Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1919-11-01

Bellevieu: each. in turn, insisting
upon recognition by the latter of
claimed rights. Finally. Harry Bel
levieu paid to Skehan what remain
ed, unused by Walter. of the money
that Roy had paid. Also. he deliver
ed to him, and Skehan accepted, two
other notes, signed by Walter and
his father and mother. payable to
SkehanS order. So, Skehan had the
original Holmes note, and, too, cash
and negotiable promissory notes ag-
gregately equalling the amount OF
the face of the Holmes note. Ske-
him received a substantial cash pay
ment, with new note for the bal
ance. which was paid at maturity.
From the time of Skehan's arrival
reckoning from the sale to Roy. a
year had gone. The new notes from
Walter Bellevieu and his parents.
both long overdue, were unpaid, and
efforts to enforce collection unavail-
ing. Relying. under the Holmes note,
on legal title to the automobile in
himself, Skehan sued Roy. On con-
fession of liability. damages were
assessed at $27S.42, and judgment
therefor entered in the Kennebec SUI
perior court. Roy paid the judgment
and against Harry Believer brought
the pending suit for deceit in the sale,
counting in his writ on the concur
renee of both fraud and damages. At
the trial, under a plea of the general
issue with brief statement, defend
ant commended that, during the trad
ing between himself and Roy. Ske-
han was consulted with regard. to
outstanding claims against the au-
tomobile: that, SuppreSSing informa-
ton of his own demand, he, by his
speech. and by the words of Laundry,
asserted to have been authoritative
ly spoken. led both plaintiff and de-
PENDANT to believe the automobile
to be without encumbrance; that he
encouraged and sanctioned the sale
and purchase of the car; that the
proceeds of the transaction, with the
other BelleVieu notes. eventually
moving to him, superseded the
Holmes note, and left it without po-
tent existence. Plaintiff recovered a
verdict for $25950. That verdict de-
PENDANT has moved, in usual form
motion, to have set aside.
1t is the general rule. that receiv-
ing u negotiable promisSory note
creates presumtive evidence OFF the
payment of the indictment for which
it was taken. For foundation that
presumption rests upon the intent Of
the parties. Rebuttal always by
competent evidence, the presumption
does not attend in cases where the
creditor thereby would lose the ben
eft of existing security. Skehan re-
tanned the Holmes note. Neverthe-
less. it was open TO show that he had
waived his rights thereunder; that
against him there operated an equi-
table estoppel to assert title to the
property.
Waiver is question Of fact. Es-
TOPPED in pals is a question of law
and fact mixed. In the case in hand.
there is absence of assignment of
erroneous instruction. The tribunal to
which determination Of the facts in
controversy was referred, found thta
all the essential ingredients required
W odoSeiAlI tiC oStIOIl CAlSlcu. IL ID
the office of jury to judge of fact.
The members Of the panel that tried
this case saw the witnesses; heard
them testify, and observed them
while on the tand. Having those dis
tinct advantages. they considered all
the testimony; adjusted it's conflicts;
weighed its value and based their re-
port upon that part which they
found to be Of greater weight. A
verdict, if il be conclusion to
which, acting fairly, justly. and in
diligently. jury might come, is fl
nal. The function of n court is to
correct manifest error-to set aside
verdicts pa!pably wrong. Were it to
interpose otherwise, for the purpose
Of granting n new trial, the court
would go outside its own province
and trench upon the constitutional
sphere of the jury.
No sufficient reason is appreciated
for disturbing the present verdict.
Motion for new trial overruled.
Received Oct. 80, 1919.