87 Mass. 314 | Mass. | 1862
The instructions as to the burden of proof were sufficiently accurate. They required the jury to find that the plaintiffs sold and delivered the article under a contract of sale which had been fully complied with by him, in order to entitle him to a verdict. The request made by the defendant, after the charge to the jury, that they should be instructed that on the issues raised by the answers the burden of proof was on the plaintiffs, was rightly refused. Such an instruction would have been erroneous. One of the grounds of defence alleged in the answer was, that the plaintiffs had made false representations concerning the quality of the article sold, and that in consequence thereof the defendant had rescinded the contract. This was in the nature of discharge or avoidance. It admitted a sale and delivery, but set up a distinct and substantive ground of defence to the plaintiffs’ claim. Clearly this constituted no part of the plaintiffs’ case. It was new matter, which the defendant was bound to prove, otherwise the contract of sale would stand, and the defendant would be liable for the price of the article sold.
The evidence offered in reply to the testimony of Dr. Hayes was rightly rejected. At the stage of the trial which the case had then reached, no evidence, strictly speaking, was competent, except such as tended to control the evidence offered by the plaintiffs in rebuttal of that introduced by the defendant. If the evidence offered was not of this character, its admission or rejection was entirely within the discretion of the court. So far as we can judge from the statement in the bill of exceptions, the evidence which was rejected had no tendency to contradict any new fact which had been proved by the testimony of Dr. Hayes. As it was not offered to impeach or contradict him, its rejection is not a matter which can form a valid ground of exception.
jExceptions overruled.
