Volume 122 — Maine Reports

<p>On exceptions. This is an action of assumpsit on account annexed, upon a quantum meruit, under special contracts for cutting, hauling and landing pulp wood. At the close of the testimony a non-suit was ordered, and plaintiff excepted. The defendant pleaded the general issue with brief statements alleging that at a prior term of the Supreme Judicial Court for the County of Androscoggin, an action was entered in which the plaintiff, the defendant and the cause of action were the same as in this action, and that after a trial by a jury, evidence being introduced by both plaintiff and defendant, a verdict was returned for plaintiff, hence the claims and matters in this action are res adjudicata.</p> <p>The case is stated in the opinion.</p>

<p> In an action for deceit, if the language used in the alleged false representation, when understood according to its usual meaning, is such as to influence the other party in inducing him to enter into the contract, such representation being false and known to be false by the maker, and made with an intention that the other party should be influenced by it and rely upon it, who was influenced by it and relied upon it, such a representation is a material one, and a question of law. Whether such representation is false to the knowledge of the maker, or positively stated by him as a fact, without knowledge of its truth or falsity, which is equally fraudulent if the statement is untrue, are questions of fact for the jury. </p> <p>In the instant case although the expressions relied upon do not constitute direct representations of title to the buildings in the plaintiffs, yet if they were intended to produce the belief in the defendant, that the plaintiffs had such title, they may be rightfully understood as a representation to that effect. The court is of the opinion that the letters of September 13, 22, and 23 are susceptible of the construction contended for by the defendant, and the question of law must be answered in the affirmative.</p> <p>Whether the assertions were actually so understood by defendant, and relied upon by him, as material influences inducing him to purchase the property, and whether the plaintiff, H. L. Rand, intended for the defendant to so understand them, are questions of fact for the jury.</p> <p>The intention of the seller in making the representations is a material fact, he either knowing them to be false, or what would be equally fraudulent in law, knowing that he was affirming as to the existence of a fact, about which he was in entire ignorance; and he may testify directly on that point.</p> <p>The plaintiffs cannot escape liability by the use of ambiguous language in their letters on the ground that they intended no fraudulent misstatement of facts, if the defendant would reasonably infer the fraudulent meaning from the language used.</p> <p>The record thus presents questions of fact for the jury.</p>

<p>On exceptions by plaintiff. This is an action to recover five hundred dollars paid by plaintiff to defendant under an oral contract made by plaintiff with the husband of defendant for the purchase of real estate, supposed to be owned by defendant, said sum being paid on the day the contract was made as a deposit on the trade, and interest on said sum. The plaintiff contended that the defendant refused to perform the contract, and the defendant claimed that while she was ready, willing and able to perform her part of the contract, the plaintiff had not fulfilled his part of the contract and had abandoned it. At the conclusion of the evidence the presiding Justice directed a verdict for the defendant and the plaintiff excepted.</p> <p>The case is .sufficiently stated in the opinion.</p>

<p>On report. This is a bill in equity brought to cancel or reform a deed, dated January 15, 1914, wherein the complainant, and Flavie Morneault were grantors, and Julie Sanfacon and Fred A. Soucis, two of the defendants, were grantees, granting certain rights to lay and maintain an aqueduct leading from two springs or wells on the farm of grantors to the residence of Florent Sanfacon, husband of Julie Sanfacon, and the use of water by Florent Sanfacon at his. residence, and the use also by his son-in-law, Fred A. Soucis. Complainant alleges that the defendant, Florent Sanfacon, procured his signature to said deed through fraud and deceit, and further alleges that the said Florent Sanfacon, fraudulently and without authority, added the name of Flavie Morneault, the mother of the complainant, to said deed. The action of law seeks to recover damages caused or suffered by plaintiffs by reason of the defendant permitting other parties to connect with and take water from the pipe laid by him from the T in plaintiffs’ aqueduct to his buildings.</p> <p>At the conclusion of the evidence by agreement of the parties both causes were reported to the Law Court. In the cause in equity: Bill sustained without costs. Decree in accordance with this opinion. In the action at law, judgment for plaintiffs.</p> <p>The cases are fully stated in the opinion.</p>

On plaintiff’s motion for new trial. This is a real action to recover nineteen twenty-first parts of certain real estate to which demandant claims title as an heir of Coleman Carter, who died March 15, 1906, and as grantee of the widow and five heirs of said Carter.

