Sayles v. Quinn

82 N.E. 713, 196 Mass. 492, 1907 Mass. LEXIS 1132

• Court: Massachusetts Supreme Judicial Court
• Decided: November 26, 1907
• Status: Published

Opinion

Rugg, J.

This is an action of contract on an account annexed to recover for services and disbursements in the care, board and training of two of the defendant’s horses under a verbal agreement. The answér was a general denial and payment.

1. Upon these pleadings the defendant offered evidence tending to prove unskilfulness on.the part of the plaintiff in training one of the horses and claimed the right to show his damages resulting therefrom. Exception was taken to the ruling that this could not be shown under a general denial. The defendant thereupon amended his answer, and pleaded in recoupment, and the evidence was admitted. This exception might be disposed of shortly on the ground that the defendant suffered no harm, because he was permitted to amend and present all the evidence upon this subject that he desired. But the ruling was right for .the reason that damages claimed by way of recoupment must be specially pleaded. Hodgkins v. Moulton, 100 Mass. 309. Gillis v. Cobe, 177 Mass. 584, 605. The offer was not alone to prove a failure to perform the contract as claimed by the plaintiff, which might have been proven under a general denial, but it was linked with the claim for damages, which was a demand in recoupment and must be set out in the pleadings.

2. During his argument to the jury counsel for the plaintiff stated that the “ defendant had never raised the defence of unskilfulness or questioned the bill on that account until the trial, and that the filing of the amendment during the trial gave the plaintiff no opportunity to meet this claim, unless a continuance of the case was asked.” Counsel for the defendant seasonably objected to this as being argument upon the pleadings, and excepted to the refusal of the court to interfere. Even if the argument had been objectionable, the court was not bound to stop the counsel, provided adequate instructions were given respecting the matter. Commonwealth v. Cunningham, 104 Mass. 245. It is within the discretion of the presiding justice either to interrupt and stop an improper argument of counsel or to permit it to proceed and in his charge correct the error. In his charge, the court carefully guarded the effect of this argument, by stating that the jury could only consider the time of filing the answer with respect to the evidence, which the plaintiff might be expected to produce upon that issue but did not produce. A party, when confronted, during the course of a trial, with a new issue, caused by an amendment to the pleadings by his opponent, may well prefer to conclude the trial with such evidence as may be at hand rather than to ask for a continuance for the purpose of procuring more. If he elects to do this, it is not improper to suggest, by way of argument, that his failure to proffer further evidence upon the particular issue may be accounted for by the fact that it was raised at a time when he could not conveniently do so. This argument is not one upon the pleadings, but upon the failure to produce evidence, which is generally a proper subject for argument.

3. The charge that the burden of proof is upon the defendant in case of recoupment was correct. Noble v. Fagnant, 162 Mass. 275, 286.

4. The defendant contended and introduced evidence tending to show that, after the contract was made and after it had been partially performed, it was modified to a material extent as to the price to be charged. The trial court correctly ruled that upon this branch of the case the burden was upon the defendant to prove that the price named in the original contract had been changed. This evidence was introduced without objection under a general denial. It was not a claim that the contract as originally made was different as to price from that claimed by the plaintiff, but that there was a subsequent modification of it. This put the burden of proof as to that particular allegation, which was in effect an affirmative one, upon the defendant. Lothrop v. Otis, 7 Allen, 435. What was said is not to be construed as shifting the burden of proof from the plaintiff to the defendant. The parties were not in conflict as to the price to be charged in the contract as originally made. The defendant proposed to show a distinct proposition, which would, if proved, avoid the effect of the contract as made. When he asserted this distinct matter, the burden rested upon him to prove it. Powers v. Russell, 13 Pick. 69, 77. Potter v. Moreland, 3 Cush. 384, 389. Delano v. Bartlett, 6 Cush. 364.

5. It was said in the course of the charge, respecting the pleadings, that “ There is the further answer set out, that if the defendant ever owed the plaintiff anything, he has paid him the amount. That admits that there was such a contract as the plaintiff alleges, but says that has been made and paid, that the amount due under that contract has been paid.” The defendant’s exception to this statement must be overruled, for the reason that he does not show that he suffered any harm from it. The whole course of the trial shows that both parties admitted a contract to have been made, which, as to price originally agreed upon, was not in issue. The inaccurate statement that a plea of payment admitted the contract, therefore, did no harm, because a contract was admitted throughout the trial.

6. The defendant objects to that portion of the charge, which states that the burden was on the defendant to show unskilful driving or training. The context in which this statement was made shows that the attention of the court and jury was then directed to the claim of recoupment set up by the defendant. In other parts of the charge the court gave full instructions that the burden was upon the plaintiff to prove that he had carried out the contract which he alleged, and that, as a part of this burden of proof, he must show that he used reasonable care, and acted in a skilful manner in dealing with the horses, and if the horses driven were injured in consequence of any failure on his part, then he had not proved the contract which he alleged. Taking the charge as a whole, it fairly distinguished between the reasonable skill and care which the plaintiff was bound to prove affirmatively that he had used in order that he might recover, and the damages resulting from his unskilfulness and carelessness, which the defendant claimed by way of recoupment, the burden to prove which was upon the defendant.

7. Two questions of evidence have been argued. The defendant offered to show, as affecting the value of one of the horses, that, before he was placed under the plaintiff’s care by the defendant, he had worked a mile in 2.30,” and also that he was a well bred horse. It does not appear at what stage of the trial this evidence was offered. If before the amendment was filed, it was obviously incompetent. • The issues between the parties then were solely whether the plaintiff had performed his contract, as to the price upon which the parties had agreed for the board and care of the horses, and whether it had been paid. Upon these issues it was of no consequence whether or not the horses were well bred or fast trotters. The defendant, not showing that the evidence was offered after the amendment to his pleadings, does not show that he was injured by the ruling. But, even if offered after the pleadings were in their final shape, it was within the discretion of the court to reject the evidence as of isolated facts unconnected with testimony as to other attributes, especially as the only evidence touching value of the animals came from the defendant’s witnesses, and was not contradicted by the plaintiff.

Exceptions overruled.