Woodrow v. Mansfield , 106 Mass. 112 ( 1870 )

Wells, J.

This action is for the possession of chattels, alleged to be the property of the plaintiffs, and unlawfully taken or detained by the defendant’s testator: That was the “ cause of action in issue and on trial.”

The defence relied upon a contract of sale and purchase effected through Razoux as agent of the plaintiffs. That contract was in issue and on trial. It involved two questions: First. Was the alleged contract made ? Second. Had Razoux authority to make it ? The second question was within the issue; and was perhaps the main question upon which the controversy turned. But it was not the “ contract in issue and on trial.”

Regarding either the contract or the cause of action in issue and m trial, the original parties thereto were the defendant’s testator on one side, and the plaintiffs, not their agent Razoux, on the ither.

The St. of 1865, a. 207, does not apply; and the St. of 1870, c. 393, was not in force when these exceptions were taken. We cannot overrule them because upon a new trial, as the law now stands, the parties will be competent witnesses. The defendant had the right to have the case tried according to the law existing at the time ; and we cannot assume that, in view of the law as it now is, no harm has come to him from the admission of testimony which at the time of the trial was incompetent.

As a new trial must be ordered upon this ground, we do not deem it necessary to decide the questions arising upon objections to particular instructions given to the jury.

Exceptions sustained.