Volume 116 — Maine Reports

<p>Bill of interpleader brought by plaintiff order to have the Court determine to which of two defendants it should pay the benefit fund payable under a certain insurance certificate issued by the plaintiff order on the life of one Horace A. Larrabee. The fund was claimed by Laura E. Sylvester, a sister-in-law of the deceased, who was the beneficiary named in the certificate, and by Albert J. Larrabee, a brother of the deceased, claiming as sole heir at law and next of kin; the brother claiming that said Laura E. Sylvester was not, within the intent and meaning of said benefit certificate and the law relating thereto, a “dependent of or person dependent upon” the said Horace A. Larrabee.</p> <p>The cause was heard upon bill, answer, replication and proof. The sitting Justice ruled that Laura E. Sylvester was a “dependent” within the meaning of that term as used in the plaintiff’s certificate of insurance and that she was thereby legally entitled to said insurance. From which ruling, an appeal was entered. So much of the decree below as awarded the fund to Laura E. Sylvester is overruled. A decree will be entered in accordance with the opinion.</p> <p>Case stated in opinion.</p>

<p>Action on tbe case with an account annexed to recover for labor and materials furnished for the construction of a sewer in defendant town. Defendant pleaded general issue and also filed a brief statement. Verdict for plaintiff in the sum of $1,814.02. Defendant filed motion for new trial and also filed exceptions to the admissibility of certain evidence and certain rulings of the presiding Justice. During the progress of the trial, the plaintiff offered in evidence a certain letter written and signed by one of the selectmen of the defendant town to a person other than the plaintiff in regard to the nature of the work in building the sewer. The plaintiff claimed that he should be entitled to compensation for extra work, claiming that certain misrepresentations were made, as to the nature of the work required, and the letter was offered and admitted upon this question, to which ruling defendant excepted. This is the only exception that was considered.</p> <p>Case stated in opinion.</p>

Action on tbe case for abenation by defendant of tbe affections of tbe plaintiff’s wife. Defendant bled a plea of general issue. Verdict for plaintiff in tbe sum of $2,142.33. Motion for new trial filed by defendant. Case stated in opinion.

<p> Breach of Contract. Damages Recoverable. Necessary Proof of Damages. Rescinding of Contract. Acceptance of Offer as Constituting a Contract. Necessary Proof where Party Claims Contract has been Rescinded. </p> <p>Action to recover damages for a breach of contract. The plaintiff submitted to the defendants a.written offer to furnish them the iron work for a Shoe Factory. The defendants accepted the offer. Thereupon, the plaintiff wrote the defendants (October 23rd 1915) as follows: “When you were in my office to get an estimate on the Shoe Factory job you told me about some references. I have forgotten who they are. Will you kindly give me their names again? Upon referring to Dun’s Commercial Agency, they advised me that they have not had any statement from you; therefore I should like to have you advise me as regarding the same. I have no doubt but that you would be willing to give me security in connection with this order, for, as you have no credit rating, it would not warrant my taking on such a large order as this for credit. Awaiting your favor I remain.”</p> <p>On receipt of that letter the defendants sent the plaintiff the following night lettergram. “When in your office I referred you to the First National Bank Biddeford. Did not ask credit under the circumstances you had better cancel the order and return the plans shall be in Boston Thursday and call at your office.” Subsequently the defendants took the plans from the plaintiff’s office and wholly refused to accept any of the material from him.</p> <p> Held: </p> <p>1. That the unqualified acceptance by the defendants of the plaintiff’s definite offer constituted a contract between the parties.</p> <p>2. That one party to a contract cannot rescind it without the assent of the other party, in the absence of fraud or breach of warranty.</p> <p>3. That the refusal by one party to a contract to be bound by it, which will authorize the other party to rescind it, need not be an express refusal. It may be shown by acts and conduct, but such acts and conduct must clearly evince an intent to be no longer bound by the contract.</p> <p>4. That the plaintiff’s letter of October 23rd did not evince such a clear intention on his part not to be bound by the contract as would authorize the defendants to rescind it.</p> <p>5. That the contract between the parties was not rescinded, and the evidence clearly shows a breach of it by the defendants.</p> <p>6. That the damages are to be assessed in this case on the footing of what the plaintiff's profits would have been if the contract had not been broken by defendants; and the plaintiff is to be made whole for what he has lost by their breach.</p> <p>7. That $375 is a fair and reasonable assessment of the net profits the plaintiff would have received from his contract with the defendants if they had not committed a breach of it.</p> <p>8. That the plaintiff has failed to furnish sufficient data to enable the Court to determine with reasonable certainty the amount of any liability which he may have incurred for materials ordered by him of other parties to fill his contract with the defendants.</p>

<p>Action on the case to recover damages for abuse of process and false arrest and imprisonment. Writ was issued under R. S., 1903, Chap. 114, Sec. 2, and is what is commonly known as a “special writ,” commanding the officer to arrest a person about to leave the State. Defendant filed a plea of general issue and also brief statement. Verdict for plaintiff in the sum of two hundred and fifty dollars. Defendant filed a motion for new trial and exceptions also were filed to certain rulings of the presiding Justice on the admissibility of certain evidence.</p> <p>Case stated in opinion.</p>

<p> Negligence of Children. Rule as to reasonable care on part of Children. </p> <p>Plaintiff’s intestate, a boy of nine years and two months, was struck by the defendant’s automobile sustaining injuries that rendered him unconscious, in which condition he remained until his death. The jury returned a verdict in favor of the plaintiff for $500 and the case is before the Court on motion and exceptions filed by the defendant.</p> <p>As defendant’s automobile was going down on the right hand side of Lisbon Street in Lewiston, on the fifth day of November, at about five o’clock in the afternoon, it had occasion to pass between a team standing by the curb and a large covered wagon coming up street on the car tracks. The injured boy, in response to a call from a playmate, started to cross from the left to the right hand sidewalk. Street lights and the machine lights were lighted and the automobile was going about eight miles per hour. When the front of the automobile was nearly abreast of the rear of the covered wagon the boy appeared suddenly about four feet ahead of the automobile, coming from behind the covered wagon. Despite the efforts of the driver of the machine, the boy was struck by the car.</p> <p> Held: </p> <p>1. At the time of the accident the plaintiff’s intestate was not in the exercise of such care as ordinarily prudent boys of his age and intelligence are accustomed to exercise -under like circumstances and by reason of such negligence the plaintiff is not entitled to recover, there being no opportunity for the driver of the car to avoid the accident after the deceased came in sight.</p>

<p>Action on the case to recover the amount due on a certain promissory note payable to plaintiff bank. The defendants were sued as makers of the note. The plaintiff filed motion to amend the writ by adding an additional count, in which the plaintiff sought to amend his writ by adding a count against the several defendants as guarantors. This amendment was allowed, to which defendant filed exceptions. Defendant filed a plea of general issue and also brief statement, setting out, with other matters, that he had signed the note declared upon as an accommodation surety, or guarantor, and not as a co-maker. At the close of the testimony, case was reported to the Law Court for determination upon so much of the evidence as is legally admissible. Secondly, whether or not the amendment to the declaration offered by the plaintiff in each case is legally admissible. Thirdly, that all exceptions taken and noted at the trial, either to evidence or to the amendments, shall be considered by the court as fully as though a particular bill of exceptions was filed and allowed. Judgment .for defendant.</p> <p>Case stated in opinion.</p>

<p> General rule as to admissibility of certain testimony relating to crops and failure of same where fertilizer is sold on a guaranty basis only, or where it has been sold under a guaranty of suitability of results of fitness for the soil. </p> <p> B. S., 1916, Chap. 36, interpreted. </p> <p>1. The printed statement required by statute, R. S., (1916) Chap. 36, to be affixed before sale to lots or packages of commercial fertilizer, giving a chemical analysis stating the minimum percentage of nitrogen or its equivalent of ammonia in available form, of potash soluble in water, of phosphoric acid in available form, soluble and reverted and of total phosphoric acid, is a guaranty of the percentages of those ingredients as printed in the statement, but it is not a guaranty of suitableness, nor of results.</p> <p>2. When, in an action to recover the price of commercial fertilizer sold, the defense set up is a breach of the guaranty as to percentages of nitrogen, potash and phosphoric acid stated in the printed statement affixed to the packages as required by R. S., (1916), Chap. 36, evidence of crop failure following the use of the fertilizer is not admissible for the purpose of showing that the percentages were less than those stated in the guaranty.</p> <p>3. Upon the evidence, the court finds that there was no breach of the guaranty of the commercial fertilizer sold by the plaintiff to the defendant.</p>

<p> Indictments. General rule for the form of same. Buie where the meaning of the indictment is clear hut there are inaccuracies or errors which may he explained. Self-correcting errors. </p> <p>1. The object of an indictment is to apprise the accused of the definite offense with which he is charged, set forth with such necessary allegations as to time and place that he may be enabled to properly prepare and present his defense.</p> <p>2. An indictment must be so drawn that in case any other proceedings should be brought against the respondent for the same offense he could plead the former acquittal or conviction in bar.</p> <p>3. But if the meaning of an indictment is clear so that the accused is thereby informed of the precise charge which he is called upon to meet, verbal inaccuracies, grammatical, clerical, typographical or orthographical errors which are explained and corrected by necessary intendment from other parts of the indictment are not fatal.</p> <p>4. The typewritten caption of the indictment for maintaining a liquor nuisance alleges that it was found at a term of the Supreme Judicial Court “begun and holden at Paris within and for the County of Oxford on the second Tuesday of October in the year of our Lord one thousand nine hundred and fieteen.” After conviction the respondent filed a motion in arrest of judgment on the ground that the indictment was fatally defective, having the word “fieteen” instead of “fifteen,” which motion was overruled by the presiding Justice.</p> <p>Held: That the error was purely typographical, the substitution of an “e” for an “f” by mistake. As the correction is furnished by the context and the intendment from other parts of the indictment is clear, the indictment is valid.</p>

Action on the case to recover certain amount due under a casualty policy of insurance. Defendant pleaded general issue and also brief statement alleging, among other things, that said policy had lapsed and had become void and of no effect on the thirty-first day of October, A. D. 1915. At the close of the testimony, the case was reported to Law Court for determination upon so much of the evidence and original exhibits as were legally admissible.

