Sullivan v. Crave & Martin Co.

Braley, J. By R. L. c. 173, § 106, while exceptions taken at a trial must be reduced to writing, and the bill filed within twenty days after verdict, it is common practice at the hearing to determine whether they are conformable to the truth to allow amendments for the purpose of more fully or accurately stating the exceptions alleged. But if the statutory time has expired [437] an exception not stated originally cannot be added by way of amendment without the consent of the adverse party, and of the presiding judge. Arvilla v. Spaulding, 121 Mass. 505. Currier v. Williams, 189 Mass. 214. In the bill as filed the exceptions to the exclusion of the questions put to the deponent, Martin, were omitted, and as the time had expired within which they could be inserted as of right, the judge was not required to allow them, and having been properly disallowed they are not open for argument in this court. Hector v. Boston Electric Light Co. 161 Mass. 558, 560. The remaining exceptions are not well taken. The action being for the recovery of a commission for a sale of goods on the defendant’s account, evidence was admissible to show the history of their business relations which defined the nature and extent of the plaintiff’s employment. Howe v. Ray, 113 Mass. 88, 91. Both parties in making sales of cocoa in this Commonwealth were required to comply with the provisions of R. L. c. 75, §§ 16, 18, prohibiting the sale of adulterated food. From tbe fragmentary statements in the exceptions, which do not purport to contain all the testimony, it is uncertain upon what ground the plaintiff contended that the notices sent by the public authorities to resident customers that the cocoa previously sold was impure were relevant, although the defendant had been informed of their contents. But after counsel for the defence either bad declined to disclose his defence, or had stated his objection to be that the notices were not within the statute, or were immaterial, they were admitted solely as incidents connected with the plaintiff’s agency in selling the defendant’s goods. This limited purpose having been carefully pointed out in the instructions, and the jury cautioned that the notices could not be considered as proof of the quality of the goods shipped under the sales upon which a commission was claimed, the defendant has no just ground of exception. Burghardt v. Van Deusen, 4 Allen, 374. Kingman v. Tirrell, 11 Allen, 97. Worcester Coal Co. v. Utley, 167 Mass. 558, 560. Paquette v. Prudential Ins. Co., ante, 215. Exceptions overruled.