The Portland daily press., 1898-12-29

Town of South Portland VS.. Town o.
Cape Eliza BETH
Rescript by Strout, j Chapter 1914 Of
the special laws of 1925, which divided
the town of Cape Elizabeth, treats South
Portland. though nnder another name, as
the old town from which the new town
of Cape Elizabeth was set OH When part
of town is set off and Incorporated as a
new town, the old town. though shorn of
part of its territory, still retains all the
property, powers and rights, and remains
subject to all the obligations OF the or1gl
nal town, unless otherwise provided IN
the act.
South Portland being treated in the act
as the original town, becomes primarily
liable for all it's debts and entitled TO To-
ceiye its assets. The act provided that
ssthe town debt shall be borne by said
towns in proportion TO the valuation OF
taxable property and estate within their
respective territories as taken by the as
SCISSORS in April eighteen hundred and
ninety -four"
Prior to the annual meetings in March.
1897 in both towns, a committee from
each had ascsrtained and reported to each
town at that meeting, that South Port
land had paid OF the debts of the old
town, in excess of assets received, S25.
1906 and that Cape klizabeth's proper
ton Of that excess was 5000 49, These
reports were accepted by each town, and
no question appears to have been raised as
to the accuracy of their amounts.
Under the provisions of section three
of the act, it then became the duty of
Cape Elizabeth 10 refund to South Port.
land this amount, and the law implies a
promise on the part of Cape Elizabeth to
pay it.
The town property consisting of school
houses. ferry wharf and other like proper
ty, was apportioned by section four of the
act, by giving to each town what was
situated within it's territory The
Language of the section is plain and inn
psrative and cannot be modified by tho
court to meet any supposed equity. 1t
was within the province of the legislature
to make such division. 1t is to be pre-
sumed that the legislature considered all
the equities
South Portland is entitled to recover
from Cape Elizabeth its proportion OF
debts paid by S,Nuth Portland, Immediate
ly after the nay ment 1t is not Obliged to
wait till all the debts are paid.
Tho decision at nisi prius was correct.
Exceptions overruled.
PENOBSCOT COUNTY.
Charles J. Dunn ct al. assignees, VS..
the Rumford Falls Paper company.
Rescript No opinion.
Strout 9TH verdict in this case is
unmistak ably wrong. Plaintiffs claimed
to recover a balance of $l,100, 81, as due
upon fourteen cars of pulp, delivered de
PENDANT, at contract price. Defendant
claimed discount of one-half cent per
pound for poor quality. The discount
eqnalled the amount claimed by plaintiffs,
and if allowed, nothing would be due
That the quality of the pulp was poor
and not up TO the contract, and that de-
fendant refused to receive it, except at a
discount of one half a cent per pound,
and that the discount was agreed to by
Forest on behalf of the Bangor company,
and Decker on behalf of the defendant,
before the pulp was accepted, is testified
TO by both Forest and Decker.
Forest was employed by the Bangor
company to ascertain and verify the
quantities and weight and determine the
ury test of the pulp delivered by the Ban
gor company to defendant discharging his
uuties at the mill of defendant. Decker
was superin endent Of defendant. Forest
testified that after he had agreed to the
discount, he notified his company of the
fact and the amount, and no objection
was made by it.
Smith, called by plaintiffs, testified
that he cooked the pulp for the Bangor
company, and that it was generally good
out some was poor. He knew nothing
ABOUT the fourteen cars in controversy.
Upon all the evidence, the only conclu-
sion that can fairly be reached, is that
the defendant is entitled to large dis
count from contract price, if not the en-
tire Sll00 81.
The jury allowed no discount, but
found a verdict for plaintiffs for thu
whole amount with interest
We are forced to the conclusion that thu
jury Inexperienced the evidence and it
weight.
Motion sustained, verdict set aside, new
trial granted.