Marra v. Bigelow

180 Mass. 48 | Mass. | 1901

LATHROP, J.

The plaintiff at the argument waived all his exceptions to the master’s report except the first, ninth, tenth, eleventh and twelfth.

The controversy between the parties was whether a certain savings-bank book belonged at the death of Peter Marra to his estate or to his daughter Eliza Ann Marra. On an examination of the report of the master, we are of opinion that it is not open to the objections stated in the first exception, except that the evidence is not reported. But under the order sending the case to the master he was not obliged to report the evidence. Parker v. Nickerson, 137 Mass. 487. Bowers v. Cutler, 165 Mass. 441. Silva v. Turner, 166 Mass. 407. The first exception must be overruled.

As the evidence is not reported we are unable to determine whether the evidence was sufficient, as matter of law, to warrant the finding that the book was given by Peter to Eliza. The ninth exception must be overruled.

As to the tenth exception it is contended that the finding of the master that the book was given by Peter to Eliza was not raised by the pleadings. The bill proceeds upon the groúnd that the book was the property of Peter, and the answer denies the allegations of the bill except as thereinafter specified. It was open, therefore, for the defendant to show, in answer to the plaintiff’s claim, that Peter delivered the book to- Eliza with the intention of giving it to her; and for the master so to find.

The eleventh exception relates to a question and answer in the examination of Mr. Bigelow. The question was objected to at the time, and an exception saved. It is now contended that the question was leading, but the objection was a general one, and there was no objection made on the ground that it was leading. It is too late now to contend that the question, in this or in other respects, was not in proper form.

The twelfth exception relates to another question put to Mr. Bigelow and his answer thereto. The witness was asked “Did she [meaning Mrs. Bigelow] in the presence of Mrs. Gray, make any request upon you to go to Mr. Marra about this book, and, if so, what did she say ? ” This question being objected to, the following question was put: “ Go on and tell what her message was to him ? ” The witness answered: “ Mrs. Bigelow told me to go and see the uncle and tell him she was going to make a demand on him for that book. She requested me to go and tell her uncle to come up, that she wanted to see him. I am going to make a demand on him for that book or the money in the bank, she said. I went down and I saw Mr. Marra and I told him that Mrs. Bigelow wants to see you about something, she is sick and she wants to see you.” The admission of the last question and answer is the subject of the twelfth exception.

It is contended that the question was improper as there had been no answer to the previous question, and that it was an unwarranted assumption on the part of counsel that there was any message; and that the answer should have been stricken out, as it was unresponsive, except as to the message actually delivered to John Marra. The two questions were really one, as the answer to the first had been interrupted by the plaintiff’s objection. Ho objection was taken to the question for form, and no request was made to strike out any part of the answer as not responsive. The question of the competency and materiality of the question and answer have not been argued, and we must treat it as waived. But, if the question were open, it is a sufficient answer that the bill of exception does not state all of the evidence bearing upon the questions or show enough to enable us to say, as matter of law, that an error was committed.

The result is that the exceptions to the master’s report are overruled, and the

Decree affirmed.