Burton v. Frye

29 N.E. 476, 139 Mass. 131, 1885 Mass. LEXIS 42

Opinion

Holmes, J.

1. The allowance without costs of the amendment by which the defendant pleaded a release puis darrein continuance was not excepted to, and, if there was any error, it was waived. We do not understand, however, that Rule 15 of the Superior Court

* applies to pleas puis darrein continuance.

2. The plaintiff declared generally on an account annexed for work done as mariner and steward of the schooner Winner, without specifying the voyage. The plea of release was equally general. Whatever the scope of the replication, therefore, the release was not void on the face of the pleadings, and was admissible in evidence.

Furthermore, the plaintiff’s evidence was of a voyage to the West Indies and return, a case in which either no one was required to perform the duties of a shipping commissioner, or the defendant, who was the master, was authorized to perform them. U. S. Rev. Sts. § 4504. See United States v. The Grace Lothrop, 95 U. S. 527. So that, even on the plaintiff’s evidence and the interpretation of that section in the way most favorable to him, the release was admissible, subject to the effect of any evidence that might show that the requirements of law had not been complied with.

3. The plaintiff offered no such evidence, nor can we discover anything in the bill of exceptions which would warrant a jury in finding that the defendant had not done all that the statutes required him to do, if anything is so required. He pleaded the release, and therefore must be taken to have approved it. It follows, not only that the request for a ruling was incorrect by § 4504, but that on the whole bill of exceptions there is no evidence that the release was not valid.

4. It also follows, that the ruling given was correct on the pleadings and evidence, and therefore it is unnecessary to consider whether it was correct on the pleadings alone.

The foregoing grounds are sufficient for the decision of the case, without passing upon the others that were argued at the bar. Exceptions overruled.

“ Ho motion to amend, in matters of substance, shall be allowed after the entry of an action, unless by consent, in any case where the adverse party appears, except upon payment to such adverse party of the amount of the term fee provided by law.”