122 Mass. 477 | Mass. | 1877
We see nothing open to exception in the instructions given by the presiding judge. There was a conflict of evidence upon the question whether the defendant sold the note apparently as his own, and on his own account, to the plaintiff; or whether, on the other hand, the plaintiff, in buying the note, understood, or as a man of reasonable intelligence ought to have understood, that he was dealing with the defendant as the agent of another person. The evidence that the defendant had declared to a third person that he had bought the note himself was competent as an admission of his ownership. The question was submitted to the jury with instructions of which the defendant certainly had no cause to complain. The only doubt we can have is whether they were not more favorable to him than he had any right to ask. See Merriam v. Wolcott, 3 Allen, 258, and the cases there cited.
There was no irregularity in regard to the verdict, which makes it necessary or proper to set it aside. It is a well settled and long established practice that a jury, when they have returned a finding that is incomplete and defective, may be sent out again in order to correct the error, even though they had separated after their first finding before they came into court. Pritchard v. Hennessey, 1 Gray, 294. Commonwealth v. Carrington, 116 Mass. 37. After a general finding for the plaintiff without an assessment of damages, they may be sent out again for the purpose of making such assessment. And this maybe done although there may have been an adjournment of the court in the mean time. Chapman v. Coffin, 14 Gray, 454. Winslow v. Draper, 8 Pick. 170. Lawrence v. Stearns, 11 Pick. 501. In this case, there was no question that the plaintiff, if entitled to recover at all, must recover the amount of the note and interest. The correction of the verdict therefore was not a change in substance, but a mere arithmetical computation. The separation must be with the express or implied permission of the court, after the finding had been agreed upon and sealed up. It does not appear from the bill of exceptions that those elements were wanting in this case, and we cannot presume in favor of an excepting party that they were wanting. If, as we understand to have been conceded