Goulding v. Smith

Devens, J. The objection made to the petition in the present case is, that it does not set forth fully the contract forming the basis of the claim for the lien. The objection was not taken by demurrer; had this been done, it would have been the duty of the respondent to have pointed out specifically the defects of which he complained. Gen. Sts. c. 129, § 12. He cannot wait until the trial, and then object generally that the petition does not contain any such statement of the contract as is required by iaw, and thus avoid showing wherein the alleged defects consist [489] He cannot thus deprive the petitioner of the opportunity of amending his pleading under the power given by Gen. Sts. c. 150, § 12. McMonagle v. Nolan, 98 Mass. 320. In the case of Simpson v. Dalrymple, 11 Cush. 308, the objection that the contract was not fully set forth as required by law was taken by demurrer. In Wilder v. French, 9 Gray, 393, it was held that the contract alleged in the petition would not support the claim for a lien, but the attention of the court was not called to the point that the objection should have been taken by demurrer. These considerations make it unnecessary to determine whether, since the passage of Gen. Sts. c. 150, § 1, the same strictness in pleading should be required. This is not a case, as contended by the respondent, where judgment cannot be rendered on the petition, even if the contract be imperfectly stated. The lien having been definitely passed upon by the jury, there may be judgment. » The exception to the cross-examination of the respondent Smith as to what he had said and done about the note is not well taken. It was competent for the court to permit this examination for the purpose of showing all his relations to the case. The exception to the order of the judge disallowing the motion to dismiss must also be overruled. The petitioner, by bringing his petition to the clerk’s office and placing it there in the hands of the clerk to be filed, had done all that was necessary on his part. He had filed the petition within the meaning of the law. It was the duty of the judge presiding in the court where the cause was pending to ascertain when this was done. The evidence admitted by him for this purpose was competent, and his decision thereon is final. Exceptions overruled.