Goldenberg v. Blake

C. Allen, J. It is conceded that the service of notice upon the plaintiff was not in conformity to the requirement of the statute; and the only question is whether the presiding judge ought to have submitted to the jury the question whether the plaintiff waived due service. Upon consideration of this question, as the case is presented upon the bill of exceptions, we do not find that the conduct and language of the plaintiff were such as necessarily to exclude the supposition contended for by the defendant. Clearly, an actual appearance by the plaintiff at the time and place appointed for the hearing, without objection to the service, would be a waiver. A promise or a declaration of intention to appear might or might not amount to such a waiver. In order to waive a legal service, there must have been an intention to waive a known right, or at least a willingness to accept the service as sufficient, without caring to inquire whether it was legally sufficient or not. If it should be shown, or if it could fairly be inferred from the appearance of the plaintiff, who was a witness, that he was aware that the service was insufficient, and yet told the constable that he would attend the hearing, it might perhaps be a reasonable inference that he waived a more formal service. If, on the other hand, both he and the officer supposed, at the time the service was made, that it was in due form, and the plaintiff under that supposition merely declared a present intention to attend the examination, meaning, however, to stand upon all his rights, and not to waive 357 any objection for insufficiency of service, and if the officer was nob thereby misled into omitting to make further service seasonably, there was no waiver. This apparently was the view of the facts which was taken by the court. But we cannot say that the language and conduct of the plaintiff were not susceptible of the other construction, and think that the question of waiver should have been submitted to the jury. Williams v. Kimball, 135 Mass. 411; S. C. 132 Mass. 214. West v. Platt, 127 Mass. 367. Exceptions sustained.