318 Mass. 664 | Mass. | 1945
In this action of contract the jury found for the plaintiff in the sum of $750 upon the first count of the declaration for an alleged breach of a contract of employment, and returned a verdict for the defendant upon the second count of the declaration for money alleged to have been lent by the plaintiff to the defendant’s testate. The case is here upon exceptions of both parties.
The single exception of the defendant is to the refusal of the judge to grant a motion for a directed verdict. This motion is not based upon the pleadings. There is no error in its denial, unless there is evidence by which the plaintiff is bound ‘and such evidence makes the rendition of a verdict for her impossible as matter of law, or unless the evidence, construed most favorably in her favor, is insufficient to make out a case. Salem Trust Co. v. Deery, 289 Mass. 431, 433. Holton v. Shepard, 291 Mass. 513, 515. Reardon Importing Co. v. Security Trust Co. ante, 304, 307.
The testimony of the plaintiff is the only evidence tending to show the' existence of an oral contract of employment between herself and the decedent. She is, therefore, bound by her testimony. Head v. Morton, 302 Mass. 273, 276. Noble v. Greenbaum, 311 Mass. 722, 725. She testified that the matter of her employment as a housekeeper by the
The plaintiff’s testimony is contradictory in many respects and is inconsistent in reference to material aspects of her case. While she testified that the decedent never agreed to discharge his housekeeper, she also testified that, during a conversation with him, he agreed to discharge the housekeeper in two weeks and to "give the plaintiff her job in two weeks.” The jury saw and heard the plaintiff testify. They could accept such portions of her testimony as they deemed worthy of credence. Lydon v. Boston Elevated Railway, 309 Mass. 205, 207. O’Brien v. Harvard Restaurant & Liquor Co. Inc. 310 Mass. 491. This testimony, together with the other evidence disclosed by the various conversations, was sufficient to justify a finding
The defendant finally contends that, if the evidence was sufficient to establish a contract of employment, the contract was terminable at the will of the decedent and the decedent would not be responsible if he repudiated the contract before the time for performance arrived, and that consequently the motion for a directed verdict ought to have been granted. It is true that the contract did not in terms provide a fixed period of employment, but, at any rate, the jury could find that the parties intended that the employment should last at least for a period of a week. Nichols v. Coolahan, 10 Met. 449. Maynard v. Royal Worcester Corset Co. 200 Mass. 1. Tubbs v. Cummings Co. 200 Mass. 555, 558. Frati v. Jannini, 226 Mass. 430. Babikian v. Brown, 293 Mass. 195, 199. Fenton v. Federal Street Building Trust, 310 Mass. 609, 612. The period of employment was material in the assessment of damages. The motion, however, did not raise any question as to damages. The contract having been established and a breach having been proved, the plaintiff in any event was entitled to nominal damages, Todd v. Keene, 167 Mass. 157; McNulty v. Whitney, 273 Mass. 494, 504; King Features Syndicate, Inc. v. Cape Cod Broadcasting Co. Inc. 317 Mass. 652, and, the plaintiff being entitled to damages, the motion to direct a verdict was property denied. Weiner v. D. A. Schulte, Inc. 275 Mass. 379, 385. Beit Bros. Inc. v. Irving Tanning Co. 315 Mass. 561, 563.
The plaintiff excepted to the exclusion of certain letters and purported to except to the charge. Copies of the letters were not included in the record. The failure of the plaintiff to set forth their contents precludes us from deciding whether
In reference to the remaining exception of the plaintiff the record merely states that she excepted to the charge. There is no specification as to what part of the charge is excepted to, and there is nothing to show what particular statement or ruling contained in the charge was intended to bo made the subject matter of an exception. Neither is there anything to indicate that the judge’s attention was directed to anything which he said to the jury and which the plaintiff contended constituted error. A general exception like the present to a charge cannot be sustained. Boston Conservatory of Music, Inc. v. Dulfer, 256 Mass. 262, 266. Mitchell v. Lynn Fire & Police Notification Co. Inc. 292 Mass. 165, 168. O’Connor v. Benson Coal Co. 301 Mass. 145, 150-151. Geary v. Blomerth, 309 Mass. 91, 96. Graustein v. Boston & Maine Railroad, 317 Mass. 164, 167.
Plaintiff’s exceptions overruled.
Defendant’s exceptions overruled.