Quimby v. Jay

• Decision Date: 30 December 1907
• Citation: 82 N.E. 1084,196 Mass. 584
• Parties: QUIMBY v. JAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 584

82 N.E. 1084

QUIMBY v. JAY.

Supreme Judicial Court of Massachusetts, Worcester.

December 30, 1907

COUNSEL

Burton W. Potter and Paul Potter, for plaintiff.

Webster Thayer, Hollis W. Cobb, and Fred A. Walker, for defendant.

OPINION

MORTON J.

The objection that the defenses of double employment and of fraud were not open under the pleadings was taken by the plaintiff for the first time during the closing argument for the defendant. Requests for rulings to that effect were then drawn up by the plaintiff and presented to the presiding judge who declined to receive them on the ground that they were too late under Rule 48 of the rules of 1900 of the superior court which was the rule in force at the time of the trial. The plaintiff called the attention of the court to them again at the conclusion of the charge, and the presiding judge stated again that he declined to receive them because presented too late. Thereupon the plaintiff excepted to the refusal of the court to rule as thus requested. No exception was taken to the charge, or to those portions of it which dealt with the questions of fraud and double employment, unless the exception thus taken to the refusal to rule as requested can be so treated. We do not see how it can be. The case differs from that of Brick v. Bosworth, 162 Mass. 338, 39 N.E. 36. In that case there not only was an exception taken to the refusal of the court to rule as requested but also 'to the rulings of the court as made,' which was regarded by this court as saving to the plaintiff an exception to the instructions so far as they were at variance with the rulings requested. Nothing of the kind took place here. The only exception taken was to the refusal to rule as requested. There was no exception to the instructions which were given. If an exception had been taken in any form to the instructions, the plaintiff's rights would have been saved under Brick v. Bosworth, supra. Very likely the plaintiff intended by his exception to the refusal to give the rulings asked for to except also to the instructions that were given in regard to the matters to which the rulings related, and supposed that he had done so. But we must take the case as it stands and we do not see how the exception which was taken can be fairly construed to include an exception to the charge. The presiding judge had a right under the rule to decline to receive the requests and there is nothing to show that the right was improperly exercised.

Before the allowance of the exceptions the defendant moved to amend his answer by setting up fraud and double employment 'The court...