McFaden v. Nordblom

• Decision Date: 02 January 1941
• Citation: 307 Mass. 574,30 N.E.2d 852
• Parties: McFADEN v. NORDBLOM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 574

30 N.E.2d 852

McFADEN

v.NORDBLOM.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1941.

Exceptions from Superior Court, Suffolk County; Morton, Judge.

Action of tort by Dorothy McFaden against Robert A. Nordblom to recover damages for assault. Verdict for plaintiff, for $8,750 and defendant brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, QUA, and RONAN, JJ.

W. F. Kane and M. L. McGrath, both of Boston, for plaintiff.

G. A. McLaughlin, of Boston, for defendant.

RONAN, Justice.

The jury returned a verdict for the plaintiff in this action of tort to recover damages for an alleged assault, and the defendant excepted to the refusal to grant his motion for a directed verdict.

The plaintiff testified that the defendant visited her while she was confined to a hospital as a result of the assault, which occurred on July 7, 1936, and told her that if she would not give publicity to the matter and would not sue him for damages he would pay her $25 a week during her life; that ‘she accepted the agreement to pay her twenty-five (25) dollars a week and that thereafter she considered the assault and battery incident closed as far as she was concerned’ and that she looked to the defendant for these payments each week for the rest of her life. She also testified that she intended to hold the defendant to this agreement only until she went back to work. There was evidence that the payments in accordance with the agreement were made until February, 1937.

The defendant contends that his defence of accord and satisfaction has been proved, as matter of law, by the testimony of the plaintiff which is binding upon her. In other words, he contends that a finding was required by the plaintiff's testimony that she accepted the defendant's agreement itself as an accord and satisfaction of her claim against him.

In determining whether or not there was error in refusing to direct a verdict for the defendant, the plaintiff is entitled to have the evidence viewed in the aspect most favorable to her, and, ordinarily she is not estopped from relying upon the testimony of other witnesses which is more favorable than her own in establishing the liability of the defendant. Hill v. West End Street Railway Co., 158 Mass. 458, 459, 33 N.E. 582;Whiteacre v. Boston Elevated Railway Co., 241 Mass. 163, 134 N.E. 640;Horneman v. Brown, 286 Mass. 65, 70, 71, 190 N.E. 735;Topjian v. Boston Casing Co., Inc., 288 Mass. 167, 192 N.E. 507. The rule is of general application. A plaintiff might honestly be mistaken in his narration of the physical facts constituting his cause of action and may properly ask a jury to find as true the facts as set forth in the testimony of the other witnesses. But he has no such right to ask the jury to disbelieve his testimony concerning his knowledge, motives, purposes, emotions or feelings-matters concerning which he alone can have any personal experience or information and upon which he should be able to speak with reasonable assurance of the truth. Testimony of that character is binding upon the party who gives it. Laffey v. Mullen, 275 Mass. 277, 175 N.E. 736;Butler v. Graves, 284 Mass. 84, 85, 187 N.E. 115;Germaine v. Boston & Albany Railroad Co., 298 Mass. 501, 11 N.E.2d 447;Ramseyer v. Conlon, 303 Mass. 270, 21 N.E.2d 272;Beebe v. Randall, 304 Mass. 207, 210, 211, 23 N.E.2d 142; 9 Wigmore, Evidence, 3d Ed., 2594a.

The testimony of the plaintiff as to her intentions in accepting the agreement to settle her claim for damages by weekly payments by the defendant to her comes within the decisions last mentioned and is binding upon her. But in so far as it is material our inquiry is as to the meaning and effect of her testimony as a whole in relation to the contract between her and the defendant. If the fair import of the testimony is that the parties to the agreement understood and accepted the agreement itself as accord and satisfaction for her claim, then her claim has been discharged. Wood v. Sherer, 186 Mass. 562, 71 N.E. 947;Tuttle v. Metz Co., 229 Mass. 272, 118 N.E. 291;White Sewing Machine Co. v. Morrison, 232 Mass. 387, 122 N.E. 291. But an agreement in the nature of an accord, made to avoid litigation, by payments to be made in the future will not constitute a satisfaction of the claim if the parties intended that the claims was not to be discharged until all the payments had been made. An intention that the agreement shall be both the accord and satisfaction is unusual. Banionis v. Lake, 289 Mass. 146, 193 N.E. 731; 6 Willison, Contracts (Rev.Ed.) §§ 1841, 1846. Am. Law Inst. Restatement: Contracts, § 419. Where the parties relied not...