116 Mass. 283 | Mass. | 1874
The case had been submitted to an auditor. Upon the coming in of his report, an amended declaration, which appears to have been relied on before the auditor, was placed on file. At the same time the defendant’s declaration in set-off, and the plaintiff’s answer thereto, were also filed. The report was then recommitted to the auditor “ to find if the questions raised by the answer to the declaration in set-off were passed upon in his former report;” who reported that they were so passed upon.
From this statement we think'it is to be inferred that the amended declaration was filed by leave of court; although it does not so appear upon the copies brought up to us. The whole trial
At the trial the plaintiff moved for leave again to amend hia declaration by adding a count ‘‘ as for a balance found due to the plaintiff upon accounting together.” This was refused; and we think rightly, at that stage of the case. Besides, it was a matter of discretion with the court below, and not open to exception.
That count being disallowed, the evidence of facts to support it would of course be inadmissible. There was no allegation to which it would apply. It could not properly be received to sustain the declaration upon an account annexed for the item, “ amount paid on land.” It would have been a variance.
The auditor’s report having been put in, the plaintiff asked the court to rule that the set-off was not filed in season. The court ruled that the objection was not then open to him. This ruling was right. Further than that, as the set-off was pleaded in answer to the plaintiff’s amended declaration, and was filed at the same time, it was in strict compliance with Gen. Sts. c. 130, § 16; St. 1852, c. 312, § 37. At the time of the decision in Adams v. Butts, 16 Pick. 343, cited by the plaintiff, the law required the set-off to be filed seven days before the trial, and then allowed it to be given in evidence on the general issue pleaded to the plaintiff’s declaration. No other pleading was required, and the objection that the set-off was not seasonably filed could be made only when the evidence in support of it was offered. Sts. 1784, c. 28, § 12; 1793, c. 75, § 4. It is now a matter of pleading, and governed by the rules relating to pleading. Gen. Sts. c. 130, §§ 17, 18.
The court ruled, in accordance with the request of the plaintiff, that his expenditures for his own benefit, upon the house of the defendant, with his approval, while the plaintiff occupied and had charge of it under his agreement with the defendant, gave the plaintiff an insurable interest in it, although he did not own the property; but refused to permit him to prove, by his own testimony, that his purpose, in obtaining insurance in the name H: the defendant, was to secure himself for money so expended. This refusal was right. Such a policy of insurance would cover and apply to the interest of the defendant only, and would not cover the plaintiff’s interest, whatever may have been his own purpose in obtaining it.
1. That the defendant’s set-off is not upon a contract express or implied.
2. That there was no such mutuality or privity, either in law or fact, between the plaintiff and defendant in relation to the matter of insurance, as to enable the defendant to recover of the plaintiff the amount received by him upon the policy.
As a proposition of law, neither of these can be maintained, if there was any evidence proper to go to the jury to show that the plaintiff took out the policy in behalf of the defendant with his authority or subsequent approval, or received the money as his agent. The auditor’s report alone is sufficient for this purpose. It is primâ facie evidence, and nothing appears to control it. The receipt and possession of money belonging to another is itself sufficient for an action for money had and received upon the promise to repay it implied by law, and creates sufficient privity.
The objection that the defendant could not maintain his set-off without first making demand is equally unfounded. Demand was not necessary. It does not appear to have been other than an ordinary claim for “ money had and received.”
Exceptions overruled.
