Snow v. Alley

• Decision Date: 17 January 1890
• Citation: 23 N.E. 576,151 Mass. 14
• Parties: SNOW v. ALLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 14

23 N.E. 576

SNOW v. ALLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

January 17, 1890

COUNSEL

Geo.

O. Shattuck, W.A. Munroe, E.C. Bumpus, and H.P. Harriman, for plaintiff.

Robt. G. Ingersoll, for defendant.

OPINION

W. ALLEN, J.

This is an action of tort to recover damages for the conversion of 150 bonds of the Postal Telegraph Company, which were assigned to the defendant by the plaintiff, under a written contract by which the plaintiff and one Cummins jointly and severally agreed to assign to the defendant the bonds "when the same are delivered under the contract made between Chester Snow and the Postal Telegraph Company." The plaintiff claimed to recover for all of the bonds on the ground that they were fraudulently obtained from him, and also claimed to recover for 75 of the bonds on the ground of a breach of a verbal contract. The jury found a verdict for the value of 75 bonds and stated, in reply to a question by the court, that they found on the ground of contract, and not on the ground of fraud. Of the two exceptions taken, one was to the admission of evidence of a demand upon the defendant for 150 bonds alleged to have been wrongfully obtained from the plaintiff. If the evidence had been material and competent when offered it was rendered immaterial by the verdict, and the exception seems to have been waived. The other exception is to the refusal of the court to order a verdict for the defendant upon his motion. The counsel for the defendant, in his elaborate argument, contends that there was no sufficient evidence to prove the contract relied on by the plaintiff and that there was no evidence of a demand for the bonds. The plaintiff testified to the contract, and he was corroborated by witnesses, and it is not denied that the contract was proved, if he testified truly. Whether he was to be believed, so far as it is a question for the court, is a question of the weight, and not of the sufficiency, of evidence, and is not before this court. It was settled conclusively in the court below on the motion for a new trial.

The next contention is that the verbal contract is not competent to control the written contract under which the stock was assigned, and that the evidence to prove it should be regarded as not before the jury. It might be answered to this that the evidence was admitted without objection, and that no ruling was asked in regard to it, and no objection taken to the instructions to the jury respecting it. But ...