Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1926-12-10
DENY MOTION FOR
new TRIAL IN LAW
court RESCRIPT

The motion for a new trial and the
exceptions of the defendant were
overruled by the law court in a re-
script recently drawn by Justice
hilbrook III the Aroostook County
case of ii. Merritt Cunningham VS..
w. Burns Long. The rescript reads
as follows:
This is an action in assumsit. The
plaintiff was awarded verdict and
the defendant brings the case to the
Law Court upon exceptions. and the
usual motion for a new trial.
Held:
l. Supreme Court Rule XXVLII,
which provides for trial at return
term, when notice demanding such
trial has been given. like other
Supreme Court Rules. when proper
ly established, have the force Of law
and are binding upon the Court as
well as upon the litigating parties.
2. The party giving such notice
has thereby gained some legal right.
and the opposite party has the bur-
den of showing sufficient grounds for
continuance.
3. Granting or refusal to grant u
continuance is a matter of discre-
ton, and in the absence of any thing
tending to show that this discretion
was not properly exercised 1t is not
subject to exceptions.
4. Any person having a direct
pecuniary interest in the result of a
controversy ought not to adjudicate
i'll such controversy, but there are
exceptions to that rule, sometimes
from the necessities of the case, and
more generally where the interest is
too remote, uncertain, contingent,
speculative. theoretic, md unsub-
stantial
s. Where contract requires that
party shall do a certain thing,
the meaning of the word ranges un-
der two general classes. according a.
1t is used as implying futuritv or
implying a mandate: and when the
meaning of a word, phrase, or SEN
tence, in a contract may be fairly
said to be in any doubt, its true
meaning, as expressing the under
standing OF the parties, should be
ascertalned by an examination of the
entire contract. The conduct of the
parties, acting under the contract.
oItentimes may throw light upon
their understanding of the disputed
construction.
D. Where a requested instruction
is not given in the precise language
offered, but is given in pr,.cticalI,-
the same form, and to it the court
any suggestion of facts, which faces
are distinctly referred to the consid-
GRAFTON of the jury. and the sugges-
tlons do not appear to be preildicial
10 the excepting party as a mater
VI law, an exception will not avail.
T.. When a requested instruction
Is simply a rehearsal of q paragrann
OIL contract, easy to understand the
whole contract being in evidence he
lore the jury. refusal to repeat tba
paragraph as Il matter of law as-
peclally when the law goyern;ns fbe
paragraph has been correctly given
elsewhere in the charge. is NOT sucb
! error IN law as will warrant this
, court in sustaining the execution
8. When the factual element of q
contract is correctly submitted to the
jury, and its legal Interpretation
correctly stated by the court. a re-
iusal to give a requested instructor,
10 the precise words of the contracr
IS not such error in law as will sus-
tain an exception.
y. When case has been tried in an
environment, and before i,,rv
peculiarly adapted to the arrival at q
true verdict, that verdict must stand
unless 1t be shown that sucb yerd;ct
was reached through bias. prejudice
or plain misunderstanding of the law
governing the case.
Motlon and exceptions oyerruled