<p> Construction of Wills. General rule to be adopted. Meaning of word “also.” </p> <p>1. After a careful study of the evidence and considering the bill, answer, and will, in view of the added words, the character of the property comprehended by such words, the uses to which the property could be put, its former use and association, we conclude that the words interlined were intended to modify and change the character of the first sentence, and not the second, and that the word ‘also’ as found in the clause means ‘in addition to.”’</p> <p>2. It is evident that the testator used the word ‘also’ in that sense in the first instance and there has been no reason advanced, nor can we find any reason for holding, that the testator had any other intention in relation to the last sentence. The fee to the real estate described in said last sentence passed to William C. Coombs.</p>

<p> Bills of exceptions. Distinction between suits brought upon judgments of another State and domestic judgments. Right to attach foreign judgments collaterally. Rule as to collateral attach of domestic judgments. Right to attach by parol evidence the authority of an attorney at law to appear and suffer judgment </p> <p>1. Bills of exceptions must set out with particularity the rulings by-which the party presenting such bills claims to have been aggrieved. Otherwise, they cannot be considered.</p> <p>2. The record of judgment of another State is prima facie evidence only of matters recited therein and may be attacked collaterally while that of a domestic judgment is conclusive evidence of all matters recited or shown and is subject to direct attack only.</p> <p>3. - The absence of authority of an attorney at law to appear for a defendant cannot be shown by parol and the judgment obtained against defendant attacked collaterally.</p> <p>4. The court may judicially notice the fact that a person has been admitted to practice in the courts of the State and was, at a certain time, entitled to practice as such.</p>

<p>Action on the case in which the plaintiff seeks to recover damages from the defendant for the negligence of the defendant's servant in operating an automobile. Defendant filed plea of general issue and also brief statement, setting forth (1). That the automobile in which the plaintiff was riding, at the time and place alleged in her said writ and declaration, was not registered as required by law. (2). That the driver of the automobile in which the plaintiff was riding, at the time and place alleged in her said writ and declaration, was not licensed as required by law. (3). That the driver of the automobile in which the plaintiff was riding, at the time and place alleged in her said writ and declaration, was not riding with or accompanied by a licensed operator for the purpose of becoming familiar with the use and handling of said automobile, preparatory to taking out a license for driving. (4). That at the time and place of the accident alleged in the plaintiff’s declaration, the defendant’s automobile was driven and operated by the defendant’s son Herbert M. Heath, who was theta and there a duly licensed operator of motor vehicles, and was operating said automobile in a careful and prudent manner on his own business, and was not acting as the servant and agent of the defendant. (5). That at the time and place of the injury alleged in the plaintiff’s declaration, the defendant’s said car was also occupied by her said other son, Gardner K. Heath, who was then and there a duly licensed operator of motor vehicles, but that he was not acting as the servant or agent of the defendant. (6). That at the time and place alleged in the plaintiff’s declaration, neither the said Herbert M. Heath or Gardner K. Heath were acting within the scope of their employment as the servant or agent of the defendant. (7). That at the time and place alleged in the plaintiff’s declaration, the plaintiff’s injuries were not received by reason of any want of due care on the part of the defendant or of the said Herbert M. Heath or Gardner K. Heath, but that the plaintiff’s injuries were received solely through the want of care of one Bishop, who was then and there operating the automobile in which 'the plaintiff was riding at the time of receiving said injuries. Verdict for plaintiff in the sum of $575.61. Defendant filed motion for new trial and also exceptions to certain rulings of presiding Justice-.</p> <p>Case stated in opinion.</p>

<p> Principal of res adjudicata. “Causes of action” defined. Judgment between same parties or their primes as a final bar to any other suit for the same-cause of action. Rule as to such judgment being final as to all matters which were tried, as well as to all ■matters which might have been tried. </p> <p>The plaintiff having received an injury while alighting from a car of the defendant on which she was a passenger, brought suit claiming that the car was negligently and carelessly started, thereby throwing her to the ground. That action was tried and resulted in a judgment for the defendant. This suit was then brought to recover for the same injury, the writ alleging that the defendant had dug a trench near the rail and left the same open, unguarded and unlighted, so that the plaintiff in stepping from the car to the street fell into the trench. The presiding Justice ruled that the prior judgment was not a bar to the present suit, and the jury returned a verdict in favor of the plaintiff. The case comes up on an exception to this ruling, and on a general motion.</p> <p> Held: </p> <p>1. In both writs the plaintiff is charged with a violation of its ultimate duty to the defendant, which was to afford her safe egress from the car to the street. Negligently starting the car as she was alighting and negligently allowing her to step from the car into an open trench dug by the defendant and by it allowed to remain open, unguarded and unlighted are both violations of one and the same duty. The defendant was therefore guilty of but one tort and there was but one cause of action and the judgment upon the merits in the prior action is a complete bar to the maintenance of the present action, being conclusive not only as to all matters that were tried, but as to all that might have been tried.</p> <p>2. The doctrine of res judicata is a rule of rest. It is not based wholly upon the narrow ground of technical estoppel, nor upon the presumption that the former judgment was right and just, but on the broad ground of public policy that requires a limit to litigation.</p>

<p> Delivery of personal property as evidence of passing title. General rule as to trustee process being an equitable form of action. Equitable remedies where writings indicate that the parties intended thereby to transfer the right to a particular property or fund. </p> <p>October 28, 1913, the principal defendant, the Jobbing Company and the alleged trustees, Davis and Stickney, entered into- a written executory contract of sale of personal property wherein the Jobbing Company agreed to sell, at a fixed price, to Davis and Stickney its bottling establishment on condition, however, that the vendor should be able to turn over to the vendees “its contract with the Coca Cola Company.” Possession of the property was turned over to Davis and Stickney at the time the executory contract of sale was made. Thereafter, December 20, 1913 and before the Jobbing Company was able to turn over to Davis and Stickney its contract with the Coca Cola Company, it mortgaged the same property to one Isidor Gordon. That mortgage was made subject to the contract for the sale of the property to Davis and Stickney, and it provided that if that sale was carried out the purchase money was to go to the mortgagee “as part or entire payment for the indebtedness secured by this mortgage.” The mortgage was duly recorded. Thereafter the Coca Cola Company made a satisfactory contract with Davis and Stickney direct, and at the time this trustee process was served upon them they had in their hands a balance of $551.46 of the purchase price of said property. Isidor Gordon appears as claimant of that fund by virtue of his mortgage.</p> <p> Held: </p> <p>1. That the evidence justifies the finding of the presiding Justice that the claimant’s mortgage was given to secure a bona fide debt and was not fraudulent.</p> <p>2. That, where at the time of the execution of an executory contract of sale of personal property, the possession of the property is delivered to the vendee, the question whether the title to the property then passed to the vendee depends upon whether it was the intention of the parties that the title should pass at that time.</p> <p>3. That, looking at the contract of October 28, 1913 and considering all facts and circumstances disclosed, it seems apparent to the Court that it was not contemplated by the parties that the title to the property mentioned in the contract was to pass then to Davis and Stickney, or before the Coca Cola contract could be turned over to them.</p> <p>4. That the title to the property had not absolutely passed to Davis and Stickney at the time the mortgage was given to the claimant, and that the Jobbing Company then had an interest therein which passed by its mortgage to the claimant as security.</p> <p>5. That the trustee process, though in form an action at law, is in substance an equitable proceeding to determine the ownership of a fund in dispute, especially where a claimant has appeared and become a party to the suit. And as between the plaintiff in such an action and the claimant of the fund equitable considerations must prevail as far as the nature of the process will permit,</p> <p>6. That if-there could be any doubt as to the claimant’s right to the fund, determining his right according to strict legal principles, there can be no doubt as to his right to the fund when equitable principles are applied. The mortgage was intended by the parties thereto to be effective to give the mortgagee, as security, the mortgagor’s entire interest at the time in the property, that is, the property itself if the executory contract of sale was not carried out, and the proceeds of the sale if it was carried out. In equity the mortgage will be regarded as an assignment of the fund, if that be necessary to effectuate the manifest purpose of the parties, for equity disregards mere form.</p>

<p> Execution Sales. Right of Redemption. Time of tender in order to redeem. General rule of law where tender is made impossible on account of conditions caused by person to whom tender must be made. </p> <p>In a bill in equity brought under R. S., 1903, Chap. 92, Sec. 16, to redeem from an execution sale of the debtor’s rights in real estate, it appeared that the plaintiff, on the day the right of redemption expired and for two days prior thereto, was desirious of redeeming from the execution sale and was prepared so to do. But the defendant, for the express purpose of avoiding a tender of the amount due and thereby of preventing a redemption, left the city where both parties resided, and the State, two days before the right of redemption expired, and remained until the second day after the right expired.</p> <p> Held: </p> <p>1. That in these proceedings, the plaintiff must prove a prior tender or payment or such facts as show that the defendant upon demand has unreasonably refused or neglected to render in writing a true account of the sum due upon the mortgage, or has in some other way by his default prevented the plaintiff from performing or tendering performance of the condition of the mortgage.</p> <p>2. That when a party designedly absents himself from home for the fraudulent purpose of avoiding a tender, he cannot successfully object that no tender was made.</p>

<p> Trespass quare clausum. Rule of law as to adverse possession where person occupying land makes no claim to land not included in his deed, even though his occupation of same has been for requisite period of time sufficient to give adverse possession. </p> <p>Action trespass quare clausum. The case involved the location of plaintiff’s westerly line which, in turn, involved the location of their easterly line, since the defendant’s land extended easterly and westerly one mile. The latter line is the true town line between the towns of Warren and Waldoboro, and the location of this latter line was the real issue.</p> <p> Held: </p> <p>1. That the true easterly line is the one which makes the easterly shore of Little Pond, so-called, a portion of the line, and thus places Little Pond in the town of Waldoboro; not that line claimed to be run in 1812 which was wholly westerly of Little Pond and placed that pond in the town of Warren.</p> <p>2. Adverse possession, claimed by plaintiffs, is ineffectual since the plaintiff’s predecessor testified emphatically that whatever his occupancy might have been he had no intention of claiming any land not included in his deed. Such occupancy does not work title by adverse possession.</p>

<p>Appeal from the findings of the Industrial Accident Commission of the State of Maine relative to the meaning of the term or words "Average Weekly Wages” and'how the same shall be interpreted and computed as found in Workmen’s Compensation Act, R. S., 1916, Chap. 50.</p> <p>Appeal sustained.</p> <p>Case stated in opinion.</p>

