Matthews v. Inhabitants of Westborough

134 Mass. 555 | Mass. | 1883

W. Allen, J.

The court properly ruled that the vote of the town adopting the report of the selectmen, with an amendment, was so far equivocal as to admit of paroi evidence to aid in its interpretation. Matthews v. Westborough, 131 Mass. 521.

The plaintiff objects specifically to two matters put in evidence, amongst other things, under this ruling. We do not understand that any ruling was made, or exception taken, except as to the competency of paroi evidence to aid in construing the vote. If the plaintiff wished to except to any particular evidence as not falling within this ruling, he should have made objection to it on that ground.

The evidence offered by, the plaintiff of a conversation between himself and his physician was properly excluded.

We find no error in the instructions to the jury. It is objected that the court left it to the jury to determine whether the defendant was legally liable to the plaintiff. But this was only under the instruction that, if the town was legally liable, “ the vote must be deemed to have been intended as a settlement of the claim.” Leaving the question to the jury under such instructions was sufficiently favorable to the plaintiff. It was only in case the jury failed to find that the defendant was legally liable, that any question of the right of the plaintiff to recover could arise.

The jury were instructed, in effect, that, if the money was voted as a gratuity, the plaintiff could not recover; if it was voted as a settlement of a claim,—a claim which had been made, or which might reasonably be expected to be made, — the town would be liable. The plaintiff objects to the second rule given by the court to the jury, that it required the jury to find for the defendant unless a claim had in fact been made by the plaintiff. We do not so understand it. The jury had been instructed sufficiently. This instruction was only that, if certain facts, which the plaintiff claimed to be proved, were true, the vote was valid. It was limited to one aspect of the case presented by the plaintiff, and was favorable to him, and we see no ground on which he can object to it.

If the defendant was not legally liable, and the plaintiff did not contend, and could not reasonably be expected to contend, that it was liable, and if the plaintiff asked for a gratuity, and the vote was advocated in the town meeting as a gratuity, — if all these facts were proved, the vote must be construed as for a gratuity. This was in substance the instruction in the third rule given to the jury. The plaintiff objects to this, among other reasons, that there may have been other facts consistent with these, which, added to them, would call for a different construction of the vote. Perhaps such facts can be imagined, but none were disclosed in the evidence, and the rule of construction laid down by the court must be applicable to the evidence. It is objected that what was said in town meeting was not competent to construe the vote, and that the instruction is erroneous in including that. The evidence upon this point was only of what was said by the person who made the motion. We are inclined to think that it was competent. But if it is excluded, the other facts fully warrant the instruction. The instruction required that the jury should find all the facts stated in it; and the jury, finding a verdict under this instruction, must have found that there was no legal liability of the town, that the plaintiff made no claim of legal liability, and the facts were such that no claim could reasonably be expected to be made, and that the plaintiff asked for a gratuity. Upon these facts being established, there being no facts in the case to control their effect, it was the duty of the court to construe the vote as for a gratuity. Exceptions overruled.