The Portland daily press., 1881-04-25
Supreme judicial Court.

Charles r. Milliken VS.. Cullen C. Chapman
Assumpsit upon due bill for S3625-dated June
81, 1879, signed by the defendant. The defense
was that the due bill W S given for notes of the
Dernison Paper Manufacturing Co.. which the de-
PENDANT was induced to purchase by the false rep
RESERVATIONS of the plaintiff and concealment Of
facts to the financial condition of the Company.
In 1879 the plaintiff lessee of the pulp mills
of the Forest Fibre Company of Berlin, N H.,
which turned out about nine thousand dollars
worth of pulp monthly, the larger part of which
was sold on credit to the Dennison Paper Co., of
Mechanic Falls. There was clean settlement
between them, but whenever Milliken wanted
money he sent to Dennison, the treasurer, who
responded by sending the Company's notes for a
round sum, Some of these notes he sold to brokers
and some he endorsed AMI had discounted at the
bank. Milliken testified that between November
1873 and March 1879 he sold Chapman about ten
thousand dollars worth of the notes at rates of dis
count varying from ten to fifteen per cent In
March Chapman notified him that he did not want
any more of the paper. About the 18th or 18th of
June, he met Chapman's clerk on the street, who
asked him why he didn't bring MIR. Chapman some
more of that paper that after he received some
more notes of Dennison, offered them to Mr.. Chap
man for nine per cent, which offer Chapman de-
clined and he took them to the bank for discount
making about nine thousand dollars of the Com
panys paper he then had under discount.
MIR. Milliken testified that on the 9th of June
the date of the the transaction in question, while
his way from the Glen House to Portland he acct
IDENTIFY met Adna G. Deonison, the treasurer of the
Company. on the train between Mechanic Falls and
Danyille junction; had but few moments CONVEX
generally and asked him to come into the store of
w. c. r. Milliken on his arrival at Portland and
give me some notes, which he did to the amount of
$4,000. did not see Dennison after the train left
Danville Junction until he came into the store l
then intending to return to the Glen that after
noon by the way of the Ogdensburg L went with
nlmpd1afely Ghapmap,c off 90 I
wantei the money. 1t was then about half past
one O'Clock Chapman made me an offer for the
S3625, which was nearly IL per cent. discount.
He accepted the offer, turned to his safe, said his
cashier or bookkeeper had left taking the KEY and
he had no check book. L told him it didn't make
any difference, he could give due bill and
would get the money on it of my brother and he
could hand it in the next day. He gave me the due
bill in suit. Nothing was said about the financial
condition of the Company as he knew as much
about that as did. / did not go back to the Glen
that day as business kept me here: did not hear of
) the failure of the Dennison Paper Company until
the next day, when l heard that their note for
S1700 went to protest the day before.
Mr.. Adna c. Dennison, Treasurer OF the company
testified that the meeting with Mlliken the train
how business was, and he told him the company was
getting along as well as usual with the exception
that Parsons of New York. the selling agent for the
company had been AT Mechanic Falls, and they had
asked him for an advance of $1,000 to carry them
through June, and Parsons had agreed to advance
II A T. Dennison, the manager, was satisfied that
arrival at Portland he went to the Millikens store
gave the notes as requested to amount more than
enough to pay the balance of account but not more
than enough TO cover the pulp then on the way. He
then started up town to pay the tie maturing that
day. which he expected to do out of the advance by
Parsons. On the way he met his son, A. T. Denni-
son. who informed him that Parsons had not only
refused to advance the $4,000 but had sent for
ord mortgage for 100000 held by him on the
property at Mechanic Falls Mr. Dennison could
not pay the note and it went to protest.
Mr.. Chapman, the defendant, testified that two
nEE fhn of
him some of the Dennison paper on four months
which he declined tie purchase, OH the ground that
all the paper Milliken had been discounting would
fall due before this matured and he did not want to
take such a risk
on the 9th of June about 20 minutes past one
Mlliken came into my Office in great haste and
asked if would like some short paper of the Den
nison Paper Company. My suspicious We're at once
excited for ! had never seen any short paper of
and the ink was fresh. / said to him. 81 suppose
you stopped on the way down at Mechanic Falls,
that he came straight from the Grand Trunk depot
TO my office and he was in great hurry for he
wanted to go back that afternoon. He said his
business coming on at the Glen and he was dis
posed to sell this paper. He said he was doing
business with the Company and knew about them,
expected to do business right along with them and
he would sell them ten or twenty thousand dollars
worth of goods the next day if they wanted it; that
the Company so far as their financial standing was
concerned was unchanged. He did not tell me that
A. C. Dennison was in the city that Parsons had
been asked for an advance. The face of the notes
bill Tor S3625. l did not come down town that
afternoon and did not get down until late the next
morning when learned that the due bill had been
presented twice that morning at my office for pay
ment Upon inquiry / learned of the failure of the
Company the day before and Immediately notified
Mr.. Milliken that / should refuse to pay the due
bill and the notes were at his disposal
No question was made but that there was a resets.
sion if the defendant had right to rescind.
The Court instructed the jury that the burden of
proof upon the defendant to show by prepon-
derance of evidence that the due bill was obtained
from him by the false and fraudulent representa-
tions of the plaintiff.
The defendant further claimed that even if there
were false representations to the character or
condition of the company at the time; still what
ever took place was rnder such mutual mistate of
facts would give the defendant right to rescind
the contract Upon this point the Court instructed
the jury that If they should find that when the sale
was completed the Dennson Paper Company had
I'm fact failed had suspended payment, and neither
party knew it then the defendant would be entitled
TO a verdict, but if it suspended any time after the
completion of the contract it would be defense;
that the failure would take place at the time the
note went TO protest. There was no evidence that
the note protested befory two o'clock in the af
ternoon when the banks close and there was no ev-
idence that the company had any other note than
the $500 note maturing that day.
The jury after being out eight hours failed to
agree.
Putnam for plaintiff.
S. c. Strout with c. f. Libby for defendant.