Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-06-21
In the! Fairfield Case Of
Sargent VS.. Wilbur vi
A Suit for Board Of Sundry
Men Working on Contract.
RsserIpt Saturday from Law Court
..-0pInlon by Judge Bird.

Judge Bird Saturday morning handed
down rescript in the Somerset coun-
ty case of Alfred Sargent VS.. George
H. Wilbur, overruling the motion and
exceptions of the defendant as follows:
Somerset IS: Rescript. (No Opinion)
Bird, J.
This is an action of assumpsit
brought to recover a sum of money al
legged to be due the plaintiff for the
beard of sundry men. The defendant
had contracted to construct q building
at Fairfield and sub-let portion of the
work to a plumber who sent certain
men to perform the labor. Unable to
find other place to board. they applied
to plaintiff telling him that the plumb
err sending them would pay the bill. He
received them and evidently gave cred
it to the plumber. The latter became
financially involved and failed to pay
the bill and was later adjudged bank
rupt. The plaintiff alleges that when his
bill for board amounted to about 500
he communicated with the defendant
and declared he would discontinue
boarding the men unless defendant
would pay the bill for board already
contracted and make weekly payments
therefor thereafter and that defendant
agreed. This defendant denied. The
verdict was for the plaintiff and the
defendant moves for d new trial upon
the usual grounds.
The evidence was conflicting and
the credibility of the parties and their
witnesses was involved. The questions
to be determined We're, therefore, pc
culiarly tor the jury and We are able
to conclude that their finding based
upon the evidence, the differences
drawn from facts which they may have
found to he proved and the proba bilites
of the case as found by them is so
clearly wrong as to show that the con
clusion was reach through a msunder
standing of the evidence or was the re-
suit of bias or improper motives. The
motion must be overruled.
In the course of the trial defendant
offered in evidence letter written to
him by counsel for plaintiff before the
suit was brought, in which counsel
admitting that there might be some
question as to the legal liability of the
defendant requests payment of plain
tlff's claim and offers to hold defend
ant harmless in case of payment and
his failure to recover the amount from
the assignee of the bankrupt. Defend
ant offered the letter as evidence tend
ing to show the story plaintiff proba
bly, told his counsel at the time the
latter wrote it. The letter was cxclud
ed and to its exclusion the defendant
excepted upon the ground that the
letter is contradictory of the testi
mony of the plaintiff in the case, and
was offered for the purpose of contro-
verting said testimony"
Expressing no view as to the extent
if any, that an attorney before suit
brought may bind his client by opin
ions as to the law of the case commu-
nicated to the opposing party, we are
unable to lind the defendant agrieved
by the exclusion Of the letter. The opin-
ion of counsel for plaintiff may have
been m erroneous conclusion of law
upon tn" fact stated by the plaintiff at
the trial as well as correct conclu-
sion of law upon the facts otherwise or
elsewhere stated. The question which
would be presented to the jury upon
admission of the letter in evidence
would be of the most vague and spec
ulative character.
Moreover, there is no evidence of the
actual authority of the attorney of
the plaintiff in the suit to act as his
agent before its commencement Sec
Stone VS.. Bank of Commerce, ia y.
S. 412, 421. The entry must therefore be
Motion and exceptions overruled
Judgment on the verdict.