Ramsay v. LeBow

220 Mass. 227 | Mass. | 1915

Crosby, J.

After a trial of this action and a verdict for the plaintiff, the defendant filed a motion for a new trial and asked the judge to rule that “ as matter of law, the verdict must be set aside.” The judge refused so to rule and overruled the motion. The defendant excepted to the refusal to rule as requested, and to the order overruling the motion for a new trial.

Motions for a new trial, under our practice, usually are addressed solely, to the discretion of the presiding judge. The record does not show that at the trial the defendant made any requests for rulings, or that he excepted to any rulings given, but it appears that “the court submitted the case to the jury on appropriate instructions, and the jury returned a verdict for $824.”

To raise the question of law, embodied in the motion, for the first time after verdict, is irregular. It often has been held by this court that a question that was raised, or that might have been raised, before a verdict, cannot be raised upon a motion to

set aside the verdict and to grant a new trial. Although the statute (R. L. c. 173, § 106) provides that exceptions may be taken to rulings on questions of law at hearings on motions for a new trial, still the statute has been held not to apply to rulings “that were given or refused, or that might have been asked for and given or refused, at the trial before the verdict.” Loveland v. Rand, 200 Mass. 142, 144. In that case the exceptions then being considered were “to rulings upon questions arising for the first time at the hearing on the motion for a new trial.” See also Capper v. Capper, 172 Mass. 262.

While the disposition of the motion for a new trial was wholly within the discretion of the presiding judge, we are of opinion, after carefully examining the evidence reported, that it is sufficient to warrant the verdict of the jury for the plaintiff.

The record, after reciting certain evidence offered by the plaintiff and by the defendant, states that “the plaintiff also introduced evidence tending to show the amount of time he had expended in the work he had done, and the amount of money he had laid [paid] out of his own pocket in developing the plans.”

As it was agreed at the trial that no question of pleading should be raised, and that “it would be open to the jury to find for the plaintiff, regardless of the pleadings whether for breach of contract, or upon any other ground,” the plaintiff would have been entitled to recover upon a quantum meruit what, if anything, the jury believed his services were reasonably worth.

The jury were not bound to believe the testimony of either party or his witnesses in its entirety. While the plaintiff testified that he made an oral agreement with the defendant to draw certain plans and specifications and procure certain permits and superintend the construction of the buildings, all for the sum of $4,500, and while he further testified “that the work . . . [he] did was three fifths in amount and value of the entire work to be done for the entire price,” still the jury were not compelled to accept this testimony as true, even if the defendant did not dispute it. It might have been found that the work done was less than three fifths of what the contract called for, and that the fair and reasonable value of the services rendered was the amount of the verdict.

As the motion for a new trial was wholly within the discretion of the trial judge, we cannot revise the action of the judge on exception.

Exceptions overruled.