Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-08-31
TWO LATE REscRlPTS
Decisions by Justice oeabody in Cum
berland and Penobscot Cases,
CUMBERLAND COUNTY. = CHARLES
SARGENT vs.. GEORGE u. PERRY.
RESCRIPT


PEABODY, J.. This was al action of
assumpsit to recover for professional
services. disbursements and certain cash
items, commenced by the plaintiff against
the defendant by writ issued from the
superior court for Cumberland County
June u. 1863. and returnable to the Sep
tcmber term. 1909. The plea was the gen
eral issue, with a brief statement of the
statute of limitations.
The case was heard before the Judge of
| the superior court without the intervcn-
ton of 4 jury. with right of exceptions
| to rulings on questions of law. The case
comes before this court on the PLAINTIFFS
exceptions.
Tie judge made the following findings
Of fact and Rulings as matters Of law:
That the plaintiff mad performed pro-
| fessiOnal services substantially as
| charged in his account, for the defendant
while he was acting as administrator Of
his fathers estate, that the charges were
reasonable and proper and that the de-
| PENDANT was liable under an implied cor
| tract for each item of the services when
| performed, that the cause of action did
| not accrue within six years prior to the
| date of the writ and that these items
| should he ,lisa"owed; that the items of
disbursements for taxes were made at
the request nf tic defendant but that the
| cal'" Of at on did not acrrHa within six
years prior to The date of The wit and
| THAI tl v should be diSallCwcd: that the
| items tf cash Payments cha ~s'.l against
tn" def ndlnt were voluntarily made and
| applied by the plaintiff i'll part payment
| Of Il not" of s:1'; which ne had given to
the defendant. and that they could not be
recovered back in this action; the item Of
$50 charged in the account was he sub
| ject Of Conflicting evidence. the plaintir
| tcStifying that it was loan to the de-
| PENDANT and the defendant testifying
| that it was a payment on a
note then IN suit in the supp cine judicial
court for Washington COUNTY. and the
plaintiff having The burden of proof that
| it was n can has not sustained that
| burden: that the defendan. made a com
| mon law assignment Of his IroT crty, for
| the benefit of his creditors, t. G. r.
Donworth, ESQ >. and the plaintiff wrote a
| letter In tie assignee in reference to his
| demands aga i',s: the defendant and re-
ccivrd The following reply:
'7Iacnias. Nc, Apr. II, 1900.
Charles Sargent Esq,
Portland, Maine
Brother Sargent
| Thanking you for your letter of the 18th
| inst. relative to Perry's matters. I have
| not yet had time to submit it To George
but will do so very soon. OF course, hA
| must do the square thing by you.
Yours truly.
C. Is. DONWORTH."
The findings of fact by the judge of the
superior court cannot be reviewed by this
| court. No facts are shown which could
| affect tic statute of limitations as a de-
| Tense To the items Of the plaintiffs ac-
| count not found due within six years
prior to the commencement of the action.
| unless the defendant is estopped from
| awaiting Il in..lf OF this defense by the
act OF his :sSignee There is no pretensc
that there vas any intention on the part
| Of the ass,f. zee of misleading the plain
| tiff, AM II. presiding ju,lEa found. as
| natter = fact, that he was not misled
| by the letter. and ruej as matter of law.
| that the defendant was not thereby
| estonped from pleading the statutes of
| limitations. The plaintiffs claim rests. |
| therefore. solely upcn the effect of the
! letter as implying promise on the part
| of the assignee to preserve the rights Of
| tut IilIitlii Willie tnc SuDi'Nt hihtttl u |
| tho assignment was under his control |
Even if the assignee might bind his as !
| signOr in reference to the claim of the |
plaintiff by acts done within the scope |
| Of tie assignment. such is not the effect |
of the writing, it was merely an ac- |
acknowledgement of the notice which the |
| plaintiff had given nf the asslgnor's in |
debtedness to him, with the writer's per
sonal assurance that in his oftlcial husi- |
ness of adjusting the financial affairs of
the debtor this creditor should receive
fair treatment. The plaintiff is Il lawyer
ard knew that the assignee was acting in
a trust caracity, and the letter could not
reasonably be understood as relieving
him from the duty Of taking such formal
action as would entitle him to partici-
pate in the distribution of the debtors
property among his creditors, or at least
seasonable action against the defendant,
and there can be discovered in its terms
no element of contract or waiver of any
prequisite for the enforcement of the
plaintiffs demand. and it was not an act
which Could operate to suspend the stat
ute Of limitations or to es;on the de-
ferdant fran pleading it in defense Of the
action against him
Exceptions overruled !
Reed August 20, 1906.