210 Mass. 185 | Mass. | 1911
This was an action to recover for wood sold and delivered by the plaintiff to Lydia H. Miles, the defendant’s testatrix. At the trial the plaintiff proved the delivery of the wood and that he had not been paid. The only defense relied upon was that the wood had been delivered under a special contract between the plaintiff and Mrs. Miles, the testatrix, and that the contract had been fully performed by the latter. Before rehearsing the terms of the alleged contract it will be convenient to state the circumstances under which it was made.
There was evidence that in January, 1896, Mrs. Miles and her sister Clarissa Hall, being then the owners of an undivided half of a certain farm, caused a deed to be made purporting to convey
It is urged by the plaintiff that there was no evidence that the agreement was made before the deed was recorded, and that if it was made after the recording it was without consideration. But the verdict shows that under the instructions the jury must have found that the agreement was made before the deed was recorded, and there was ample evidence to support such a finding. It is further urged by the plaintiff that “ the recording of the deed by the testatrix could not in any event be adequate consideration for the alleged promise, because if the deed was delivered to Orville in his lifetime, she had no control over it or interest in it, and if it was not delivered in his lifetime, she could not make a delivery to him after his death which would pass - title or be a valuable consideration for the alleged promise.”
In considering this objection it is to be noted that the deed was duly executed and acknowledged in January, 1896, several
Several exceptions were saved to the ruling of the presiding judge as to the admission of evidence. The deed and will of Orville Hall were properly admitted. Each tended at least to show the interest the plaintiff had in the apparent record title. The other exceptions to the. rulings upon evidence are not argued upon the plaintiff’s brief and in view of their nature we consider them waived.
Exceptions overruled.
By Crosby, J.