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Taft v. Church

Nathaniel E. Taft v. Herbert B. Church & another

Taft v. Church, 41 N.E. 671 (Mass. 1895)
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Court
Massachusetts Supreme Judicial Court · State Highest Courts
Decided
October 19, 1895
Judges
Field
Citations
41 N.E. 671164 Mass. 5041895 Mass. LEXIS 276
Headnotes
Power of Superior Court after Rescript to allow Discontinuance against one Defendant, and to order Judgment against the other Defendant, without amending Joint Finding. It is within the power of the Superior Court, after a rescript has been sent down by this court overruling the exceptions of one defendant and sustaining the exceptions of the other defendant, in an action pending in the Superior Court against them as partners, wherein the court found for the plaintiff, to allow the plaintiff to discontinue as to the latter defendant, and to order judgment against the former without amending the finding.
Summary
Contract, against Herbert B. Church and Fred D. Goode, copartners under the name of Herbert B. Church and Com-pony, upon a written agreement signed by Church in the firm name. After the former decision, reported 162 Mass. 527, overruling the exceptions of the defendant Church, and sustaining the exceptions of the defendant Goode, the defendants filed in the Superior Court motions for a new trial and in arrest of judgment. These motions came on to be heard before Bishop, J., who overruled them. The plaintiff thereupon, by leave of court, discontinued as to the defendant Goode; and the judge, without further hearing or -finding, ordered judgment to be entered against the defendant Church. The defendants alleged exceptions.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Field

Text extracted by OCR from a scanned original; check the original for exact wording.

Field, C. J.

It was within the power of the Superior Court to allow the plaintiff to discontinue the action as to the defendant Goode. Gray v. Cook, 135 Mass. 189 .

The contention of the defendants is that the finding should have been amended so as to show a finding against Church alone. In this case, as reported 162 Mass. 527, 533 , it is said in the opinion: “ Although the action is against two persons as partners, and one only is held liable, judgment may be entered against him alone, under the Pub. Sts. c. 171, § 5, and no amendment of the declaration is necessary.” See Wiggin v. Lewis, 12 Cush. 486 ; Downing v. Coyne, 121 Mass. 347 ; Merchants’ Ins. Co. v. Abbott, 131 Mass. 397, 407 .

We see no necessity of amending the finding. On the whole record, it sufficiently appears that the finding stands against Church alone.

Exceptions overruled.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1900: 11904: 11912: 11913: 11919: 11931: 119002026peak 1900 · 1

Relies on it most ⓘ

  1. Brown v. Thayer99 N.E. 237 (Mass. 1912)
  2. Statkunas v. L. Promboim & Son Inc.174 N.E. 919 (Mass. 1931)
  3. Lee v. Blodget102 N.E. 67 (Mass. 1913)
  4. Cunningham v. Davis56 N.E. 2 (Mass. 1900)
  5. Roxbury Painting & Decorating Co. v. Nute233 Mass. 112 (1919)
  6. Townsend v. Wheatland71 N.E. 782 (Mass. 1904)

Most recent

  1. Statkunas v. L. Promboim & Son Inc.174 N.E. 919 (Mass. 1931)
  2. Roxbury Painting & Decorating Co. v. Nute233 Mass. 112 (1919)
  3. Lee v. Blodget102 N.E. 67 (Mass. 1913)
  4. Brown v. Thayer99 N.E. 237 (Mass. 1912)
  5. Townsend v. Wheatland71 N.E. 782 (Mass. 1904)
  6. Cunningham v. Davis56 N.E. 2 (Mass. 1900)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Merchants' Ins. Co. of Providence v. Abbott, 131 Mass. 397 (1881) 35
Taft v. Church, 39 N.E. 283 (Mass. 1895) 15
Gray v. Cook, 135 Mass. 189 (1883) 10
Downing v. Coyne, 121 Mass. 347 (1876) 4

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