<p> Water districts. “Corporate and Governmental duties” of Municipalities defined. Rule as to whether a Muniápality engaged in the business of supplying xoater to its inhabitants is an undertaking of a private nature. Rule of law as to liability when a Muniápality is engaged in a corporate exeráse of functions as distinguished from a governmental exeráse. Contractural rights and liabilities as between a private user of water and the Muniápality furnishing same. </p> <p>The defendant is a public municipal corporation chartered for the purpose of furnishing a public water supply. The plaintiff is a resident of the district and a customer of the company. The supply of water to the defendant was insufficient by reason of the fault of the company. When the plaintiff refused to' pay full rates for such insufficient service the company shut off the water entirely. Mandamus proceedings having compelled the company to restore the service, the plaintiff brings this action to recover damages sustained on account of the insufficient service before shutting off the water, and for those sustained on account of the total shutting off of the same.</p> <p> Held: </p> <p>1. The defendant is a public municipal corporation and its powers, duties, and liabilities must be measured by the same standards used in determining the powers, duties and liabilities of other municipal corporations when exercising the same functions, under the same circumstances.</p> <p>2. In the absence of any special rights conferred, or liabilities imposed, by legislative charter, municipal corporations act in a dual capacity, the one corporate, the other governmental. To the former belongs the performance of acts done in what may be called their private character, in the management of property or rights held voluntarily for their own immediate profit and advantage as a corporation, although ultimately insuring to the benefit of the public.</p> <p>3. The power of a municipal corporation to construct water works is not a political or governmental power, but a private and corporate one, granted and exercised not to enable it to control its people but to authorize it to furnish, to itself and to its inhabitants, water for their private advantage;</p> <p>4. The rules of liability applicable to private corporations are applicable to municipal corporations also when they are engaged in the exercise of a corporate or private function.</p> <p>5. In the case at bar we are concerned with contractual liabilities because the plaintiff’s writ declares “that by reason of the contractual relations between them, and the payment by the plaintiff to the defendant of the rates demanded by it, it became the legal duty of the defendant to give him, barring emergencies, a regular and full supply of water.</p> <p>6. Although a water company may enter into written contracts with its customers upon certain terms yet a contract is also implied where the company furnishes water and the customer uses it and pays for it, without written agreement, the one party being bound in such case to continue the service and the other to pay for it at the established rates.</p>

<p> Mortgages of personal property. Consent for sale of mortgaged personal properly. R. S., 1916, Chap. 96, Sec. 2, interpreted. Inadmissibility of oral evidence to shoio consent for sale of mortgaged personal property. Right of mortgagee of personal property to its possession . after mortgagee has sold same. </p> <p>The defendant sold S. many horses during the seasons of 1913 and 1914, in each instance taking back a note secured by a mortgage upon the horses, the instrument being in the nature of a Holmes note which was duly recorded.</p> <p>S. sold the horses in due course of business to various parties among other purchasers being the plaintiffs here, each of whom bought a pair. Green under his mortgage subsequently took the pair of horses from Rowe, and he received three hundred and seventy-five dollars from Collins in settlement of his security upon the pair Collins had bought.</p> <p>In an action of deceipt brought by Rowe,</p> <p> Held: </p> <p>1. That the mortgage was a valid and subsisting incumbrance, the note seemed thereby never having been paid.</p> <p>2. That evidence was inadmissible to show that there was an oral understanding between Green and S. that the latter could sell and dispose of the horses in any way he saw fit, and that the security was given simply to prevent attachment of the property by other parties with whom S. might be dealing.</p> <p>3. That R. S., (1916), Chap. .96, Sec. 2, providing that “No consent given by the mortgagee of personal property to the mortgagor .... for the sale or exchange of the mortgaged property shall be valid or be used in evidence in civil process unless in writing and signed by the mortgagee or his assigns,” is conclusive of the rights of the parties here.</p> <p>4. That there was no deceit on the part of the defendant, but the representations made by him were in accord with the truth.</p> <p>In an action for money had and received by Collins to recover the money paid to defendant to release his security, it is Held:</p> <p>That for the reasons given above the incumbrance was valid and there is no legal ground on which, under the facts disclosed, the money paid to release it can be recovered back.</p>

<p> Public charities defined. Gifts for purely public charities as distinguished from bequests or devises “solely for benevolent purposes.” General nature and character of “public charities.” Motive of donor as affecting public charity. </p> <p>Bill in equity to construe the sixth paragraph of the will of the testatrix which reads as follows:</p> <p>“As a memorial to my late beloved brother C. F. Wentworth, I give to the town of Appleton, in trust however, the sum of six thousand dollars which is already on deposit in the Rockland Savings Bank, Rockland, Maine, for the purposes hereinafter named, and I hereby direct the executor of this will to deposit such balance as remains in his hands from sale of said property after the payment of all legacies and all expenses, in said bank to the credit of said town to be used for said purposes only, said fund to be known as the C. F. Wentworth Memorial Fund; said fund shall be kept in said bank so long as said bank shall exist, then to be deposited in some safe institution as the selectmen of said town shall determine, the annual interest or income of said fund or so much of the same as shall be found necessary, shall from time to time be distributed or be expended in the purchase of fuel or other necessities of life to be given or sold at low prices as shall be deemed best by said selectmen, to such worthy and industrious persons as are not supported wholly or in part at the public expense but who need some aid in addition to their own labor to enable them to sustain themselves during the inclement season of the year, such aid to be afforded in the most private manner possible and the names of the recipients withheld from the public.....And it is the especial request of the donor to this fund that no idler, loafer, gambler or drunkard receive any benefit of said fund.”</p> <p> Held: </p> <p>1. That this bequest is not void for indefiniteness or uncertainty.</p> <p>2. That a charitable bequest, in the legal sense, is a gift to be applied consistently with existing laws for the benefit of the persons or classes specified, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life or by erecting or maintaining public buildings or works, or otherwise lessening the burden of government.</p> <p>3. That the bequest under consideration contains the necessary elements of a public charity, the relief of the deserving needy in time of stress and is created for the benefit of an unascertained body of individuals, the beneficiaries being a portion or class of the community.</p> <p>4. The fact that the bequest is made as a private memorial to a relative does not impair its public character or affect its legal validity.</p>

<p>Bill in equity asking for the construction of the will of Nathaniel McLellan, and especially paragraph four of said will. This cause was heard upon bill and answers. Questions of law having arisen of sufficient importance and doubt, and the parties agreeing thereto, the cause was reported to the Law Court for decision upon the bill and answers.</p> <p>Case stated in opinion.</p>

<p> Meaning of and whal form of actions may be included in an “action on the case.” Form of action to be brought under R. S., 1916, Chap. Jfl, Sec. 6. Necessity of proving demand in such actions. Rule at common law as to enforcing payment for services rendered where there was no reguest, express or implied. </p> <p>1. An action on the ease includes assumpsit as well as tort. Its distinguishing characteristic is that all the facts upon which the plaintiff relies must be stated in the declaration.</p> <p>2. The “action on the case” provided for in R. S., (1903), Chap. 43, Sec. 6, R. S., 1916, Chap. 47, Sec. 6, need not necessarily be in form ex delicto instead of in form assumpsit.</p> <p>3. Where, in an action brought under the provisions of said statute to recover reasonable compensation for driving the defendant’s pulp wood which had become so intermixed with the plaintiff’s logs that it could not be conveniently separated therefrom, the declaration sets out in a special count all facts necessary to make out a cause of action under the statute, and then concludes, “Wherefore by force of the statute in such case made and provided, the plaintiff is entitled to have and recover of the said defendant a reasonable sum for driving its said logs and pulp wood, as aforesaid, .... for which, by said statute, defendant became liable and promised plaintiff on demand,” held, that such declaration is sufficient in form to permit a recovery thereunder for the driving upon proof of the facts alleged.</p> <p>4. It is a well settled general rule, that if A. performs services beneficial to B. under circumstances that negative the idea that the services are gratuitous, and B. knows it, and permits it, and accepts the benefits thereof, A. may recover of B. in an action upon a quantum meruit, what the services were reasonably worth. But that rule is sustainable and applicable only upon the theory that facts and circumstances are proved sufficient to justify the inference that B requested the services, and intended to pay for them, and, therefore, the law implies a promise on his part to pay for them.</p> <p>5. Where there is no promise to pay, the common law-gives no right to enforce payment for services rendered to another without his request express or implied; for in such case no promise to pay can be implied.</p> <p>6. Where it was for plaintiff’s own interest to drive the defendant’s pulp wood that had become so intermixed with his own logs that it could not be conveniently separated therefrom, and he had the right by statute to drive it without request, and without the defendant’s consent, and even against its wish, and with the further right to recover a reasonable compensation from the defendant for so doing, it is not to be inferred that he drove the pulp wood with his logs because the defendant requested him to do so, even though the driving of it may have benefited the defendant.</p> <p>7. Where the plaintiff’s declaration contained a special count in which were alleged all the facts necessary to be proved for the recovery under the provisions of R. S., (1903), Chap. 43, Sec. 6, of a reasonable compensation for driving the defendant’s pulp wood which had become so intermixed with his logs that it could not be conveniently separated therefrom, which special count was followed by a count upon a quantum meruit for labor performed for the defendant, and where there was a sharp issue at the trial whether the plaintiff made the demand required by the statute, and the jury were instructed that if they did not find a demand proved or a waiver of the demand shown, but did find that the plaintiff in driving the pulp wood rendered the defendant a valuable service and conferred on it a valuable benefit, then the plaintiff is entitled to recover what the jury would consider a reasonable compensation for those services under the quantum meruit count in the writ, held, that the instructions were erroneous as applied to the facts and circumstances of the case.</p> <p>8. The plaintiff’s claim as presented at the trial plainly was to recover the reasonable compensation provided for by the statute for driving the pulp wood under the authority of the statute, and the instructions enabled the jury to give the plaintiff such compensation, without proof of the demand required by the statute. And they may have done so. The instructions, therefore, were prejudicial to the defendant.</p>

<p>Action of assumpsit on account annexed with trustee process. Judgment was rendered against principal defendant and trustee, from which judgment trustee entered an appeal to Supreme Judicial Court. Case reported to Law Court upon agreed statement of facts, the Law Court to render such final decision thereon as law and justice require. Trustee discharged with costs.</p> <p>Case stated in opinion.</p>

