Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-05-19

Lewiston, for recovery for damages al
legged to have been received by reason
of an obstruction in a street. the YER
diet for the plaintiff is set aside and
the motion for a new trial is granted.
By a rescript handed down by Chief
Justice Wiswell from the law court and
received here. today, Judgment for de-
PENDANT is given in the Oxford county
case of Richmond L. Melcher VS. The
Insurance Company of Philadelphia.
The rescripts in full follow:
Androscoggin county case of Susan
r. Whitman VS.. City of lewiston
While the plaintiff was being driven
by her husband in an open wagon
drawn by one horse along one of the
public streets of Lewiston, the wheels
upon one side of the carriage came in
contact with, and went into, an OBJ
structiOn in the street, so that the car
rage was overturned, the plaintiff, as
we'll as her husband, thrown out and
she sustained some bodily injury. In
the trial Of the action to recover dam
ages for the injury sustained by reason
of the alleged defective condition of the
street, the plaintiff recovered a verdict
The case comes to the law court upon
the defendants motion for new trial.
The accident occurred at about 8
o'clock in the evening. AT the time, the
moon, nearly full, was shining very
brightly, and there was not a cloud in
the sky to obstruct the moonlight, 50
that objects in the street could be seen
fer Il cOnSiderabl distance. The horse
that the plaintiffs husband was driv-
ing was wholly blind and had to be en-
tirely guided by the driver.
The court is satisfied from the stu
alton and the undisputed facts, that if
the plaintiffs husband had been exer-
cising, just prior to the accident, such
degree of care as was made necessary
by the fact that his horse was totally
blind, he could have easily avoided the
obstruction in the street. For this rea-
son the alleged defective condition of
the street was not the whole cause of
the accident and the plaintiff was not
entitled to Il verdict in her favor.
Motion granted. Verdict set aside.
oxford county case of Richmond l..
Melcher VS.. The Insurance Company of
Pennsylvania.
The compromise of a doubtful claim
is sufficient and valid consideration for
a promise to pay money for the settle
ment of such claim, and it is inmate
rial upon which side the right ultimate
ly proves to be.
But in order for such a compromise
to constitute a sufficient consideration
leo TO :
that the parties should at least have
supposed at the time of the compromise
that the validity of the claim made was
doubtful, either because of question as
to what facts might be susceptible of
proof or of a doubt as to the rules of
law applicable thereto. The claim must
be one that is made in good faith, with
belief by the claimant that there is
some chance of its successful enforce
ment. The surrender of mere
groundless claim, which is known by
both parties to be unenforcible, is not
a sufficient consideration.
One Baker was insured by the de-
PENDANT company against loss by fire
upon dwelling house then owned by
him. The policy contained a provision
to the effect that it should become void
if the property insured be conveyed
without the assent in writing of the in
surer. Subsequently, Baker conveyed
the real estate to his Wife, who mort
gagged it to the plaintiff. The insurance
policy was never assigned to the gran
tee and no notice was given to the in
Surance company or it's agent of the
conveyance to the wife or of the mort
gage by the latter to the plaintiff. Still
later, but during the time covered by
the policy, the dwelling house was en-
tirely destroyed by fire.
1t is clear from the foregoing state
ment that the policy of insurance. so
far as it covered the dwelling house,
had become void prior to the loss. by
the conveyance of the property without
the knowledge or consent of the insur-
er and without the assignment of the
policy.
But this action by the mortgagee is
not brought upon the contract of insur-
ance but upon a promise alleged to have
been made by the insurance company
to pay the plaintiff the sum of $4OO for
the purpose of compromising his claim
against the company. 1t appears that in
the course of considerable correspond-
ence between the plaintiff and the agent
of the defendant, the latter, although
all the time denying the liability of the
company, expressed desire to bring
about a settlement of the loss, and that
he finally wrote the plaintiff Offering.
in behalf of the company, to pay the
actual cash value of the buildings at
the time of the loss, estimated to be
$500. This offer was later accepted but
was subsequently withdrawn by the
company The action is to recover up
on this promise.
Upon the undisputed facts, the case
coming to the law court upon report, it
is considered by the court that the offer
relied upon was not made for the pur-
pose of compromising a doubtful claim.
That it cannot be believed that the
plaintiff would have commenced any
action against the company upon the
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