Whitney v. Houghton

Morton, J. The warranty alleged in the declaration is that the cow was “ well, sound and all right.” That proved at the trial was, that the cow “ eats well and is well.” It is difficult to hold that these two statements are equivalents. A representation that an animal is “ well, sound and all right,” may import more than a representation that it is “ well.” But the variance is a technical one, which could have been cured by an amendment, and undoubtedly would have been cured if the court had ruled that it was a variance. It is clear that the variance does not affect the merits of the case, and that an amendment would not have changed the course of the trial, or in any way prejudiced the defendant. This court has power to allow an amendment which will cure the variance, and we are of opinion that it ought to be allowed in this case. Cleaves v. Lord, 3 Gray, 66. Stone v. White, 8 Gray, 589. Peck v. Waters, 104 Mass. 345. Keller v. Webb, 126 Mass. 393. The other exception relates to the exclusion of statements made by one Worcester in the presence of the plaintiff. The defendant did not contend that these statements were in themselves competent, but he contended that, as the plaintiff made no reply to them, his tacit acquiescence in their truth is to be presumed. As was stated in Larry v. Sherburne, 2 Allen, 34, such evidence is always to be received and applied with great caution, especially when the statements are made, not by a party to the controversy, but by a stranger. An admission by a party of the truth of statements made in his presence, by his silence, could not be implied or inferred, unless they were made under such circumstances as to call for a reply from him. Commonwealth v. Kenney, 12 Met. 235. Hildreth v. Martin, 3 Allen, 371. Commonwealth v. Densmore, 12 Allen, 535. In this case, we are of opinion that the statements made by Worcester to the plaintiff were not made under circumstances which reasonably called upon him for any reply. He was not required to enter into a discussion with Worcester, and he violated no rule of duty or of courtesy by neglecting to reply. It cannot be said that the natural and reasonable in — 530 — ference from Ms silence is that he admitted the truth of the statements. The presiding justice properly excluded the testimony. The result is, that, upon filing the amendment above sug gested, the plaintiff is entitled to judgment upon the verdict, taking no costs since the trial. Exceptions overruled.