<p> Power ,of municipalities to contract. How such contracts shall he made. Right of agents or representatives to make contracts binding upon town without vote thereon. Power of municipalities to ratify acts of agents. </p> <p>Two actions brought to recover on an account annexed, and quantum meruit, for electric current and electric lights furnished the inhabitants of the town of Van Burén. The first writ seeks to recover for lighting the streets and certain public buildings in Van Burén from April 1, 1915, to June 26th of the same year, and the second from November 27,1915, to February 29,1915. The cases are before this court upon report.</p> <p>The plaintiff claims that on the 19th day of July, 1911, it entered into a contract with the inhabitants of the town of Van Burén, acting by a committee, binding the parties thereto for a period of fifteen years from the date the plant began operation, to furnish the town the electric lights specified, and that the contract provided in default on the part of said inhabitants to make payment as stipulated that the light company might, at its option, shut off the street lights until payment for all arrears to said light company was made. From October, 1911, until the first day of April, 1915, the defendants paid monthly for electric service at the prices stipulated in the alleged contract. In June, 1915, there being due, as claimed by the plaintiff, the payments for lights from April first to June, and the town refusing to pay therefor, they exercised their right under the contract and stopped furnishing the lights. In 1915 certain residents of the town of Van Burén proceeded to erect, at their own expense, an electric light plant, which duplicated the electric lighting system of the plaintiff, and made arrangements to obtain their current from the same source as the plaintiff, and in the fall of 1915 the plaintiff, who during the summer shut off their service, again began on the 27th day of November to light the streets of Van Burén, and thereafterwards the second company started their plant and furnished lights for the street and public buildings by virtue of an alleged contract with the town.</p> <p>It appears that from the 22d day of November to the date of the purchase of the two writs now under consideration, both the plaintiff and the associates above described, or their successors, have each continued to furnish a set of street lights for operation in the defendant town, and that, at about the time of the annual meeting of defendant town, in 1916, the town agreed to purchase the plant constructed by said associates.</p> <p> Held: </p> <p>1. In an action against a town by a light and power company for electric lights furnished, the burden was on plaintiff to prove the authority of the persons signing the contract on behalf of the town.</p> <p>2. That the authority to so act must be proven by a vote of the town at a meeting which the record must show was legally called and that there was an article in the town warrant authorizing the appointment of a committee and giving it the authority to act for the town in making the contract.</p> <p>3. The particular subject matter upon which action is called for in a town meeting must be distinctly specified in the notice calling the meeting. If any prescribed step is omitted, the inhabitants, and hence the town itself, are not bound by the results. Whoever deals with the town or its officers must bear in mind these bulwarks about the property of the inhabitants of the town and make certain, not only that the proposed contract is clearly within legal power of the town, but also that such power is exercised in a legal manner.</p> <p>4. A municipal corporation may ratify the unauthorized acts and contracts of its agents and officers which are within the corporate powers but not otherwise.</p>

Probate appeal from the decree of the Judge of Probate, Androsfcoggin County. Appeal was entered at the April term, 1916, of the Supreme Court of probate for said county of Androscoggin. At said term certain rulings were made by the Justice presiding, certain agreements and stipulations were entered into and it was agreed by all parties interested that the decision of the presiding Justice might be given and entered during said term or in vacation as of the term.

<p>Bill in equity asking for construction of certain clauses or portions of the will of John H. Higgins of Charleston, Maine. The cause was heard upon bill and answer, and it appearing to the Justice presiding that questions of law were involved of sufficient importance and doubt to justify the same, by consent and agreement of the parties the cause was reported to the next Law Court for hearing and decision upon bill as amended and answers, the Law Court to render such final judgment as the legal and equitable rights of the parties require. Decree to be drawn in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Necessary proof in an action to recover price of goods bargained and sold. Form of action if party ordering refuses to accept same. Rule of law as to questions not raised at trial being considered on exceptions. Rule as to negligence defeating the defense of fraud. Rule where fraudulent representations are used. </p> <p>1. One who is fraudulently misled as to the contents of a paper which he signs without reading is not estopped by his negligence from setting up the fraud in an action between the original parties.</p> <p>2. The evidence in this case would warrant a jury in finding that the defendant’s signature to the contract in suit was procured by the fraud of the plaintiff’s agent.</p>

<p>Writ of entry to recover possession of a certain lot or parcel of land situate in Lincolnville, in the county of Waldo and State of Maine. Defendant filed plea of general issue. This case is reported to Law Court for its determination upon so much of the evidence as is legally admissible. Judgment for defendant.</p> <p>Case stated in opinion.</p>

Action on the case to recover damages on account of injuries received by plaintiff through the alleged negligence of defendant' company.' Plaintiff, claiming that he was engaged in interstate commerce, brought his action under the provisions of the Federal Employers’ Liability Act, 35 U. S. Statutes at Large, Chap. 149, page 65, and Chap. 143, page 291. Defendant filed a plea of general issue.

<p> Construction of units. Rule as to devisees taking fee when no words of limitation are used. Effect of limitations or conditions which are inconsistent and repugnant to language used in devise. Rule as to intention to create afee where devisee is given power of sale and disposal. </p> <p>1. It is a well settled rule that a devise absolute and entire in its terms, without words of inheritance, presumptively conveys an estate in fee and that any limitation over afterwards is repugnant and void.</p> <p>2. Where an absolute power of disposal is given to the first taker, a subsequent limitation is inconsistent and destructive of all other rights.</p>

<p>Action on the case to recover damages on account of alleged negligence of defendant company in furnishing plaintiff water from the use of which he contracted typhoid fever. Defendant filed plea of general issue. At close of testimony, questions of law of sufficient importance having arisen, case was reported to law court for final determination and all the rights of the parties on so much of the evidence as legally admissible: If the plaintiff prevails, damages to be assessed in the sum of fifteen hundred dollars; if defendant prevails, no cost to be taxed against plaintiff. Judgment for plaintiff for fifteen hundred dollars.</p> <p>Case stated in opinion.</p>

Bill in equity asking for the cancellation of a certain written contract for the sale of real estate on account of alleged fraud and false representations on part of vendor. Cause was heard upon bill, answer and proof.

<p> Speed of railroad trains at crossings as regulated by R. S., 1903, Chap. 62, Sec. 86; see also R. S., 1916, Chap. 67, Sec. 79. General rule as to care of persons approaching railroad crossing when gales are open. Extent to which reliance may be had upon open gates at railroad crossing. Degree of care required by traveler when approaching railroad crossing when view of track is obstructed. Degree of care required of person in any vehicle, although not the driver thereof, in approaching railroad crossing. </p> <p>This case was an action for damages brought by the administrator of the estate of J. Waldo Miles of Old Town to recover damages from the defendant company for injuries sustained by the plaintiff’s intestate by reason of a collision of a train of the defendant company and an automobile in which the plaintiff’s intestate was riding, the collision occurring at a crossing on Front Street in Old Town on August 3rd 1914. The verdict of the jury was for the plaintiff, damages being assessed in the sum of $5320.83; and the ease comes to this court on a general motion filed by the defendant to set aside the verdict on the grounds that it is not warranted by the evidence, and also that the damages are excessive.</p> <p>While the fact of open gates at a railroad crossing is a circumstance which a traveller may properly take into consideration and upon which he may place some reliance, he is not thus relieved of all care.</p> <p>The extent to which the traveller may rely upon the invitation given by open gates is a question of fact for the jury, unless it appears that he relied exclusively thereon.</p> <p>The fact that the traveller is not the driver of the vehicle in which he is riding does not relieve him of all care.</p> <p>Ordinarily when the view of the traveller of the railroad track is obstructed, greater care is required in looking and listening, even to the extent, if driving, of alighting.</p>

<p> Negligence. Degree of care required of persons driving vehicle in day time on to and along tracks of street railway. Degree of care required driving on to tracks in the night time. Duty of drivers of teams or other vehicles driving upon street railway tracks having knowledge that cars are approaching. Rule of law where, on account of construction of vehicle, driver’s view behind obscured. </p> <p>The plaintiff brings this action for the recovery of damages to himself and vehicle alleged to have been caused by a rear-end collision with the latter of an electric car of defendant at about seven o’clock of the evening of the thirtieth day of October, 1915. A verdict being found for plaintiff, defendant files the usual motion for new trial.</p> <p>In the darkness of night when the driver of a team upon a railway track knows that a car is but a short distance behind him upon the same track and must be continually approaching him, he has a duty other than driving onwards with no effort of some of his senses to ascertain the whereabouts of the car.</p> <p>It is the duty of drivers of teams upon the tracks of street railways to leave them when they are aware, or ought to be aware, of the approach of cars.</p> <p>One driving a team or wagon at night upon the track of a surface railway may not rely wholly upon the supposition that the servants of the railway will see him in time to give warning but he must be on the alert to discover in some manner and by some exercise of his senses the approach of a car from the rear.</p> <p>If his sense of hearing be impaired, he is not excused from the exercise of his other senses but is called upon to exercise those .unimpaired with a higher degree of alertness than will be the case if all his senses be normal.</p>

<p> Town meetings. Ballots cast at town meetings. Powers of committee appointed to count ballots and declare election. Rights of parties to have ballots inspected and proper count made where there has been apparent error in counting. Power of court under R. S., 1916, Chap. 7, Sec. 87, to pass upon the question of election of selectmen. </p> <p>1. Any evidence, admissible according to the rules of evidence, is admissible in disputed election case to show the truth.</p> <p>2. The record of a town meeting may be contradicted by a count of the identical ballots cast, though the ballots are not official, and are not required to be preserved in the custody of any officer.</p> <p>3. The offices of selectmen, assessor and overseer of the poor are municipal offices within the meaning of R. S., Chap. 7, Sec. 88, and the Justices of the Supreme Judicial Court have jurisdiction to determine the validity of an election to either of these offices, on petition of one claiming to have been elected against the person who has been declared elected in town meeting, and who holds or claims to hold the office.</p> <p>4. The evidence shows that the petitioner, and not the respondent, was elected, and is entitled to the office.</p>

<p>Action on the case to recover damages for the instantaneous death of plaintiff’s intestate through the alleged negligence of defendant company. Defendant filed plea of general issue, and brief statement alleging that the accident and injuries to the plaintiff’s decedent happened to her solely through her want of due care at the time and place of the accident to her, and that the accident and injuries to the decedent were caused solely through the contributory negligence of the decedent and through no want of due care on the part of the defendant acting through its servants and agents. Verdict for plaintiff in the sum of $416.67. Defendant filed motion for new trial.</p> <p>Case stated in opinion.</p>

At January term, 1917, of the Superior Court for Kennebec County, the respondent was tried and convicted for the unlawful possession of intoxicating liquor, and on the fifteenth day of said term was sentenced to pay a fine of one hundred dollars and costs, taxed at twenty-five dollars, and in addition thereto to serve sixty days in jail, and if fine and costs were riot paid to serve sixty days additional in jail.

