Emmons v. Lord

The opinion of the Court was drawn up by

Weston C. J.

Upon examining and comparing the several statutes, to which we have been referred, by the counsel for the defendant, we are satisfied, that an appeal does not lie from the District Court to this Court, in all actions originally commenced in the District Court, as contended for by him. The statute of 1839, c. 373, <§> 4, determines and limits appeals from the District Court. And this cannot be deemed to be varied by the repealing clauses in the twelfth section. The will of the legislature, as expressed in the fourth section, operates in effect as a repeal of all prior legislation, inconsistent with it.

No exception was taken, in the trial below, to the form of the action ; and it is a point therefore not open to the defendant.

By the terms of the contract, the board and washing of the plaintiff’s son was assumed by the defendant. There is nothing which limits the performance of this duty only to the time, when the son should remain in the enjoyment of health; and we perceive no reason why such a condition should be implied. If it was otherwise understood, from a well settled usage, with reference to which the contract might be presumed to have been made, it might perhaps control its construction. But a usage that the charge for board and washing, which is all that is here claimed, should be borne by the defendant is both reasonable in itself, and consistent with the contract. If this could not, by the providence of God, be supplied at the defendant’s house, why should he not. furnish it elsewhere? He undertook to do it for the period limited, and nothing has taken place to relieve him from that obligation. It may deserve consideration, whether the plaintiff had any occasion to resort to proof of usage. But if such a usage existed, which the jury have found, it is consistent with the contract, and not in our judgment liable to any legal objection.

Exceptions overruled.