Townsend v. Wheatland

Knowlton, C. J. This case comes before us on a report which concludes as follows: “ There was no other material evidence in the case. The defendant requested me to rule that there was no evidence to justify a verdict for the plaintiff, which I refused, and submitted the case to the jury under instructions, . . . and the defendant duly excepted to my refusal to give said rulings. ... If a verdict should have been directed for the defendant, judgment shall be entered for the defendant. If upon the evidence the jury was justified in finding for the plaintiff in the amount of the verdict, judgment is to be entered on the ver [345] diet. If upon the evidence the jury was justified in finding only for a less sum than the verdict, judgment is to he entered for that sum. Otherwise, judgment is to be entered for the defendant.” We understand the report as intended to submit to the court the whole evidence, and the questions of law above stated, for a final decision of the case, without regard to other rulings made or to instructions given at the trial. We are of opinion that there was evidence tending to show that the defendant and Warren contracted jointly with the plaintiff for the work which he undertook to do, and jointly.agreed to pay him for it. There is much evidence that has an opposite tendency, but the plaintiff testified in a variety of forms that he always understood this to be the contract, and he testified to dealings with Warren and conversations with the defendant on which such an understanding properly might be founded. At the end of the cross-examination of the plaintiff, the judge put a question indicating that he thought there was evidence of a joint contract, as follows: “ Assuming that a joint contract was made, and that the plaintiff regarded it so, and continued to, and looked to both of these men instead of one, according to his statement, until after the work was finished, can you proceed against one?” Upon one branch of the case he also submitted to the jury the question whether there was a contract between the plaintiff on one side and Warren and the defendant on the other. The case was submitted to the jury only on the question whether the defendant made an independent contract with the plaintiff when the work was partly done, which superseded the original contract made between the plaintiff and Warren, and whether the plaintiff did the remainder of the work relying upon the defendant’s contract alone. But if the original contract was between the plaintiff on one side and the defendant and Warren acting in a joint undertaking on the other, the plaintiff can recover on a single count against the defendant alone. The nonjoinder of Warren as a defendant can be used as a defence only when it is pleaded in abatement. Wilson v. Nevers, 20 Pick. 20, 22. Bliss v. Bliss, 12 Met. 266. Kendall v. Weaver, 1 Allen, 277, 279. Leonard v. Speidel, 104 Mass. 356. Taft v. Church, 164 Mass. 504, and cases cited. This view of the case does not [346] seem to have been presented at the trial. The proceedings and rulings at a former trial before another judge, when the writ was amended and the case was continued, are immaterial. Upon our construction of the report, inasmuch as there was evidence sufficient to justify the jury in finding for the plaintiff for the whole amount of the claim, there must be a Judgment on the verdict.