Bosworth v. Pomeroy.

ment, to be enforced against the property attached, and not against the person or other property of the defendant. The object of this is to enable the plaintiff to avail himself of an exist ing lien saved to him by the bankrupt law, and which cannot be enforced in any other way. Davenport v. Tilton, 10 Met. 320. Loring v. Eager, 3 Cush. 188. Bates v. Tappan, 99 Mass. 376. Carpenter v. Turrell, 100 Mass. 450.

In this case the bill of exceptions shows that the plaintiff attached both real and personal estate of the defendants, more than four months before the institution of the proceedings in bankruptcy. The liens thus acquired are preserved for his benefit by the provisions of the bankrupt law. There is nothing to show, and it is not claimed, that the attachment upon the real estate was dissolved or lost in any way. It remains an existing lien, and entitles the plaintiff to the qualified judgment ordered in the Superior Court, without regard to the question whether the attachment of the personal property was dissolved. The evidence offered by the defendants to show that the attachment of the personal property was dissolved by the acts of the parties, was therefore immaterial. As the proper judgment was ordered, the defendants were not aggrieved by its rejection, and it is not necessary to consider whether the reason given therefor was correct.

The effect of such judgment is not to determine the right of the plaintiff to levy his execution upon the personal property which the officer attached. It merely furnishes him with the means of enforcing any lien which he may have. The question whether he has, as alleged in the answer, agreed that the property might be sold to a third person, and thus dissolved the attachment and lost his lien, can, if he levies upon such property, be tried in a proper action, to which all persons interested can be made parties. Without considering the question, how far in any case the court may receive evidence, outside the record, that an attachment had been dissolved, it is decisive of this case, that the continuing lien created by the attachment of real estate justified and required the judgment ordered in the Superior Court. Exceptions overruled.

Clapp v. Thayer.

WILLIAM R. CLAPP vs. LEROY D. THAYER & others.

It is a question for the jury whether a contract to furnish "about four hundred "castings is substantially complied with by furnishing three hundred and thirty-one castings. It is a question for the jury whether a contract to furnish frames weighing ten pounds pair is substantially complied with by furnishing frames weighing twelve pounds a pair.

CONTRACT on an account annexed, to recover for "331 creal castings, 2004 pounds, at 12 cents per pound."

At the trial in the Superior Court before Rockwell, J., there was evidence tending to show that the defendants agreed with the plaintiff to supply a quantity of creals used in the manufacture of cotton yarns; that the number to be furnished was to be about four hundred, or about eight hundred, that if the defendants took four hundred they were to pay twelve cents a pound, and if they took eight hundred, ten cents a pound; that the defendants ordered forty-four of the creals, and if these were made to their acceptance, they were to order more at a reduced price.

It was admitted that by the original contract the creals were to be made after patterns furnished by the defendants. That the creals for which the action was brought weighed more than ten pounds, and that the average weight was a fraction more than twelve pounds. There was evidence tending to show that there would be a variation from the patterns in ordinary castings. The testimony of the defendants was that the patterns weighed ten pounds, and that the castings ordered were not to be heavier. The testimony of the plaintiff was that the patterns weighed about eleven pounds.

There was evidence that the first castings made from the patterns furnished by the defendants were not suitable for the purpose designed; that an alteration was made in the patterns, and another lot cast, which would not answer the purpose; that after consultation with the foreman of the defendants, it was decided to make new patterns, and make the socket for the spools larger that this was done and some castings made from the new patterns, which were shown to the foreman; that he tried the spools into them and pronounced them to be right; that he was told s

Clapp v. Thayer.

the time that they were heavier than those first cast, and their weight given him, and he said nothing; that some of them were sent to the defendants' factory; that they were afterwards sent back to the plaintiff by a boy, who told him the defendants were going to have some more cast.

The defendants asked the court to rule that "if the contract was what the plaintiff says it was, that he was to furnish either four hundred or eight hundred frames, four hundred at twelve cents, or eight hundred at ten cents, then the plaintiff cannot recover for three hundred and thirty-one frames, as that is not a substantial compliance with the contract," and that "if the contract was that the frames were to weigh ten pounds a pair, and the jury believe that the frames sued for averaged twelve pounds a pair, that that is not a substantial compliance with the contract."

The judge instructed the jury fully upon all the other matters in the case, in a manner not objected to, and stated that he saw no occasion to give the specific instructions requested. The jury found a verdict for plaintiff, and the defendants alleged exceptions.