Bill in equity to maintain a lien on land and buildings on account of lumber supplied in the construction of.same by plaintiff. Cause was heard upon bill, answer and proof. After due hearing, sitting Justice ruled that the bill be dismissed with costs for defendant from which ruling plaintiff entered an appeal. Case stated in opinion.

Action on the case to recover damages for injuries received by plaintiff through the alleged negligence of defendants’ chauffeur. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $1,200.00. Defendant filed motion for new trial; also exceptions to certain rulings of presiding Justice. Case stated in opinion.

<p>Appeal from assessors of town of Wesley, under R. S., 1903, Chap. 9, Sec. 79, (R. S., 1916, Chap. 10, Sec. 80). Respondent filed answer, setting forth that said petition cannot be maintained because the assessment of the tax for which petitioners ask abatement was illegal and void, having been assessed to the estate of a person deceased and not to the petitioners; it created no lien and raised no obligation on the part of the petitioners to pay, and said petitioners were not under any legal liability to pay, either at law or in equity; nor have they any legal right to ask for an abatement.” Reported to Law Court on agreed statement of facts.</p> <p>Case stated in opinion.</p>

<p>Appeal of Martin C. McCluskey, et als., from decree of Judge of Probate of Washington County to Supreme Court of Probate, removing said Martin C. McCluskey from the office of administrator of the estate of Charles T. McCluskey, of Danforth. Said appeal was entered at the May term of the Supreme Judicial Court for said county of Washington sitting as the Supreme Court of Probate. After the introduction of certain evidence, questions of law of sufficient importance having arisen, by consent of the parties the ease was reported to the Law Court upon so much of the evidence as legally admissible, the Law Court to determine all the rights of the parties and order final judgment thereon.</p> <p>Case stated in opinion.</p>

<p>Action of assumpsit by trustee in bankruptcy to recover of defendant the sum of $763,12. Defendant filed plea of general issue, and also filed an account in set-off. Specifications were filed by plaintiff, and at conclusion of the evidence the presiding Justice directed a verdict for plaintiff. Verdict for plaintiff in sum of $763.89. To ruling of court directing verdict and also as to • ruling of court admitting certain evidence, defendant filed exceptions.</p> <p>Case stated in opinion.</p>

<p> Fraternal associations. By-laws and regulations. Who may be made beneficiaries. Flow the same shall be governed. Rule where beneficiary named in policy is not in a certain designated class. </p> <p>1. The constitution and laws of a fraternal beneficiary association enter into, and form a part of, its benefit contracts; and in the absence of waiver, or statutory limitation, the rights of all claimants of a benefit depend upon the contract between the association and the member, in which is embodied the constitution and laws of the association.</p> <p>2. A person, not within any of the classes named in the by-law of the association to which the designation of beneficiaries is confined, cannot be legally designated a beneficiary.</p> <p>3. When a statute limits the classes which may be made beneficiaries by a fraternal beneficiary association, the association may limit its benefactions to a part only of the classes named in the statute, or to a part of one class.</p> <p>4. The phrase in the by-law of a fraternal beneficiary association, “if all the beneficiaries shall die during the lifetime of the member” means beneficiaries designated in accordance with the laws of the association.</p> <p>5. When the by-law of a fraternal benefit association provides that in case a legally designated beneficiary dies, and the member has made no other legal designation, the benefit is payable to his heirs, upon his death, their right to the benefit becomes vested. Their right grows out of the contract, and they may contest the asserted right of an illegally designated beneficiary.</p> <p>6. When a fraternal beneficiary association files a bill of interpleader against contesting claimants of a benefit, it waives any defenses it may have against paying the benefit to someone, but it does not, and cannot, waive the rights of the contestants.</p> <p>7. If a fraternal beneficiary association may waive its by-laws, and, by continuing to receive assessments and in other ways recognizing a designation of a beneficiary as a legal one, validate an illegal designation, the principle would not apply in case the association had no knowledge of the illegality of the designation until after the member’s death.</p> <p>8. In this case, the heirs of the member are entitled to the fund.</p>

Action on the case to recover damages on account of fire caused by the defendant company, said actions being brought under R. S., 1903, Chap. 52, Sec. '73, (R. S., 1916, Chap. 57, Sec. 63). The two plaintiffs were husband and wife and the actions were tried together. In each case defendant filed plea of general issue. In case of Ethel R. Libby, verdict was rendered in sum of $3008, and in case of Lewis F. Libby, verdict in sum of $1143.

Action on the case to recover damages sustained by plaintiff through the alleged negligence of defendant company in leaving an unguarded elevator shaft or well into which the plaintiff had gone and in winch he received the injuries complained of in his writ. Defendant filed plea of general issue. At the conclusion of the evidence, the presiding Justice directed a verdict for defendant. To this direction, the plaintiff filed exceptions.

Bill in equity brought by trustee in bankruptcy to recover of defendant certain moneys and property alleged to have been obtained by defendant for his benefit from an insolvent corporation of which said defendant was a director. Cause was heard before a single Justice and from his ruling an appeal was entered to Law Court. Decree in accordance with opinion. Case stated in opinion.

Writ of entry to recover a certain tract of land in the city of Old Town, Penobscot County. Defendant filed plea of general issue, together with brief statement and also filed disclaimer as to part of the realty claimed in plaintiff’s writ. At close of testimony, by consent of the parties case was reported to Law Court upon so much of the evidence as legally admissible, the Law Court to determine all the rights of the parties and render final judgment thereon.

<p> Motion in arrest of judgment. Buie where bill of exceptions does not clearly set out the issue. Rule as to motion in arrest of judgment “because verdict is against the law and evidence.” </p> <p>Indictment charging defendant with violation of R. S., (1903), Chap. 119, Sec. 16. A bill of exceptions must present each issue of law in the clear, distinct and summary manner required by statute and where an issue is not so presented by the bill of exceptions it cannot be considered, even.though the transcript of the evidence be made part of the bill and shows the irregularity or error complained of.</p> <p>A motion in arrest of judgment addresses itself to the record alone and the evidence is no part of the record.</p> <p>A motion for arrest of judgment cannot serve as a motion for new trial on the ground that the verdict is against law and evidence.</p> <p>When the evidence in support of a criminal prosecution is so defective or so weak that a verdict of guilty based upon it cannot be sustained, the jury should be instructed to return a verdict of not guilty.</p>

Bill in equity brought by the plaintiff, as Mayor of the city of Lewiston, against the three defendants acting as members of the Police Commission appointed under an Act of the legislature of 1917, to which Act was attached the Emergency Clause so called. The defendants filed answer and also demurrer to plaintiff’s bill. The cause was heard upon bill, answer and proof.

<p>Writ of entry to recover certain land in South Thomaston, County of Knox. Defendant filed plea of general issue. Case reported to Law Court upon agreed statement of facts, upon which the court is to determine the legal rights of the parties and all questions of law arising therefrom, and to render final judgment in accordance therewith. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

Actions brought under R. S., 1903, Chap. 23, Sec. 76, (R. S., 1916, Chap. 24, Sec. 92) to recover damages of defendant town on account of death of plaintiff’s intestate through an alleged defect in a bridge of the defendant town. The cases were both reported to the Law Court upon certain agreed statements and stipulations, based in part upon the evidence in case of McCarthy v. Inhabitants of the Town of Leeds, reported in 115 Maine, 134. Judgment in accordance with opinion.

<p> Fraud. Misrepresentation in sale of stock as to its value. Rule as to liability for statements of opinion made in regard to value where the statements were not true. </p> <p>Both of these actions are for fraud in the sale of stock in White’s Express Company, a New York corporation, doing business in New York City and Brooklyn. By agreement they were reported to the Law Court upon so much of the evidence as is legally admissible, the Law Court to render final judgment thereon.</p> <p>Daniel S. Chellis was about sixty years old, and had lived for many years, with his ■wife the other plaintiff, on a farm in a small country town in York County. They had on deposit in the Limerick National Bank in said county five thousand dollars, four thousand in his and one thousand in her name. The defendant, Mills, was from New Haven, and a stranger to the plaintiffs, while Cole was a neighbor, and was known to them as a successful trader and business man.</p> <p>In March, 1911, the defendants drove to the plaintiffs’ home, where Cole introduced Mills to the plaintiffs. They requested to be taken into the house as they wished to do some business with the plaintiffs. On this and successive visits several hours were spent by the defendants in the Chellis home persuading the plaintiffs to buy stock in the express company which Mills claimed to represent. He made many representations as to the assets, liabilities, and general financial condition of the company which, had his statements been true, would have shown the stock to be a perfectly safe investment. While a printed statement of the company’s affairs was referred to, the accuracy of all therein contained was vouched for by Mills as being true within his own knowledge, because of a careful investigation of the company by Mills and an expert on which they had spent some weeks. Cole repeatedly assured the plaintiffs that the stock was a good investment, the company a safe place to put their money, better than the banks, and as secure an investment as some bonds which he owned and which he exhibited to them. During his visits Cole made many other assuring and alluring statements of a similar nature, all tending to allay any doubts in the minds of the plaintiffs and to induce them to credit the representations made by his companion.</p> <p>On the strength of the representations and assurances so made Daniel Chellis withdrew four thousand dollars from the bank and his wife one thousand dollars, which they invested in the stock of the express company. At least one thousand dollars of this money was received by Cole.</p> <p>It is plain that this stock when purchased was worthless and the company insolvent at the time the representations were made. In a few months the company was adjudged a bankrupt paying a dividend of ten per cent with a possible final dividend of five per cent.</p> <p>For the damages suffered by the plaintiffs Mills is liable. Cole cannot escape legal responsibility on the ground that his expressions were mere statements of opinion. On his judgment the plaintiffs relied and but for his assurances the plaintiffs would not have been defrauded. The rule of caveat emptor cannot be invoked as a shield to protect him in making false or reckless expressions of opinion. He posed as a disinterested friend and neighbor on whose judgment and opinion this old couple could safely rely. Even if his views were given in the form of opinions, they should have been honest and truthful and not reckless.</p> <p>The defendants seek to avoid liability on the ground that the stock was redeemable by the company at par if presented and the plaintiffs had never presented it for redemption. This was not a right which stockholders had, but was a right reserved by the company to call in the stock on or before a certain date. Moreover as the company was insolvent any effort to have the stock redeemed would have been futile.</p> <p>Judgment must therefore be rendered for the plaintiffs for the amounts out of which they were defrauded.</p>

Action on the case to recover damages for injuries received through the alleged negligence of defendant company. Defendant filed plea of general issue. Verdict for plaintiff in the sum of $9916. Defendant filed motion for new trial and also exceptions to refusal of court to give certain requested instructions. Judgment in accordance with opinion. Case stated in opinion.

