Kimball v. Longstreet

Massachusetts Supreme Judicial Court

Kimball v. Longstreet

55 N.E. 177, 174 Mass. 487, 1899 Mass. LEXIS 960

CourtMassachusetts Supreme Judicial Court

DecidedNovember 17, 1899

StatusPublished

Cited by2 cases

This text of 55 N.E. 177 (Kimball v. Longstreet) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kimball v. Longstreet, 55 N.E. 177, 174 Mass. 487, 1899 Mass. LEXIS 960 (Mass. 1899).

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Opinion

By the Court.

1. The first exception is to the exclusion of an agreement between Cutler and Longstreet which, Cutler testified, showed the only relations between them, and which was offered to contradict testimony tending to show an admission by Cutler that they were partners in the transaction for which they were sued. But the fact that they had relations in another matter did not tend to show that they had not the relations alleged in this one, apart from the objection that the agreement was res inter alios.

2. The writ named Longstreet and Cutler as defendants. The declaration was against the “ defendants ” in the plural. The account annexed was against “ James W. Longstreet & Co.” The amendment, by substituting the name of Cutler for “ & Co.,” seems to have been superfluous. It is objected that the motion to amend was not made in writing and that there was no tender of costs. These facts do not appear. A motion is made to discharge the exceptions for amendment, but it is not suggested that these objections were made at the trial, and, in any event, in such a case we should not grant the motion. If it is thought worth while to be so very nice upon a purely technical matter, the party seeking to get the advantage must set the example of care.

3. There was evidence that Cutler had employed the plaintiff, and therefore the case could not be taken from the jury.

.Exceptions overruled.

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By the Court.

1. The first exception is to the exclusion of an agreement between Cutler and Longstreet which, Cutler testified, showed the only relations between them, and which was offered to contradict testimony tending to show an admission by Cutler that they were partners in the transaction for which they were sued. But the fact that they had relations in another matter did not tend to show that they had not the relations alleged in this one, apart from the objection that the agreement was res inter alios.

2. The writ named Longstreet and Cutler as defendants. The declaration was against the “ defendants ” in the plural. The account annexed was against “ James W. Longstreet & Co.” The amendment, by substituting the name of Cutler for “ & Co.,” seems to have been superfluous. It is objected that the motion to amend was not made in writing and that there was no tender of costs. These facts do not appear. A motion is made to discharge the exceptions for amendment, but it is not suggested that these objections were made at the trial, and, in any event, in such a case we should not grant the motion. If it is thought worth while to be so very nice upon a purely technical matter, the party seeking to get the advantage must set the example of care.

3. There was evidence that Cutler had employed the plaintiff, and therefore the case could not be taken from the jury.

.Exceptions overruled.

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Bluebook (online)

55 N.E. 177, 174 Mass. 487, 1899 Mass. LEXIS 960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimball-v-longstreet-mass-1899.

Opinion

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