Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1923-09-26

price per thousand feet of logs to be
PAID by the defendant to the plain
TIN under an oral contract made in
the spring of 1918 and performed the
next winter. Their respective con-
tentions are thus stated in the brief
filed for defendant:
1.-THE plaintiff claimed that the de-
PENDANT promised to pay $3.50 per
thousand feet, and in event that
amount did not cover the cost to the
plaintiff such further sum as would
make him whole. In other words, if
the plaintiff were able to perform
the contract at cost less than
$3.50 per thousand feet the difference
would be his profit on the tran
saction. If it cost more, his profit
would be eliminated, but he would
be entitled to receive the additional
amount required to equal the cost.
The defendant, on the other hand.
contended that fiat price of 500 per
thousand feet was agreed upon.
This issue was submitted to the
jury who sustained the plaintiffs
contention upon special verdict,
and the motion for a new trial fol-
lowed.
The record does not disclose any
ground which will justify us in sus-
tanning the motion. The evidence
was fatty contradictory; three wit
nesses testified, the plaintiff and one
other in support of his contention,
and the defendants manager, with
whom the contract was made.
Under the business conditions
existing in 1918 which are disclosed
at length in the record. it cannot be
said that the terms of the contract
as claimed by plaintiff are unreason-
able or improbable; the jury may
have found that under such condi-
tons it is highly improbable that
the plaintiff would have made q con-
tract for a fiat sum as claimed by
defendant. and we cannot say that
such a view would be unwarranted,
considering the further fact that de-
PENDANT might call for hauling some
of the logs on wheels.
Again, the jury may have found
that the defendant paid the plain
tiff, on account of the logs delivered
under the contract. at the rate of
$3.50 per thousand, and have re-
garded this fact as sustaining plain
tiff.
On the other hand the defendant
relied upon certain letters between
plaintiff and Mr.. Skinner, defendants
manager, in particular a letter writ
ten by the latter to plaintiff dated
February 25. 1919, containing
reference to the terms of the con-
tract in harmony with defendants
contention. But this letter is not
original evidence of the terms of the
contract; its force lies in the fact
that no answer was returned by
plaintiff but the plaintiff made his
explanation of that fact; and the
sufficiency of that explanation was
for the jury'S consideration.
Upon such q record as is presented
Tere, we cannot say that the jury
erred; on the contrary we think that
the evidence justified their verdict.
Motion overruled.
BY agreement of parties the cause
is remanded to niSi prius, for the APP
pointment of an auditor, who will
determine the amount due from de-
PENDANT to plaintiff according to the
finding of the jury.
BY agreement the auditors report
shall be accepted as final and judg-
ment entered thereon.
Oxford Case
In the oxford County case of
Leda Pouliot VS. Alfred A. Bernier
the motion of the defendant is over
ruled
The rescript, which was drawn by
Associate Justice John A. Morrill,
of Auburn is as follows:
Where the validity of a divorce
is involved in an issue tried before
a jury, objections to the sufficiency
of the notice to the libelee. and to
are not made at the trial, are not
open in the Law Court upon a
motion to set aside the verdict.
;n oo1, of
promise to marry brought by a
divorced woman against her former
husband upon an alleged promise
to remarry her, the defendant con-
tends for the first time in the Law
Court that the decree is void because
the name of the present plaintiff,
the libelee in the action for divorce,
was incorrectly stated in the libel,
and that service by publication upon
the person so named is insufficient,
there being no appearance for the
libelee, such contention comes too
late.
The Court is committed to the set
tied rule that points not made at the
trial are considered as waived.
Motion overruled.
Washington Case
The appeal of George B. Boynton
is dismissed in the Washington
County case of George B. Boynton,
In Equity VS. Acme Canning Com
pany.
The rescript, which was drawn by
Associate Justice John A. Morrill, of
Auburn, is as follows:
When the report of a Master is
recommitted for further hearing of
the parties, and the, parties agree
that the report of the Master upon
such further hearing shall be final,
it must be so regarded, and the
parties must abide by the report.
Newly discovered evidence is
proper for consideration upon a
motion to recommit a Masters re-
port.
But evidence alleged to be newly
discovered, taken at the term of
court following the date, of decree
appealed from, cannot change the
result, where there is nothing to
show that the new evidence was not
available at the time of the hearing
before the Master. or could not have
been discovered by the exercise of
reasonable diligence in the interval
between the hearing and the date Of
the report; or it does not appear that
it is probable that the findings of the
Master would thereby have been
changed.
Appeal dismissed.
Docroo cf cittipo i,cf;oa ~ 33r