Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-03-06
Judge Orders Non-suit
In Demari0 Action.
Interesting Suit to Be Begun
This Morning.
Some Of the New Civil Entries on
the Docket.

sOciatc Justice Henry C. Peabody of
Portland presiding. Thursday morning,
all was in readiness for the trial Of
the personal damage suit of Frank
Demario of Boston vs. Thomas Maho-
ney and Richard Everett. both Of
Hartland, but just before court con-
vened United States Deputy Marshal
w. s. Hasty OF Portland served notice
on the two defendants that the case
| had been transferred to the United
| States district court because of the
| fact that the plaintiff was a resident
of another state.
AS the plaintiff nor his counsel did
| not appear the Hon. Edward n. Mer-
rill Of SkOWhegan, counsel for the de-
PENDANTS, asked that the entry,
plaintiff non-suited'' be made and it
was so ordered by Justice Peabody.
This makes the third non-suit in this
now famous case and the transfer to
the federal court makes the fourth ac-
| ton that has been instituted in the
matter. The case first came up at the
March term of the supreme judicial
| court for Somerset county at SkOWhe-
| gan in 1906 At that time the plain
| tiff was non-suited. Another action,
trusteeing the Somerset Railway Co.
was begun in the same county, the
| writ being made returnable at the
| September term. On this occasion the
| entry, plaintiff non-suited," was again
made for lack of jurisdiction. Then the
case was brought into Kennebec coun-
ty with Thursdays result.
The case is one in which Frank DEM
ario, q laborer on the Somerset extern
sion, alleges that while working at
Bingham he was ordered to dig out an
uneXploded charge of dynamite. Not
| being acquainted with the explosive
| character Of dynamite, he alleges that
| he used a chisel or something of the
| sort with the result that he lost the
| sight of Doth eyes, broke his right arm
| and 50 injured his entire body that he
was disabled for life. The plaintiff
| claimed the liability of the defendants.
| who were the contractors on the con-
| struction of the Somerset extension,
on the ground that they were negli-
gent in not warning him of the result
of hammering dynamite.
The ad damnum in this case, $40
co., is one of the largest amounts ever
| "
age action in this State.
| William H. Gullivcr Of Portland ap-
peared as counsel for the plaintiff and
| defendants.
The law court Thursday handed
down q rcscript in the kennebec coun-
ty case of Nathan Berliasky vs.. Hy-
man Roscntiial sustaining the excep-
tons made by the defendant.
| The reScript, which was drawn by
Associate Justice Albert r. Savage Of
| a uburn, says that in the absence of
| agreement or understanding between
the parties, as to terms of payment.
| the law prcsumeS q sale to be Il cash
sale, that is, n sale conditional on pay
| ment concurrent with delivery, and
| not Il sale on credit, and n delivery in
such case. f. o. b. car, as agreed,
| made in expectation of Immediate pay
ment, will not vest the title in the
purchaser. and if payment is not
made, the vendor may repossess him
self of the goods sold and sell them
| to another.
| The following are some Of the new
| entries on the docket:
Henry F. Cummings of Manchester
and Charles A. Milliken of Augusta
VS.. Philip r. Porter of Rochester,
| Mass, an action, with the al dam
mum placed at $4,000, to recover pay
ment on promissory note. Heath &;
Andrews of Augusta for the plaintiff
Seymour Seymour & Mcgrath Of
| New York VS.. Albert l.. Irish of Tole-
| do, Ohio, an action. with the ad dam
mum placed at $500, to recover for
professional services. Cleaves & Perry
of Portland for the plaintiffs.
| Charles A. Millilen of Augusta and
Henry F. Cummings Of Manchester VS.
| Philip r. Porter of Rochester, Mass.
all action. with the ad namnum placed
at $4,000, to recover possession of Il GER
tain tract of land in the town OF
China. Heath & Andrews of Augusta
for the plaintiffs.
Homer A. Kerr VS.. Louis H. Hail.
both of Philadelphia, an action, with
| the ad damnum placed at $500, to re-
cover on a Judgment. Heath & An
drews of Augusta for the plaintiffs.
| John NJ. Aver VS.. Walter Staples,
DOtn Oh MOIIUOulIl, an action, WIN lle
al damnum placed at $780, to recover
possession Of certain land. situated i'll
the town of Monmouth. Herbert +.
Foster of Winthrop for the plaintiff.
Clarence NJ. Day VS.. Margaret F.
Hamilton, both of Gardiner, an action,
with The ad damnum placed at $4,000. to
| recover possession of certain land in
the city of Gardiner. Charles A. Knight
| of Gardiner for the plaintiff.
| stephen Wing Of Fairfield VS.. John
Fl. Gibson and Mary L. Gibson. both
of Clinton, an action, with the ad dam
mum placed at $1,000. to recover pay
ment on a promissory note. Charles +.
Johnson of Waterville for the plain
| tiff.
\ divorce action on the docket for
| trial at this term is that of Florence
Z. Cooley of Augusta VS.. Norman p.
| Cooley of Harmony. The libellant asks
! for q decree OF divorce on the
grounds of gross. wanton and cruel
neglect and refusal to provide suita-
bic maintenance and cruel and abu-
sire treatment. Williamson & Bur-
| leigh of Augusta for the libellant.