<p>Action of assumpsit to recover certain amounts due under an agreement signed by the two sons of the plaintiff. Plea of general issue, together with brief statement, was filed by Julia A. Garnsey, one of the defendants. At the close of the evidence, in accordance with the agreement of the parties, this case was reported to the Law Court upon the writ, pleadings and so much of the evidence as legally admissible, the Law Court to render such final judgment therein as the legal rights of the parties require. Judgment in accordance with opinion.</p>

<p>Action on the case to recover damages for injuries sustained through the alleged negligence of the defendant, the result of a collision of the carriage in which the plaintiff was riding with the automobile of the defendant. A plea of general issue was filed by defendant. Verdict for plaintiff in the sum of $3747.68. Defendant filed motion for new trial and also certain exceptions. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p> Deeds. Presumption as to delivery where deed is found in possession of grantee. Declarations of grantor in absence of grantee relative to conditions attached to passing of deed. Delivery of deeds. Self-serving writings or paper as bearing on the question of legal delivery of deeds. </p> <p>This is a writ of entry brought to determine whether a deed under which the defendants claim was duly delivered. The plaintiffs are the heirs of William C. Coombs who had acquired the real estate as a result of a partition. William told an attorney that he was about to sell the property to his mother and requested that a deed be prepared to carry out his intention. The attorney met mother and son at the mother’s home, where both parties resided, and the first draft not meeting with the mother’s approval a second deed was prepared. This instrument being satisfactory it was executed and then handed by the son to the mother. Mother and son both died within a short time after this occurrence and the deed, unrecorded, was found in a trunk in which the mother kept her papers.</p> <p>To show by their subsequent conduct in dealing with the property the parties had not intended to transfer the title at the time the manual possession of the deed passed from the son to the mother, the plaintiffs were permitted to introduce in evidence certain receipts for rent signed by the son, and an assignment of wages given by a tenant to the son to secure rent. While these papers were connected with the demanded premises the mother’s name nowhere appears in any of them, and there is no evidence to show that she had any knowledge of the manner in which he was dealing with the property. To the admission of this evidence the defendants seasonably excepted.</p> <p> Held: </p> <p>1. The circumstances attending the execution and delivery of the deed, as above detailed, being uncontrolled by contradictory evidence of strong probative force, conclusively proved that the deed was duly delivered with the intention of passing the title to the premises therein described.</p> <p>2. The receipts and assignment of wages are entirely self-serving and therefore inadmissible. Their admission was clearly prejudicial to the interests of the defendants.</p>

<p>Action of assumpsit to recover of defendant the sum of six hundred dollars paid by plaintiff to defendant. Plaintiff filed bill of specifications, in which she alleged certain fraudulent representations upon which ’she based the right to recover the money so paid to defendant. Defendant filed plea of general issue, and also a brief statement “That the plaintiff, Martha W. Smith, in order to obtain a home which she preferred, gave the six hundred dollars mentioned in her writ and declaration, to her son Harry P. Smith, to enable him to purchase a farm of the defendant, upon which the plaintiff, aforesaid, then desired and expected to live with her said son. The same was received by the defendant as a part of the consideration for said farm which he, the same day, conveyed to the said Harry P. Smith, all being done in the presence of said plaintiff.” Verdict for plaintiff in the sum of $605.40. Defendant filed exceptions to refusal of court to give certain requested instructions.</p> <p>Case stated in opinion.</p>

<p> Rule as to auditor’s report making out prima fade case. Right of dther party to action to impeach or support auditior’s report. Rule as to right of plaintiff to recover under count for money had and received for services, or labor performed, other than that set out in the account annexed in the writ. </p> <p>Where a declaration contains two counts of which one is for work and labor according to an account annexed for the sum of $3099.71 and the second is an omnibus count with a specification that under it the plaintiff will show that defendant owes her for labor some $3099.71 according to the account annexed the second count is also in effect a count upon an account annexed for work and labor.</p> <p>Under the second count the claim of plaintiff is restricted and his right of recovery limited by his specification.</p> <p>The party reading an auditor’s report may, as well as his adversary, produce evidence in addition to it, and may prove itertis not allowed by the auditor, or offer proof to contradict any part of it, without destroying the prima facie effect of its findings unless they are thus successfully impeached or disproved.</p> <p>Under a count for work and labor according to an account annexed, evidence of other services or of the general performance-of work and labor for the defendant not addressed to the items specified in the account annexed, does not warrant a finding for the plaintiff upon such account.</p> <p>An objection to a portion of the evidence upon which an auditor has based his conclusion cannot be taken as matter of right, except to recommit the report to the auditor before trial.</p> <p>No exception lies to the admission in evidence of an auditor’s report, objected to for the first time at the trial before the jury, upon the ground that his conclusions were based on incompetent evidence.</p> <p>Although an auditor’s report has once been accepted and been used at one trial, when a new trial had been granted, it is within the discretion of the court to order a recommitment of the report to the auditor.</p>

<p> Marriage settlements. Ante-nuptial contracts. Equity. </p> <p>The following ante-nuptial agreement and contract entered into by Alice C. Moore of Portland, Maine, party of one part, and Silas H. McAlpine of Portland, Maine, part of the other part, witnesseth:</p> <p>Whereas the said Silas H. McAlpine has promised to marry the said Alice C. Moore, the said Alice C. Moore in consideration of the promise of marriage as above and of the sum of Five Thousand Dollars to be paid to her from the estate of the said Silas H. McAlpine in case of the decease after marriage of said Silas H. McAlpine prior to the decease of the said Alice C. Moore agrees to release and relinquish and does hereby release and relinquish any and all claims of every name and nature upon the residue of the estate of the said Silas H. McAlpine, which, (except for this agreement and contract) as the widow of the said Silas H. McAlpine, she would have under the laws of the State of Maine or of any other State of the United States or of any foreign country. And she further agrees to sign all papers and perform all acts necessary to carry this contract and agreement into execution. The said sum of Five Thousand</p> <p>Dollars as above shall be paid to her as soon after the decease of the said Silas H. McAlpine as can be done without unreasonable sacrifice of property in raising that amount of money.</p> <p>In witness whereof the parties have hereunto set their hands and seals this sixth day of January, A. D. 1900.</p> <p>(Signed) Alice C. Moore, (Seal)</p> <p>(Signed) Silas H. McAlpine. (Seal)</p> <p>State of Maine, Cumberland,</p> <p>Personally appeared the parties to the above agreement and acknowledged that the same is their free act and deed before me this sixth day of January, A. D.</p> <p>1900.</p> <p>(Signed) GEORGE W. YERRILL,</p> <p>Justice of the Peace.</p> <p> Held: </p> <p>1. This agreement was not a statutory marriage settlement, not being executed in the presence of two witnesses according to statute.</p> <p>2. That the provision of R. S., 1903, Chap. 63, Sec. 6, (R. S., 1916, Chap. 66, (Sec. 8) is not an exclusive statute, and that before marriage a husband and wife may enter into an ante-nuptial agreement that will be binding in equity upon the parties.</p> <p>3. That ante-nuptial contracts between persons contemplating marriage, settling prospective rights of the husband and wife in each other’s property when the marriage is terminated by death are valid contracts, independent of the statutes, and are enforcible in the courts of equity.</p>

<p> Rule as to findings of fact by the court in jury-waived cases. Resulting and constructive trusts. Burden of proof to establish same. Rule as to letters written by trustee as bearing upon guestion of establishing trust. </p> <p>A petition for partition in which the petitioners allege themselves to be owners in fee of one-third each of the land sought to be divided and the respondent the owner of the remaining one-third. The respondent, answering the petition, denied the ownership of the petitioners and claimed by brief statement and by way of equitable defence title to the whole premises alleging that his wife, from whom petitioners claimed title by descent, held the premises in trust for him and his children.</p> <p>The case was heard by the presiding Justice, without a jury, who held the petitioners to be owners in fee of the two-thirds of the premises and the respondent to be owner of the other one-third and the petitioners entitled to judgment for partition as prayed for.</p> <p>On exceptions to his finding:</p> <p>Held: That exceptions in jury waived cases are limited to rulings upon questions of law and the only question of law is whether there be any evidence to support the finding. If there be, the decision of the court must stand even if there was a large preponderance of the evidence the other way.</p> <p>That the burden of proof of establishing resulting and constructive trusts is upon the party asserting their existence and this burden is sustained only by full, clear and convincing proof.</p> <p>A letter subscribed by the alleged trustee, whether addressed to, or deposited with, the cestui que trust or not, or whether intended, when made, to be evidence of the trust or not, or whether made at the time the legal title was conveyed or later, will be sufficient to establish a trust where the subject, object and nature of the trust and the parties and their relations to it and each other appear with reasonable certainty.</p> <p>That the letter relied upon by respondent to establish an express trust does not meet the requirements of law.</p>

<p> Obtaining property by means of false representations as to financial ability to pay. Meaning of word "property.” Scope of discharge under general Bankruptcy Act. What proof necessary to avoid discharge in bankruptcy. </p> <p>On report. This action on the case is brought by plaintiff to recover damages for the deceit or misrepresentation of defendant whereby it is alleged that defendant fraudulently obtained property of plaintiff. The defendant pleaded the general issue and specially his discharge in Bankruptcy. .</p> <p>The plaintiff claimed that the alleged property obtained by defendant was notes, one of which was taken by plaintiff in renewal of an earlier note given for merchandise purchased of the defendant and the other for merchandise purchased many months earlier.</p> <p>Where alleged false representations were not communicated to the payee until after taking and acceptance of a note, such acceptance cannot be held to have been indeed by such representations.</p> <p>The taking of a note by plaintiff in renewal of another note induced by false pretense of the maker of the note, does not constitute an obtaining of property by false pretenses, as excepted from the operation of a discharge in bankruptcy under the Bankruptcy Act of 1898 as amended.</p>

