Rosen

236 Mass. 321 | Mass. | 1920

Rugg, C. J.

This is a petition to establish exceptions filed in an action of contract in which the petitioner was defendant and one Shulman was plaintiff. The declaration in that action set forth a contract by Shulman with Rosen to perform labor for him for a term of two years, without averment whether the contract was in writing or not, with allegations of compensation to be paid, full performance of his agreement by Shulman and his discharge by Rosen after nine months. The answer was a general denial, payment and the statute of frauds. The case was tried to a jury and resulted in a verdict for the plaintiff. The defendant seasonably filed exceptions, on which the presiding judge made this indorsement: “Disallowed after hearing.” A commissioner was appointed and the case comes before us on his report.

The bill of exceptions is exceedingly short. Brevity is desirable in the statement of exceptions. Taylor v. Pierce Brothers, Ltd. 219 Mass. 187, and cases there collected. But a bill of exceptions must be of such fulness as to present fairly the opinion, ruling, direction or judgment to which exception is saved, with adequate reference to the evidence, the issues and the course of trial to enable this court to understand the questions of law raised, and to determine whether the alleged error of law has injuriously affected the substantial rights of the parties. Freedman, petitioner, 222 Mass. 179,181. Meehan, petitioner, 208 Mass. 60, 63. Horan, petitioner, 207 Mass. 256.

The only exception alleged in the bill as filed is to the denial of “a written motion that on all the evidence the plaintiff could not recover.” The commissioner reports that the motion presented was that “the court direct a verdict for the defendant.” When this motion was presented the counsel for the defendant stated that he relied upon the statute of frauds as the ground therefor. The presiding judge replied that he should not charge the jury with reference to the statute of frauds, but no exception was taken to that ruling. No question appears to have been raised as to the sufficiency of the declaration, or as to any variance between it and the proof. No point of that nature is presented.

At the hearing upon the allowance of the bill of exceptions as filed, the presiding judge said that it was inartificially drawn, that it did not purport to state the evidence, and intimated that the substitution of the words “There was evidence tending to show” for the words “plaintiff claimed” and “defendant contended” was desirable if not essential. After discussion by counsel for each party, directed in part to the point that the report of the evidence in the bill was too scant to make the case susceptible of being understood, the judge asked counsel for the excepting party if he wished to amend the exceptions; to which the reply was, “No! . . . I’ll chance it.” Under these circumstances the general rule that proceedings for the establishment of exceptions are regarded as strictissimi juris applies with peculiar force. Moneyweight Scale Co. petitioner, 225 Mass. 473, 477.

The only words in the exceptions, which according to the contention of Rosen can be construed to mean that the substance of the material evidence is recited, are “The plaintiff claimed” followed by two short sentences, and “The defendant contended” followed by a single sentence. These forms of expression are commonly used to state a position taken or a line of argument adopted. They do not import a narration of evidence on which the position is rested or the argument grounded. The facts disclosed on the present record afford no justification for stretching those words to strained and unusual meanings. Such expressions cannot fairly be construed to signify that the parties severally “introduced evidence tending to show.” Therefore there was no error of law in the disallowance of the exceptions.

If the case be considered more broadly, the petitioner fails to establish the truth of his exceptions. The report of the commissioner shows that there was much evidence, to which no reference is made in the exceptions, as to the current rate of wages at the time of the rendition of the plaintiff’s services. That evidence, so far as appears, would not have been admissible on the theory that the case was being tried as if the declaration were on an express contract for a specified wage. Such evidence would have been entirely competent if one of the issues was whether Shulman could recover on an implied contract for the actual value of his services. The commissioner reports also that Shulman offered evidence tending to show that after performing labor for nine months he left because Rosen refused to pay him the balance of money due him. In view of all this evidence, the rule of law applicable to the rights of the parties was that if Shulman had rendered services to Rosen under an oral agreement unenforceable because within the statute of frauds, Hill v. Hooper, 1 Gray, 131, Doyle v. Dixon, 97 Mass. 208, which agreement Rosen refused in whole or in substantial part to perform, then Shulman could recover under an implied contract the value of any benefit accruing to Rosen out of the transaction and not paid for by him. Kelley v. Thompson, 181 Mass. 122, where the cases are collected. De Montague v. Bacharach, 181 Mass. 256. Murphy v. O’Connell, 218 Mass. 105. See in this connection, Scribner v. Flagg Manuf. Co. 175 Mass. 536, and Elwell v. State Mutual Life Assurance Co. 230 Mass. 248, 253. It is manifest from this evidence that the present bill of exceptions does not fairly present the question whether the judge, in view of the course of the trial, wrongly refused to direct a verdict for the defendant on the ground of the statute of frauds. The judge thought that statute had nothing to do with issues to be settled by the jury. If it had been thought or suggested that the declaration was not sufficient to permit recovery on an implied contract (a point which we do not decide), doubtless the presiding judge would have allowed an amendment to that end, as he would have had a right to do. Bresnahan v. Boston Elevated Railway, 216 Mass. 114. When it is apparent to this court that the merits of the case have been fully determined, an amendment may be allowed in order to make the pleadings conform to the issues actually tried. Noble v. Brooks, 224 Mass. 288, 292.

Petition dismissed.