Kelley v. Riley, 106 Mass. 339

Kelley v. Riley

106 Mass. 339 | Mass. | 1871

Colt, J.

Both parties present exceptions. The defendant died after his exceptions, taken during the trial of the case to the jury, were filed in the court below, and before they were allowed by the presiding judge. The action could not be continued to summon in the administrator, because, as no special damage is alleged, it does not survive. The authority of the attorney employed by the defendant of course terminated with his death. Stebbins v. Palmer, 1 Pick. 71. Smith v. Sherman, 4 Cush. 408. The plaintiff under these circumstances excepts both to the allowance of the defendant’s exceptions, and the refusal of the judge to order judgment on the verdict, upon her motion, which was filed before the defendant’s death.

As a matter of practice, at common law, as well as under the provisions of the Gen. Sts. c. 133, § 7, and e. 115, § 14, judgment will be entered on the verdict on motion, as of a preceding day or term of the court, whenever an action, continued or postponed for the purpose of obtaining a disposition thereof, which may relieve a dissatisfied party from a verdict, would otherwise fail by the death of a party to it. So if the death occur after verdict, delay during the time taken for the argument of law questions upon which the validity of it depends, or for advisement thereon, will not be suffered to deprive one of the benefits to which he appears to have been justly entitled under it. Springfield v Worcester, 2 Cush. 52. Currier v. Lowell, 16 Pick. 170.

*342This case comes within these rules. The defendant’s exceptions were presented and filed before the death of the defendant, judgment on the verdict was thereby delayed, and the court in now rendering judgment will go back to the time when it would have been rendered if no action had been taken fco prevent it.

This all proceeds on the supposition that the verdict is one which is open to no legal objection. When objections are suggested by exceptions regularly taken and filed, then it is manifestly proper that the order for judgment, as of a prior day or term,, should not be made until the exceptions are regularly disposed of by a decision in favor of the verdict. And although technically there can be no appearance for a deceased party, yet this court will pass upon the questions so submitted, and hear suggestions as to their merits, from any one who holds the office of an attorney within the court.

The exceptions of the defendant were therefore properly allowed, and the motion for judgment properly denied, for the time, as premature.

It remains to dispose of the exceptions of the defendant, taken at the trial. The court was asked to rule that, if the defendant was a married man at the time of his promise, the plaintiff could not be injured by a failure to perform, and though she had no knowledge of that fact at the time, could not maintain this action. This was properly refused. The defendant is not permit- • ted to escape responsibility on the ground of his present legal inability to perform a promise of marriage to an innocent party. The damages to the plaintiff are certainly not diminished by the consideration that the promise was made under such circumstances. The strict rule that a consideration to support a promise is insufficient, if its performance is utterly and naturally impossible, is met by the suggestion, that even if the future performance here is to be treated as utterly impossible, yet the detriment or disadvantage which must necessarily result to the plaintiff in relying for any time on the promise affords sufficient consideration to support the defendant’s contract. 2 Parsons on Contracts, (5th ed.) 67. Wild v. Harris, 7 C. B. 999.

*343The defendant also insists that the evidence of seduction was not admissible in aggravation of damages. But in a recent case the contrary has been held by this court, on the ground that compensation to the plaintiff for the injury she has received by the breach of the contract cannot be fully reached without taking into account the situation in which she is left by the defendant’s act. Sherman v. Rawson, 102 Mass. 395. The instructions actually given by the learned judge, as to the nature of the evidence by which the promise was to be proved, and the elements to be considered by the jury in estimating the damages, were full and accurate.

The defendant’s exceptions are accordingly overruled, and the plaintiíf may now therefore renew her motion in the superior court, where the case remains, that judgment be rendered as of the day and term when the verdict was returned.

Ordered accordingly.