<p>Wills. Intention of testator.' General rule to be applied in construction of mill.</p> <p>A bill in equity brought in the Probate Court of Androscoggin Comity by complainant for the- construction of the will and codicil of George W. Curtis, deceased. The case is here upon exceptions to the decree of the Supreme Court of Probate sustaining the decree of the Probate Court.</p> <p>It is elementary law that the intention of the testator collected from the whole will and all the papers which constitute the testamentary act is to govern.</p> <p>It may well be doubted if any other source of enlightenment in the construction of a will is of much assistance than the application of natural reason to the language of the instrument, under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution and connecting the parties and the property devised with the testator and with the instrument itself.</p> <p>Citations of adjudicated cases cannot afford much aid. No two wills are ever precisely alike. No two testators are situated precisely the same, and it is both unsafe and unjust to interpret the will of one man by the dubious light afforded by the will of another.</p> <p>The codicil of the testator, formal parts omitted, is “I now revoke item sixth in said will, wherein I bequeathed thirty-five hundred dollars, to my brother Silas Curtis, of Wayne, and I now give and bequeath to Charles F. Curtis of Auburn, Maine, two thousand dollars ($2,000.00) in trust, to be used by him for the benefit of my said brother Silas Curtis, hereby giving said Charles F. Curtis, absolute control of said sum in his discretion, not confining him to the income thereof, for the benefit of my brother Silas, if the said Silas shall survive me, but authorizing him to use from the principal of the same, when in his judgment it shall become necessary.</p> <p>“Should any of said trust fund be unexpended on the death of my said brother Silas, I direct said Trustee to use from said fund to give my said brother a Christian burial and erect a gravestone to his memory, and, if after these expenses shall have been incurred there shall be any balance remaining I direct my said trustee to pay it to my niece, Gertrude Tibbetts, providing she shall continue to care for her father. If some one other than the said Gertrude cares for my brother Silas I direct said Trustee to pay what may be left, if any, to that person.”</p> <p>Silas Curtis, who at the date of the codicil was living with complainant who was caring for him then and continued to care for him until his death, predeceased the testator.</p> <p>Reid: That the testator had in mind a definite plan for the benefit of his brother and whoever cared for him till his death;</p> <p>That the death of Silas was not to effect the remainder of the plan, that the bequest in trust has not lapsed, that the burial expenses of Silas and the erection of a gravestone to his memory are charges against that fund, and, these being paid therefrom, that the Complainant is entitled to the balance.</p>

<p> Evidence. Admissibility of copies of letters mitten on same typewriter. </p> <p>1. It is a readily observable fact that a typewriting machine develops by use some defects or irregularities in the alignment or position of its type, or in other features, and that such defects or irregularities are inevitably disclosed by the work produced upon such machine.</p> <p>2. Since it is not probable that any one of such defects or irregularities would occur in precisely the same way in two machines, and that it is well-nigh impossible that two or more of them should do so, it is now well recognized that a typewriting machine may possess an individuality which differentiates it from other typewriting machines, and which is recognizable through the character of the work which it produces.</p> <p>3. Inasmuch as the work produced upon a typewriting machine affords the readiest means of identifying the machine, no valid reason is perceived why a proven specimen of its work should not be received in evidence for purposes of comparison with other typewritten matter alleged to have been produced upon the same machine.</p> <p>4. If a proven specimen of work produced upon a certain typewriter corresponds identically with a disputed specimen in all of several defects, irregularities and imperfections of the work, that fact would be pertinent and material to the ■ question whether the disputed specimen was produced upon the same typewriter.</p> <p>5. In support of his action the plaintiff undertook to prove that the defendant was one of a number of men who unlawfully entered upon his premises in the evening of February 22,1915 and presented to him a threatening letter written upon a typewriter. As bearing on the credibility of the defendant’s testimony denying all knowledge of the letter until after it was delivered, the plaintiff undertook to show that the letter was written on an Oliver Typewriter which the defendant borrowed and took to his home on the same evening and prior to the delivery of the letter; and he offered in evidence a copy of the letter, shown to have been made upon the same typewriter after the defendant returned it.</p> <p> Held: </p> <p>That the copy of the letter, as a proven specimen of work produced upon the typewriter which the defendant borrowed, was admissible in evidence, for the purpose of comparison -with the original letter, on the question of the identity of the typewriter upon which the original letter was written.</p> <p>6. It cannot be reasonably held under all the facts disclosed in the case that the plaintiff was not prejudiced by the exclusion of the offered copy.</p>

<p> Landlord and Tenant. Negligence. </p> <p>The defendants were owners in common of a three story building on Main Street in Bangor. A. Langdon Freese leased the first or street floor, and the plaintiff holding under Mr. Freese as a tenant at will, occupied one of the stores on that floor as a millinery store. Several tenants had offices or rooms in the second and third stories of the building. In an alcove of the hallway on the second floor, under the stairs leading up to the third floor, an iron sink was set with an ordinary three quarter inch faucet on the water pipe opening into the sink. The outlet of the sink was adequate to vent all the water which that faucet would discharge when it was fully open. The sink was for the use of any of the tenants of that floor having occasion to use it. On the night of August 25, 1915, some unknown person negligently caused the outlet of the sink to be clogged and left the faucet open in part, with the result that the sink overflowed and the water found its way down into the plaintiff’s store and damaged her goods. In her action against the owners of the building to recover her damages thus sustained.</p> <p> Held: </p> <p>1. It is familiar law that the owner- of a building, not in a defective or dangerous condition, is not liable to a tenant or occupant of the building, or to any one else, for injuries or damages caused' by the unauthorized, and not reasonably to be anticipated, act of any other tenant or occupant, or of any third person, unless his relation to the doer of the act is such that the doctrine respondeat superior applies.</p> <p>2. It cannot be regarded as imprudent, or unreasonable, or negligent for the ' defendants'to maintain the sink as it was maintained for the use of their tenants. It had been there for seventeen years or more and no overflow from it had ever occurred before this accident, and there is no suggestion of proof that the defendants had any reason to anticipate that any harm would ever result from it.</p> <p>3. There is no evidence that the overflow was caused by the defendants personally, or by any one who stood in the relation of agent to them, or for whose unauthorized act they could be held responsible on the ground that they had reason to anticipate it. Whose negligent act caused the overflow is left wholly to conjecture.</p> <p>4. In the opinion of the court the plaintiff has failed to establish a cause of action against the defendants for her damages.</p>

Action on the case. Plea of general issue filed. At close of testimony case was reported to Law Court upon the evidence as presented, the Law Court to settle the rights of the parties. Judgment for defendant. Case stated in opinion.

<p>Action on the case to recover on certain insurance policies. The two actions were tried together, husband and wife plaintiff in each case. Defendant filed plea of general issue and also brief statement. Verdict was rendered for plaintiff in each case. Defendant filed exceptions to certain rulings of presiding Justice, and also motion for new trial.</p> <p>Case stated in opinion.</p>

<p>Complaint and warrant under provision of Chap. 42, Public Laws of 1907 and amendments thereto. Respondent was adjudged guilty by the Judge of the Municipal Court and an appeal was taken to the Superior Court, Kennebec County, from-which court the case was reported to Law Court upon an agreed statement of facts, the Law Court to determine the legal rights of the parties and to render judgment.</p> <p>The case is stated in the opinion.</p>

Bill in equity asking for an accounting of the sum that may be equitably due under two mortgages given by plaintiff, and that plaintiff may be allowed to redeem said mortgages. Cause heard upon bill, answer and replication. By agreement of parties, at the close of the testimony the case was taken to the Law Court upon report. Judgment in accordance with opinion. The case is stated in the opinion.

<p>Appeal from a decree of the Judge of Probate, of Cumberland County, State of Maine, allowing the last will and testament of Susan York, late of Brunswick. The appeal and reasons for appeal were duly filed in the Supreme Court of Probate, and by agreement of parties the case was reported to the Law Court for decision on the questions raised in said appeal upon so much of the evidence as is legally admissible. Judgment in accordance with opinion.</p> <p>The case is stated in the opinion.</p>

<p> Meaning of clause “exclusive original jurisdiction.’’ Rule as to general Acts of legislation overruling and repealing provisions of Charters granted to Municipal corporations. </p> <p>The jurisdiction of the Lewiston Municipal Court under Private and Special Laws, 1871, Chap. 636, as amended by Private and Special Laws, 1874, Chap. 626, and Private and Special Laws, 1887, Chap. 88, was as follows: “Said Municipal Court shall have exclusive jurisdiction in all civil actions in which the debt or damages demanded do not exceed twenty dollars .... and shall have original concurrent jurisdiction with the Supreme Judicial Court in all civil actions where the debt or damages demanded, exclusive of costs, do not exceed three hundred dollars,” etc.</p> <p>The act creating a Superior Court for Androscoggin County, Public Laws of 1917, Chap. 260, provided that “Within said County, said Superior Court shall have exclusive jurisdiction of civil appeals from municipal and police coruts and trial justices,.....and all other civil actions at law not exclusively cognizable by municipal and police courts and trial justices where the damages demanded do not exceed five hundred dollars” etc.</p> <p>In an action of assumpsit returnable in the Lewiston Municipal Court after the Superior Court act had taken effect in which the ad damnum was fifty dollars, it is</p> <p> Held: </p> <p>1. That the action not being exclusively cognizable by the Lewiston Municipal Court because the ad damnum exceeded twenty dollars became solely cognizable by the Superior Court.</p> <p>2. That the two acts in so far as they apply to the jurisdiction over cases where the ad damnum exceeds twenty dollars and the specific demand in the writ does not exceed three hundred dollars are repugnant to each other and cannot stand together.</p> <p>3. That the earlier statute must be regarded as amended bf the later so as to become conformable thereto, and all those actions over which the Lewiston Municipal Court had previously taken concurrent jurisdiction with the Supreme Judicial Court, that is between twenty dollars and three hundred dollars, fell into the exclusive jurisdiction of the newly established Superior Court and the concurrent jurisdiction of the Municipal Court ceased.</p> <p>4. That the defendants motion to dismiss for want or jurisdiction was well taken.</p>

Petition for review, brought under R. S., 1916, Chap. 94, Sec. 1. paragraph 3. The presiding Justice, before whom petition was heard, ruled that the petitioner as a matter of law was not a “party in interest” within the meaning of the Statute and dismissed the petition; to which ruhng, plaintiff filed exceptions. Case stated in opinion.

