Robinson v. Trofitter , 106 Mass. 51 ( 1870 )

Chapman, C. J.

At the former trial the parties waived the right of trial by jury, under the Gen. Sts. c. 129, § 66, which provides that upon such waiver the cause shall thereupon be heard and determined by the court, and judgment entered as in case of verdict by a jury. By § 67, exceptions to the decisions and rulings of the court, upon matters of law arising upon such trial, may be filed by either party. Such exceptions were filed in this case by the defendant, which were heard in this court, and thereupon a rescript was sent, “Exceptions sustained.” A question is raised as to the effect of that rescript. We think it has the same effect as it would have had upon a verdict. The language of the statute seems to imply that, as the finding stands in place of a verdict, the sustaining of exceptions generally is to have the same effect upon it as it would have upon a verdict, and that it is set aside as a verdict would be. Nor can we see any reason for not treating the findings of the jury and the judge alike in this respect; for each is a mere finding of the facts in the case. In either case, exceptions may be sustained on such grounds as to induce the court to leave the verdict or finding to stand in whole or in part. But this must appear and be stated in the re-script. The reasons given for the decision of the court, as stated in the rescript, do not modify the rescript itself; and in tins case the rescript was absolute, sustaining the exceptions, and of course setting aside the finding.

Therefore, when the cause came up again for trial in the superior court, it stood as if no trial had ever been had. The plaintiff was not restrained from proving the case stated in his declaration by any evidence that might be pertinent under the pleadings. He undertook to prove that he had performed the contract on his part, but that the defendant had not conveyed the land as she had agreed to do. In his claim for damages, he did not include the sum of $200 which he had deposited with the auctioneer, but claimed only to recover for such other damages as he had suffered by the breach of the defendant’s contract to convey to him. The first trial was had at January term 1865, and the defendant offered to prove that the plaintiff had since that time, namely about July 15, 1868, rescinded the contract, and received back the sum of $200 which he had deposited with the auctioneer. This evidence was ruled out by the judge, under the pleadings. It is apparent that the fact which it was proposed to prove did not occur till after the pleadings had been filed. But by the Gen. Sts. a. 129, § 25, an answer may allege facts which have occurred since the institution of the suit, and the defendant may be allowed to make a supplemental answer, alleging material facts which have occurred or. come to the knowledge of the party since the former answer. The importance of filing such supplemental answer, when new facts have occurred or been discovered, arises from the provision in § 20, which requires that the answer shall set forth in clear and precise terms each substantive fact intended to be relied upon in avoidance of the action. It is only by means of such an allegation that an issue can be presented to the jury in regard to such fact. Therefore the judge, after inspecting the record and ascertaining that there was no fact in issue to the jury in respect to the rescission of the contract, correctly ruled that the trial should proceed, and that upon the pleadings the defendant had not alleged such defence in the answer. It is to be considered that the withdrawal of the $200 would not necessarily be a rescission of the contract; for if, as the plaintiff contends, the defendant had conveyed the land to another person, and thereby disabled herself to convey it to the plaintiff, while the plaintiff was not in fault, the plaintiff might properly withdraw his deposit, and at the same time claim damages of the defendant for the breach of her contract. If he had left the deposit in the hands of the auctioneer undisturbed, he might have included it in his claim of damages. Teaffe v. Simmons, 11 Allen. 842. As he made no claim to this sum at the second trial, it had no bearing upon the question of damages, and the ruling in respect to it was not erroneous. Exceptions overruled.