172 Mass. 478 | Mass. | 1899
The plaintiff contends that it was error to exclude certain questions which he put to the witness Brennan upon his cross-examination. Brennan was a counsellor at law who was retained for Yarrington in the matter of the Massachusetts indictment and requisition, and who had procured the bond in suit to be made to the present plaintiff and had procured the plaintiff to bail Yarrington. In cross-examination Brennan testified that he was retained by Yarrington as his attorney. The plaintiff then asked how much his retainer was. The question was excluded, and the plaintiff then stated that he proposed to show that Brennan received a large sum of money from Yarrington to indemnify the sureties, but the court again refused to allow the question as to how much his retainer was to be put to Brennan. The plaintiff then asked Brennan how much money he received from Yarrington. The court excluded the question, but offered to allow the plaintiff to ask the witness how much, if anything, he received to indemnify the plaintiff or the sureties on the bond. Brennan then denied that he received any money from Yarrington to indemnify the sureties on the bond. The plaintiff then asked if Yarrington did not let him have $1,200 or more; and in connection with this question the plaintiff stated that he desired to show that the witness received a large sum of money from Yarrington, and to.submit to the jury the question whether it was not received for some purpose other than that of services as counsel.
We think the plaintiff’s exceptions to these rulings should be overruled. The question how much Brennan received from Yarrington as a retainer was immaterial to the issues upon trial. Brennan testified that he received no money from Yarrington to indemnify the sureties on the bond. This covered the issue to which this part of the examination was directed. The further
The contention that the bond in suit could not be affected by subsequent paroi agreements of the parties, but must be considered to remain in force until released by an instrument of equal dignity and solemnity, is not law. Munroe v. Perkins, 9 Pick. 298. Mill Dam Foundery v. Hovey, 21 Pick. 417. Blasdell v. Souther, 6 Gray, 149,151. Hastings v. Lovejoy, 140 Mass. 261, 264, 265. The rulings requested and refused, which all rested upon this erroneous theory of the law, were therefore rightly refused. If, as the plaintiff now contends, there was a variance between the proof of the defence and the allegations of the answer, that question does not appear to have been raised at the trial, and cannot avail the plaintiff here. Aside from any questions which might be open if the plaintiff had contended at the trial that there was a variance, we see no ground for criticising the charge. Exceptions overruled.
