Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-12-19
FROM
THE Law COURT
Defendants Motion for New
Trial Overruled in Cumber-
land Case, Fred +. Mckinney
vs.. A. Falkner McKenney

This is an action Of deceit, which
II before us on general motion for a
new trial. In 1915 or 1915 the
plaintiff employed the defendant as
his agent to sell for him certain
real estate upon an agreed commits
sion OF two hundred and fifty dollars;
the price at first fixed was $4,000;
there is evidence, however, tending to
show that in March 1919. the plain
tiff told the defendant that the pro-
perty had advanced in value and
that he ought to get more for it. to
which the defendant replied, that he
was going to--wAs asking more for
1t.
The plaintiff alleges that in Au-
gust 1919 the defendant represented
to him that he had secured q Gus
toner in the person Of one Mathis
who would pay $4,000 for the proper
ty and that he, the defendant, could
not get any more; that relying upon
said statement, the plaintiff sold and
conveyed said property for said sum
of $SOO0; that the statement was
false, and known to the defendant
to be false, and that in fact the de-
fendant did procure purchaser in
the person Of Mathis, who was will
ing to pay $500. It is undisputed
that the plaintiff conveyed the pro-
perty to the defendant for $1,000, and
on the same day the defendant con-
veyed to Mathis for $500, the deed
to Mathis being delivered before the
defendant had received a deed from
the plaintiff.
The defendant contends that he
made no false statement to the
plaintiff: that he told him that he
had found a purchaser in the per-
son of one Ward, who would give
$1,000 and no more; that this was the
truth: that Ward a few days later
sold the property to Mathis for $500.
This brief statement states con-
cisely the issue between the parties.
In q very clear charge, in which the
elements Of an action Of deceit, and
the legal relation and duties of an
agent towards his principal were full
ly explained. the presiding justice di-
rected the attention Of the jury to
the issue in the following language:
what was the statement which
Falkner Mckenney brought back to
Fred Mckenney about customer?
What did he tell him.? Did he tell
him falsely that he had got GUS
toner who would pay eight thousand
when he had a customer who would
pay eighty five hundred? Or did he
tell him truly that he had Gus
toner, Ward, who would pay eight
thousand, and that was the fact?"
He directed their attention to this
issue more than once. No excep-
tions are taken to the charge.
The issue SO presented the jury
found in favor of the plaintiff.
A careful examination of the rec
ord does not disclose any grounds
for setting aside the verdict on &C
count of bias, prejudice, passion or
sympathy The result rested solely
on the creditibility of the witnesses;
the plaintiff was the only witness in
his behalf; the defendant also testi-
fed, and was given wide latitude in
introducing evidence of attendant
facts, which he claims support his
defense. Yet the jury found for the
plaintiff.
To state the case most favorably
for the defendant, it is a case where
intelligent, fair minded and conscien-
tious men may reasonably differ.
Munroe VS.. Hampden 80 Maine Ill.
We cannot say that there is a moral
certainty of error. Smith VS.. Bruins