Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-12-14

'I"
action and plaintiffs exceptions in the
action of trespass sustained.
Reed Dec. 18th. 1904.
Mary E. McAllister, Admx. VS.. Horace
Purinton ct al. Rescript by Savage.
J. (No opjnion.)
At some time prior to June 6, 1899.
Hiram McAllister sold six hundred and
eight cords of wood to the defendants.
1t is understood on both sides that the
purchase price was agreed upon. The
plaintiff says that the contract price
was two dollars and fifty cents a cord,
while the defendants say it was two
dollars a cord, and this presents the
only question in the case. which is a
suit by this administrative of McAllis-
ter. to recover a balance of fifty cents a
cord. June Is. 1899. the defendants paid
McAllister by check five hundred dol
lars. On the same day McAllister re-
ceipted for it and wrote upon the back
Of the receipt the following: please
pay SIG by the Is Of this month, June
g." On June Is the defendants gave
him their note on two months for five
hundred dollars and discount, and
three days later paid him by check two
hundred and sixteen dollars. The
plaintiff argues that the contract was
for two dollars and half a cord, and
that probably 1t was understood that
two dollars a cord was to be paid prac-
tically at the time. or during the month
of June, and that the remaining fifty
cents cord was to be paid after the
wood was all hauled and delivered
And she says the last of the wood was
delivered Jan. 2. 1900. The defendants
say that the several sums paid,
amounting to twelve hundred and six
teen dollars. paid for the wood in full.
After the payment in June, nothing
further seems to have taken place be-
tween McAllister and the defendants
until the December &c following, when
the defe ndants wrote McAllister that
claim for rent Of the land on which the
wood was piled had been made upon
them, and they suggested that il Meal
lister would pay half they would pay
half. And the case shows that on the
9Th of January the defendants paid Nc
Allister one-half of the land rent, five
dollars. McAllister died April 10, 1900
In consequence of his death. we have
neither his testimony nor that Of the
defendants. The plaintiffs case prac-
tically rests upon an alleged admission
or admissions, by one of the defendants
at about the time of the trade, that they
were to pay two dollars and half a
cord. On the other hand the defend
ants introduce testimony of admissions
Of McAllister to one witness that he was
getting only two dollars a cord. and to
others that he was getting less than he
expected, or less than 1t was worth
and to one that he was giving" the
wood away. Both sides seek to sup
port their positions by showing the
quality of the wood and its market
price at the time and place, as having
some tendency to show probabilities as
to what the trade actually was. In
fact, by far the largest portion of the
case relates to these collateral issues
of market price and the quality of the
wood. Besides what the defendants
show by several witnesses that Nc
Allister in his lifetime said that he had
been paid for the wood.
If the case stood alone upon the ad-
mission already stated. supported on
the one side and the other by the col
lateral matters relating to the quality
of wood and market price. we should
not be inclined to disturb the verdict;
but it does not stand upon these mat
tiers. The plaintiffs theory that a por-
ton Of the purchase price was to be
paid only after delivery, is merely
theory. There is no evidence whatever
in the case to sustain it. So far as the
case shows, it was a cash transac-
ton. We think that the endorsement
upon the receipt of June 18th. by
which he asked for $716 by June
Is, and making no mention Of any
other sum whatever, is strong evil
dence that that was the only balance
remaining due after the five hundred
dollar payment. 1t is to be understood
that McAllister required no note to be
given for any balance due and no
memorandum to be made Of any bal
ance due, and we think, also 1t should
be assumed that he made no charges
upon his books which have any tenden-
cy to show that there was a balance
due. The Administrative, two months
after his death, filed an inventory.
That she knew there were outstanding
accounts appears from the first inven-
tory, although no accounts We're then
itemized. She then stated that the
amounts due the estate for accounts
was fifty dollars only. She must have
had possession of his books of account
The explanation offered that she
omitted the Purinton account because
it was contested is hardly to be be-
lieved. We think the only reasonable
inference to be drawn from her conduct
at that time is that there was nothing
on the account books. Of Mr.. McAllister.
her intestate, which showed a balance
due him from the attendants firm.
Moreover. McAllister lived nearly a
year after he sold the wood, and, % far
as appears never made any claim
whatever for any balance. He even
lived fifteen weeks after the last Of the !
wood was delivered. and 20 far az APP
pears made no claim. although II does |
not appear that.he: was q man OF such |
ample means that he would be likely to |
allow an item at three hundred dollars |
due him to. remain long overdue unless |
necessary. II also appAA1s that on the |
8th Of January. week after the last |
wood was fhauled. the iEuttntOns paid |