Sawyer v. City of Boston

• Decision Date: 09 May 1887
• Parties: SAWYER v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 470

11 N.E. 711

SAWYER v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1887

COUNSEL

A.J. Bailey, for defendant.

All the circumstances and facts bearing upon the lots, the sales of which were offered in evidence, are set forth and reported in the bill of exceptions, and evidence of sales of land similarly situated are inadmissible where there are circumstances bearing on the values which would tend to mislead the jury. Paine v. Boston, 4 Allen, 168-170; Boston & W.R. Corp. v. Old Colony R. Corp., 3 Allen, 142; Presbrey v. Old Colony & N.R. Co., 103 Mass. 9. The sales to the respondent, offered in evidence, were in no way compulsory, and the evidence of them was improperly excluded, and the court erred in instructing the jury as set forth in the exceptions. Wyman v. Lexington & W.C.R Co., 13 Metc. 326; Walker v. Old Colony & N.R.R., 103 Mass. 10; Whitman v. Boston & M.R. Co. 7 Allen, 316. The court had no jurisdiction to determine the value of the first lot of land described in the petition and the want of jurisdiction might be taken advantage of at any time before judgment, (Riley v. Lowell, 117 Mass. 77; Custy v. Lowell, Id. 78; Osborn v Fall River, 140 Mass. 508, 5 N.E. 483;) and where the court has no jurisdiction in one count of a declaration, and the verdict is general, the verdict must be set aside. Benson v. Swift, 2 Mass. 53; Stevenson v. Hayden, Id. 406; Barnes v. Hurd, 11 Mass. 60.

R.M. Morse, Jr., and M. Story, for petition.

Brief for Petitioner on Bill of Exceptions. The evidence of sales offered by the petitioner was rightly admitted. Wyman v. Lexington & W.C.R. Co., 13 Metc. 316, 326; Benham v. Dunbar, 103 Mass. 365; Gardner v. Brookline, 127 Mass. 358. The sale of Jacob Foltler's land to the city for park purposes, and the price paid by the city, were properly excluded. It is in fact a settlement, and not a sale, and is not competent evidence. Wyman v. Lexington & W.C.R. Co., ubi supra; Cobb v. Boston, 112 Mass. 181. Whether the particular sale will aid the jury, or whether the time of sale, the situation of the land, or the circumstances are such as to make it likely to mislead them, are questions largely within the discretion of the presiding judge. Shattuck v. Stoneham B.R.R., 6 Allen, 115, 117; Presbrey v. Old Colony R. Co., 103 Mass. 1, 9; Green v. Fall River, 113 Mass. 263; Boston & W.R. Corp. v. Old Colony R. Corp., 3 Allen, 142, 145; Chandler v. Jamaica Pond Aqueduct Corp., 122 Mass. 305. The instruction in regard to interest was correct. Parks v. Boston, 15 Pick. 198, 208; Burt v. Merchants' Ins. Co., 115 Mass. 1, 3, 4; Frazer v. Bigelow Carpet Co., 141 Mass. 126, 4 N.E. 620.

Brief for Petitioner on the Motion in Arrest. A motion to arrest lies only where the whole record is not legally sufficient to support a judgment. Gould, Pl. 459. The statute of limitations must be pleaded, and, if this is not done, the record does not show that such a bar exists. 1 Chit.Pl. c. 7, p. *471; Emmons v. Hayward, 11 Cush. 48; Middlesex Co. v. Osgood, 4 Gray, 447, 448; Pub.St. c. 167, § 20, p. 967. The respondent's petition cannot be stronger after failing to plead the statute than if the record showed such a plea. Smith v. Cleveland, 6 Metc. 332, 334. The fact existed before verdict, and no judgment can be arrested for a cause existing before verdict, unless such cause affects the jurisdiction of the court. Pub.St. c. 167, § 82; Custy v. Lowell, 117 Mass. 78. See Brown v. Webber, 6 Cush. 560; Barry v. Page, 10 Gray, 398; Emery v. Osgood, 1 Allen, 244; McLaughlin v. Cowley, 127 Mass. 316, 321. The court cannot arrest judgment on one part of this petition. Lambert v. Craig, 12 Pick. 198; Connecticut River R. Co. v. Clapp, 1 Cush. 559; Roberts v. Rockbottom, 7 Metc. 46, 49. In brief, therefore, it is legally impossible to sustain the respondent's motion, because it is neither within the power of this court to dismiss the whole petition, or, what is in effect the same, to refuse any judgment upon it, nor to divide the verdict, nor to set it aside.

OPINION

HOLMES J.

1. Evidence of sales of lots situated like the petitioner's land was not incompetent merely because those were small and the latter large. So far as appears, the petitioner's land could be cut up and used for house lots without trouble. We see no reason to doubt that the discretion of the court was exercised rightfully. Gardner v. Brookline, 127 Mass. 358, 363; Chandler v. Jamaica Pond Aqueduct Co., 122 Mass. 305.

2. Nor can we say that the exclusion of the price paid by the city for Foltler's land was wrong. The settlement was made when it was apparent that, if Foltler did not agree with the city, his land would be taken for the park, and, so far as appears, the case is like Cobb v. Boston, 112 Mass. 181.

3. An expert who had testified to value gave as one of his reasons the price paid for the Foltler land, and stated it. The court in its charge instructed the jury that, "so far as [an expert's] opinion is based upon what the jury would not have the right to consider, his opinion is, of course, impaired in value for that reason." It is argued that this is wrong, and that an expert, because he is an expert, can consider and give due weight to things which a jury would not be competent to weigh. Without considering whether so refined a criticism would be ground for a new trial in any case, it certainly cannot be when, as here, the ground of excluding the sale is that it was practically compulsory, and therefore no criterion to anybody. An expert in real estate is no more competent than any one else to determine just what effect, measured in money, the dislike of litigation may have had on a given person's mind.

4. Interest was properly allowed upon the value of the land at the time it was taken. Old Colony R. Co. v. Miller, 125 Mass. 1, 3.

5. A motion in arrest of judgment was made on the ground that the petition was filed more than one year after the taking of one of the parcels described in it, and that in the mean time no suit was brought wherein the legal effect of the proceedings was drawn in question. The date when the petition was filed is not before us; but, as the petition is dated "January term, 1885," and alleges the taking to have been on May 25, 1883, we infer that the suggestion that it was filed more than a year after the taking is true. But the other fact alleged in the motion (that no suit was brought, etc.,) does not appear affirmatively from the record, and therefore it does not appear affirmatively that the petition was not filed within the time provided by the statute as an alternative limitation to one year after the taking. The language of the statute is "or *** within one year after the final determination of any suit wherein the legal effect of the proceedings *** is drawn in question." Gen.St. c. 43, § 79; Pub.St. c. 49, § 86; St.1875, c. 185, § 5. See, also, St.1874, c. 341, § 1; Pub.St. c. 49, § 89. Of course, it must appear from the record that the petition was brought too late if this motion is to prevail. But, as the fact does not appear affirmatively, the motion cannot prevail, unless it is held that the petitioner is bound to allege that he is in time, and that this petition would have been bad on general demurrer because of its failure to do so.

The rule as to the statute of limitations of personal actions is that it must be pleaded, even...