<p> Wills. Cy pres doctrine. Rule when this doctrine can be applied. Rule where clause in will creates a public charity and it is impossible of execution and no general charitable intent shown. </p> <p>In a bill in equity brought to construe a will,</p> <p> Held: </p> <p>1. When it appears from a will that the intention of the testatrix was that her property should be applied to a charitable purpose, whose general nature is described so that a general charitable intent can be inferred, then if by a change of circumstances it becomes impracticable to administer the trust in the precise manner provided by the testatrix the doctrine of cy pres may attach and the gift applied to some kindred charity as nearly like the original purpose as possible.</p> <p>2. But if it appears that the gift was limited to a particular purpose and no general charitable intention is discovered, then if it becomes impossible to carry out the object, the doctrine of cy pres does not apply, and in the absence of any limitation over or other provision, the legacy lapses.</p> <p>3. The testatrix in the case at bar devised her farm and wood lot in Augusta in perpetual trust to be used as a home for one or more unmarried women who have been employed in the straw industry in Massachusetts. The words of the will reveal a particular charitable gift but no general charitable intent, and therefore the ey pres doctrine does not apply.</p> <p>4. The trust is impossible of fulfillment as the trustee admits because there are no funds with which to maintain the property, and it is constantly depreciating in value.</p> <p>5. As it is impracticable and impossible to execute the particular charity for which provision is made, the gift fails and the property in question must pass to the next of kin as intestate property. The estate devised to the plaintiff depends upon the validity of the trust and falls when that falls.</p>

<p>Action of forcible entry and detainer. In the Municipal Court defendant filed plea of general issue, together with brief statement alleging title in Walter Morse Wilder, under whom defendant claimed to occupy and hold the property in question. In the Supreme Court, to which the action was appealed, defendants, by consent of plaintiff and by leave of court, filed an amended brief statement and also filed an equitable plea under and by virtue of Chap. 84, Secs. 14, 17, R. S., 1903 (Chap. 87, Secs. 15, 17, R. S., 1916), and the case was reported to Law Court upon agreed statements, the Law Court to determine all questions of law and fact and to render judgment accordingly. Judgment for plaintiff.</p> <p>Case stated in opinion.</p>

<p>Action of debt on a bond given in a complaint in bastardy. Defendants filed plea of general issue and also brief statement. At the conclusion of the evidence, the court directed a verdict for the plaintiff, to which ruling defendants filed exceptions.</p> <p>Case stated in opinion.</p>

<p>Bill in equity. Defendants each filed a demurrer and answer. Cause was heard before presiding Justice, from whose findings and decree an appeal to Law Court'was taken by defendant. Judgment in accordance with opinion.</p> <p>Case stated in opinion.</p>

<p>Action on the case by holder of note against indorser. The case was heard at the April term, A. D. 1917, of the Superior Court, Cumberland County. At close of plaintiff’s testimony, court ordered verdict for defendant; to which ruling, plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

Action on the case for abuse of process. At return term, defendant seasonably filed plea in abatement, setting forth the fact that he was a non-resident at the time service was made upon him. To the plea in abatement so filed, plaintiff filed demurrer. The presiding Justice overruled the demurrer, sustained the plea in abatement with costs; to which ruling'the plaintiff filed exceptions. Case stated in opinion.

Petition for.mandamus. Defendants filed answer and, by agreement of parties, cause was reported to Law Court upon certain agreements and stipulations. Judgment in accordance with opinion. Case stated in opinion.

Action on the ease. Defendants filed motion to dismiss, which was overruled. Plaintiff, upon motion, was granted leave to amend writ; to which rulings defendants filed exceptions. Case stated in opinion.

Indictment brought under Chap. 121, Sec. 1, R. S., 1916. Defendants filed demurrer, which was joined by attorney for State. Demurrer overruled pro forma by Justice presiding; to which ruling defendants filed exceptions. Case stated in opinion.

Action on the case to recover for pauper supplies. Verdict for plaintiff. To the ruling of presiding Justice on the question of what constituted proper charges for pauper supplies, defendant filed exceptions. Judgment in accordance with opinion. Case stated in opinion.

<p>Action of assumpsit to recover certain sick benefits. Defendant filed plea of general issue, and also brief statement. At conclusion of evidence, presiding Justice directed verdict for defendant; to which ruling plaintiff filed exceptions.</p> <p>Case stated in opinion.</p>

<p>Action of replevin reported to Law Court upon certain agreed statements. Judgment for plaintiff.</p> <p>Case stated in opinion.</p>

<p> Executors and administrators. Proof necessary in actions against executors or administrators to recover for board and lodging furnished deceased. </p> <p>Assumpsit to recover for board and lodging furnished Hannah B. Hogan, deceased. It is before the court on general motion to set aside the jury’s verdict in plaintiff’s favor.</p> <p>Mrs. Hogan made her home for many years with the plaintiff. She devised all of her property, a small homestead valued at about $1,000, to her only son whom she made executor of her will. The plaintiff contends that in consideration of board and maintenance in his household the deceased had promised a number of years prior to her death to divide her property in equal shares between the son, the plaintiff’s wife and her step-daughter, and he relies upon both express and implied promise to maintain this action.</p> <p> Held: </p> <p>1. In cases of this nature it must appear that the parties understood or, under the circumstances should have understood, that compensation of some sort was to be made for the services rendered and sustenance furnished.</p> <p>2. The right of recovering in actions of this kind depends either upon an express or implied promise, and the evidence must show a valid and satisfactory basis for such a promise.</p>

<p> Wills. ' Devise creating an estate tail. Power of devisee to destroy by conveyance the remainder or entail. General rule as to expression or words creating an estate tail. </p> <p>This is a real action in which the demandants claim title to the premises described in the writ as devisees and remaindermen under the wdll of Thomas Skolfield, and was submitted to the presiding Justice at the October term, 1916, of the Supreme Judicial Court for Cumberland Comity upon an agreed statement of facts, with the right of exception in matters of law. The presiding Justice ordered judgment for the defendant, and the case is before the court on the plaintiffs’ exceptions to that order. Four other cases follow the decision in the case at bar.</p> <p> Held: </p> <p>1. That a devise to a person and his heirs, with a devise over, in case he should die without issue, vests in the first devisee an estate in fee tail, and a remainder in the second devisee.</p> <p>2. By Chap. 78, Sec. 10, R. S., 1916, it is provided that a person seized of land as a tenant in tail may convey it in fee simple. Such conveyances bar the estate tail and all remainders and reversions expectant thereon.</p> <p>3. Under our statutes a devise to a person means to such person and his heirs.</p> <p>4. The language of the testator must be construed to create an estate tail in the first devisee, Frances R. P. Skolfield, in four-tenths of the real estate of Thomas Skolfield, with a remainder to the children of his brother, the demandants. By the provision of the statute before cited she could convey the same in fee simple and thus bar the estate in remainder of the demandants.</p>

<p>Action on the case to recover damages for injuries sustained by the plaintiff’s intestate through the alleged negligence of defendant company. Defendant filed plea of general issue, and also brief statement. Verdict for plaintiff in the sum of $3706.25. Defendant filed a motion for a new trial.</p> <p>Case stated in opinion.</p>

Petition for partition by guardian of Margaret C. D. Clark, insane adult.

<p> Contract. Consideration. Promise to forbear bringing suit as sufficient consideration for a new promise. Estoppel. Rule as to a promise of payment of money then due being sufficient consideration for new contract. </p> <p>The defendant; a surety on a fifteen day bond the conditions of which had not been complied with, promised the creditor to pay at once $100 and the balance due under the bond before a specified time, provided the creditor would accept those terms of settlement and forbear action on the bond. The creditor, on his part, in consideration of such part payment at once, and the defendant’s promise to pay the balance on or before the time specified, agreed to forbear and did in fact forbear, action on the bond until after the time specified. The defendant paid the $100 forthwith as agreed, but no more.</p> <p>In an action by the creditor against the defendant based upon her special promise to pay the balance due under the bond as agreed,</p> <p> Held: </p> <p>1. A promise to forbear and give time for the payment of a debt followed by actual forbearance for the time specified, or for a reasonable time when no time is named, is a sufficient consideration for a promise to pay the debt.</p> <p>2. The payment, or promise of payment, of money which is then due and payable by virtue of an existing valid contract of the promisor is not in contemplation of law a sufficient consideration for any new contract.</p> <p>3. The creditors promise to forbear action on the bond was, therefore, without a' legal consideration and not binding on him, and he could not have been compelled to forbear as he agreed to do.</p> <p>4. But when a contract, not originally binding for want of mutuality, is executed by the party not bound to perform his part, so that the other party has actually received the benefit contracted for, the latter will be estopped from refusing performance on his part on the ground that the contract was not originally binding on the other, who has, nevertheless, performed it.</p> <p>5. Having enjoyed the forbearance of the plaintiff from bringing action against her on the bond for the full period agreed upon, the defendant is now estopped from refusing performance on her part on the ground that the contract was not originally binding on the plaintiff, who did in fact perform it and she has received the benefit thereof.</p>

Action of replevin. Defendant filed plea of general issue and also brief statement. At close of evidence, by agreement of parties case was reported to Law Court for decision, upon so much of the evidence as legally admissible. Judgment in accordance with opinion. Case stated in opinion.

Petition for leave to enter appeal from decree of Judge of Probate. Appellee filed motion to dismiss, which motion was overruled by presiding Justice and petitioner was granted leave to enter his appeal. To this ruling, appellee filed exceptions. Case stated in opinion.

Real action. Plea of nul disseizin filed by defendant and also brief statement. At close of testimony, by agreement of parties, case was reported to Law Court to render such judgment as the rights of the parties require. Judgment in accordance with opinion. Case stated in opinion.

Petition to revoke and vacate decree of Probate Court, Waldo County, Maine; petitioner having been a party to proceedings asking that said decree be made. To the ruling of Justice at Supreme Court of Probate, petitioner filed exceptions. Judgment in accordance with opinion. Case stated in opinion. •

Bill in equity asking that defendant be restrained from prosecuting a petition asking the issuance of a warrant of distress to compel the payment of a certain amount of damages on account of the tailing by plaintiff company under eminent domain proceedings property belonging to defendant. Temporary injunction was granted and case was reported to Law Court oil bill and answer. Judgment in accordance with opinion. Case stated in opinion.

Action on the case to recover damages for alleged malpraetieé. Defendant filed plea of general issue. Verdict for plaintiff for $4900. The case comes up on exceptions and the usual motion for a new trial.

Action of assumpsit to recover for freight charges, demurrage and storage on certain machinery carried by rail from Columbia, Maine, to St. Cloud, Minn. Defendants filed plea of general issue. At close of testimony, with consent of parties, case was reported to Law Court for determination of the rights of the parties, upon so much of the evidence as legally admissible. Judgment in accordance with opinion. Case stated in opinion.