Kelley v. Weymouth
| Decision Date | 08 May 1878 |
| Parties | JONES S. KELLEY v. IRA WEYMOUTH et al., and Charles A. Nealley, trustee. |
| Court | Maine Supreme Court |
ON EXCEPTIONS.
TRUSTEE PROCESS.
The trustee disclosed that, under a contract between him and the principal defendants, for cutting, hauling and driving logs the defendants had earned the sum of $6,727, towards which he, trustee, had, from time to time before service of the writ, made payments to an amount sufficient to reduce the indebtedness to about or less than $900. To offset this and show a balance due the trustee, he further disclosed that, a few months previous to the contract, the defendants had without authority and without the knowledge of trustee, taken from the trustee's camp, near Chesuncook, a large lot of camp and logging utensils; that, upon learning the fact, he called defendants' attention to it, and it was thereupon agreed that the sum of $1,000 in gross should be allowed by them for the same, towards the contract then at the same time made for cutting and hauling the logs.
The sum of $1,000 being charged, a balance would be due trustee, and for that reason he claimed to be discharged.
Allegations of facts being filed against the propriety of the allowance of the whole sum of $1,000, evidence was offered on both sides, tending to disprove the propriety of the charge in full, and also to support it. The principal defendants affirmed the agreement, and no other direct testimony was offered to that point, no other person being present when the alleged agreement was made.
It was not denied, however, that the actual value of the things taken was, in fact, less than the sum charged, trustee claiming that a higher price for the work was assented to because of the enhanced value agreed upon for the articles taken.
The evidence, however, it was contended, tended to prove that no such agreement was made; the declarations of both parties being testified to, which, it was contended, contradicted such agreement, and were alleged to be inconsistent therewith. Much impeaching testimony was offered on the one side and the other, and received by the presiding justice.
Counsel for trustee contended that the disclosure of the trustee, of the fact that there was such an agreement, must be taken to be true and conclusive until disproved; that impeaching testimony alone was not sufficient to disprove it, and that, unlike the ascertainment of facts in the usual mode of trial by jury in civil cases, the verdict or result was not to be arrived at by a balancing of the testimony, but depended upon the fact alone that the agreement disclosed by the trustee should be disproved.
The presiding justice overruled the point, and allowed only what the articles were reasonably worth, and charged the trustee for the balance with interest; and the trustee alleged exceptions.
A. W. Paine, for the trustee.
F. A. Wilson & C. F. Woodard, for the plaintiff.
The trustee in this case disclosed a contract between him and the principal defendants, for cutting, hauling and driving logs, on which was due about nine hundred dollars. He further disclosed that the principal defendants took, without his knowledge or permission, a quantity of camp and logging utensils; that, learning this fact, he called the defendants' attention to it, and the matter was arranged between them, by the defendants allowing him for the utensils so taken the sum of one thousand dollars towards the contract for hauling the logs aforesaid.
It is obvious that the trustee's liability depended upon the truth of the alleged...
To continue reading
Request your trial