<p> A corporation, organized for a common purpose to assist the people of a community as a cooperative and mutual agency to market their farm produce, acts in the capacity of agent only, no authority appearing in its charter or articles of association to authorize it to act as purchaser. </p> <p>The corporation was manifestly an association for the common purpose of enabling the people of the community to form a cooperative and mutual agency for the handling of their apples and other farm products.</p> <p>The plaintiff became a member of the corporation in accordance with the provisions of Section 3, and thereby subject to all the obligations, and entitled to all the privileges and advantages, of such membership.</p> <p>There is no provision in the charter or articles of association that warrants or implies the conclusion that the association was acting, or was authorized to act, in the capacity of purchaser from its individual members.</p> <p>There is no adequate evidence, if authorized, that the corporation in this case assumed to purchase the plaintiff’s apples for the association.</p>

<p>On appeal. An equitable proceeding to determine the disposition of certain promissory notes delivered to complainant by Flora M. Frost, on entering a hospital on September 8, 1920, for a serious operation, with instructions that in the event of her death, the notes were to be caneelledjhy complainant. Of the three defendants, A. L. Childs was interested as an indorser on some of the notes, and also as a stockholder in a corporation which was the maker of several of the notes, the other two defendants were interested as residuary legatees in the will of the said Flora M. Frost, who died testate November 23, 1920, at the hospital.</p> <p>One of the defendants, A. L. Childs, contended that the transaction constituted a gift causa mortis, the other two defendants, although one was the maker of two of the notes, claimed that the notes were a part of the assets of the estate. Upon a hearing on bill, answers, replications and proof, after a motion that the defendants be ordered to interplead was,overruled, the sitting Justice found that, there was a gift causa mortis of the note's in controversy a'nd ordered them cancelled by complainant and delivered to their respective makers, from which finding an appeal was taken by the two defendants who were the residuary legatees in the will. Appeal dismissed.</p> <p>The case is stated in the opinion.</p>

On appeal. A bill in equity brought by plaintiff as the executor of the will of Mary E. Callaghan, late of Lewiston, deceased, to determine the title to six bonds of the city of Lewiston.

On exceptions and motion for a new trial. An action brought by plaintiff corporation against the State of Maine under the authority of a Special Resolve passed by the Legislature of this Si,ate in which the plaintiff was authorized to bring suit. The State maintains at Bangor, a hospital for the insane.

<p>On report. A bill of interpleader to determine the rights of defendants as claimants in and to a deposit in plaintiff bank by one Asa J. Lerned which had previously to May 4, 1917, stood in his own name.</p> <p>On that date the said Asa J. Lerned directed the bank to change the entry on the deposit book and also upon the records of the bank so it would read as follows, “Asa J. Lerned, Trustee, payable in case of death to Nellie L. Ward.” On March 22, 1918, he directed the bank to make another change in the entries in the deposit book and in the records of the bank, substituting for “Nellie L. Ward” the name “Myrtie E. Stiles.”</p> <p>• On June 2, 1918, Mr. Lerned died intestate on which day the account amounted to $5,460.00. A hearing was had upon the bill, answers, replications and proof, and at the conclusion of the evidence, by agreement of the parties, the cause was reported to the Law Court for the determination of the rights of the parties, with certain stipulations as to plaintiff’s costs in any event, and as to the payment of the expenses of intestate’s last sickness; and burial. Bill sustained. Decree in accordance with the opinion, and the stipulations of the report.</p> <p>The case is fully stated in the opinion.</p>

On exceptions by plaintiff. An action to recover damages for personal injuries sustained by plaintiff by being struck by defendant’s automobile while crossing Cumberland Avenue on the westerly crosswalk at its intersection with Preble Street in the city of Portland. The sole question in controversy was that of the contributory negligence of the plaintiff, the negligence of the defendant being abundantly shown by the testimony.

<p> A communication is admissible if the circumstances are such that if, in the natural course of business, it would require an answer. Exceptions do not lie to the admission of a communication not 'prejudicial to the excepting party. </p> <p>In this case the exception was to the admission of a letter written by the plaintiff to the defendant with reference to the terms and conditions upon which the plaintiff was willing to render his services to the defendant. The letter was as follows: “Dear Sir: After our talk-Sunday, I am going to make the following proposition to you. I will come to Newton and build as many houses as you like for the following: $7.00 per day salary and ($300.) three hundred dollars, bonus o-n each house; also I will do the York Inn Job for $7.00 p,er day salary and ($800.) eight, hundred dollars, bonus. This means that I am to devote my entire time to you and use my equipment.” The objection to the letter was in this language: We object “because it is a self serving statement.” It seems that previous to this letter the plaintiff and Mr. Holland representing the defendant Company, had talked the enterprise over. The plaintiff testified that after he had sent the letter he received a telephone call from Mr. Holland in which he said that he would accept the proposition stated in the letter. The letter was admissible upon the ground that it was a communication which in the natural course of business would require an answer.</p> <p>The exceptions should also be overruled upon the ground that the admission of the letter was not prejudicial to the defendant.</p>

<p> A divorced father of a child may emancipate such child notwithstanding that the care and custody of such, child in the divorce proceedings were decreed to the father, as such a decree does not impose upon him a greater duty than the law imposes upon him in his parental relation. Emancipated minors take the settlement of their father, if he has one in the State, at the time of emancipation. </p> <p>In this case the defense was emancipation, bu't the plaintiff contended that the relation of the father to the son, created by a decree of the court, giving him the care and custody of the boy at the time of liis divorce, imposed a legal impediment, or estoppel, to the right of the father, either by written agreement or parental conduct, to place him in the legal status of emancipation; that he was in the hands of the court.</p> <p>The evidence proved a typical case of emancipation. The decree of the court, giving the father the care and custody of the child, imposed upon him no greater d,uty than the law imposed upon him from the fact of his parental relation, and whether in the custody of the father or that of the grandparents, his welfare was still in the hands of the court.</p>

