178 Mass. 304 | Mass. | 1901
This is an action to recover of the defendant his share of the expense of certain electrical work done by the plaintiff in a building called the Jewelers Building on the corner of Washington and Bromfield Streets in Boston. There was a verdict for the plaintiff, and the case is here on the defendant’s exceptions to the refusal of the court to rule that on the pleadings and evidence the plaintiff was not entitled to recover, to the admission of a conversation over the telephone with the defendant, and to the judge’s charge.
1. As to the conversation over the telephone, the witness-testified that he recognized the defendant’s voice. This was sufficient evidence of identity to justify the court in admitting the evidence. The conversation does not seem to have been
2. The only matter to which the attention of the court appears to have been called in connection with the ruling that was asked that the action could not be maintained on the pleadings and evidence was the statute of frauds. But there was evidence which justified the jury in finding, as they must have found under the instructions of the court, that the undertaking was an original undertaking on the part of the defendant and not a promise to answer for the debt of another. The defendant now contends further that the declaration counts on his liability for the whole amount of the expense with credits for the amounts paid by Marsh and by Wells and Dana trustees rather than on his liability for a fixed and certain sum as a part of the whole expense which was what the plaintiff’s evidence tended to show was the case. The defendant therefore contends in substance that there was a variance between the declaration arid the proof. It does not appear from the exceptions that this aspect of the ruling that was asked for was called in any way to the attention of the court. It is fair to assume from the charge that it was not. The manner in which the plaintiff’s contention and5 what it was necessary for it to prove were stated would seem to show almost conclusively that it could not have been. The amount for which the plaintiff seeks to hold the defendant is the same in either case. If the matter had been called to the attention of the court or of counsel the objection could have been readily removed by amendment. There is no suggestion that the evidence or the course of the trial would have been any different. It does not seem to us that the exceptions should be sustained on this ground.
3. The remaining exception relates to the charge. The defendant’s objections as we understand them are first that the charge assumed that there was evidence that the plaintiff relied on the defendant’s promise when there was none and was therefore a charge upon a matter of fact, and second that it was not sufficiently full in regard to the statute of frauds. It is clear that there was evidence that the plaintiff relied on the defendant’s promise and the court did no more than state, as it was proper and right that it should do, the contentions of the parties and
Exceptions overruled.
