Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1895-03-25
Rescript.

somewhat celebrated case OF StackpOle VS.
Perkins.
| Chas. T. Stackpole ct al. vs. Albert X
| Perkins.
Rescript by Wiswell, ].
A careful examination of the volumin
GUS testimony in this case fails to satisfy
us that the verdict was SO manifestly
wrong as to warrant its disturbance
On the 18th of December 1889, the
plaintiffs bought a horse of the defendant
for which they paid SIPS in money and
other considerations. They took written
warranty of soundness. Early in the
month of February following, quarter
| crack was discovered in the horses right
forward hoof. The sole question at issue
was whether this defect existed at the
time Of the sale CT had occurred subse-
quently. The plaintiff contentious were,
that the quarter crack existed at the time
of the sale and before; that it had been
concealed by some substance placed there
in, and that the condition of the hoof it.
self, as shown by photographs and de
scribed by witnesses conclusively proved
that the defect complained of had existed
for longer, and probably much
longer, period than had elapsed between
the time of the sale and that of the dis
covery. Much evidence was introduced
in support of all these contentious. While
upon the other hand, large number of
witnesses were produced upon the part of
the defence, blacksmiths, hostlers and
others, many of whom had exceptional
opportunities of seeing and knowing the
condition of this horses hoofs, who testi-
fled that there was no diseased condition
of the hoof, of any kind, at the time of
and shortly prior to the sale. The evil
dence CT upon the main question as we'll
as upon all the incidental propositions in
volved, was most conflicting. The ques-
ton at issue was essentially one of fact,
and within the exclusive province of the
jury to decide. We can perceive no reason
why the jury should have been influenced
by bias or prejudice, and even if we
might have come to a different conclu-
sion, this is not sufficient to justify the
interference of the court in setting aside
verdict, unless we are satisfied that it
was clearly wrong. 1t is also proper to
take notice Of the fact that the case has
been twice tried, and each time resulting
in verdict for the defendant. The first
verdict was set aside upon two motions,
one, because it was against the weight of
evidence, and the other, on the ground of
newly discovered testimony. While the
law court sustaind both motions, Stack
pole VS.. Perkins, 95, Me-, 2gS, the opin-
ion shows that the verdict was set aside,
principally upon the motion based upon
newly discovered testimony. 1t is there
said, "A careful consideration of the evil
dence used at the trial, makes it extremely
tc,,1 NJ ,%,s,
by the weight of it. Witnesses are pro-
duced ION the motion because of newly
discovered testimony who testify that
they saw the quarter crack before the
sale. If their testimony be true, the YER
dict should not stand. We have not seen
them, and heard them testify. We think
their credibility should be passed upon by
a jury"
At the last trial the jury had the OPP
portunity of seeing and hearing these
witnesses, who did not testify at the first
trial. They have passed upon their credi-
bility, adversely to the plaintiffs conten-
ton. We do not think that the interests
of justice require further trial. Motion
overruled.
This case was originally started in the
superior court, June term, 1890, but was
entered neither party in that court and
new suit brought and entered in the
supreme court at the October term, 1890,
when it was tried and verdict rendered
for the defendant. The case was carried
to the law court upon a motion for new
trial and subsequently motion was filed
for new trial on the ground of newly
discovered testimony. In 1898 the law
court sustained the motions and sent the
case back for another trial. At the March
term, 1898, the case was partially tried to
a jury, but withdrawn on account of the
absence of material witnesses. At the
October term, 1898, the case was again
tried and a second verdict rendered for the
defendant The case was again carried
to the law court and argued at Bangor at
the June term, 1894. The horse over
which this long litigation he's been carried
on is the well-known Cunard, Jr. Baker,
Baker & Staples appeared as counsel for
plaintiff, and Heath & Tuell and Walton
81 Walton for defendant.