Daily Kennebec journal., 1904-02-26
LAW COURT REscRIPTs.
One Case from Franklin and One from
Washington.

These rescr!pts have been received
from the law court:
Washington. MiIbridge Water Com
Dany vs. Foster E. Wallace. Rescript.
Strout, j.
The exceptions in this case cannot be
sustained. Indebitatus assumpsit upon
account annexed does not imply a
special contract. BY long usage this
form Of declaring has been recognized
a. good. where services have been rem
6ered or articles delivered, under cir
cumstances which raise presumption
Of a promise to pay, in this case, in the
account for two years water rental.
there is implied the allegation that the
defendant has received from the plain
tiff water for that period. for which he
Is bound to make compensation. Il is
within the principle declared by this
court in Cape Elizabeth VS.. Lombard.
20 Me. 399.
The second requested instruction.
which was refused. does not apply to
the facts in evidence. Both the instruc-
fion and the refusal to give the request
ed instruction were correct.
Upon the motion for new trial. it
does not appear that the jury were
dttus,tcd ny iiHoliHf VI
misunderstanding o<, the evidence. It
was a question Of Tact. whether the
water received by the defendant was
70 received under circumstances that
fairly implied that the plaintiff expect
ed payment. and the defendant under
stood, or should have understood so.
He receive the benefit of plaintiffs
water. The evidence was contradic-
tory. but it authorized the jury to find,
as It did that the defendant implicitly
promised payment.
Motion and exceptions overruled.
Martha F. Howe vs. William ~.
Collins. Rescrpt. Strout. J.
This Is an action of replevin for ten
tons of hay. Defendant claims title.
July 8. 1904. defendant bought a farm
of Flora f. Hawes. daughter of plain
tiff. the deed, after describing the
land conveyed. contains the following
reservations and provisions:
81 reserve suitable rent and number
OF rooms 10 live in for myself and fam
lily, including my father and mother,
for n period If three months from the
date of this instrument. Also all the
products Ot the garden, excepting th,.
strawberries, and them l divided with
them. / also reserve three pastures for
the use of the same this season. except
ing the said Collins is to pasture in
them two COWS and two heifers. ! am
also to have hat early fruit as I want
for my own use while there, and one
half OF the field crops, such as corr,
beans. oats. peas and potatoes. Also
the wood that is in the shed fitted for
the stove said Collins is to have what
wood he needs to use until it is taken
away. anl said Collins is to have all
the hay
The hay in controversy was cut from
land of the plaintiff in 1900 ana 1901,
and not from the farm conveyed to
Collins. At the ]ate of the deed it was
in what ives called the upper barn.
the one farthest from the house.
All the reservations in the deed re-
late to further occupation and subsc-
Quent product Of the farm. The phrase.
'Collins is 70 have all the hay" taken
in connection with the preceding claus
es, very clearly refers to the hay then
about to be harvested. It is used in
contradiction to the first clause as tn
division of the incoming crops--certain
crops were to he divided. but the hay
was not. 1t is very clear that this
construction is in accordance with the
understanding of the parties. Besides
Mrs. Hewcs did not Own this old hay
and could not convey it without att
thOrity from the plaintiff. of which
there is no evidence.
The subsequent acts of the parties.
up to Sept. -, all harmonize with and
confirm the language of the deed and
contradict the present claim of the de-
fendant. There must be
Judgment for plaintiff.