Moore v. Durgin
| Decision Date | 03 April 1878 |
| Citation | 68 Me. 148 |
| Parties | JOHN E. MOORE v. OBADIAH DURGIN. |
| Court | Maine Supreme Court |
ON EXCEPTIONS and MOTION.
TRESPASS.
I. T Drew with H. H. Burbank & F. W. Guptill, for the defendant.
E Eastman & G. C. Yeaton, for the plaintiff.
Plaintiff declares for an assault and false imprisonment which defendant claims to justify under the following circumstances: One Deering had a contract with the city of Saco for the rebuilding of a bridge. Plaintiff was in his employ and engaged under his orders in removing the old structure. Defendant was city marshal, and, acting under the orders of the mayor and the committee on streets who had a controversy with Deering as to the fitness of the materials which he had procured to answer his contract, notified the contractor not to remove the old bridge ordered the plaintiff to desist from his work, and on his refusal arrested him without a warrant, put him in jail until a warrant could be procured and took him before the municipal court on a charge of obstructing the highway by removing the planking of the bridge. Defendant knew that Deering had such a contract and that the plaintiff was in Deering's employ; but he claims that under the city ordinances his official duty required him to protect the city property and to remove all impediments and obstructions in the streets, and that he might rightfully obey the order of the mayor to prevent the contractor and his men from tearing up the old bridge, and for this purpose might lawfully arrest the plaintiff and hold him until a warrant could be procured.
At the trial it appeared that Deering was an alderman of the city when he made the contract aforesaid, and defendant further contended that the contract was void under the provisions of R. S., c. 3, § 29, and afforded no justification to the contractor or his men, and that they were mere trespassers in removing the old bridge, and that he might properly deal with them as he did, under the provisions of R. S., c. 133, § 4, which authorizes city marshals and certain other officers to arrest and detain persons found violating any law of the state or any legal ordinance or by-law of a town until a legal warrant can be obtained. It did not appear however that at the time of the arrest, any question as to the validity of the contract with Deering had arisen; but, on the contrary, that the only ground for the interference by the mayor and the committee on streets was the claim that the timber procured by him was not what the contract called for.
Hereupon the presiding judge instructed the jury in substance that, had the city repudiated the contract on the ground of its being in violation of R. S., c. 3, § 29, then Deering and his men might have been regarded as trespassers, violating the law, and defendant as justified in making the arrest; but if the city officers were attempting to stop the work on the ground that the timber procured by the contractor was not suitable, and were not designing to annul or repudiate the contract itself, but only contesting the mode in which it should be carried out as to the materials, claiming no advantage and giving no notice that the contract was forbidden by the statute, then, in such case, the plaintiff was at work under at least an apparent authority or license and color of right, and he would not be engaged in committing a breach of the peace, or violating any law of the state, for which his arrest without a warrant could be justified; and this would be so, although the contractor had...
To continue reading
Request your trial