Wheeler v. Hanson

• Decision Date: 18 May 1894
• Citation: 161 Mass. 370,37 N.E. 382
• Parties: WHEELER v. HANSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 370

37 N.E. 382

WHEELER v. HANSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1894

The following are defendant's exceptions:

"The plaintiff called as a witness one Fred C. Ingalls, clerk of the municipal court of the city of Boston for the transaction of criminal business, who was allowed by the court, against the defendant's objection, but upon plaintiff's agreement to produce further evidence, to read the complaint and the docket entries of said court in relation thereto. Said Ingalls was also allowed to testify against defendant's objection, that, according to the usual custom and practice in said municipal court for criminal business, he caused the document hereinafter mentioned by the witness Sughrue, as purporting to be an attested copy of a complaint, to be made as and for an attested copy of the complaint, a copy whereof is hereto annexed, the same being numbered 1,273, and transmitted to the clerk of the superior court for criminal business; and the defendant excepted thereto. The plaintiff also called one John R. Campbell, assistant clerk of said superior court within and for the county of Suffolk for the transaction of criminal business, who was allowed by the court, against the defendant's objection, to read the record of said criminal court for the March term, 1892 thereof, which terminated March 31st, which record showed that among the 'No bills' returned by the grand jury for said term was the following: 'Commonwealth v Charles P. Wheeler, embezzlement,'--and also to testify that neither the name of Charles F. Wheeler nor Charles P Wheeler appeared on said record, among those against whom the grand jury found indictments at said March term; to all of which the defendant excepted. It did not appear from said record that the grand jury found 'No bill' against Charles F. Wheeler at said March term, and no record or other evidence was introduced to show any action by the grand jury at any other term relating to any criminal proceedings against the plaintiff in this action. The plaintiff was allowed, against the defendant's objection, to testify that he was present at the reporting of the grand jury for said March term, that he heard the announcement of 'No bill' found against Charles P. Wheeler, and that thereupon he was discharged, and permitted to go without day, by said court, upon said complaint for said alleged embezzlement; and the defendant excepted thereto. The plaintiff also produced Michael J. Sughrue, assistant district attorney for the county of Suffolk, who was allowed, against the defendant's objection, to testify that he acted in his official capacity before the grand jury at said March term, and that there were witnesses, including this defendant, there present, in relation to what purported to be an attested copy of a complaint and the indorsements thereon, being exactly similar to the copy of complaint and the indorsements thereon, hereto annexed, marked 'A,' except that, in said copy and indorsements thereon, Charles P. Wheeler was stated as the name of the defendant, and which was on file in said superior court at said March term, and upon which he presented the evidence to the said grand jury upon which said return of 'No bill' was made, and to read said copy of complaint and indorsements to the jury in this action; to all of which the defendant excepted. The defendant admitted that he testified, with other witnesses, before said grand jury, at said March term, with reference to said alleged embezzlement, substantially as he and they had in the municipal court, under the complaint against said Charles F. Wheeler. The plaintiff testified that he was a watchmaker by trade, and that about the last of April, 1891, he made an agreement to work for the defendant in a jewelry store owned by the latter at 890 Tremont street, in Boston, and continued thereunder in his employ until January 21, 1892, when a new agreement in writing was entered into between them, by virtue of which the plaintiff was to receive, in lieu of wages and other compensation, all that he received for the sale of the goods over and above the prices at which the same were entered, in duplicate, in two books, one to be retained by each party, each containing a duplicate of said agreement; that the defendant was not in the store much of the time; that the defendant was desirous of selling said store, and at about said time had advertised it, and had informed the plaintiff that if he could find a customer therefor, for the price of $1,000, he would pay him a commission, and that he might sell the store in his own name; that the plaintiff was applied to by Dixon & Co., brokers, and in pursuance thereof authorized them to procure such customer, and that through them he was introduced to one Chas. A. Smith, with whom he negotiated a sale of said store at said price, in exchange for a tract of land in the town of Millis, with the understanding that said Smith might have a reconveyance of said land by paying $1,000 within thirty days thereafter, and that during said negotiations the defendant was notified thereof, and assented to said exchange, authorized the plaintiff to take a deed of the land in his own name, and subsequently ratified the same; that the bargain with said Smith was agreed to two or three days before February 5, 1892, and that an appointment was made between him and said Smith to meet at the broker's office, and execute a bill of sale and deed to consummate the bargain, provided said Hanson gave his consent, and that, said consent having been given, they both met on said day at said office, and there the plaintiff executed, in his own name, and delivered to said Smith, said bill of sale, and said Smith executed and delivered to the plaintiff a deed to him of said land, the consideration in each being stated as 'one dollar and other valuable consideration,' and at the same time the plaintiff executed and delivered to said Smith an agreement, by virtue of which said Smith acquired an option to demand a reconveyance of said land upon the payment within thirty days of the sum of $1,000; that he immediately sent the deed to Dedham to be recorded, and that thereupon they went with said Dixon to said store, and the plaintiff delivered possession thereof to them, and that said Dixon, at said Smith's request, procured a padlock, and fastened the door of said store with the same, 'to keep the other man out,' it having been stated before said February 5th, by said Wheeler to said Smith and Dixon, that 'there was another party interested, whose consent must be obtained,' though the name of the defendant (the party referred to) was not stated. He further testified that no goods were removed by him (plaintiff) from said store, but that he had compared the goods in the store with the schedule, and found the same were all there at the time of said delivery.

"The said complaint was made, and the warrant thereon issued, and the plaintiff arrested by virtue thereof, on the 12th day of said February; and his premises were searched, by virtue of a search warrant, and the said book of the defendant was there found, which the plaintiff testified he had taken home, for the purpose of safe-keeping, at the time of said delivery of possession, as well as certain articles of jewelry, which the plaintiff testified were reserved by him from said store with the defendant's consent, to offset the value of some tools belonging to the plaintiff, and included in said bill of sale. It appeared that the plaintiff, when arrested, was conveyed to the Tombs, and on the next day committed to jail; that on the 18th day of said February the plaintiff was in court and, by his attorney, filed a motion to dismiss the complaint, which the court overruled, and, upon hearing, the plaintiff was ordered to recognize in the sum of $800, with sureties, to appear and answer at the March term of the superior court for criminal business, then next ensuing, and, failing so to recognize, was again committed to jail, where he remained a week in all, and then so recognized. The plaintiff, against the defendant's objection, was allowed to show that he paid $50 to the sureties who went upon his recognizance, and also the same sum for counsel fees in the defense of the complaint in the municipal court; and the defendant excepted thereto. The plaintiff testified that after said hearing he endeavored to procure employment, and was allowed, against the defendant's objection, to testify that he applied at the store of one Percival, a dealer, to purchase tools on credit, and that the salesman to whom his application was made refused him credit because he said 'he heard he [plaintiff] had been in jail on account of that jewelry store on Tremont street,' and that he made similar application, and met a similar refusal, at the store of one Myers, but could not say whether the person he talked with was Myers, or some one else, who asked whether 'he was the man that was arrested;' to all of which the defendant excepted. The plaintiff was also allowed, against the defendant's objection, to testify that, by reason of said goods reserved by him having been taken from him on the search warrant, he was unable to procure tools, without which he could not obtain employment, and to testify as to what tools a watchmaker must have to obtain employment, and stated, in substance, the same tools as he had included in said bill of sale; and the defendant excepted thereto. The plaintiff further testified, as evidence of his damages, that under the arrangement prior to January 21, 1892, he had been earning from $18 to $20 per week, and that, excepting small, irregular jobs, it was five and one-half months after his arrest before he got employment; that then, and after the bringing...