144 Mass. 409 | Mass. | 1887
Having proved the order, it lay upon the plaintiff to prove the acceptance of it by the defendant, and that there was something due from him to Campbell. For the purpose of proving the acceptance, he offered in evidence the
It is contended for the defendant, that the evidence was immaterial, because the finding of the court that there was nothing due from the defendant to Campbell made acceptance of the order immaterial. After the rejection of the evidence, in the course of the trial, the plaintiff offered other evidence, which was incompetent and was properly excluded, for the purpose of proving that there was enough due from the defendant to Campbell to meet the order. There was no other evidence offered by either party upon the question whether anything was due from the defendant to Campbell, and there was no evidence before the court that anything was due. Hence the special finding.
The offer to prove an agreement between the attorneys in the former suit seems to have been properly excluded. It is not sufficiently definite and certain to show any admission by the defendant’s attorney. It appears to have been an agreement by the plaintiff’s attorney to deduct from any verdict in his favor the amount of the present order, with others, and to take judgment only for the balance. It does not appear that the defendant’s attorney did anything more than to receive the voluntary promise of the plaintiff’s attorney. It is not sufficient to prove any admission by the defendant’s attorney, much less any by which the defendant himself should be affected.
The judgment offered was res inter alios, and was properly excluded. Exceptions sustained.