283 Mass. 633 | Mass. | 1933
These two actions founded on the same contract to install a heating system were tried together before a jury. The first action is brought by the Low Supply Company as plaintiff to recover the balance due for the heating-apparatus on an account annexed. The defendant in that action pleaded general denial, payment, and special denial of three items in the account. The second action is by the defendant in the first action against the plaintiff in that action. The declaration sets out a contract by the defendant to install a heating plant on the premises of the plaintiff, negligent installation and consequent damages to his property and also damages for failure of the heating system to conform to representations and to warm the premises satisfactorily, due to defective installation. The answer of the defendant set up general denial, and performance of its contract. The trial judge gave comprehensive instructions covering the issues in the two cases including burden of proof. At the conclusion of the charge no requests were made for further instructions, no exceptions were saved to the charge and the attention of the judge was not directed to any alleged error in the charge. Amongst other matters the jury were instructed that it was possible for both parties to fail as plaintiffs, but that both could not prevail as plaintiffs. There was ample evidence on which the jury could have found for the plaintiff in either case. A verdict was returned in the first case for the plaintiff for $115.35 and in the second case for the plaintiff for $1,000.
The excepting party made no motions and took no action at the time the verdicts were returned and before they were recorded. See Charles v. Boston Elevated Railway, 230 Mass. 536, 542, 543. That was the proper time to raise the question as to inconsistency between the verdicts and it was the duty of parties or counsel to be present unless content to rely upon action taken in their absence. Dziegiel v. Westford, 274 Mass. 291, 294. The exceptions are confined to the disposition of motions filed long after the verdicts were received and recorded. McManus v. Thing, 208 Mass. 55. Randall v. Peerless Motor Car Co. 212 Mass. 352, 390. Di Lorenzo v. Atlantic National Bank of Boston, 278 Mass. 321, 324. Whether the instruction to the effect that the plaintiff in each action could not recover was erroneous in view of the pleadings need not be considered. See Cox v. Wiley, 183 Mass. 410, 412. The defendant in the first action pleaded by way of answer to the declaration on an account annexed only a general and a special denial and payment. He did not plead recoupment. Therefore he could not show as a defence to that action damages resulting to him from negligence of that plaintiff in installing the heater. He chose to assert his rights in that particular by separate action rather than by recoupment. Carey v. Guillow, 105 Mass. 18. Sayles v. Quinn, 196 Mass. 492, 494. Bennett v. Kupfer Brothers Co. 213 Mass. 218, 221.
It is the general rule that where there has been a full trial resulting in a verdict rendered without exceptions by any party a motion for a new trial is addressed to the dis
There was no error in granting the motion to continue the first case for judgment. In each case the exceptions are overruled.
So ordered.