Leathe v. Bullard

74 Mass. 545

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1857
• Status: Published

Opinion

Bigelow, J.

It was clearly competent to. prove a waiver of the condition in the deed by parol evidence of the acts and declarations of the parties. Co. Lit. 218 a. Shep. Touch. 153. 2 Cruise Dig. (Greenl. ed.) tit. 13, c. 2, § 25, note.

The objection, that a part of the evidence admitted by the auditor as bearing on the point of waiver was incompetent, because it related to facts and circumstances which occurred before the execution and delivery of the deed, was not raised at the trial. The attention of the court was not called to it, nor was any ruling made upon it. If the plaintiff intended to avail himself of that objection, which he had raised before the auditor, he should have either moved to have the report recommitted to the auditor, or the objectionable portions stricken out; but having failed in any way to raise any question in regard to it at the trial, it is not now open to him on the exceptions. Howard v. Hayward, 10 Met. 420. Holbrook v. Jackson, 7 Cush. 152-155. It is the more necessary to observe this rule strictly in a case like the present, where, if the objection had been seasonably taken, the defendant might have offered at the trial further evidence on the question of waiver, in lieu of that now objected to, which would not have been open to any exception on the ground of incompetency.

The auditor’s report was prima facie evidence of the facts found by him. Rev. Sts. c. 96, § 30. Taunton Iron Co. v. Richmond, 8 Met. 436. St. 1856, c. 202. Exceptions overruled.