Kimball v. Longstreet

• Decision Date: 17 November 1899
• Parties: KIMBALL v. LONGSTREET et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 487

55 N.E. 177

KIMBALL v. LONGSTREET et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 17, 1899

COUNSEL

Chas. H. Stebbins, for plaintiff.

C. W. Rowley, for defendant.

OPINION

PER CURIAM.

1. The first exception is to the exclusion of an agreement between Cutler and Longstreet, which Cutler testified showed the only relations between them, and which was offered to contradict testimony tending to show an admission by Cutler that they were partners in the transaction for which they were sued. But the fact that they had relations in another matter did not tend to show that they had not the relations alleged in this one, apart from the objection that the agreement was res inter alios.

2. The writ named Longstreet and Cutler as defendants. The declaration was against the 'defendants' in the plural. The account annexed was against 'James W. Longstreet & Co.' The amendment, by substituting the name of 'Cutler' for '& Co.' seems to have been superfluous. It is objected that the motion to amend was not made in writing, and that there was no tender of costs. These facts do not appear. A motion is made to discharge the exceptions for amendment, but it is not suggested that these objections were made at the trial, and, in any event, in such a case we should not grant the motion. If it is thought worth while to be so very nice upon a purely technical matter, the party seeking to get the advantage must set the example of care.

3. There was evidence that Cutler had employed the plaintiff, and therefore the case could not be taken from the jury. Exceptions overruled.