Anthony v. Travis

Devens, J. We are of opinion that the bill of exceptions is properly before us. The court in which a cause is tried may undoubtedly require a party who has filed exceptions, and a motion for a new trial embracing the same questions of law, to elect upon which he will proceed, and may properly refuse to hear the motion unless the party consents to waive his exceptions. In view of the trouble and expense involved in a discussion of the principles of láíw which have been passed upon in a contested case, it would be highly proper that this requirement should generally be made. Sylvester v. Mayo, 1 Cush. 308. Lee v. Tinges, 7 Md. 215. West v. Cunningham, 9 Porter, (Ala.) 104, 110. While the fact that a party proceeds to argument on such a motion may also sometimes be treated as a waiver of his exceptions, even where no express assent' that this shall be so is given, the effect which shall be attributed to such an act must be largely within the discretion of the presiding judge. If it is possible for us to revise such an act as the allowance of the exceptions, the case at bar presents no reason for such a revision. The hearing upon the motion took place, at the suggestion of the judge, after the exceptions were filed; and although he refused the motion, it was competent for him to hold that, [58] under these circumstances, the excepting party had not by participating in the argument upon it consented to any waiver of the exceptions. The.defendant had set up an eviction from part of the premises leased to him as a defence to the action. Without finally ruling upon the question whether such fact, if proved, would constitute a defence, the presiding judge received evidence upon this subject, against the objection of the plaintiffs. At a later stage of the trial, after the defendant’s testimony was substantially in upon this point, he ruled that such eviction would not constitute a defence; and further, that, as the defendant admitted that if eviction was not a defence he was liable to pay to the plaintiffs at the rate of ten per cent per annum on repairs to the amount of $4,000, and as the plaintiffs contended that the defendant was liable in addition for a similar percentage on a plumbing bill of $2,500, the only question to be submitted to the jury was that of amount, and that the verdict would be for the plaintiffs, either for the percentage on $4,000 or $6,500. What was the amount of these percentages, respectively, had been agreed by the parties. No objection was made to this proceeding by the plaintiffs’ counsel, nor did they offer any evidence in rebuttal of the defendant’s testimony on the subject of the damage occasioned by the alleged eviction from part of the premises. At the argument-, no comment was made by the defendant’s counsel on the question of eviction, except to state that the question itself, and all evidence pertaining to it, had been ruled out by the court. He contended only that the defendant was not liable for the percentage on the plumbing bill, as the plumbing had been put in at the expense of the plaintiffs, without any agreement on the part of the defendant. In his charge to the jury, the presiding judge instructed the jury that the defence of eviction was' not open to the defendant in this action, and added: “For the purposes of this case we may lay out of the case entirely some of the questions on which evidence has been introduced to you, namely, the question whether this land passed to the defendant,” it having been a question whether any land in addition to the hotel building passed to the defendant, “ and also the question whether he has been evicted from a portion of that land.” He further [59] submitted the case to the jury solely upon the question whether the plumbing repairs had been made under any agreement, express or implied, with the defendant. By the terms of the lease, the lessors were to make such repairs as the lessee should “ agree to with them,” the lessee paying at the rate of ten per cent per annum on the cost thereof. The jury returned a verdict for the smaller sum claimed, thus holding that the defendant was not responsible for the percentage on the plumbing repairs. While the evidence on the subject of eviction was irrelevant to the issue finally tried, it is the contention of the plaintiffs that it was calculated to prejudice the plaintiffs with the jury, and to prevent their rendering an unbiased judgment. That there is a class of cases where evidence has been admitted upon the issue actually tried, which was irrelevant and yet which was so connected with it and of such a character as to produce an injurious effect, in which it has been held that a new trial should be granted on that account, may be conceded. Such are the cases cited by the plaintiffs. Ellis v. Short, 21 Pick. 142. Brown v. Cummings, 7 Allen, 507. Crowell v. Porter, 106 Mass. 80. Maguire v. Middlesex Railroad, 115 Mass. 239. But the alleged eviction of the defendant had nothing to do with the issue actually tried,' nor is there any reason to suppose, from the bill of exceptions, that any evidence which had been given in relation thereto was allowed to have, or could have had, in the minds of the jury, any connection with the disputed question whether the defendant had or had not agreed to the plumbing repairs. The plaintiffs do not contend that it did have any such connection, but only that a prejudice was created against them as to a matter not in issue, by which they were affected as to the matter in issue. If a plaintiff sought to recover on two distinct causes, which might properly be united in the same declaration in different counts, and at any stage in the hearing the court should rule that he could not recover on the first count, and that it was to be laid entirely out of the case, the defendant could not object to his recovery upon the other because evidence had been admitted upon the first count which had no relevancy to the second. In a similar way, where a defendant has set up two distinct defences, the fact that evidence has been admitted upon [60] one defence which the court holds to be untenable, will not necessarily deprive the party of the right to maintain the other because evidence irrelevant thereto was admitted in connection with the first defence. When for any reason it might be supposed that evidence given as to two counts in a declaration, or two defences set up in an answer, might be confounded, where one had been withdrawn from the consideration of the jury, it would be proper to ask the court to distinguish such parts of the evidence. But when, in the case at bar, the plaintiffs did not do this, and when the question finally tried had no relation, so far as the exceptions show, to that on which evidence had originally been admitted, the withdrawal of the latter from the jury could, we think, have no tendency to prejudice the plaintiffs. Indeed, the fact that the defendant in the matter of the eviction had sought to maintain a defence not tenable, and that the court had finally assented to the position of the plaintiffs, would seem clearly to have had an opposite tendency. This withdrawal was made by the court in clear terms, which necessarily implied that all the evidence which bore upon the question of eviction only was to be rejected. We must infer that the jury understood and followed the directions of the court. Commonwealth v. Cunningham, 104 Mass. 545. The auditor’s report went to the jury with the other papers in the case. In the earlier part of the trial the plaintiffs had moved that so much of the auditor’s report as related to the construction of the lease and the evidence of eviction should be stricken therefrom, which motion the presiding judge declined to grant. After the final ruling by the judge in favor of the plaintiffs upon this point, this portion of the report became unimportant. Even if the whole report went to the jury, it must have been fully understood that this had no relation to the question which the jury were to decide. No objection was made at the time that the auditor’s report went to the jury, nor was any special attention called to it. If the plaintiffs had deemed that any injury could be done to them on the issue actually tried, by anything contained in the report as to an entirely distinct matter, they should have objected to its going to the jury, or have called the attention of the court to it, so that an instruction [61] might have been given which would have guarded their rights. It cannot be doubted, in view of the only question finally submitted, that such an instruction would have been given if they had deemed it of sufficient importance to ask for it. Exceptions overruled.