Sullivan v. Sheehan , 173 Mass. 361 ( 1899 )

Barker, J.

It is conceded that the jury has found, under correct instructions, that the money for which the plaintiff sues was his property, and the present contention is as to the instructions given to the jury upon the question whether or not the plaintiff can recover for that portion of his money which the defendant spent in company with the plaintiff "going about from place to place, and drinking and squandering money.

The finding of the jury shows that the arrangement between the parties was as claimed by the plaintiff, and that the defendant was to care for the plaintiff as well as to take charge for him of his money, the plaintiff being an old' man with no relatives in this country except a brother in St. Louis, and having gone to spend the remainder of his life with the defendant and under his care.

The instruction requested by the defendant need not have been given in any event in the terms requested, if the jury were correctly and sufficiently instructed upon the law involved in the request. We think that, under the circumstances of the case, an instruction that if “ all the money . . . was expended by the defendant in the plaintiff’s presence, and with his knowledge and consent, whether in debauch or otherwise,” the plaintiff could not recover, would have been liable to mislead the jury and to induce' them to suppose that any money which the defendant spent in the presence of the plaintiff, and with his knowledge and consent, must be treated as in effect repaid by the defendant, whereas to have the effect of a payment it would be necessary that the plaintiff should under- ' stand and assent that such was to be the effect.

Unless the word “ benefit,” which occurs twice in the latter portion of the charge, was understood to mean more than is meant by the broad word “ use,” the charge as given was sufficiently favorable to the defendant. We think that if the defendant thought the use of the word “ benefit ” ambiguous or objectionable, he should have called the attention of the presiding justice specifically to the point, and that he cannot now complain of the use of the word under his general exception. The charge stated the law plainly and correctly, that if the money was spent in that way at the request of the plaintiff, he knowing what he was doing and intending it, that would be such a disposition of the money that the plaintiff could not afterwards claim to have it paid back; but if the plaintiff did not in any way acquiesce in that disposition of the money as a part of the repayment to him, or as a gift to the defendant, then it should not be deducted. The rest of that portion of the charge excepted to is not inconsistent with this statement of the law, construing the phrases “ the mutual benefit of the two ” and “for the benefit of the plaintiff” in their ordinary legal sense. It was certainly correct to say that if the defendant had the money wrongfully of the plaintiff “ he does not pay it because he treats "him and gets him drunk. That is not payment of the plaintiff; it is only an abuse of the plaintiff with the plaintiff’s own money.” Exceptions overruled.