Humphrey v. Totman
Massachusetts Supreme Judicial Court
Contract, with two counts, the first of which is quoted in the opinion. The second count was upon an account annexed. Writ dated August 16, 1907. In the Superior Court the case was tried before Hitchcock, J. The evidence is described in the opinion. At the close of the evidence the plaintiff, waived his claim under the second count and agreed that there was no evidence to go to the jury on that count. The defendant asked the judge to rule as follows: “ First.
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Contract, with two counts, the first of which is quoted in the opinion. The second count was upon an account annexed. Writ dated August 16, 1907. In the Superior Court the case was tried before Hitchcock, J. The evidence is described in the opinion. At the close of the evidence the plaintiff, waived his claim under the second count and agreed that there was no evidence to go to the jury on that count. The defendant asked the judge to rule as follows: “ First. Upon all the evidence the defendant is entitled to a verdict. “ Second. That there was a variance between the allegations in the…
1Opinion of the CourtHammond, J.
The plaintiff having waived the second count of the declaration, the case was submitted to the jury only upon the first count. This count was upon a special contract; and one of the grounds of the defense was that there was a material variance between the contract therein described and the contract proved.
The count is as follows: “ And the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to sell to the defendant a certain cheese business with the good will thereof and the defendant agreed to pay therefor the sum of $500. That plaintiff well and duly performed his…
2Cited by4 opinions
- Pope & Cottle Co. v. WheelwrightMassachusetts Supreme Judicial Court · 1921
- Mabee v. HersumMassachusetts Supreme Judicial Court · 1924
- Rosegartin v. CohenMassachusetts Supreme Judicial Court · 1927
- Ross v. RadebaughMassachusetts District Court, Appellate Division · 1958