Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-11-20
THREE REscRIPTS.
Decisions in York. Somerset and Pts.
cataquis Gases.


York County-Fred S. She"burne VS.. Irv-
ing \. Butler. Rescript ono opirion.
Cornish j.
This was an action Of assumpsit on an
account annexed to recover 5000 the value
of services of one Greene. alleged to have
been rendered to the defendant while
Greene was an employee Of the plaintiff
The evidence shows that Green entered
into a written contract Of employment
with the plaintiff, a manufacturer of
lumber for one year from July l., 1904,
to July /, 1905 under which Greene was
Ito devote to said Sherburne ana his
work all his mechanical skill and jud2-
ment during all said term in the man
agement and performance Of said mill
and other mechanical work that may be
entrusted to said Greene during said
term" The plaintiffs claim is that dur
ing said term and while in the PLAINTIFF
employ, Greene furnished to the defend
ant plans of a new building in Springvale,
compensation for which belongs legally
to the plaintiff.
The. defendant denies the claim and
says that while he did employ Greene
to make a preliminary sketch or picture
- ASNN-
hours of time and for which he paid
Green S. not then knowing that his
time belonged to the plaintiff, as soon
as he was informed Of that fact by the
plaintiff. he told both the plaintiff and
Greene that he should have nothing fur
Their to do with Greene as long as he
worked for Sherburne and that he then
and there dismissed Greene from al futh-
CT service, his reason therefor, being evil
IDENTIFY some previous trouble with Sner-
burne which rendered business relations
with him undesirable. These claims are
not denied by the plaintiff. The defend
ant further claims that he received no
further services from Greene until the
1Ot! or 18th Of July when the first pans
were furnished by him and they continued
to be furnished in paris until about the
first of September, the building being
completed in December. These claims
are denied by the plaintiff
The burden of proof was upon the plains !
tiff to satisfy the jury by a fair pre-.
ponderance of the evidence that after the
dismissal Of Greene and before July l., i
the defendant became liable to the p!tii-
tiff under an express or implied contact
to pay for plans made and furnished
Greene Willie in defendants employ. Tot
do this he was Obliged to prove that the
defendant either employed Greene, Or hu-
tlorized or knowingly permitted his fore
man Jones' to employ him. or having
full knowledge of the situation, accepted
plans and services which he knew or
had reasonable ground for believing,
were prepared and rendered out OF time
belonging to the plaintiff.
The jury found that the PLAINTIFFS evil
dence did not sustain this burden and
the plaintiff insists that the verdict Is sol
clearly wrong as to show either 4 preiu-
dice or a misapprehension Of the testi-
1nony on their part. The record Goes not
show it. Without going into the evidence
in detail, it is sufficient to state that the
plaintiffs case ress upon the assumption
that plans were actually prepared by
Greene after his dismissal by the de-
PENDANT, and before leaving plaintiffs
employ. with the knowledge and con'iv-
ance of Jones, who was the foreman in
charge of the plaintiffs building, although
not actually finished until later. This
assumption, however. is not supported by
the evidence, and is positively contro|ert-
ed both by Jones and Greene. Moreover.
We're this suspicion well lotiiiutu y No"i'
not be sufficient to fix amy LIABILITY upon
the defendant, because it cannot be clain-
ed that Jones had any authority to en-
ploy Greene for such purpose, ana the
defendant himself had nothing Whatever
ia do with Greene directly or indirectly
after the dismissal and before July l.
The defendant on September 49, paid
Greene S175 for plans furnished and ser
vices rendered after July J, and this pay
-ment seems to have been made to the
party to whom it belonged The question
! for the jury was a sharp issue OF iact'
It, was submitted to them under plain IN
structions to which no exception were
taken and it is the opinion of the court
that the verdict was warranted by the
evidence;
Received New. 10. 1908.