173 Mass. 361 | Mass. | 1899
It is conceded that the jury has found, under correct instructions, that the money for which the plaintiff
The finding of the jury shows that the arrangement between the parties was as claimed by the plaintiff, and that the defendant was to care for the plaintiff as well as to take charge for him of his money, the plaintiff being an old' man with no relatives in this country except a brother in St. Louis, and having gone to spend the remainder of his life with the defendant and under his care.
The instruction requested by the defendant need not have been given in any event in the terms requested, if the jury were correctly and sufficiently instructed upon the law involved in the request. We think that, under the circumstances of the case, an instruction that if “ all the money . . . was expended by the defendant in the plaintiff’s presence, and with his knowledge and consent, whether in debauch or otherwise,” the plaintiff could not recover, would have been liable to mislead the jury and to induce' them to suppose that any money which the defendant spent in the presence of the plaintiff, and with his knowledge and consent, must be treated as in effect repaid by the defendant, whereas to have the effect of a payment it would be necessary that the plaintiff should under- ' stand and assent that such was to be the effect.
Unless the word “ benefit,” which occurs twice in the latter portion of the charge, was understood to mean more than is meant by the broad word “ use,” the charge as given was sufficiently favorable to the defendant. We think that if the defendant thought the use of the word “ benefit ” ambiguous or objectionable, he should have called the attention of the presiding justice specifically to the point, and that he cannot now complain of the use of the word under his general exception. The charge stated the law plainly and correctly, that if the money was spent in that way at the request of the plaintiff, he knowing what he was doing and intending it, that would be such a disposition of the money that the plaintiff could not afterwards claim to have it paid back; but if the plaintiff did