Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-12-23


sides the one then on the track at
Silver's Mills.
Thereupon, as the plaintiff claims,
Immediately after the letter to the de-
PENDANT of Jan. 10, there was a CONVEX
Sd tion by telephone between Jones and
Arnold the business managers of the
plaintiff and defendant respectively. in
which Jones finally proposed that if the
defendant would accept the third car
load at Silvers Mills, the plaintiff
would cancel the fourth car for the
December shipment; and the plaintiff !
contends that this proposition was
accepted without qualification. and
that nothing further was heard in re-
gard to the matter until several weeks
later the plaintiff learned that the
defendant had stored this carload in
a potato warehouse, which had been
burned and the cotton-seed meal de-
stroyed. The plaintiff says that the
defendant then claimed, for the first
time that in receiving this carload and
storing it in the warehouse, he was
acting as agent of the plaintiff. by
virtue of an agreement made with Nell
son Holway. the plaintiffs salesman.
Nelson Holway denies that the defend
art was acting for the plaintiff In stor
irg that carload. The plaintiff insists
that the reasons which induced the
defendant to repudiate the third ship
ment were that the demand for cot
ton-seed meal did not prove to be as
large as he expected. and that the price
had in the meantime declined $40 on
a carload; and that the satisfactory
adjustment of the matter effected by
the conversation over the telephone
would never have been disputed if the
cotton-s seed had not been burned.
On the other hand, the defendant
strenuously insists that he bought only
two cars in all and never agreed to
purchase or accept any more, and is
not liable to pay for any more. The
orders of July 6, for two carloads for
October and December shipments re-
spectively were signed only by the
plaintiffs salesman and not by the de-
PENDANT. 1t is contended that these
were not absolute and complete sales,
but propositions to be further consid-
cred by the parties, and that this Is
clearly shown by the defendants let
ter of July II, in which he stated the
result of all prior negotiations by ord
erinG "one car of eotton-seed IN addl-
ton 10 one car previously ordered. ltl
is, said that this claim is confirmed by
the defendants prompt rafusaf TO ac-
cept the third carload shipped To him
January i6, on the ground stated in his
letter that this is an error, as we
have got both cars of cotton-seed ord
cred of you through Mr.. Holway, one
to be shipped Oct. and one Dec The
defendants manager Mr.. Arnold, de
MES that he ever agreed with the
plaintiffs Mr.. Jones to accept the ship
ment of January Is in consideration
that the fourth carload should be can
celled, and denies that he ever had any
conversation with him after January
49, or at any other time. by telephone
or otherwise. in relation to such pro-
position. Furthermore, the defend
ant and Mr.. Arnold both testify that
an arrangement was made with plain
tiff's salesman. Nelson Holway, to store
the carload in question in the potato
house as the property of the plaintiff
under circumstances from which 1t is
fairly to be inferred that he had au-
thor:ty to do what it is claimed he
did do, and that he went there with the
plaintiffs knowledge for the purpose
Of making such an adjustment.
Finally, the defendant calls attention
to o fact which he claims to be con-
elusive evidence in his favor; and that
is that while the ether sales and orders
made and given by telephone, or in
personal interviews, were subsequently
confirmed by letter, this alleged agree
ment by telephone to accept the car
load on the track January is was nev-
er confirmed by letter or other writ
ing, ana was never afterwards men
toned in any correspondence between
the parties.
The testimony was conflicting, and
the question now before the Court is
not whether the justices, sitting in the
place of the jury would have reached
the same conclusion as the jury did.
kat whether there was evidence, not
in itself inherently improbable and in
credible, which if believed by the jury,
was sufficient to support the verdict in
favor of the defendant. 1t is the opiG-
ion of the court that this question must
be answered in the affirmative. and
that the certificate must be
| Motion for new trial overrruled,