184 Mass. 130 | Mass. | 1903
In this case the defendant accepted in writing a proposition for the construction and installation of an elevator in a building owned by him. The proposition which was ac
The case was sent to an auditor, who found that the Wash- • burn Shops was a branch of or annex to the Worcester Polytechnic Institute, that it had no legal existence and therefore no power to make contracts, and that the plaintiff corporation assumed and accepted as its own the written agreement for the elevator before any work was done under it; “ that the defendant knew, or had reasonable cause to know, that the plaintiff corporation was placing said elevator upon his premises; that said plaintiff corporation was acting under and attempting to carry out the terms of said written agreement and assented to the same.” The auditor also found that the elevator became a part of the realty.
The plaintiff had a verdict, and the case is here on exceptions taken by the defendant.
1. The plaintiff put the auditor’s report in evidence and rested. The defendant then asked the judge to rule that the auditor’s findings that the elevator became part of the realty and that the Washburn Shops had no power to make contracts were rulings of law and should be disregarded by the jury. The presiding judge replied: “ At present I shall decline to accede to your suggestion with reference to it. I think there is enough independent of those two findings of law to sustain the burden.” To this the “ counsel for the defendant replied to the court, ‘We raise this question now that there may be no question of being seasonably raised, and beg we might be saved our exception.’ At no subsequent time was this matter further called to the attention of the court.”
The ruling of the presiding judge was right. The auditor’s report made out a case for the plaintiff aside from the two find
2. The defendant’s counsel asked the defendant: “ Was the elevator in question ever approved by you?” The presiding judge excluded the question. The question was one depending upon inferences to be drawn from the facts in evidence. In such a case it is for the jury to find from the facts proved whether the elevator was or was not approved by him. The question asked called for the defendant’s conclusion on the issue which it was the province of the jury to decide, and was" properly excluded. Brewer v. Housatonic Railroad, 107 Mass. 277. Commonwealth v. Burton, 183 Mass. 461. Robbins v. Atkins, 168 Mass. 45. O’Donnell v. Pollock, 170 Mass. 441.
3. The defendant asked to have the jury instructed that the plaintiff could not maintain its action. The ground on which he now contends that the ruling should have been given.is that the contract was made with the Washburn Shops and that in the absence of an assignment of it by the Washburn Shops to the plaintiff the plaintiff cannot recover for the elevator built under it. But the answer to this argument is that the plaintiff’s contention at the trial, or one of its contentions, was that the plaintiff and defendant made an oral agreement on the terms set forth in the written contract between the Washburn Shops and the defendant which was substituted for that written contract with the assent of all concerned, before any work was done under it, and the auditor must be taken to have found that the defendant assented to this substitution. How the defendant could be found to have assented if he had reason-to know but did not know of the substitution, it is hard to see. But no question on that point was raised by the defendant. Moreover there may have been further evidence on the point. There is no statement in this bill of exceptions that all the evidence is set forth. No error is shown in not giving the ruling.
The other exceptions have not been argued and we treat them as waived.
Exceptions overruled.