of exceptions in the Superior Court was accompanied only with an unsigned copy of the bill of exceptions and not with a signed copy.’ G. L. c. 231, § 113, provides that notice of the filing of exceptions must be given to the adverse party. A similar provision is found in rule 51 of the Superior Court (1923). The notice so required to be given ‘shall be in writing.’ Rule 27 of the Superior Court (1923). The defendant by her attorney seasonably delivered in hand to the attorney for the plaintiff a letter in which it was recited that the defendant's attorney had filed for her in the action her bill of exceptions, and inclosed a copy thereof. The letter was duly signed by the defendant's attorney, but the copy of the bill of exceptions inclosed was unsigned. There is nothing in the statutes or rules which requires an excepting party to mail or deliver to the adverse party a copy of the bill of exceptions. The act of the defendant in inclosing a copy of the exceptions was wholly unnecessary. The delivery of the letter was full compliance with the requirements of the statute and rules. As the plaintiff's motion was rightly denied, his exceptions must be overruled. Broomfield v. Sheehan, 190 Mass. 585, 77 N. E. 525, and Shawmut Commercial Paper Co. v. Brigham, 209 Mass. 199, 95 N. E. 219, cited by the plaintiff, are plainly distinguishable in their facts from those in the present case.

The defendant's exceptions relate to the exclusion of evidence, and to the refusal of the court to rule as requested. The action is brought upon an alleged contract, by the terms of which the plaintiff contends that he agreed to buy and the defendant agreed to sell the standing wood and timber on a lot of land owned by the defendant. The defendant pleaded a general denial and the statute of frauds.

The plaintiff testified in substance that on August 9, 1922, he saw the defendant and offered to pay her $2,500 for the wood and timber; that he agreed to pay the same as follows: $100 on August 9, 1922, $400 in two months from that date, one half of the balance on April 1, 1923, and the other half before the timber was cut; that he would cut and remove it within two years from August 9, 1922; and that the defendant accepted the offer so made. He also testified that when the contract was entered into it was agreed that the defendant should reserve from the sale certain trees she did not wish to have cut and would have marked to be left standing. The plaintiff introduced in evidence a receipt or paper, a copy of which is as follows:

‘100 x/100.

Wayland, Mass., Aug. 9, 1922.

‘Rec'd of F. O. Dutton one hundred and #/100 dollars on acct of my Chas. Smith lot at twenty-five hundred dollar. All lot to be cut in one year lumber to be removed in two years. I reserve six pine trees to be marked by my man. Terms four hundred more within sixty day, five hundred dollars before any lumber is cut, one half balance before any lumber is removed, all before one-half the lumber is moved.’

This paper was never signed. The plaintiff testified that he wrote it in the presence of the defendant and read it to her, and wrote a check for $100 payable to the defendant and laid it on the table; that ‘she was just ready to sign the receipt when she said, ‘I would like to have my son read this over, to see if it is right.’ I said that would be all right, and we left the house.' The defendant did not deposit or cash the check, but returned it by mail with a letter to the plaintiff on October 10, 1922. She also inclosed in the letter another check for $400 which had been sent her by the plaintiff for the purpose of making the second payment, due on October 10, 1922, under the alleged agreement.

Whether the defendant accepted the check for $100 in part payment was a question of fact for the determination of the jury, in view of all the circumstances, including the length of time it was retained by the defendant. If, as the jury could have found, it was received by her and accepted as an absolute payment, it was a sufficient part payment to satisfy the requirements of the statute of frauds. G. L. c. 106, § 6; Ely v. James, 123 Mass. 36, 44;Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 94 N. E. 299; Feinberg v. Levine, 23( Mass. 185, 187, 129 N. E. 393;Ansin v. Mutual Life Ins. Co. of New York, 241 Mass. 107, 111, 134 N. E. 350;Poresky v. Wood, 248 Mass. 464, 466, 143 N. E. 318.

It follows that the trial judge could not properly have given the defendant's second, third, fourth, seventh and eighth requests.

In the letter dated October 10, 1922, written by the defendant to the plaintiff, in which she returned the two checks, she wrote the following:

‘My son I have found quite averse to my plan [your plan] which I approved and thinks that the price is too low for such old trees ...