Serabian v. Tatian

Carroll, J. This is an action of contract with the declaration in three counts. The judge found for the plaintiff; as there was evidence to support the finding we cannot review his conclusion of fact. Seager v. Drayton, 217 Mass. 571. Under the third count, there was evidence that the money was paid at the defendant’s request. The defendant now contends that the declaration for money paid for the use of and on the account of the defendant, is bad, because it contains no statement that the money was paid and expended at the defendant’s request. Although the defendant filed several prayers for rulings, in none of them was the attention of the court called to this question. And no objection appears to have been taken to the form of this count. The point now argued is not open to the defendant. Having failed to call the trial court’s attention to the matter he must be deemed to have waived this defence. Harris v. North American Ins. Co. 190 Mass. 361, 373. [193] There was evidence that the plaintiff gave his promissory note for $475 to the defendant, with the understanding that the defendant would repay him; that the defendant failed to carry out the agreement; and that the plaintiff paid the note to the indorsee. The writ is dated June 7,1916. It is the contention of the defendant that the action was brought prematurely because no payment was made by the plaintiff until June 16, 1916. The record, however, shows that the final payment of $117.69 was made on June 13,1916, and the other payments were made before that time, beginning as early as August, 1914. Even if there were merit in this contention, the defendant cannot now rely upon it, as the question was not brought to the attention of the court, and no ruling was asked upon it. Harris v. North American Ins. Co. supra. Lyon v. Prouty, 154 Mass. 488. We have examined all the defendant’s exceptions and find no error of law in the conduct of the trial. Order dismissing report affirmed.