Sherman v. Fall River Iron Works Co.

Hoar, J. When this case was before us at a former term, it was upon exceptions by the plaintiff to the ruling of the court that the action could not be maintained. The plaintiff has now obtained a verdict; and, as the case has been several times tried, we regret to find that the verdict cannot be sustained. It appeared in evidence at the trial, that, during a part of the time in which the defendants caused the nuisance to the premises occupied by the plaintiff, he had a partner, who was jointly interested with him in the leasehold estate, and who should therefore have been joined as a plaintiff. The presiding judge ruled correctly, that the non-joinder of a plaintiff in an action of tort could only be made available to defeat the action by a plea in abatement. But the defendants asked the court to rule that for the time during the existence of the partnership the plaintiff could recover only the same proportion of the whole damage that then occurred, that his share in the property and interest of the firm aforesaid bore to the whole property and interest of the firm; but this instruction was refused. The authorities are perfectly clear that it ought to have been given. Addison v. Overend, 6 T. R. 770. Call v. Buttrick, 4 Cush. 350. 1 Saund. 291, g, h. And if one sue in tort alone, when another should have been joined, and it is not pleaded in abatement, and a recovery is had, the other may afterward sue alone, and it cannot be pleaded even in abatement; but the plaintiff will recover for his share of the injury, pro inter esse suo; because the defendant has consented to the severance. Sedgworth v. Overend, 7 T. R. 279. The fact being only material as to the quantum, of damages, bearing upon the question of the extent of the injury which the plaintiff has sustained, is admissible in evidence without being specially set up in the answer. [216] The plaintiff suggests that the error on this point can be remedied by a remission of a part of the verdict. But there is no mode in which it can be ascertained what the damages were at different periods of time, nor how they should be apportioned. The attention of the jury was not called to any distinction of the kind. All the other exceptions taken at the trial seem to be unsupported. They were, for the most part, founded upon attempts to use, as a bar to the action, facts which merely affected the amount of damages. One of them may perhaps require a single observation.- It appeared that the plaintiff, at the time that the cause of action alleged in his declaration occurred, was keeping a livery stable, without authority and in violation of law. Rev. Sts. c. 58, § 4. St. 1851, c. 319. Gen. Sts. c. 88, §§ 31, 32. The court ruled correctly that this would not be a bar to the action, which is for a nuisance to real estate. But it would be a bar to any claim for damages for injury to his business as a livery stable keeper, or caused to him in relation to such business. Whether the defendants can avail themselves of this objection under the answer we have not considered, as that point does not seem to have been taken at the trial, and the answer can be amended, if necessary. Exceptions sustained.