224 Mass. 125 | Mass. | 1916
This is an action to recover damages for the breach of a contract in writing between the plaintiff and his father, dated December 4, 1895, whereby the latter promised to give to the plaintiff certain property “in consideration that he remain on the farm and manage the same for me in my old age.” The issues raised at the trial were the genuineness of the alleged signature of the father to the contract, rescission and the measure of damages. The father was a farmer in Newbury who died testate in January, 1913, survived by five sons and two daughters, and grandchildren.
1. A neighbor named Perkins was permitted to testify that in his opinion the signature of the testator to the contract of 1895 was genuine. He testified that he had seen his signature, but not often, and had seen him write his signature “once perhaps;” that he had testified at a previous hearing that in his opinion the signature was genuine but was unable to identify the paper then before him. This was all that he would say as to his qualification. At this time no standard of the handwriting of the deceased was in evidence.
It is the general rule that opinion evidence from one having no special qualifications by experience or study is not admissible. Exceptions to this rule exist where the facts about which the witness is asked to express an opinion are such as may be comprehended by persons of ordinary capacity and cannot be reproduced and described to the jury precisely as they appeared to the witness at the time of the event. The exception is founded on practical necessity in the administration of justice, where matters as to which in the common affairs of life such expressions of opinion convey definite conceptions of actual facts, and where otherwise evidence might be difficult or impossible to obtain. The
Where undoubted standards of handwriting, as well as the questioned signature, are before the jury, there is no occasion for the testimony of one who is neither an expert nor possessed of considerable familiarity with the handwriting of the person whose signature is under examination. The opinion of the jury under such circumstances is quite as good as that of the witness of ordinary experience who has no particular acquaintance with the genuine handwriting. There is, under such circumstances, no occasion for the opinion of the outsider of only ordinary intelligence. Whalen v. Rosnosky, 195 Mass. 545. Commonwealth v. Tucker, 189 Mass. 457, 486.
It seems to us that the testimony of this witness ought not to have been admitted. But this is one of the cases where much must be left to the discretion of the presiding judge in deciding in the first instance upon the qualification of a witness. His decision
The witness Little, according to the record, had greater familiarity with the signature of the deceased than did Perkins. It would have been a wiser exercise of discretion not to permit him to testify; but the exception hardly can be sustained.
2. It is contended that as matter of law the agreement of 1895 was rescinded. That contention depends in part upon another agreement in writing, signed by the plaintiff and his father, in these words: “Newbury, Mass., February 13, 1901. Agreement between James Noyes and Elbridge Noyes for one year from January 1, 1901. Elbridge Noyes shall receive for services, carrying milk, and general farm work the sum of nine dollars per week. Specified, Elbridge Noyes shall render an account of money re-' ceived from milk and other farm produce once a month and also receive his payment in full for services rendered.” Contemporaneously the plaintiff gave a receipt dated back to January 1, 1901, of this tenor: "Received from James Noyes $200 in full for all demands to this date. $200.”
The evidence was not in harmony as to the circumstances which led to the making of this agreement and the giving of the receipt. The father died on January 1,1913. After the funeral of the father, his children gathered at his former home to hear the will read. By
Waiver or rescission of an agreement is usually a question of fact. Where various transactions are involved, where testimony is conflicting and diverse inferences may be drawn from conduct, it ordinarily cannot be ruled as matter of law that a contract has been abrogated. Fox v. Harding, 7 Cush. 516, 520. O’Shea v. Vaughn, 201 Mass. 412. Tapley v. Thayer-Osborne Shoe Co. 221 Mass. 166. Giving due weight to all the evidence, it cannot be said here that as matter of law there has been waiver or rescission.
3. Whether the plaintiff furnished the consideration for the
4. The defendants requested a ruling that the measure of damages, if the plaintiff was found entitled to recover, was the difference between the value of the property described in the contract of 1895 at the time of the testator’s death and the-value on the same date of the property devised to the plaintiff by the father’s will, which included certain property not named in the contract. This request was refused and the jury were instructed that the measure of damages was the difference between the value of the property described in the contract and the value of that portion of the same property which the plaintiff took under the will. In this there was no error. There was a general direction in the will to pay all the testator’s debts. This in effect made all the legacies conditioned upon a payment of the debts. Where there is no statement in the will that a legacy or devise is in payment of a debt in whole or in part, the general rule is that the testamentary gift is to be regarded as a benefaction and not as payment of the debt. Smith v. Smith, 1 Allen, 129. The plaintiff’s claim for breach of contract was in the nature of a debt. The damages were the value of the property promised. The only matter in diminution of those damages was the partial performance by the testator by the gift in the will of a part of the property promised in the contract.
5. The defendants urge that they should be granted a new trial on the ground that the plaintiff, having accepted benefits under the will, is now barred from setting up a claim which will frustrate the testator’s intent as expressed in other parts of the will. There
There is color for the suggestion that the doctrine of election is applicable to the case at bar, although, as the case has not been tried upon that issue, it is not certain that all the material facts are now disclosed. But that contention was not presented at the trial. It Was not raised by the answer. There was no request for instructions upon the point. It is introduced for the first time at the argument in this court. It is not within the scope of any general requests for rulings addressed to the trial judge.
It is not necessary now to decide whether, in cases where it appears to be necessary to prevent a miscarriage of justice, a decisive or pertinent point not theretofore' raised may be acted on by this court in order to accomplish a right result in accordance with the law. Slater v. Rawson, 1 Met. 450. Lyon v. Prouty, 154 Mass. 488. Kenerson v. Colgan, 164 Mass. 166. King v. Nichols, 138 Mass. 18. Frost v. Courtis, 172 Mass. 401. Grebenstein v. Stone & Webster Engineering Corp. 205 Mass. 431. Bond v. Bond, 7 Allen, 1, 6. Parrot v. Mexican Central Railway, 207 Mass. 184. See Hanley v. Eastern Steamship Corp. 221 Mass. 125, 135. This is not a case for the application of such a principle. There have been two trials before a jury. Whether the failure hitherto to suggest the doctrine of election was due to mistake, oversight, strategy
Whether the defendants, under all the circumstances, ought to be allowed now to plead that matter and to have another chance to try the case on this new ground, depends upon factors which cannot be determined on these exceptions. That is a question to be decided by the Superior Court where the trial occurred rather than by this court.
The defendants, before the entry of final judgment in the Superior Court, have a right to move there for a new trial on the ground “that, by mistake of parties or counsel, ... a question of fact which is essential to the determination of the rights of the parties has not been tried.” West v. Platt, 124 Mass. 353. Day v. Mills, 213 Mass. 585, 587.
Exceptions overruled.