199 Mass. 15 | Mass. | 1908
The court rightly admitted the auditor’s re
_ _ And the previous order of the judge refusing to discharge the auditor’s report must be affirmed. It does not appear that the judge found any of the alleged facts stated in the reasons assigned in the defendant’s motion to be true. So far as any of them may have existed, they were addressed solely to the discretion of the court. Craig v. French, 181 Mass. 282. Tripp v. Macomber, 187 Mass. 109, 110. Allwright v. Skillings, 188 Mass. 538. Hart v. Brierley, 192 Mass. 147. There was here no agreement that the auditor’s findings of fact should be final, and the rule of Pettey v. Benoit, 193 Mass. 233, is not applicable.
The exclusion of the question put to Mr. Feely was proper. Even if the defendant’s reputation for truth and veracity had been put in issue, this question would not have been competent. Commonwealth v. Kennon, 130 Mass. 39. The argument that the question should have been admitted to contradict the finding of the auditor as to “her inability to speak the truth on any topic even to her own counsel,” rests upon a misconception of the report. The auditor was speaking of the difficulties thrown in the plaintiff’s way while acting as counsel for the defendant by reason of her untruthfulness to him, among other.causes; and when he mentioned her counsel he manifestly referred to the plaintiff, who at the time spoken of had been the defendant’s counsel. Testimony that she had told the truth to Mr. Feely could have of course no bearing upon the question whether she had been unable to tell the truth to her former counsel.
The statement which it was agreed would have been made by Mr. Justice Fessenden was rightly admitted to meet the argu
The hypothetical question put to the plaintiff’s experts was properly admitted with the restriction put upon it by the judge. Anderson v. Albertstamm, 176 Mass. 87. Commonwealth v. Tucker, 189 Mass. 457, 477. If the defendant’s counsel desired to stand upon the distinction between the word “ may ” as used by the judge, and the word “ must,” he should have called this explicitly to the judge’s attention. And for the same reason the defendant’s exception to the ruling made in the charge to the jury as to this hypothetical question must be overruled.
We do not find any error in the instructions given to the jury. The duty of the plaintiff to the defendant as his client was clearly and fully stated. Whether it was or was not against the interest of the defendant that her sister should join in the petition for the defendant’s removal from her position as the executrix of her father’s will does not appear from anything in the bill of exceptions. It may have been for the defendant’s advantage to have the objections of all parties considered and decided in one petition. This whole matter was fairly left to the jury.
The exception to the instruction that it must be assumed that the auditor, as an officer of the court acting in a judicial capacity, had acted in a proper manner, has not been argued; and we treat it as waived. We cannot doubt the correctness of the ruling.
It is not necessary to consider separately those exceptions to the charge which are not disposed of by what has been said. The subject matter of all of them was properly left to the jury, with full and explicit instructions. We have carefully considered all the suggestions made by counsel, and find no error in the way that the case was submitted to the jury. The order denying the defendant’s motion to discharge the auditor’s report must be affirmed, and the exceptions must be overruled.
So ordered.