<p>On report. This is a process by petition seeking an abatement of taxes assessed by the town of Machias on logs April 1, 1921. On April 1, 1921, the petitioner was the owner of approximately fifty-five hundred cords of pulp wood logs which it had cut during the preceding winter on its lands near the headwaters of Machias River and landed them during the winter on Machias River, its lakes and tributaries, where they were on April 1, 1921, intending to drive them as soon as the driving season opened, to a landing place in the town of Whitneyville, where,the petitioner was intending during the summer of 1921 to erect a mill for cutting up and rossing the pulp wood. The petitioner had its place of business in the town of Machias where a tax of $840 was assessed on these logs for the year of 1921, and paid by the petitioner under protest. The question involved was as to whether these logs were taxable on April 1, 1921, in the town of Machias, or in the town of Whitneyville under R. S., Chap. 10, Sec. 14, Par. I.</p> <p>From the refusal of the assessors of the town of Machias to abate the taxes and return the money paid an appeal was taken to the Supreme Judicial Court where a hearing was had before the presiding Justice, and by agreement of the parties the cause was reported to the Law Court.</p> <p>The case is fully stated in the opinion.</p>

<p> A tenant of an office building, who, without his landlord’s invitation so to do in mutuality of interest, and even without the latter’s knowledge, used the building’s defective fire escape as a balcony or veranda, with resultant personal injury, cannot maintain tort for damages against the landlord. </p> <p>There is evidence in this case that the plaintiff and another tenant of offices on the same floor and an office girl in their employment had used the fire escape, with more or less frequency, for balcony and somewhat related purposes, through several years. But no right or license so to use the escape was ever asked of or granted by the landlord. And there is nothing on the record driving notice home to the landlord that it was being so used; except, perhaps, that the presence of mops and dusters on its inclosing rail, might have imported notice that the office girl was drying them there.</p>

On appeal. This is a proceeding by petition for compensation under the Workmen’s Compensation Act. On August 29, 1920, the claimant, George P. Lennond, was in the employ of the Texas Steamship Company as a pipe fitter on the ship “Alabama,” regularly engaged in interstate commerce.

<p> An employee, having completed her work for the forenoon and in going from her place of work through two intervening rooms to the dreksing-room, 'put her hand up in front of an exhaust fan, situate twenty-one feet from the entrance of the dressing-room and over five feet from the floor, to see if there was any current of air, and her hand was drawn into the fan and injured, is not entitled to compensation as the accident resulting in the injury did not arise out of and in the course of her employment. </p> <p>In this case the question to be determined is whether or not the injury described was the result of an accident arising out of and in the course of the employment of the petitioner, and that depends upon the question as to whether there was any evidence to support the decision of the Commission granting compensation.</p> <p>The action did not arise out of the petitioner’s employment.</p>

On report. This is an action of forcible entry and detainer brought by plaintiff against defendant involving the title to certain real estate situated on Matinicus Isle, plaintiff relying upon a sheriff’s sale to establish his title to the property. Defendant pleaded the general issue and a brief statement claiming title. In March, 1905, Hattie E. Young, for a consideration,of $50.00, executed and.delivered a mortgage of the property to Marian A. Young.

On report. A bill in equity brought by testamentary trustees seeking authority to sell and convey certain real estate embraced in a trust and invest the proceeds in good securities. A hearing was had upon bill, answers and proof, and at the conclusion of the evidence, by agreement of the parties, the case was reported to the Law Court. Bill sustained. The case is stated in the opinion.

On exceptions. An action of trespass quare clausum fregit to recover damages for grass cut and removed by defendant from premises which the plaintiff had possession of under a contract of purchase. By agreement of parties the action was heard by the court without a jury, the single Justice finding for the plaintiff in the sum' of 1225 and costs, and defendant excepted to certain rulings of the court on matters of law. The case is fully stated in the opinion.

On appeal. A petition for compensation under the Workmen’s Compensation Act, brought by the claimant, mother of one Ralph E. Williams, unmarried and childless, who died February 28, 1921, as a result of an accident arising but of and in the course of his employment which occurred on February 21, 1921, by coming in contact, while working on an electric light pole, with an emergency wire, which at the time was supposed to be dead, but instead was carrying 2300 volts.

On motion for a new trial. An action on the case to recover for the. .value of a horse belonging to plaintiff, alleged to have been killed through the negligence of the employees of defendant July 1, 1921. The cause was tried before a jury at the April Term, 1922, of the Superior Court in Kennebec County, and the jury returned a verdict for the plaintiff in the sum of $250. The defendant filed a general motion for a new trial. The case is fully stated in the opinion.