211 Mass. 472

March 12, 1912 - April 1, 1912

Suffolk County


Practice, Civil, Exceptions.

An exception by a defendant in an action of contract to a refusal by the judge presiding at the trial of the action to rule that on all the evidence the plaintiff was not entitled to recover will not be sustained if the bill of exceptions does not purport to contain the substance of all of the evidence at the trial material to the ruling, although from such evidence as it does contain it may appear that the ruling should have been given.

DECOURCY, J. This was an action for an alleged breach of a warranty in the sale of a piano. The defendant agreed that if the instrument should prove defective in material or workmanship within the time covered by the warranty he would put it in good repair or replace it with another of the same quality. He excepted to the refusal of the trial judge [Note 1] to rule that the plaintiff was not entitled to recover; and in his bill of exceptions sets out testimony which tends to show that he did offer to replace the plaintiff's piano with another of the same quality and that the plaintiff would not accept it because the defendant refused to give her a warranty with the second piano. If this were all the evidence the ruling doubtless would have been given, as it appears that the judge "ruled that the defendant was not obliged to give the plaintiff an additional guaranty with a piano given to replace the piano sold." But the exceptions do not purport to contain all the evidence; and it is apparent that the record presents to us only a fragment of the case upon which the court was asked to rule. The defendant fails to show that he was aggrieved by the refusal of the court to rule as requested.

Exceptions overruled.

The case was submitted on briefs.

E. P. Benjamin, for the defendant.

A. J. Connell, for the plaintiff.


[Note 1] Bell, J.