Lewis v. Lewis

• Decision Date: 01 March 1915
• Parties: LEWIS v. LEWIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 364

107 N.E. 970

LEWIS v. LEWIS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1915

COUNSEL

Arthur F. Breed and Jos G. Wright, both of Boston, for plaintiff.

Alonzo E. Yont and Ham, Frederick & Yont, all of Boston, for defendant.

OPINION

RUGG C.J.

The plaintiff and the husband of the defendant were copartners in the coal business. The defendant was appointed administratrix of the estate of her husband. After some negotiation an agreement was reached whereby the plaintiff bought the share of his deceased partner in the business for $40,000. An 'indenture of sale' was executed, transferring to him all the right, title and interest of the estate of his former partner in the firm assets, including all accounts and bills due to the copartnership, he assuming all its debts and obligations. In the meantime, after the decease of the husband but before the sale, the plaintiff advanced to the defendant $720, through checks of J. E. Lewis & Co., the style of the former firm, and coal to the value of $60.75. This action is brought to collect these charges. No mention was made of this account at the time of transfer of the share of the deceased in the partnership, and the plaintiff did not then inform the defendant that she would be required to pay it. No reference is made to the matter in the indenture of sale. Evidence was in conflict touching the point whether before the sale bills therefor had been sent to the defendant and demand for payment made upon her.

The jury were instructed in substance that they were to determine on all the evidence whether both the plaintiff and the defendant understood that the personal account against Mrs Lewis here in suit should be wiped out. Various requests for rulings by the defendant presented in different forms the proposition that the plaintiff as surviving partner was under a general duty to make full disclosure of the affairs of the partnership to the defendant. However sound in law these requests may be, they were not germane to the issue raised. Here was no question of concealment, fraud or misrepresentation. It is not contended that the price agreed upon for the sale of the partnership interest was not fair. There was no doubt about the fact that the items in the plaintiff's account had been furnished to the defendant. The real point of disagreement was whether the parties intended to extinguish liability for these items by transactions connected with the sale. The presiding judge performed his duty by stating the simple issue and leaving it to the jury as a plain controversy of fact far better than by undertaking to lay down principles of law more or less remotely connected with the general relations of the parties but which had nothing to do with the matter in dispute. No error is disclosed in the requests denied or in the rulings given.

The troublesome aspect of the exceptions is this: After retiring for deliberation, the jury sent a written request for information to the judge, who was in his lobby. Without causing the jury to be brought into open court and without returning to the court room, he gave an answer in writing and thereupon the jury returned a verdict. Both parties, with their counsel, were in the court room during the entire period from the time when the jury retired until the verdict was returned. The nature of the communication was not given out, is not disclosed on the record, and the excepting party is ignorant of the contents of the communication from the jury to the court and from the court to the jury. Immediately upon learning these facts, the defendant filed a motion for a new trial founded upon them. After a hearing the judge denied the motion, filing therewith a statement printed in the note. ^[1]

It is plain that apart from St. 1913, c. 716, this irregularity would have required a setting aside of the verdict. This was settled in 1823 by Sargent v. Roberts, 1 Pick. 337, 11 Am. Dec. 185, where in an illuminating opinion by Chief Justice Parker, the principle was established:

'That no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause. * * * The only sure way to prevent all jealousies and suspicions, is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice.'

This case has been recognized generally as a leading case, and has been widely cited and approved. See notes 17 L. N. R. 609; 16 Ann. Cas. 1133, 1141; 14 Ann. Cas. 511, 514, where a large number of authorities are collected. It has been followed always in our own decisions. Read v. Cambridge, 124 Mass. 567, 26 Am. Rep. 690. In Merrill v. Nary, 10 Allen, 416, it was held that for the judge to permit the jury to take a copy of the statutes to their room without the knowledge of the parties was such an irregularity as to require the setting aside of the verdict. It was said by Chief Justice Bigelow, that:

'The only regular and safe mode of conducting trials is for the court to instruct the jury on all material points before they retire to deliberate upon their verdict, and, if they have occasion for further information, they should return into court and state the questions on which they wish for further advice, and receive in open court such directions as may seem to the judge material and necessary.'

But, as was said by Chief Justice Shaw in Com. v. Roby, 12 Pick. 496, at page 516:

'It is not every irregularity which will render the verdict void and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to affect the impartiality, purity and regularity of the verdict itself.'

In that case it was held, after a full review of authorities, that the irregularity of furnishing refreshment to the jury after they had agreed upon their verdict, but before it was returned into court, at their own expense, through the agency of the officer in charge, without direction of the court, although reprehensible, did not require a new trial. In Kullberg v. O'Donnell, 158 Mass. 405, 33 N.E. 528, 35 Am. St. Rep. 507, it was held that it was not reversible error for the judge, after the jury had been deliberating for a considerable time and had failed to agree, to call them into the court room and there openly give additional instructions in the absence of counsel, it being the duty of counsel or the parties to remain in court after the trial of an action was begun until it was finished, if they desired to be present at all proceedings in the cause. But it there was said by Chief Justice Field:

'It is plain * * * that all instructions to the jury must be in open court.'

In Com. v. Heden, 162 Mass. 521, 39 N.E. 181, it was held that it not error for the judge to communicate to the jury through the officer in charge of them, that upon agreeing on a verdict it might be put in writing and they might separate. In Moseley v. Washburn, 165 Mass 417, 43 N.E. 182, the amount of the verdict depended upon two executions. Full instructions were given as to the computation of interest upon these sums, to which no exception was taken. Later, the jury sent a note to the judge by the officer, inquiring the date from which interest should be computed. Thereupon, by direction of the judge, the officer procured from the jury room the executions and the judge showed to him the date on each execution which had been pointed out to the jury in the charge, as the date from which interest should be computed, and directed him to return the executions to the foreman and to point out to him the dates which thus had been indicated. The officer followed these instructions and a verdict was returned for the plaintiff with interest computed accordingly. It there was said that, although the practice was not to be commended, it was not necessary to set aside the verdicts...