Webb v. Hanley

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LORING, J.
• Citation: Webb v. Hanley, 206 Mass. 299, 92 N. E. 429 (Mass. 1910)
• Decision Date: 27 June 1910
• Parties: WEBB v. HANLEY.

206 Mass. 299

92 N.E. 429

WEBB v. HANLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

June 27, 1910

The following is a letter written by the plaintiff on April 29, 1967, in regard to the boat in controversy:

'Dear Charlie: Some Providence people want to buy my boat. Please quote price to build, without sails or ballast, $1,500. Will divide profits with you. Will she fit in Lipton 21 class Great Lakes? You have not said so, but suppose you got $200 draft sent you March 25th and case of whisky by express from Chicago March 29th. Best regards to yourself and Mrs. Smith.

'Yours truly.

Thos. H. Webb.

'P. S.--Secretary our company died.

W.

'April 29, 1907.'

COUNSEL

Blodgett, Jones & Burnham, for plaintiff.

J. J. McAnarney and Stephen H. Tyng, for defendant.

OPINION

LORING, J.

The letter of April 29th, taken in connection with the defendant's testimony which was admitted in evidence (that she was a racing boat and not worth anything if not fitted for racing), and also taken in connection with the testimony that was excluded (that the fitting of the boat if it was to go to Providence to race would be different from what it would be if it was to go to Chicago), might have justified the defendant in stopping work on the boat until he learned from the plaintiff whether he sold her to the 'Providence people' who wanted to buy her. See in this connection Crossan v. New York & New England Railroad, 149 Mass. 196, 21 N.E. 367, 3 L. R. A. 766, 14 Am. St. Rep. 408. But that is not what the defendant did. In the words of the bill of exceptions: 'The boat was subsequently finished by the defendant and sold by him. The proceeds of the sale were kept by him.' The letter is not a justification for the action which the defendant took.

The defendant has urged upon us that there was a mistrial in the measure of damages, and that there should be a new trial although no exception was taken to the instructions given by the presiding judge on this point. We have no means of knowing what the ruling of the judge on the measure of damages was. For that reason it is not necessary to consider whether the remark of Bigelow, C.J., in Bond v. Bond, 7 Allen, 1, 6, relied on by the defendant, is not to be taken to apply to a motion for a new trial, as was the case in Ellis v. Ginsberg, 163 Mass. 143, 39 N.E. 800, also relied on by him.

Exceptions overruled.