Herrmann v. Orcutt

This is an action brought by the administratrix of the estate of Charles F. Herrmann, under the Pub. Sts. c. 100, § 21. In this section it is provided as follows: “ In case of the death of either party, the action and right of action shall survive to or against his executor or administrator. The party injured, or his or her legal representative, may bring either a joint action against the person intoxicated, and the person or persons who furnished the liquor, or a separate action against either.” The defendants are Orcutt, who sold the liquor, and Washburn, who bought and drank it, and, thereby becoming intoxicated, made an assault upon the plaintiff’s intestate.

The ruling asked for by the defendants rests upon evidence offered by them, which might have been disbelieved by the jury; and if believed, it did not necessarily show an agreement between the intestate and Washburn that thirty dollars should be paid and received in full satisfaction of the cause of action; and the thirty dollars was never paid. Even if there had been an accord without satisfaction, it would not be a defence, or conclusive upon the amount of damages to be recovered in the action.

Exceptions overruled.