The Portland daily press., 1876-11-20
Superior Court.
Superior Court.
NOVEMBER CIVIL TERM, 1876, sYMoNDs, j., PRE-
SIDING.


NOVEMBER CIVIL TERM, 1876 sYMoNDs, j., PRE-
SIDING.
Francis A. Smith ct ais. VS.. Thomas A. Rand and
Jordan Rand. This was an action of assumpsit up
on the following written agreement:
sin consideration that Thomas 4. Rand of Lisbon,
in the County of Androscoggn and State of Maine
is indebted in full we, whose names are hereunlo
subscribed to accept 80 per cent of the amount
due us in full satisfaction release and discharge oil
the same to be paid follows in Is per cent. in two
months. 10 per cent in four months, Is per cent in
six months, Is cent in eight months Is per cent
in twelve months from the date of June LIST, 1876
payment to be secured by note of Thomas II. Rend
endorsed by Jordan Rand OF said Lisbon, payable at
the said times with interest. In witness whereof we
have hereunto set our hands with the several
Smith, Gage & Co., 81 ,691.2S; Woodbury. & Latham,
$S62 81; Deeri9 sgs Miliken CO. $500 o.; n: NJ
j. Walker, $3.50; Williams, Pusifer & Co., Sl15 so
j. B. Dounel S101.75; Geo. A. Hunt & Co., $2l5.12
On the same sheet Of paper was this further writ
ing:
SIN consideration of the acceptance and signatures
of the foregoing creditors of and to the creditors
hereinbefore named we, Thomas H. Rand and Jordan
Rand, agree on part to make the said payment of
80 per cent at the times and in the manner herenbe
fore set forth. In witness whereofw have set our
hands the 29th OF May, A. d. 1876
(Signed) THOMAS r. RAND,
JORDAN RAND.
On the Goth of May, 1876, Thomas R. Rand, then
in trade at Lisbon, became aware that he was una
Dle 10 inject uOlee anu lldpllleS coming due
the next month"; he notified his Portland creditors
the fact, and asked an extension, representing
through his attorney that his assets exceeded his liza
bilities by two three thousand dollars. commit
tee of the creditors proceeded to Lisbon on the goth
and after remaining there nearly all day examining
into the condition of Thomas R. Rand, and discuss
ing what best to be done. the above paper was
drawn by Mr.. Moore, counsel for the Rands, and
signed by the parties
Owing to long illness of Thomas his financial
condition not easily arrived at by inspection
of the books; they had not been posted for months
and no account of stock had been taken for nine
months. He, however, represented himself as solv-
ent.
The above paper signed by three first firms at
Lisbon and Mr.. Smith took it to Portland and pro-
cured the remaining names.
On the first of June the releases and discharges of
the debts rendered to the defendants and notes
demanded according to the agreement, which de-
PENDANTS refused to give. Thereupon this writ was
brought. The principal ground Of defense was in
substance that at the time OF the execution of the
writing there was an independent verbal agreement
made between the parties that the contract was not
to be binding not to be delivered until the first
of June, and then only the contingency that the
Indebtedness in Portland should not exceed $500,
ness in Portland turned out to be about $780, This
verbal agreement was testified to by Mr.. Moore,
who drew the paper, Thomas R. Rand and his
brother Jordan Rand. On the other hand it was de-
MED that there was any such agreement or UNDER
standing by F. A. Smith, Joseph E. Blabon and
William w. Latham, the committee for the credi-
tors.
In his charge Judge Symonds said the jury should
exercise great caution in regard to deenses of the
character of that set up here; the jury should be
not to vary the legal rights of the parties from
the contract which they have signed except so far
as they proceed upon sure ground in doing it; that
the evidence should be such to satisfy the jury
that they are right before they arrive at finding
which suspends the operation of a written, formal
paper clearly and definitely determining the rights
of the parties according to its terms by proof of a
verbal agreement made at the time OF the exc
cution of the written document.
The jury rendered verdict for the plaintiffs for
Sl,564, Subsequently two other suits against the
same defendants in favor of Woodbury. q Latham
and Deerng, Milliken Co. settled and special
judgment entered in the three.
Strout & Gage for plaintiffs.
APP Moore-M f. Ludden for defendants.
Isaac Berry VS.. Julius f. Fuller. Assumpsit upon
an account annexed and an account in set off filed
The items were agreed upon except in the plain
ts account of 5000 cash and one in the account in
set off of $65 for storage The jury allowed the de-
fendant 800 in his account and rendered verdict for
the plaintiff for Sl9i03.
Knowltons for plaintiff.
Strout & Holmes tor defendant