Herman v. Fine
| Decision Date | 25 May 1943 |
| Citation | 314 Mass. 67,49 N.E.2d 597 |
| Parties | HERMAN v. FINE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
On report from Municipal Court of City of Boston; F. W. Tomasello, Judge.
Action by Issac Herman against Jacob Fine. A judgment of the Municipal Court for plaintiff was reported, and the report was dismissed.
Order dismissing report reversed and new trial ordered.
Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.
J. M. Boyle and A. West, both of Boston, for plaintiff.
D. Gorfinkle, of Boston, for defendant.
The plaintiff declared upon a judgment which he alleged he had recovered against the defendant. The defendant answered (1) a general denial, (2) payment, (3) a release, and (4) that ‘the parties' entered into a stipulation, filed in the office of the clerk of the Superior Court ‘in the case numbered 52901 equity’; that a copy of the stipulation was annexed to the answer in this action; and ‘that the plaintiff has not exercised his rights as required by the terms of said agreement; wherefore the defendant now owes the plaintiff nothing.’ The terms of the stipulation need not be stated further than to say that in it the ‘respondent’ agrees to assign some shares in ‘the Humboldt Realty Trust, Inc., as collateral security for execution obtained by petitioner in the above case.’ The words ‘the above case’ seem to refer to the equity suit mentioned in the answer.
At the trial of this present action the plaintiff introduced in evidence an execution from the Superior Court, wherein it appeared that a judgment had been entered in behalf of the plaintiff against one Jacob Fine of Boston and testified that no payments had been made upon it. Both parties then rested. The defendant requested rulings to the effect that the evidence would not warrant a finding that the defendant was the Jacob Fine against whom the plaintiff had recovered the judgment on which this action was brought. In denying these requests the judge referred to the statements in the defendant's answer relative to the stipulation as identifying the defendant as the person against whom the execution issued.
There was error in denying the requests.
In this Commonwealth ‘bald identity of name without confirmatory facts or circumstances' seems never to have been considered quite sufficient to prove identity of person. Ayers v. Ratshesky, 213 Mass. 589, 593, 594, 101 N.E. 78, where the cases are discussed. Commonwealth v. Briggs, 5 Pick. 429;Belknap v. Gibbens 13 Metc. 471, 474;Commonwealth v. Hollis, 170 Mass. 433, 436, 49 N.E. 632;Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, 202, 53 N.E. 398;In re Baker, petitioner, 310 Mass. 724, 731, 732, 39 N.E.2d 762. See Hinds v. Bowen, 268 Mass. 55, 58, 167 N.E. 332;Souza v. Metropolitan Life Ins. Co., 270 Mass. 189, 192, 170 N.E. 62. The defendant's general denial made it incumbent upon the plaintiff to prove every element of his case, including the fact that the defendant was the person against whom he had a judgment. Although very slight evidence might have been enough, at least something more than identity of names was necessary.
The trial judge found the required additional evidence in that part of the defendant's answer wherein he sets up the alleged affirmative defence arising out of the stipulation. This was error. General Laws (Ter.Ed.) c. 231, § 87, reads, ‘Pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them.’ Section 90 of the same chapter reads: ‘If a defendant answers two or more matters in his defence, no averment, confession or acknowledgement contained in one of them shall be used or taken as evidence against him on the trial of an issue joined on any other of them.’ As a matter of pleading, statements in the...
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Com. v. Doe
...that bald identity of name without confirmatory facts or circumstances is insufficient to prove identity of person. Herman v. Fine, 314 Mass. 67, 68-69, 49 N.E.2d 597 (1943), and cases cited. The point is purely technical, for the defendant himself later testified and acknowledged that he w......
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Com. v. Coast Vending Co., Inc.
...N.E.2d 426. Because the record is devoid of any such evidence, Coast Vending was entitled to have its motion allowed. Herman v. Fine, 314 Mass. 67, 68, 49 N.E.2d 597 (1943). See and contrast Commonwealth v. Earltop, 372 Mass. 199, 200-201, 361 N.E.2d 220 (1977); Commonwealth v. Sheehan, 5 M......
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Deutsch v. Ormsby
...of name (and the evidence did not go beyond this) was not enough. Hinds v. Bowen, 268 Mass. 55, 58, 167 N.E. 332; Herman v. Fine, 314 Mass. 67, 68, 49 N.E.2d 597; Lodge v. Congress Taxi Assn. Inc., 340 Mass. 570, 165 N.E.2d 94. Compare Ryan v. DiPaolo, 313 Mass. 492, 494--495, 47 N.E.2d 941......
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Undeck v. Consumer's Discount Supermarket, Inc.
...Three decisions of the Supreme Judicial Court of Massachusetts illustrate what we conclude is the common sense rule. In Herman v. Fine, 314 Mass. 67, 49 N.E.2d 597 (1943), the question was whether the Jacob Fine being sued was the same Jacob Fine against whom a judgment had been entered in ......