Dooley v. Murphy

Crosby, J. This is an action brought by a constable against an attorney at law to recover fees for services rendered by the plaintiff to the defendant. The defendant filed a declaration in set-off in which he alleged that the plaintiff owed him $150 for services rendered. The case was tried before a judge of the Municipal Court of the City of Boston, who found for the plaintiff in the sum of $119.59, the full amount claimed. Subsequently the case was reported to the Appellate Division, which dismissed the report. • After the entry of the order by the Appellate Division dismissing the report, the defendant’s motion to reopen the case for further hearing upon the question of damages was allowed by the trial judge; and after further hearing he assessed the damages in the sum of $112.59. The defendant’s first request, “That upon all the evidence the plaintiff is not entitled to recover,” could not properly have been given. If the defendant relied on a special contract made with the plaintiff, he should have raised that question in the Municipal Court; it cannot be presented for the first time in this court. Besides, the defendant admitted he owed the plaintiff $24. Plainly this request could not properly have been given. The defendant’s second request, “That upon all the evidence the defendant Murphy is entitled to recover on his declaration in set-off,” also was refused rightly. Whether the defendant was entitled to recover upon his declaration in set-off, depended on the facts as found by the trial judge upon conflicting evidence. Apparently, the judge believed that the demand pleaded in the set-off was without merit and disallowed it. The general finding in favor of the plaintiff for substantially the full amount of his claim disposes of the declaration in set-off and is equivalent to a finding that the defendant is not entitled to recover thereon. R. L. c. 174, § 11. Sargent v. Fitzpatrick, 4 Gray, 511, 514. The defendant waives his third request. Let the entry be Order dismissing report affirmed.