Barry v. Woodbury

Sheldon, J. The defendant’s first contention is that under the decision of this case reported in 205 Mass. 592, the plaintiffs could go to the jury only on the fourth count of their declaration. This contention is based upon the last sentence of the opinion then rendered, that “ the case of which there was evidence . . . was substantially within the 6 four quarters ’ of the fourth count, although there imperfectly stated.” But there was neither decision nor intimation that the case made out was not also within the “ four quarters ” of the second count, although there perhaps a little more imperfectly stated. In our opinion, as against the defendant who had taken upon himself to sell this machinery and who had himself no right to prevent the plaintiffs from severing and removing it, the variations between the second and fourth counts, or between those counts and the findings which were justified upon the evidence, were not material. Under the former decision the plaintiffs were entitled to go to the jury on both counts. Barry v. Woodbury, ubi supra. Butterworth v. Western Assurance Co. 132 Mass. 489. It follows that the first, fourth and sixth of what may be called the defendant’s first series of requests were properly refused. The sixth request of his second series appears to have been given, with appropriate explanations. The judge did not rule as matter of law that the defendant’s quitclaim deed to Grant [524] was a sale of the real estate, as the defendant seems to have understood. He stated and gave the fourth clause of the sixth request immediately following the statement of the third clause thereof. This was made plain when the judge immediately added, by way of a summary, that “ to entitle the plaintiff to a verdict the jury must, find ”■ the other requisites claimed by the defendant “ and that the quitclaim deed of the defendant to Grant was a sale of the real estate within the meaning of ” the defendant’s promise. The other instructions upon this subject were unexceptionable. The seventh, eighth and ninth requests were given. They are included in what has been said of the 'sixth request. We have examined all the exceptions that were saved at the trial, and find no material error. Exceptions overruled.