The Portland daily press., 1874-12-28

DECEMBER CIVIL TERM, 1874, sYMoNDs, j., PREsID
ING.
SATURDAY.-Sumner Adams VS. Alexander Nc
Farland.
At the coming in of the Court on Saturday morn
ing, the jury rendered verdict for plaintiff in this
case for the sum of S13,9Z. M
The principal facts OF the case were as follows:
From March, 1867, to Dec. Is, 1869, the plaintiff
was the agent Of one George W. Cutter. who was
then working grind stone quarry in Nova Scotia,
for the sale Of the products of the quarry In the
Omitted States, and such agent had rendered ser
vices, incurred expenses, dsbursed moneys and ac-
cepted drafts to large amount on account OF said
ON or about Dec 18TH 1862 the plaintiff began to
fail to meet the drafts which he had accepted one
OF which was held by defendant and served by Mas
tiers Co., of Halifax Nova Scotia; and some OF the
drafts mature1 and were returned dishonored.
Thereupon defendant and Masters g. Co., who had
Claims which b thew held apainst said Gutter came to
Portland to ascertain wnat could be done 10 secure
them against the loss which they were likely to sus
tain by of the failure of plaintiff to honor the
drafts which he had SO accepted.
George W. Cutter was in Portland with them at
the time and after an examination OF palnti \,
agreement of Dec. Is. 1869, was signed, by which
said Cutter agreed to adjust and settle all accounts
with plaintiff on before May LIST, and to pay to
plaintiff whatever sum should be found due him on
such adjustment in three and six months from said
May 1s 1870. If said Cutter did not so adjust and
settle the accounts of said agency on or before said
May LIST, 1870 then by the terms of said agreement
plaintiff might submit them to ID. w. Fessenden of
Portland, who authorized to proceed without mo-
tice 10 Cutter and whose adjustment and award
made May 18th as soon therefore as it could be
completed, was to be as binding between the parties
as If made by them personally, and said Cutter was
to pay the whole amount of it in thee and six
months from said MAY list.
The performance of this agreement of Dec. 18th,
on the part OF said Cutter was in writing OF that
date guaranteed by the defendant and by Masters3&
Co.. and in consideration of said guaranty the plain
tiff released to the guarantors property OF said Cut
ter then in the possession of plaintiff and which he
held as agent or which he had secured by attach
ms and 20 d in eos
GRAFTON for said guaranty the plaintiff also agreed to
release fifty per cent of bis claim for commissions on
grindstones sold during the years 1868 and 1852
1t was on this contract Of guaranty that the pres
ent action was brought. .liI.F
Said Cutter failed to keep his agreement to adjust
and settle all accounts relating to said agency on or
before said May 1st $780, and early in May plaintiff
submitted the accounts to said Fessenden for settle
ment. Mr.. Fessenden gave due notice of said hear
ing to said Cutter and said Cutter appeared at the
hearing before the referee and was heard personally
and by counsel. .- -....,-. -i- 81 81.
The report of the referee was not published until
Dec. 3d. 1870; the delay having been occasioped by
illness in bis family and by the necessity of at
tention to official duties as Clerk of Courts. There
was also testimony tending to show consent to such
delay on the part of said Cutter and of defendant
The report of the referee, when made was in favor
of the plaintiff and was for the of S10924, with
interest from said May list, 1870.
There were two counts in plaintiffs writ, under
the first of which he claimed to recover the amount
said award under the second plaintiff claimed to
recover Of the surety the amount actually due from
Cutter on said May 1st 1870, without reference to
the award, damages caused by the failure of said
Cutter to adjust and settle and pay that date in
x,,;k1,+ 1a feo;d
By agreement of counsel if the verdict was rem
dered on the second count, the damages were to be
lett in blank, to be determined at subsequent hear
ing before the Court.
great many questions of law arose during the
progress of the case and are reserved upon excep-
tions for the decisions of the Law Court. --
Upon the question OF the liability of defendant only
two questions were argued before the jury.
First-was the original contract of guaranty pros
cured by the fraud of plaintiff either in wilfully mis-
representing or in wlfully conceali1g the material
facts relating to the amount of liability which de-
PENDANT was assuming by signing said contract:
Second-Was it the fault of the plaintiff that Cut
or before May 1st 1870 according to said agreement
The jury were instructed that if either Of these
questions was decided against the piainf theif Ves
lions were answered IN favor OF the pialntiD, theh
the only remaining question was one Of damages;
If valid award had been obtained from MI Fes-
sender and under the rules of law given to them the
Jury still found plaintiff entitled to recover, tht by
agreement Of parties the jury were to find for the
plaintiff without stating the amount OF damage. III
on the other hand upon rules OF law stated the jury
found the award valid, then that was to afford the
measure of damages and plaintiff should recover the
amount of it with interest from May list. 1870.
The Court instructed the jury that unless there
was waiver of time for report of referee to be made
by subsequent agreement it was not seasonabiy made
to bind defendant guarantee and upon this ques-
ton of fact the waiver of the Limitation of time, their
verdict SO far as amount of damages was concerned
must depend. RI.
The verdict was for the amount of award with in
terest.
The case goes forward to Law Court upon excep-
lions.
Howard s. Cleaves-J S. Abbott for plaintiff.
W. L. Putnam for defendant.