Gardner v. Peaslee , 143 Mass. 382 ( 1887 )

Field, J.

There was evidence for the jury that Richard Peaslee and Charles H. Peaslee hired the premises of the plaintiffs, and entered into possession as their tenants. The court ruled, as matter of law, that there was not sufficient evidence to warrant the jury in finding that Morrill was a joint contractor with the Peaslees; and also ruled that, if the contract of hiring was in fact made with Morrill as the agent of the Peaslees, the action could not be maintained. Neither party excepted to these rulings, and it must therefore be taken that the jury found that Morrill was not a joint contractor with the Peaslees, and did not hire the premises as their agent. Under this state of facts, the proof by the plaintiffs of their claims against the estate of Morrill in insolvency, which were the claims on which these suits were brought, does not affect their right to proceed against the Peaslees. On the facts found, Morrill was never their debtor, either severally or jointly with the Peaslees,- and the plaintiffs never had the right to elect to hold him as their debtor, and the proceedings by the plaintiffs against his estaté are proceedings against the estate of one who is a stranger to the transaction. It is immaterial whether the ruling that the requests numbered three and four were not seasonably made is erroneous or not, because they ought not to have been granted.

Exceptions overruled.