Carnes v. Howard

63 N.E. 122, 180 Mass. 569, 1902 Mass. LEXIS 1143

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1902
• Status: Published

Opinion

Hammond, J.

At the request of the defendant the presiding judge ruled that “ It was the duty of the plaintiffs to effect the complete execution of a binding contract, in order to entitle them to commissions,” and under the other rulings adopted by him he must have found as facts that the plaintiff Hardy did not agree with the defendant to obtain from Spring a note for $200, and that the agreement between the defendant and Spring was binding on the latter. The evidence as to whether Howard agreed to get the note from Spring was conflicting, and warranted the-finding against the defendant On that point. The finding that the agreement was binding on Spring was also warranted by the evidence.

The other requests were rightly refused, the second because it involved a question of fact which upon the evidence was found against the defendant, the sixth because at least" in the absence of bad faith or fraud on the part of the defendant it is not a correct statement of the law; Roche v. Smith, 176 Mass. 595, and cases therein cited; and the eighth and ninth because each called for a finding of fact not necessarily to be inferred as matter of law from the evidence. The evidence was such that the judge might properly find that the plaintiffs acted throughout in good faith towards the defendant, and that the defendant waived the provision of the contract concerning the deposit of a note by Spring, if indeed such waiver was material.

Exceptions overruled.