C. E. Smith, for the defendants.

D. W. Bond & H. H. Bond, for the plaintiff.

BY THE COURT. The only exception taken is to the refusal to give the instructions prayed for, and we are of opinion that both of them were rightly refused. Each of them requested the court to decide as matter of law what was purely a question of fact. It was for the jury to decide whether furnishing three hundred and thirty-one frames was a substantial compliance with a contract to furnish such frames "to the number of about four hundred;" as well as whether frames weighing on the average twelve pounds the pair, substantially complied with a contract to furnish frames weighing ten pounds the pair. It is to be observed, as bearing upon the latter point, that the bill of exceptions states that there was evidence tending to show that there would be a variation (how much is not stated) from the patterns in ordinary castings. Exceptions overruled.

Cowles v. Cowles.

ENOCH D. COWLES vs. FRANCES M. COWLES.

The utter denial of sexual intercourse on the part of a wife is not cruel and abusive reatment entitling the husband to a divorce under St. 1870, c. 404, § 2; neither is it a cause for annulling the marriage.

LIBEL FOR DIVORCE, in which the libellant set forth that he was married to Frances M. Dickinson, June 7, 1871; that soon after their marriage he and his wife commenced housekeeping, and that with occasional absences of the wife they continued to occupy the same house till April, 1872, since which time she has ceased to live with him; that she from the time of their marriage had been guilty of cruel and abusive treatment of him, in refusing to have any sexual intercourse with him, and had never had such intercourse, and had ever refused to have it. Wherefore he prayed that the bonds of matrimony between them might be dissolved.

The libellee was defaulted, and the libel was heard before Wells, J., who refused to grant either a divorce or a decree of uullity, solely on the ground that the utter denial of sexual intercourse was not a cause for which such a decree in either form could be made by the court. The libellant excepted.

E. Dickinson, for the libellant.

COLT, J. This libel for divorce alleges cruel and abusive treatment only. In support of it the wife's utter denial of sexual intercourse is relied on. It is not now contended that any other cause of divorce exists.

Such conduct is not to be regarded, within a reasonable inserpretation of the provision of St. 1870, c. 404, § 2, as cruel and abusive treatment. Under the like provision of Gen. Sts. c. 107, § 9, it has been held that the cruelty charged must appear to be such " as shall cause injury to life, limb, or health, or create a danger of such injury, or a reasonable apprehension of such danger." Bailey v. Bailey, 97 Mass. 373. Peabody v. Peabody, 104 Mass. 195. Southwick v. Southwick, 97 Mass. 327.

It plainly does not go to the original validity of the marriage, and affords no ground for declaring the nullity of it.

Exceptions overruled.

Cullen v. Sears.

JAMES CULLEN vs. ROBERT SEARS.

When a commissioner, to whom a petition to establish the truth of exceptions has been referred, is in doubt whether, upon the facts found by him, the petitioner is entitled to have them allowed, he should report the facts and submit the questions of law arising thereon to the court.

When a commissioner, to whom a petition to establish the truth of exceptions has been referred, submits questions of law arising upon the facts found by him to the court, such questions are ordinarily to be argued in connection with the exceptions, if any, as proved.

▲ party, who petitions to establish the truth of exceptions which have been disallowed, is not entitled to an exception which is found to be substantially different from the excep tion presented for allowance, but he is entitled to be heard upon those of the exceptions the truth of which is established.

A party presented a bill of exceptions for allowance, in which he stated that he asked for certain instructions (set forth in the bill) upon the weight to be given to an auditor's report, and added, "but the court declined to instruct the jury upon this point." The exceptions having been disallowed, it appeared, upon a petition to establish their truth, that full instructions had been given upon the point. Held, that the truth of this exception was not substantially established, and that the question of the validity of the instruc tions given was not open to him.

A plaintiff may recover under a count upon an account annexed, for work done and mate rials furnished in building a house under a special contract which he has substantially performed, and the measure of damages is the contract price, deducting the diminution in value of the house to the defendant, caused by deviations from the contract.

CONTRACT upon an account annexed, containing as its first item: "To amount of contract price for house as per contract annexed, $700;" and giving as a credit: "Credit by cash paid, $600." The contract referred to was a written agreement of the defendant to pay the plaintiff $700 for building a house according to certain specifications therein set forth.

The answer denied each and every allegation of the plaintiff's declaration, and alleged that the cause of action arose under a contract, and that "the defendant did not perform the contract, but failed to perform it in many respects, and did not do the work in a proper and workmanlike manner, nor furnish such materials as he agreed, nor complete the work at the time agreed, and it cost the plaintiff a large sum to supply the deficiencies of the plaintiff."

The case was referred in the Superior Court to the clerk of the court as an auditor, the material parts of whose report were as follows: