169 Mass. 578 | Mass. | 1897
We have made an effort to settle the questions at issue between the parties on this agreed statement, but we have found it impossible. Neither we nor the Superior Court can draw inferences of fact from an agreed statement. Old Colony Railroad v. Wilder, 137 Mass. 536, 538. , Yet the most important issues between the parties are left dependent upon conclusions of fact which are not drawn in the statement. The first of these is whether the plaintiff contracted on the terms of the notice. She had read it, but on the other hand she had gone to work before she had read it, so that there is a question left open, — not, to be sure, whether she inwardly assented to the notice, but whether the reasonable import of her overt acts was assent to its terms. It is true that she shows no other claim to be paid at the rate of one dollar and seventeen cents. But her action technically is to recover money due to her for other work. The work in question had been paid for, and she might recover without proving anything more than that she had done the later work and the rate at which she was to be paid. The defendant has to make out a right to deduct something from a sum admitted to have been earned.
But there is a further difficulty from which we cannot escape. Whether the plaintiff understood and by implication agreed that the payment of first quality prices was provisional, and that if there was an overpayment the amount might be withheld the next week, is a pure question of fact, which must be settled before we can reach the questions of law which we suppose the parties really wish to have decided. We think that justice would not be done if we should give judgment while the matters which we have mentioned remain open, and therefore must discharge the statement. Old Colony Railroad v. Wilder, 137 Mass. 536, 539.
Case stated discharged.
