Hindle v. Healy

• Decision Date: 05 January 1910
• Parties: HINDLE v. HEALY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 48

90 N.E. 511

HINDLE v. HEALY.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1910

COUNSEL

Edward Higginson, for plaintiff.

David R. Radovsky, for defendant.

OPINION

MORTON J.

This case comes here on the defendant's exceptions to the admission and exclusion of evidence, and to the refusal of the presiding justice to give certain rulings that were requested.

1. The first exception is to the exclusion of questions put on direct examination by the defendant to the witness Barrington as to whether she had seen a writ in a suit brought by the plaintiff against Saucier in which Thomas Healy was named as trustee. It such a writ had been issued, the writ itself or the record, if it had been returned to court, was the best evidence. No offer was made to show that the writ had been lost or destroyed. For aught that appeared it was still in the possession of the attorney who filled it out, or of the officer in whose hands it had been placed for service, if the matter had gone as far as that. The statement by the defendant's counsel which appears in the supplementary report, assuming that it is a part of the bill of exceptions that the writ was not returned into court because Saucier filed a petition in bankruptcy before the return day, was not sufficient to let in secondary evidence. See Nelson v Boynton, 3 Metc. 396, 37 Am. Dec. 148; Hackett v King, 6 Allen 58; Dailey v. Coleman, 122 Mass. 64; Baker v. Pike, 33 Me. 213, 214. Furthermore, it did not appear what the answers to the questions or any of them would have been.

2. Saucier was called as a witness by the defendant, and the plaintiff was allowed to ask him on cross-examination subject to the defendant's exceptions, 'You had nothing in your own name?' and he answered, 'No, sir.' The witness had already testified to the same effect and no harm therefore was done by the question and answer. Independently of that the question was properly allowed as bearing directly on the principal issue in the case, namely, whether credit was given to Saucier or Healy. Lee v. Wheeler, 11 Gray, 236, 239.

3. The exception to the exclusion of the question, 'Was Mr. Healy supposed to give you the money to pay for the lumber?' has not been argued and we treat it as waived. What Mr. Healy was supposed to do was utterly irrelevant and immaterial.

4. The first request that upon all of the evidence the defendant was entitled to recover had not been argued, and it is plain that it was rightly refused. The defendant's requests, numbered 4 to 8 inclusive, presented in different forms the proposition that in order to recover the plaintiff must show that credit was given to Healy alone, and that if credit was given to Saucier, or to Saucier and Healy, or to Saucier with Healy as guarantor, or as agreeing to be responsible, then the plaintiff could not recover.

The court did not give these requests in terms, but instructed the jury that the burden rested on the plaintiff to establish his case by a fair preponderance of the evidence; that he had to prove that 'the credit on furnishing the goods was given to Healy and to Healy alone'; that if credit was given to Saucier, then their verdict should be for the defendant; and that that must likewise be so if credit was given to Saucier with Healy as guarantor. As the matter was thus left, it is plain, it seems to us, that the jury must have understood that they could not render a verdict for the plaintiff unless they found that credit was given to Healy...