Dows v. Swett, 127 Mass. 364

Dows v. Swett

127 Mass. 364 | Mass. | 1879

Soule, J.

When this case was first before us, 120 Mass. 322, the decision turned on the form of statement in the bill of exceptions, as distinctly appears in the opinion of the court. The construction given to the exceptions was that the finding in favor of the plaintiff was based solely on the oral promise of the defendant to pay Robinson’s note, to the exclusion of all consideration of the a .-her circumstances of the transaction; the court *366saying, in the opinion, that the finding assumed that the defendant’s previous liability had been settled and discharged by the giving and receiving of the note of Robinson, and that, on this state of facts, the promise of the defendant was a collateral promise, and within the statute of frauds. The decision goes no farther than this, and does not deal with the case which is presented when the facts show that the principal object of the transaction is the payment of the defendant’s debt. That case is carefully excluded from the decision.

The finding of the Superior Court in favor of the plaintiffs having been set aside by the order of this court in sustaining the defendant’s exceptions, the case stood in the Superior Court as if it had never been tried, precisely as a case which has been tried by a jury stands after exceptions to rulings at the trial have been sustained. The plaintiffs were therefore entitled to present their evidence and obtain such finding as it should appear to the presiding judge to warrant. There is no presumption of law that the evidence would be identical with that given at the first trial, nor that the findings would coincide in all particulars with the findings at the first trial. Robinson v. Trofitter, 106 Mass. 51.

The plaintiffs’ declaration contains inconsistent counts. The first count is founded on the' oral promise of the defendant to pay Robinson’s note. The second is founded on alleged fraudulent representations of the defendant, by which the plaintiffs were induced to exchange the defendant’s due bill for Robinson’s note. The third count is on the defendant’s due bill. The first count is on the contract; the second is in direct repudiation of the contrae!; and the third is in repudiation of the contract, being founded on the due bill which was given up when the contract was made, and can be in force only on the theory that the contract was fraudulent, and not binding on the plaintiffs, and therefore the title to the due bill remains in them. Such joinder of inconsistent counts may be taken advantage of by demurrer, and when this is not done the court may properly, on motion, compel the plaintiff to elect on which count he will proceed, and order the other stricken out, or a verdict to be returned for the defendant thereon, or, when the trial is without a jury, find for the defendant thereon. Mullaly v. Austin, 97 Mass. 30. Had this course been taken at the first trial, the second and third *367counts of the declaration would have been finally disposed of. But there was no verdict nor finding for the defendant, and the counts were not stricken out.

The consequence is, that, though the plaintiffs waived all claim to a verdict in their favor on those counts, they remain a part of the record, and their rights with regard to them were at the second trial precisely the same as if the case had not been tried befóre. Exceptions sustained.