F.W. Stock & Sons v. Dellapenna

• Decision Date: 20 May 1914
• Citation: 105 N.E. 378,217 Mass. 503
• Parties: F. W. STOCK & SONS v. DELLAPENNA. DELLAPENNA v. F. W. STOCK & SONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 503

105 N.E. 378

F. W. STOCK & SONS

v.DELLAPENNA.

DELLAPENNA

v.F. W. STOCK & SONS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1914.

Exceptions from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Actions by F. W. Stock & Sons against Joseph Dellapenna and by Joseph P. Dellapenna against F. W. Stock & Sons. From a judgment for plaintiffs in the first action, defendant brings exceptions; and from a judgment for defendant in the second action plaintiffs bring exceptions. Exceptions sustained.

Herbert L. Baker, of Boston, for plaintiffs.

Wm. E. Dorman, Guy Newhall, and Wm. E. Sisk, all of Lynn, for defendant.

BRALEY, J.

The defendant while conceding in the first action that he had bought, but had refused to accept and pay for, the flour, relied in defense upon an accord, satisfaction and release under seal executed after suit had been brought. The validity of the release depended upon whether it had been delivered in settlement by one F. W. Stock, whose authority to bind the plaintiffs is not questioned. But when the terms of the compromise were settled only Stock and the defendant were present, and their testimony as to the negotiations is irreconcilable. If the statements of Stock were true, the jury could find that the release never had been delivered, and it was forcibly taken from him by the defendant, who also simultaneously seized and retained the money which had been paid over as the consideration of the settlement. The defendant's evidence, however, showed that no money passed, and Stock accepted the defendant's check for a small amount if compared with the plaintiff's demands, but which had been agreed upon, and thereuponduplicate releases were executed and delivered. It is manifest that, if the jury found the release to be enforceable, not only were the plaintiffs barred, but the defendant at the instigation of the plaintiffs having been arrested and charged with larceny of the money, and duly discharged, had the right to go to the jury in the second action in which he seeks damages for malicious prosecution. Connery v. Manning, 163 Mass. 44, 39 N. E. 558;Shattuck v. Simonds, 191 Mass. 506, 78 N. E. 122.

[1][2] The issue in both cases having been thus narrowed to a question of veracity as to whom the jury would believe, evidence affecting the credibility of the defendant as a witness was admissible. But the examination of the witnesses called by the plaintiffs in impeachment was restricted to their knowledge of the defendant's general reputation in the community for truth and veracity, and evidence of particular acts showing him to be untruthful were inadmissible. The reasons generally given are: That proof of separate instances of falsehood may have existed without impairing his general reputation for truthfulness. Or that the impeached witness is not required to be prepared to meet particular acts of which he has had no notice, although he is presumed to be capable of supporting his general reputation. Or that the attention of jurors will be distracted from the real issue to be tried by the introduction of collateral issues, which also would tend to prolong the trial unduly. Eastman v. Boston Elev. Ry., 200 Mass. 412, 413, 86 N. E. 793, and cases cited; Com v. Lawler, 12 Allen, 585;Com. v. Rogers, 136 Mass. 158;Dore v. Babcock, 74 Conn. 425, 50 Atl. 1016;Fyre v. Bank of Illinois, 11 Ill. 367; Phillips v. Kingfield, 19 Me. 375, 36 Am. Dec. 760; Boon v. Weathered, 23 Tex. 675; 1 Greenl. on Ev. (15th Ed.) 461.

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