Hill v. Crompton , 119 Mass. 376 ( 1876 )

Devens, J.

Upon an answer denying each and every allegation in the plaintiff’s declaration, the plaintiff is bound to make out his case, and all the facts necessary to be proved by him for this purpose are put in issue. Davis v. Travis, 98 Mass. 222. While the defendants pleaded nothing in avoidance or discharge of the liability, which the plaintiff sought to impose upon the estate of their testator, but simply negatived the averments of the declaration, they were entitled by any appropriate evidence to meet" that offered by the plaintiff, and thus disprove their liability. Under an answer denying the making of a promissory note, an alteration since it was signed may be proved. Lincoln v. Lincoln, 12 Gray, 45. And a defendant in replevin, under an answer denying the plaintiff’s title and right of possession, may prove property in himself. Verry v. Small, 16 Gray, 121. Hawes v. Ryder, 100 Mass. 216, and cases cited.

The matter in controversy related to the liability of the defendants’ testator for services and disbursements in a suit brought by the plaintiff against the Newburg Woollen Company, and he relied upon the testimony of one Lawrence that Cleveland had before that suit was brought agreed to pay for the expenses thereof. It was shown by the testimony of Mr. Rice, that while that suit was pending, and while Lawrence was acting for the plaintiff at the time of taking a deposition, Cleveland informed Lawrence in his presence that Rice was to act for him in his matters, that he wanted Rice to understand that he had nothing to do with the Newburg Woollen Company, or any suit that was to be or had been brought against that company; that the business was transacted with Hill & Chapman, that he never had any transactions with the Newburg Woollen Company, to which Lawrence made no reply. Cleveland afterwards added, according to the testimony of witness, “that he had not long to live, and wanted us to know about it.” The jury were instructed by the judge to disregard this statement, unless Lawrence had authority to act for the plaintiff as to the matter in reference to which it was made. This ruling was sufficiently favorable to the plaintiff. Lawrence was a witness for him as to the vital question in the case, namely, whether Cleveland had ever become responsible for these expenses, and had testified that in a certain contingency Cleveland had agreed thus to become responsible. It was competent to contradict him by showing that he had made statements inconsistent with his testimony, and it was also competent to do this by showing that he was silent when statements inconsistent with it had been made in his presence. It was for the jury to determine whether he understood them, had the opportunity to reply to them, could properly have done so, and generally whether he so conducted himself that by his silence he must be deemed to have acquiesced. If this were shown, it would tend to impeach him as to the testimony given in the case, as any acts or declarations of a witness inconsistent with his testimony are always admissible for this purpose. Commonwealth v. Galavan, 9 Allen, 271. Brigham v. Clark, 100 Mass. 430. As this evidence was thus admissible, it can have done the plaintiff no harm that the court only permitted it to be considered in case the jury should find that Lawrence had authority to act for the plaintiff. There is nothing in the exceptions to show that any force was given to it on that account against him.

It is not important that this declaration of Cleveland was made after suit brought, for the statement itself could not have been admitted in evidence unless it were acquiesced in, and this acquiescence, whenever made by Lawrence, tended to control his testimony.

The instruction, that according to Lawrence’s statement of the agreement the plaintiff could not recover without an attempt to settle by throwing off $400 or $500, was also correct. This was not a matter in avoidance requiring to be specially set forth as the plaintiff contends. The contract as testified to by Lawrence was not an absolute one to pay the expenses, but to pay them if the claim could not be settled by throwing off $400 or $500, and it was a part of the plaintiff’s case to show that he had made the attempt before by the contract any obligation was imposed on defendant. While Jackson stated the agreement without this qualification, and the jury or the auditor might have found that Jackson’s was the correct statement, as the plaintiff relied also on Lawrence’s statement, an instruction was necessary as to what would be required of the plaintiff if the contract were found to have been as stated by him.

No sufficient facts are presented to enable us to perceive that the court erred in matter of law in holding that the verdict had been correctly computed, or at least that there had been no error in the computation to the injury of the excepting party.

Exceptions overruled.