Contract, What constitutes. Evidence, Competency. Pleading, Civil, Declaration. Practice, Civil, Argument to jury, Charge to jury.
The declaration in an action of contract contained allegations that the plaintiff made a certain agreement with the defendant, which the defendant failed to perform. At the trial, there was testimony by the plaintiff in direct examination in support of such allegations. The trial judge admitted in evidence a writing, signed by the defendant only, which the plaintiff's counsel stated he offered "as corroborative evidence," and which contained a part only of the agreement relied on by the plaintiff. The plaintiff testified in cross-examination that there was no other agreement except as set out therein. The declaration did not set forth a copy or the legal effect of such writing. The defendant contended that there was failure to comply with G.L.c. 231, § 7, cl. 11. Held, that (1) The writing properly was admitted in evidence; it was for the jury to say what the agreement was in view of the plaintiff's testimony in direct examination; (2) The plaintiff's cause of action not being upon the writing, the declaration was in proper form. A statement by counsel for the plaintiff in his argument to the jury at the trial of an action, explaining an amendment to the declaration, and telling the jury "that they are to go by the amended declaration and not by the original one," was proper under G.L.c. 231, § 87. No error appeared in the charge to the jury at the trial of an action for breach of an agreement, where the judge stated that the plaintiff asserted that certain payments were to be made to him weekly, and that it was for the jury to say what the testimony was, although the judge said, "It was agreed that . . . [the plaintiff] should have his money weekly"; the quoted words must be construed in connection with the previous statements by the judge.
CARROLL, J.
Under the first count of the declaration the plaintiff sought to recover upon an account annexed in the sum of $293.90. Under the second count he alleged that he entered into a contract with the defendant by which she agreed to pay him the sum of $12 "per thousand for cutting, hauling to mill, sawing and sticking up the hemlock and hard wood" on certain wood lots and "to pay the plaintiff weekly for all lumber so stuck up by the plaintiff"; and that the defendant has failed to make payments in accordance with the contract to the damage of the plaintiff. The answer was a general denial.
The plaintiff introduced a writing signed by the defendant wherein it was stated that the defendant agreed to sell to the plaintiff "all the white pine, hard pine, and poplar, top logs and all other to be used for lumber down to four inches at nine dollars per thousand. Statement and pay for the same made weekly." This writing also contained other provisions. The plaintiff testified that settlements were made weekly; that the plaintiff paid for the pine lumber, and the defendant agreed to pay him "$12 for cutting the other stuff from the stump, putting it through the saw and putting it on the sticks"; that on March 13, 1926, it was agreed that $44 was due the plaintiff, and that the defendant had failed to pay this sum; that the next week the plaintiff sawed about twenty-five thousand seven hundred feet of lumber, and there was then due him the sum of $293, which was not paid. There was also testimony as to the damages sustained by the plaintiff.
The defendant excepted to the admission of the written memorandum referred to in evidence, her contention being that, under G.L.c. 231, § 7, cl. 11, written instruments shall be declared on by setting out a copy or such part as is relied on or the legal effect thereof with proper averments to describe the cause of action. The written statement was not signed by the plaintiff, it did not set out the entire contract which the plaintiff testified he made with the defendant, and, although the plaintiff in cross-examination admitted that there was no other contract except as set out in the writing, it was for the jury to say what the contract was in view of his testimony on direct examination and the testimony showing the amount of pine and hemlock lumber sawed on the week of March 15 to 20, 1926. In addition to this the plaintiff's counsel stated that he offered the memorandum solely "as corroborative evidence of the witness." As the plaintiff's action was on the oral and not the written contract the declaration was in proper form.
The defendant also contends that, in his argument to the jury, the plaintiff's counsel improperly referred to the pleadings. There is nothing in this exception. All the reference to the pleadings made by counsel was to indicate that he relied on the amended declaration and not on the original one. No contention was made that the pleadings were evidence. G.L.c. 231, § 87.
We find no error in the charge to the jury. They were told that the plaintiff asserted that payments were to be made weekly, but they were distinctly told that it was for them to say what the testimony was; and although the judge did say "It was agreed that he [the plaintiff] should have his money weekly," this must be construed in connection with what had been previously said, namely, that it was for the jury to determine what the testimony was. There was no error in the conduct of the trial.
Exceptions overruled.