HENRY H. CUMMINGS & another vs. RUSSELL S. HOLT.

MORTON, J. This is an action of contract upon an account annexed consisting of thirteen items amounting to $102.47, the last item being the footing or total. After the suit was begun the father of the defendant went to the plaintiffs' office when the bookkeeper was there alone and paid her $3.03, the amount of the first item, and took from her a receipt for the work described in that item, nothing being said by the bookkeeper or the father about interest or costs. The defendant admitted his liability at the commencement of the action for this item, but the testimony was conflicting as to his liability for the other items. The jury returned a verdict for the plaintiffs and assessed damages in the sum of $113.81. The case is here on exceptions by the defendant to so much of the charge as instructed the jury that the effect of the payment of the first item after suit was begun was to entitle the plaintiffs to a verdict in their favor under any circumstances for nominal damages. But the judge also instructed the jury that while their verdict should be for the plaintiffs for nominal damages if they thought that the plaintiffs were only entitled to recover on the item that had been paid, on the other hand, if they thought that the plaintiffs were entitled to recover the entire amount or a substantial portion of their claim then they should render a verdict for such larger sum. It is evident that the jury thought that the plaintiffs were entitled to recover the entire amount or a substantial portion of it, and therefore that the instruction objected to, even if erroneous, did the defendant no harm. If it could not have done the defendant any harm then no reason appears for disturbing the verdict or sustaining

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the exceptions. Smith v. Kimball, 105 Mass. 499. Cunningham v. Parks, 97 Mass. 172, 175.

Exceptions overruled.

J. E. Crowley, for the defendant.

H. L. Boutwell, for the plaintiffs.