The Somerset reporter. [volume] (Skowhegan, Me.) 1868-1909, 1906-01-18
VI Otion OVeIruled

IN css- II which he follow irg 70
script by Judge spear s he hnAI di-pD-
sitiOu il one wherein Herbert y. HlltOu
Is plaintiff. ana Ch4s. =. HsLsou aLo
David N. Park are defrLds4ts war
entered III TIE Dec, mber term VI The ,.
j. Court, 1903, and tried at the Deceu-
Der term one year lster. The verdci
was for the plaintiff IN The SUN Of
sl43 Al Il WAS carried to the Law
court Or motion and the following re-
script has recently been returned. The
attorneys WIRE Daniel Lewis Of SkOWhe-
gan for he plaiotiff. AID Nose q An
derson Of Plusilrld for the defense.
ms is an action Of 4ssampsit containing
al account FOR quantum merult brought by
the plaintiff % recover Of defendants for the
sum q sl63.g4 and interest thereon amount
ing 10 SIS 20 for services rendered in cutting,
splitting and pilng wood, and for cutting
aud hauling timber The defendants s.: up
in defense a written contract duly executed
between .he plaintiff and defendants upon
which they say he plaintiff action should
have been based and thai his action u as
snmpst cannot be maintained. The plantn
admits the execution Of the written contract
but saYs that il MS waived and q new cral
agreement substituted in It's place whereby
he Was thereafter % receive all agree con-
peusation as set forth in his accoun, annexed
for services rendered.
\ written contract may be waived either
directly or inierentially. Waiver may he
proved - express declaration or acts and
declarations Hanlfesting an .ntcn, not ~
claim Tie supposed advantage, " by . course
Of asts and conduct, or by s. negiectiug and
falling L at as - induce a belief tina: : vas
the intention and purpose 70 waive Parol
proof Of the subsequent waiver Of any u the
stipulauons III the written contract Or q any
right under such contract, IS adu!ssiole .,eu
When such c3ntrac: 5 under seal
Il is also well settled when a contract ad,
been thus waived an action Of 4uan.uu
merait viii lie for work and labor done But
the defendants reply further and asse,; that
even il tins IS Sc, the plaintiffs action cannot
be sustained, inasmuch as he has brought sun
against the defendants jointly and the ey.-
dence IN the case shows lha: the modified
contract if made a, all, was made between
the plaintiff and orly one 4 the defendants
Of the original contract without any knowi-
edge or eonsen, on the part of the other and
that one Joint contractor cannot thus Waive
the original contract and bind the other %
a new and modihed contract Blu. this con.
tentlon cannot prevail.
The undisputed facts show tha, the ie-
PENDANTS were owners ln common Of the
property in which the plaintiff operated, that
they were ointly interested in the result OF
the operation; that the defendant Hanson as
well as Parks knew wha. the plaintiff was
doing; that he sa" the plaintiff, ,alkei wiki
him and personally made partial payment
to him for work performed; that he received
and appropriated to his own use his share 4
the services rendered by the plaintiff; an
had repeatedly promised to pay him therefor.
The case was tried upon its merit. No *
ceptions were taken to the rules Of Law given
by the court The contention Of bJh sides
was therefore properly presented to the con
sideration Of the JURY. We are no: prepared
TO say after careful reading Of the testimony
and consideration Of the CLAIMS Of both par.
ties, that the Jury acted under a mistake 3is-
regarded their duy or were .ndaea.-i ~
improper motives.
Motion overruled