Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-07-10
LAW COURT DECISION.
New Trial Granted in Case of White ct
al. VS.. II, n. Putnam!

thas handed down a rescript in the
Washington county case of Arey c.
!, White ct al. VS. Henry II. Putnam. 1t
7 ID as follows: :"
Rescript, Spear, ]. This was an ac-
ton of assumpsit to recover the bal
ance due for logs alleged to have been
sold and delivered by the plaintiffs to
the defendant. The real question in
voIved is the quantity of logs over
which there is a wide and sharp con-
& fict of testimony. Ordinarily the val
ue of testimony is a question of fact
for the jury. In every case, the credl-
4bility of a witness may be assailed, on
the ground of his interest bias preJu-
dice or bad reputation for Veracity;
but when parties, by their own test-
mony. openly given in court, and con-
firmed by their coadjutors confess to
acts which destroy their credibilty,
not only generally but directly and
emphatically, upon the issue involved,
their testimony should receive only
that credence, to which 1t is entitled
by the aid of other corroborattve evil
dence, worthy of credit. A brief aliu-
sion to the witnesses in this case. we
think. will enable us to determine the
credibility to which their evidence Is
respectively entitled
Almon w. Powell, the scaler, was
disinterested so far as the defendant
is concerned and without any appar-
ent reason for making a false state
ment to aid him. He was not in his
employ SO far aS his interest operated
to induce him to vary his testimony, 1t
was clearly IN favor of the plaintiffs.
Their interest was to count all the logs
they could. The scaler who represent
ed the seller, was certainly interested,
by reason of his employment, to secure
at least all the logs there We're to his
employer. The scaler, therefore, had
no reason for making his count of the
logs any less than they actually were.
The same cannot be said of the testi-
mony of the plaintiffs or their wit
nesses, Howard and Mushero. The ey-
idence in this case shows that the
plaintiffs made deliberate trade with
Howard and Mushero to pay them $3.25
per thousand for all the scaled logs
they hauled and $.25 for all the I'M
scaled logs: in other words agreed to
nav the haulcrs 81 per thousand for
all the logs out of which they could
cheat the owners and deliver to the
plaintiffs. by this trade the plaintiffs
made s. per thousand. But 1t VIII be
seen at once, that, for every log they
could not count to the defendant that
he cid not receive. they got $40 per
! thousand; hence the incentive to cheat
In the count to the defendant was o0o
per cnt. greater than to cheat the log
owners. Parties who deliberately make
a contract in which they put premi-
, u,n on dishonesty at the rate of 81 per
thousand board measure. are not en-
titled to much credit in case fnVoiy-
ing a conflict of their testimony with
that of a credible and unbiased wit
. ness.
| The testimony Is conflicting from be-
ginning to end as to the number and
scale of the log, In controversy. 1t can
not he reconciled But the evidence of
the plaintiffs and their two principal wit
! nesses is of little value unless corrobora-
ted by other reliable testimony. For the
count of the logs sued for. the jury had
to rely almost solely on the testimony of
these plaintiffs and Howard and Mushcto
If they would deliberately conspire to
cheat the land owner out of his logs, they
would just as surely do so to cheat the
defendant. All they needed was the OPP
portunity and they had it in this case
Tho evidence shows that their count de
PENDED almost entirely upon the plaintiffs
and Howard and MuShcro.
The plaintiffs say in brief Howard =
figures are based ON a careful count or
mart of his logs and his Intelligent estt-
mate of the remainder and are Therefore
far more reliable than Powells figures
based upon the m"rest guess. i'ut the
! count of Il party who conitsSeS tliat II ,co rs
his custom to offer and pay 500 per 10000
for a, false count by others for the ptr-
pose of his own gain can hardly be con.
sidercd reliable, as to the count mIde ny
himself which may enure to tae same
end
We think the evidence alleged to have
been discovered since the trial, comes
within the rule of newly discovered cyl
dcnco.
The plaintiffs testified that they had n"
operation below Danforth with a marx OF
cross girdle cross in 1900. run no loss Oh
this mark to Bangor, ana had no report
| from there OF any of this mark of logs
| that they registered the mark cross glrdlc
| at Bangor in 1900 for the express ana Soic
purpose of covering the Identical logs
| sold to the defendant, aud for no other
purpose They did carry on operations
below Danforth in 1900, and must nave
| known all about it at the time OF thiS'
| trial as well as after. but they choose 10
| conceal the evidence of 1t. The defendant
, knew nothing of these facts ana WAS
put off his guard by the testimony of the
plaintiffs with respect to them and while
they may have an inward CONSCIOUSNESS
| that he should not have relied upon their
| testimony, they cannot urge it against
him as a reason for not doing SO,
| The defendant. having no former
| knowledge of the facts alleged as the
ground for new trial. with the testimony
! OF the plaintiffs that there We're no such
| facts is entitled to have his motion on
the ground of newly discovered evidence
considered. The plaintiffs after discovery
| seek to ncutraizo the effect of the new
evidence by showing that they did carry
on an operation below Danforth in 1880
4; and hence arguendo, that the logs re-
ported from Bangor we've the logs of this
operation. They may and they may no.
is entitled. through the channel of iega
investigation and the right of cross ex
, animation TO know. We therefore think
a new trial should be granted on tn.
ground of newly discovered evidence Oul
view is that the verdict was manifestis
against the evidence and that the jury
clearly erred In the amount OF damages
they awarded the plaintiffs.
| 10th motions sustained.