Hopcraft v. Kittredge

Morton, J. Most of the exceptions that were taken to the refusal of the presiding justice to instruct the jury as requested by the defendants have not been argued by them, and we therefore treat them as waived. Of the others it may be said generally that they dealt with partial views of the testimony, and were properly refused. The third and fourth requests assumed that the defendants were not liable if the correspondence did not contain a sufficient approval by them, or if the jury could not find in the conversation evidence that they had approved the [12] two thousand cards. But it was for the jury to find, upon all the evidence, whether the defendants had given their approval. The court properly submitted the correspondence to the jury, and left it to them to determine upon it, in connection with all the other testimony in the case, what the fact was in regard to the defendants having approved or disapproved of the cards, and we discover no error in the instructions on this point. The sixth request for instructions, the only remaining one that has been argued, was to the effect that there was no approval of the Golden Cloud one thousand or of the Council Brand one thousand in any of the letters. In view of the letter of July 6, 1888, we do not see how the request would have corresponded with the fact. ' Furthermore, the defendants had no right to select a part of the testimony and require the court to rule upon that, to the exclusion of other testimony bearing on the same point. Commonwealth v. Gavin, 148 Mass. 449, 451. Neff v. Wellesley, 148 Mass. 487, 495. The defendants also excepted to some portions of the charge. The first exception which has been argued was “ as to that portion of the charge as to the cards being sent for approval.” In the first place, the objection is too general. If the defendants were aggrieved by anything which the presiding justice had said or omitted to say regarding the matter of approval, they should have called his attention to it specifically. Hamilton Woollen Co. v. Goodrich, 6 Allen, 191, 200. Dwyer v. Fuller, 144 Mass. 420. Commonwealth v. Quinn, 150 Mass. 401, 405. We think also that the instructions were correct. As nearly as we understand the remaining exception to the charge which the defendants have argued, it is that the court charged upon the facts. We do not think the charge is open to that objection. The court instructed the jury fully and clearly and fairly in regard to the different matter’s involved in the trial, and to which the testimony related, and dwelt upon them no more than was necessary properly to discriminate and explain them for the benefit of the jury. Durant v. Burt, 98 Mass. 161, 168. After the verdict for the plaintiff, the defendants filed a motion for a new trial, which was heard and denied. The case also comes here on exceptions to rulings made by the presiding justice in regard to certain affidavits which were offered by the [13] defendants at the hearing and rejected by the court, and to its refusal to rule according to two requests presented by the defendants. So far as the affidavits were offered for the purpose of showing that Slade had testified falsely at the trial, they were incompetent. It is settled that a new trial will not ordinarily be granted on the ground of newly discovered evidence which goes only to impeach the credit of a witness at the trial. Duryee v. Dennison, 5 Johns. 248. Harrington v. Bigelow, 2 Denio, 109. Hammond v. Wadhams, 5 Mass. 353. Commonwealth v. Green, 17 Mass. 515, 525. Hilliard, New Trials, (2d ed.) 505. Whether the affidavits tended to show conspiracy between the plaintiff and Slade was a question of fact for the justice to pass upon and consider. It cannot be said, as matter of law, that they established it. It is to be further observed that the paper which was alleged to be a copy of an affidavit by Slade did not purport to have been signed or sworn to by him, and might properly have been rejected, because a copy was not under the circumstances admissible. We cannot say that the rejection of the Mussotter affidavit was erroneous. It was excluded by the justice because in his judgment it was offered too late. The circumstances are not stated with sufficient fulness, even if reviewable here, to, enable us to determine whether the discretion of the justice was or was not properly exercised. The same is true of the motion by the defendants to amend their motion for a new trial. The interrogatory to Brennan was rightly excluded. Brennan’s statements as to the contents of the Fallows affidavit would have been hearsay. Besides, it does not fairly appear what the answer would have been. Crowley v. Appleton, 148 Mass. 98. The rulings requested by the defendants rested upon the affidavits and the interrogatory to Brennan, and, those having been rightly excluded, there was no basis on which the rulings could rest, and they were therefore properly refused. Exceptions overruled.