Walker v. Moors

• Decision Date: 04 May 1877
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George W. Walker & another v. J. B. Moors

122 Mass. 501

George W. Walker & another v. J. B. Moors

Supreme Court of Massachusetts

May 4, 1877

Argued March 13, 1877

Suffolk. Contract upon an account annexed for goods sold and delivered. At the trial in the Superior Court, before Gardner, J., the jury returned a verdict for the plaintiffs and the defendant tendered a bill of exceptions, the material parts of which were as follows:

The defendant offered evidence tending to show that he did not order the goods, but that the contract was made by George W Meserve with the plaintiffs, who did business in Boston.

The plaintiffs contended that Meserve was of such pecuniary credit at the time of the sale that they would not have sold the goods to him, and, for the purpose of showing that Meserve's credit was not good at that time, offered as a witness one Pond, who testified that he was a member of a firm in Boston in the same kind of business as the plaintiffs, and was acquainted with Meserve. In reply to the question, "Did you know what his reputation for credit was?" he answered, under the objection of the defendant, "With us, it was not good;" and in answer to the question, "In the trade in Boston, as far as you know, what was his reputation?" he answered, "It was not good." On cross-examination, the witness said that he never heard Meserve's reputation for credit called in question except by members of his own firm.

The defendant requested the judge to rule that the fact, that the witness Pond testified that he never heard Meserve's credit questioned by other firms in the trade, rendered him an incompetent witness as to the general financial standing of the witness Meserve. The judge declined so to rule; but instructed the jury that they must take the testimony as given upon the stand, and consider it; that the evidence as to Meserve's pecuniary credit was to be considered by them only upon the point as to whether the sale was made by the plaintiffs to Meserve or the defendant; that they must be satisfied from all the evidence that Meserve was a man whose credit was bad, that he had no financial credit in the community, and that his reputation as to credit was bad and reputation is what his neighbors say of him, what is generally talked of concerning his credit.

The defendant, being aggrieved by the above rulings and refusals to rule, and the admissions and rejection of testimony, excepted to the same, and prayed that his bill of exceptions might be allowed.

On this bill of exceptions the judge wrote and signed the following certificate, dated June 27, 1876: "The verdict in this case was returned into court, April 12, 1876. On June 22, 1876, and before the term had closed, the defendant presented to me the above bill of exceptions, the same not having been filed, with the following indorsement thereon: This may be filed as of proper date. Cyrus Cobb, Attorney for Plaintiffs.' No application has ever been made to me to extend the time for filing this bill, and none has been granted. I have examined the above bill of exceptions and find them conformable to the truth. If, by the statutes and the thirty-sixth rule of the Superior Court, I am empowered, upon the above statement of facts, which I submit to the judgment of the Supreme Judicial Court, to allow the above bill, I do hereby allow the same, and for the reason above set forth I order that the same be filed."

The court ordered the question, whether this court had jurisdiction of the exceptions, to be first argued.

Exceptions sustained.

H. W. Paine & J. M. Baker, for the defendant.

N. Morse & C. Cobb, for the plaintiffs.

Gray C. J. Lord, J. Endicott, J., Ames, JJ. absent.

OPINION

Gray C. J.

The court, upon consideration of the question presented by the judge's certificate upon the bill of exceptions, is of opinion that the object of the provision of the Gen....