188 Mass. 144 | Mass. | 1905
This is a petition to enforce a mecbanic’s lien. The petitioner was under a contract with one Boyden to do the
The bill of exceptions ends as follows: “ At the end of the petitioner’s evidence the respondent requested the court to rule that the petitioner could not recover except for the October items, which items the respondent admitted were owed by him (this work being ordered by him directly and which he claimed was not a part of the original contract). The ruling was refused, an exception was duly taken by the respondent, and allowed; the trial of the case thereupon proceeded, the respondent put in his defence, and upon the whole evidence a finding was made for the entire sum claimed by the petitioner. By reason of the aforesaid rulings and refusal to rule, the respondent was aggrieved and duly excepted, and prays that his exceptions may be allowed.”
It is not entirely clear whether the bill of exceptions is not to be taken to state that the presiding judge refused the ruling asked for because he refused to make any ruling on the sufficiency of the petitioner’s evidence unless the respondent rested his case on that evidence, as to which see Goss v. Calkins, 162 Mass. 492; Wild v. Boston & Maine Railroad, 171 Mass. 245. But passing that by, the difficulty is that we do not know what evidence was put in by the respondent. The statement in the bill of exceptions is that after the ruling on the sufficiency of the petitioner’s evidence “ the trial of the case thereupon proceeded, the respondent put in his defence, and upon the whole evidence ” a finding was made for the petitioner. How can we say that the evidence subsequently put in by the respondent did not make plain what was doubtful on the petitioner’s evidence ?
The case comes within the rule that the exceptions must show error, and an exception to a ruling' as to the sufficiency of evidence which does not state that the evidence ruled upon was all the evidence on the point will’not be sustained, even if so far as appears it was erroneous. Monaghan v. Goddard, 173 Mass. 468.
Exceptions overruled.