Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-06-19

safety. In the case at bar, nothing had
transpired to awaken any suspicion Of
the source Of danger fund to exist in
this case. or to suggest the necessity
OF an examination Of the top courses
Of brick in walls apparently solid and
| substantial. The conclusion Is irresis-
tibie that the care exercised by the dc.
PENDANT In the management of it's mill
was such as is usually exercised by or
dlnarily prudent people under like cir
| cumstances, and that there was no
breach of duty on its part towards the
plaintiff with respect to the accident in
question. 1t is accordingly the opinion
of the court that the conclusions drawn
by the jury were not warranted by the
facts, and that their verdict must he
set aside as against the law and the
evidence.
Motion sustained. Verdict set aside.
A. c. Hagerty ct al VS.. John p. Web
Der. Rcscript by Whitehouse, j.
1t is provided by the statutes relat-
ing to mortgages of real estate, that
1.-THE person to whom money is tender
cd to redeem such lands. II he receives
| a larger sum than he is entitled to re-
tain. shall refund the excess"
The defendant received from the
plaintiffs the sum of $2735 .9e to redeem
from mortgage the lands in question in
this case, but the jury evidently found
| that the defendant vas not entitled to
retain any part of that sum. and ac-
COrdinSly rendered a verdict for the
plaintiff for the entire amount. The
case comes to this cOur. OH motion and
exceptions.
The presiding justice instructed the
jury that if there were 1900 cords Of
bark upon this tract Of land during the
period Of Is years, which il was prac-
tlcablc for the Shaws to have taken
off, or the Shaws or their successors to
have taken off within the period of 10
years up to May 1, 1897 that then that
would be the end of this case, AMI
| nothing would be due upon the mort
gage. and the plaintiffs would be en-
titled to recover.
This instruction was undoubtedly
&C rect. 1t simply sustained and en-
forced the agreement Of the parties ac-
cOrding to the manifest intention of
disclosed by the terms of the mortgage
of the hemlock trees from the Shaws
to the Halls, the terms of the $1,000
mortgage Of the land from the Halls 10
the Shaws, and the unrecOrded agree
ment therein referred to and described.
The defendant frankly admits that at
the time he made the purchase he I'M
derstood that if 1900 cords of bark
could have been taken of Of the land
during the period of Is years provided
in the agreement, that fact would
have ended the mortgage" and it is
evident that Mr.. Clement, the plain
tiifS' witness did not intend to give
any different view Of it. 1t appears
from the testimony of both Clement
ard the defendant tina. the agreement
Examined and discussed by them was
Tiail and easily understood, and their
prompt concurrence as to the substance
[e9d effect of its terms is more salts
faiAQry evidence Of the contents of the
lostSbper than any inadvcrtent forms
of .extfession employed by counsel in
pre3hffiig the interrogatOrics for Glenn
ent's deposition. 1t is inconceivabl
that tue defendant Weber. would have
been SO readily convinced of the effect
of the agreement if it HAD spoken up
on this point any uncertain sound.
With respect to the motion it is ear
nestly contended in the first place that
the verdict is not warranted by the
evidence for the reason that the money
received by the defendant. which the
plaintiffs seek to recover in this action.
is clearly shown by the evidence to
have been paid by the plaintiffs for
the purpose of compromising and final
ly settling dispute mortgage debt. and
that the defendant is therefore entitled
to retain all that he received, although
il might subsequently appear to be
more than was actually due.
But it is n significant fact that in
stead of renting the sum of 2795,96,
by check, as he was authorized to 60
by the defendants letter. the plaintiff
Giles, went to Bangor with his attOr-
ncy Mr.. King, and paid the defendant
the full sum of $279596 in bank bills
which he carried from Ellsworth i'll a
satchel for that purpose. This extraor-
binary proceeding was entirely irrccon-
cilable with the defendants theory that
the parties had previously agreed upon
a definite sum to be accepted by the
defendant as a final settlement by way
of compromise. There was also positive
testimony from Mr.. Giles that at the
time of the delivery of those bank bills
to the defendants agent. Chas. =. Web
Der by Mr. King. the plaintiffs attor-
ncy, that according to their claim there
was nothing due under the mortgage.
that the money was paid under protest.
and that an action would be COM
menced to recover it back. Mr.. c. p.
Weber and his stenographer, it Is true.
testified that no such statements were
made by Mr.. King. but the jury saw
the witnesses and doubtless considered
their testimony in connection with the
improbability that Mr.. King would thus
deliberately participate in such a ccm-
promise adjustment and Immediately
thereafter repudiate the settlement and
commence an action to recover the
money. But no useful purpose can he
subserved by reviewing in detail the "a
RACES of testimony relating to this
branch of the case. 1t is only necessary
to say that there was sufficient evil
dcnce to warrant the finding Of the
Jury and that the court would not be
justified in disturbing the verdict on
fhic svro,1Dd