
    Martha J. Herrmann vs. Eleazer F. Orcutt & another.
    Hampshire.
    September 17, 1890.
    October 25, 1890.
    Present: Field, C. J., Devens, W. Allen, C. Allen, & Knowlton, JJ.
    
      Intoxicating Liquors — Civil Damages—Accord and Satisfaction—Evidence.
    
    In an action brought by an administrator under the Pub. Sts. c. 100, § 21, for injuries to his intestate caused by an intoxicated person, evidence of an accord without satisfaction is not admissible in defence, or to limit the amount of damages that may be recovered.
    Tort, under the Pub. Sts. e. 100, § 21, brought by the administratrix of Charles F. Herrmann against Eleazer F. Orcutt and Fowler L. Washburn, for an assault made upon the-intestate by Washburn while intoxicated by liquors sold him by Orcutt.
    At the trial in the Superior Court, before Staples, J., there was evidence tending to show that Orcutt sold intoxicating liquors to Washburn, which he drank, and that he thereby became intoxicated, and while so intoxicated he committed the assault in question, which, as the plaintiff contended, resulted in the death of the intestate. The defendant Orcutt offered evidence tending to show that, upon the day the intestate died, Washburn called at his house, and had some talk with the plaintiff and with her husband, the intestate, regarding the alleged assault, and that during that conversation the plaintiff told Washburn that her husband said that Washburn ought to pay him thirty dollars before the following Saturday night, and that Washburn agreed to pay the same.
    
      The defendants asked the judge to instruct the jury, that, if the plaintiff recovered anything, she could not recover more than thirty dollars, and interest on the same from the date of the agreement. The judge refused so to rule, but ruled that the jury might take such offer into consideration in estimating the damages, and submitted the case to the jury under appropriate instructions, not excepted to.
    The jury returned a verdict for the plaintiff in the sum of $793.58; and the defendants alleged exceptions.
    
      J. B. O'Donnell, for the defendants.
    
      J. 0. Hammond H. JP.. Meld, for the plaintiff.
   Field, C. J.

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.  