Barden v. Felch , 109 Mass. 154 ( 1872 )

Chapman, C. J.

The land in dispute was conveyed by William D. Eeed to Daniel Constantine March 13, 1861. It is described as having four sides. But it is part of a larger tract, consisting of one and a half acres, and described in several deeds. The defendant asked the court to rule that, by the description of the one and a half acre lot in these deeds, it was a triangle. But it is described as bounding on several highways, the courses and boundaries of which are not accurately defined, and also on land of Phineas Nutting, the boundaries of which are not stated. Therefore the question whether the lot was a triangle depended not merely on the language of the deed, as to which no question arose, but upon the application of that language to other evidence, some of which was contradictory. It was a question of fact, and was properly left to the jury. It would have been erroneous for the court to rule as requested.

There was contradictory evidence as to the assault and battery. According to the plaintiff’s evidence, it was the joint act of the defendant and his servant. But according to the defendant’s evidence it was an act of the servant in self-defence, and contrary to the defendant’s express command. The defendant requested the court to rule “ that he was not responsible for the act of the servant, if done contrary to his express command.” But we think this ruling was rightly refused. Instead of it, the court gave correct instructions. After stating correctly the legal rights of the parties, the court ruled “ that, if the defendant was wrongfully maintaining his entry by force, and employing his servant so to do, he was liable for the act of his servant in maintaining such entry, although the servant used more force than he was authorized by the master to do ; and that the plaintiff, if in the right, could only use reasonable force in expelling the defend-int, who was not liable for repelling unreasonable force.” These instructions were all that the case required. Much depended on the question of title; and if the defendant was using force wrongfully, and employing his servant to assist him in doing a tortious act, his general purpose, the fact of his presence, his silence while the acts of violence were done, and his whole deportment during the assault and battery by his servant, would be as significant as his previous direction to the servant not to touch the plaintiff. The facts as reported would authorize the jury to find the defendant guilty, notwithstanding that direction.

Exceptions overruled.