Pelton v. Nichols

62 N.E. 1, 180 Mass. 245, 1902 Mass. LEXIS 1057

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1902
• Status: Published

Opinion

Knowlton, J.

This is an action to recover the value of a horse. The declaration contains three counts, one in contract, for the breach of an agreement to keep and use the horse carefully for light work and in no other manner, one in tort for negligently using and caring for the horse, and one in tort for conversion. The only exception is to the refusal of the judge to rule that “ upon all the evidence the plaintiff is not entitled to recover.”

It is unnecessary to consider whether the evidence would support a finding for the plaintiff upon each of the counts of the declaration. The finding having been general, it is enough if the evidence supports it upon one of the counts. West v. Platt, 127 Mass. 367, 371.

The testimony of the parties was contradictory in regard to the arrangement under which the defendant held the horse, but the evidence well warranted a finding that the horse died from overdriving by a stranger to whom the defendant let him on a very hot day. The judge also found that the defendant did not exercise sufficient or proper care in letting the horse to a stranger in the way that he did. On the evidence, this is a finding of fact with which this court cannot interfere. It would he hard to say that there was’not enough, even in the defendant’s evidence and in the circumstances proved beyond question, to warrant this finding; but on the plaintiff’s testimony and the other evidence, there is no doubt that the finding was warranted. There was enough to justify a decision for the plaintiff on either of the first two counts.

Exceptions overruled.