Hale v. Rice, 124 Mass. 292

124 Mass. 292 | Mass. | 1878

Gray, C. J.

It is not denied that the exceptions were fired and presented to the judge during the term at which the verdict was rendered, and that the case was continued nisi by order of the court. The case is thus distinguished from Barstow v. Marsh, 4 Gray, 165, Commonwealth v. Greenlaw, 119 Mass. 208, and Müller v. Ehlers, 91 U. S. 249.

The objections, that it does not appear that the defendant consented to the extension of the time for filing the exceptions, and that he had no notice that they had been filed, were, like any matter of consent of or notice to the party, and not otherwise affecting the jurisdiction of the court, objections which he might waive, and, having neither been suggested in the court below, nor been assigned in this court, by way of motion to dismiss, at the term at which the exceptions were entered here, must be deemed to have been waived. In Doherty v. Lincoln, 114 Mass. 362, and Conway v. Callahan, 121 Mass. 165, objections of this nature were taken at the first term of this court.

The only other ground assigned for the motion to dismiss the* kill of exceptions is the non-compliance with the Gen. Sts. c. 115, § 8, which provides that “ the exceptions shall be restored to the files of the court within five days after the same are presented to the judge, with a certificate under his hand either allowing or disallowing the same, unless the judge finds that further time is necessary for the examination or hearing upon the same, not exceeding ten days, unless for reasons rendering more delay necessary, which shall be certified by the judge on restoring the papers.” This objection goes to the form of the judge’s certificate, which was not within the control of either party; and, being an objection in matter of form only, must also be deemed to be waived by not taking it at the first term. Indeed, it may well be doubted whether this provision of the statute is not merely directory to the judge, and whether his omission to comply with it would afford a sufficient ground for dismissing the exceptions at any stage of the case.

Motion overruled.

The case was then argued on the bill of exceptions by the same counsel.

Lobd, J.

The first objection relied upon by the plaintiff is the admission of the bonds signed by Franklin and Freeman Rice. The ground of objection is that the gift of certain notes to brothers of the defendant had no tendency to prove that the defendant did not owe the notes declared upon in the writ. If this objection were sustained by the facts reported in the bill of exceptions it would be a grave one. But such is not the case. The defendant and his two brothers had evidently been partners in business, and extensive transactions had been had between that firm and the plaintiff; and the plaintiff testified that the notes in suit had been given by the defendant in adjusting the balance of account between the firm and the plaintiff. On the cross-examination of the plaintiff, he testified to transactions with the other members of the firm in relation to their indebtedness; that he had given up notes to them, upon their agreement to pay interest thereupon during the plaintiff’s life, and that the two papers which were produced were the agreements to which othey had come. Up to this point, no objection had been made to the line of cross-examination, nor to the facts thus testified to; but, when the defendant’s counsel proposed to read the papers, the plaintiff’s counsel objected, and the presiding judge allowed them to be read. The only possible objection to the bonds at that time and under such circumstances, they being in exact accordance with the plaintiff’s testimony as to their purpose and contents of them, is their immateriality. They showed no fact which the plaintiff had not before without objection testified to. In such condition of the evidence, it certainly cannot be a ground for granting the plaintiff a new trial that the papers were allowed to be read, being thus merely a repetition in writing of what the plaintiff had testified, and which he had testified had been reduced to writing and that the bonds produced were such writings. But, if the evidence had been seasonably objected to, that and the papers were clearly competent. The plaintiff testified that the notes of the defendant sued upon were given in settlement of the balance of the debt of the partnership. The evidence and the papers tended to show that the firm indebtedness was not thus settled, but was arranged in a mode entirely different.

The only other objection taken at the argument was to the instruction given by the court at the request of the defendant. So far as appears by the bill of exceptions, this instruction was a mere abstract and speculative proposition not called for by any facts in the case. The plaintiff testified that the notes were given in settlement and adjustment of a balance of the firm’s iniebtedness to him. The defendant testified that the notes were given in order to appear to show that there was a consideration for the conveyance of certain real and personal property made by the plaintiff to him, and that subsequently to such conveyance he reconveyed all the property to the plaintiff, and that the plaintiff agreed to return the notes to him, but that they were then mislaid and that he could not find them. It does not appear that any other origin of said notes was suggested at the trial. But, whether regarded as a speculative or as a practical proposition, the ruling was right in law, for, if a debt is discharged by the voluntary act of the party, there remains no obligation which can be deemed a consideration for a promise.

But the plaintiff’s counsel now objects that, if the notes had been given by the plaintiff to the defendant, the gift was conditional, and the defendant had failed to perform the condition, and therefore the gift was void. No such question was raised at the trial, nor was the attention of the presiding judge called to any such question. The bill of exceptions does not show that there was any testimony from any source that the plaintiff required interest to be paid upon the notes in suit. The interest which was to be paid was interest upon the notes of $12,000 made by the firm, and delivered, according to the defendant’s testimony, by the plaintiff to the defendant, and retained by him. There is nothing in the bill of exceptions to show that at any time any claim was made that the notes in suit were given because there had been a failure to pay interest, either upon the notes of the firm or of the defendant. If there had been any grounds for such a supposition, the question should have been raised at the trial, and is not now open.

The only remaining suggestion of the plaintiff is that “ where a legal liability once existed which had ceased, and a moral obligation remained, an after promise to pay is upon good consideration.” If by such suggestion it is meant that a debt discharged by the voluntary act of the creditor leaves a moral obligation, which is a sufficient consideration for a new promise, as already stated, we do not understand such to be the law; if, however, nothing more is intended than the suggestion of the familiar rule, that a remedy or right barred by the operation of law is a good consideration for a new promise, the obvious reply is that no such question was made or ruled upon at the trial, nor do the facts raise any such question. Exceptions overruled.