In Beston v. Amadon, 172 Mass. 84, 86, this court quoted with approval the language of Mr. Justice Hoar in Westgate v. Munroe, 100 Mass. 227, that the court entertained "no doubt that if a person, with the knowledge of the owner, performs valuable services upon the separate property of a married woman, it is evidence of an employment by her, and may authorize a jury to find a contract by her to pay for it."Summary of this case from Reid v. Miller
September 25, 1901.
October 18, 1901.
Present: HOLMES, C.J.,KNOWLTON, MORTON, LATHROP, BARKER, JJ.
In an action for the price of bricks used in building a greenhouse for the defendant ordered for her by her son-in-law, it appeared, that the evidence for the plaintiff was the same as that at a former trial which this court had decided was sufficient to entitle the plaintiff to go to the jury. The defendant asked for a ruling, that there was "no evidence that the defendant or her husband knew of the work until their return." The ruling was refused. Held, that the refusal was right; that if the request meant only that there was no evidence that the defendant knew before her return that the work had been begun, this, if true, was immaterial, in case she had authorized the work, and that, if it meant that there was no evidence that she knew the work was to be done, the contrary had already been decided in the same case as reported in 172 Mass. 84.
CONTRACT to recover the price of bricks ordered from the plaintiffs for the defendant by her son-in-law and used in building a greenhouse and making repairs and improvements on land of the defendant. Writ dated December 7, 1895.
This case was first tried in the Superior Court, before Bond, J., who directed a verdict for the defendant. Exceptions to this ruling were sustained by this court in a decision reported in 172 Mass. 84. At the new trial in the Superior Court, before Maynard, J., the evidence was substantially the same as that at the former trial, with some additional evidence for the defence. At the close of the evidence, the defendant requested the court to rule, 1. That upon all the evidence, the plaintiffs are not entitled to recover; 2. That unless the defendant or her husband was present during the performance of substantially the whole work, the plaintiffs are not entitled to recover; 3. That if the defendant and her husband were absent when the work was begun and did not know of it until it was wholly or substantially completed, the plaintiffs are not entitled to recover; 4. That there is no evidence that the defendant or her husband knew of the work until their return. The judge refused to give these rulings.
The jury returned a verdict for the plaintiffs in the sum of $1,067.95; and the defendant alleged exceptions.
C.L. Gardner C.S. Gardner, for the defendant.
J.B. Carroll W.H. McClintock, for the plaintiffs.
This case has been before the court already on substantially the same evidence, and it has been decided that the plaintiffs were entitled to go to the jury. 172 Mass. 84. There was a little more evidence for the defence, but that, of course, the jury might disbelieve. We do not perceive upon what ground that question is raised here again. As to the second and third rulings asked, they were not literally correct, and were covered, so far as proper, by the instructions given. If the fourth request meant only that there was no evidence that the defendant's intestate knew before her return that the work had been begun, the proposition is questionable, and, in case she authorized it, immaterial. If it meant that there was no evidence that she knew that the work was to be done, that already has been decided against the defendant.