Adams v. MacFarlane

• Decision Date: 05 August 1876
• Citation: 65 Me. 143
• Parties: SUMNER ADAMS v. ALEXANDER MACFARLANE.
• Court: Maine Supreme Court

65 Me. 143

SUMNER ADAMS v. ALEXANDER MACFARLANE.

Supreme Judicial Court of Maine.

August 5, 1876

1875.

ON EXCEPTIONS and MOTION from the superior court.

ASSUMPSIT on a written guaranty by the defendant of performance of promises of one Cutter, a manufacturer of grindstones, and resident in Nova Scotia, of whom the plaintiff was the selling agent in the United States, three years from March 20, 1867.

On the failure of Cutter to fulfill his absolute promise to pay the amount actually due, or his alternative promise to pay what D. W. Fessenden should find due, the plaintiff then resident of Boston, sued out the capias writ in this case against the defendant, described as of Wallace, in the province of Nova Scotia. The plaintiff made the statute oath to authorize the arrest at Portland, May 12, 1874, and on May 19, 1874, the defendant was found in this state, arrested at Portland, and released on bond.

At the return term, September, 1874, the defendant pleaded in abatement, because, that at the time when said writ was sued out, and from thence always, until, and at the time, when said Adams made oath, on the twelfth day of May, 1874, and during the whole of said day, said Macfarlane was neither a resident of said state, nor within its limits, and never had been a resident of said state, nor had been for a long time to wit, for two months, within the limits thereof, but was at all times in the Dominion of Canada, and a citizen and resident thereof.

To the ruling of the justice on the plaintiff's demurrer that the plea was bad, the defendant excepted.

At the December term, 1874, there was a trial at which the defense relied on was the fraud of the plaintiff in understating his claim, and where the validity of an award as a measure of damages was contested, because not seasonably made, because not accompanied with a detailed statement, and on the ground that the arbitrator took into account matters not submitted to him.

The verdict was for the plaintiff for $13,975.96, (the amount of the award and interest,) which the defendant moved to have set aside. He also filed other exceptions which, together with a more full statement of the facts, appear in the opinion.

W. L Putnam, for the defendant.

J S. Abbott and N. Cleaves, for the plaintiff.

BARROWS, J.

The case is presented by the defendant upon two bills of exceptions, and a motion to set aside the verdict as against law and evidence. The action is assumpsit on a contract subscribed by the defendant.

The first bill of exceptions was filed to the overruling of the defendant's plea in abatement, to which the plaintiff demurred.

This plea is not one which we feel called upon to favor in furtherance of justice. Hazzard v. Haskell, 27 Me. 549.

The papers and testimony in the case show that the contract declared on was entered into and executed in this state, that then and for some time afterwards, the plaintiff was a resident here, and that much of the business was transacted here. It was taking no unjust advantage of the defendant, and might well be supposed to be for the interest of both parties to have the controversy investigated here where much of the testimony was likely to be found.

If there is such a service as to give the court jurisdiction of the defendant the writ should not abate.

The cause of abatement set forth in the plea is, " that at the time when said writ was sued out, and from thence always, until, and at the time when said Sumner Adams made oath that said Adams had reason to believe, and did believe said Macfarlane was about to depart, and reside beyond the limits of this state, as is certified on said writ, to wit, on the twelfth day of May, in the year of our Lord eighteen hundred and seventy-four, and during the whole of said day, said Macfarlane was neither a resident of said state, nor within its limits, and never had been a resident of said state, nor had been for a long time previous, to wit, two months within the limit thereof, but was at all said times in the Dominion of Canada, of which said Dominion at all said times, said Macfarlane was a citizen and resident."

Now, unless the plea contains matter, which, of itself, and without resorting to any inference of fact, is sufficient ground of abatement, alleged with such precision, and certainty as to exclude all such supposable matter as would, if alleged on the opposite side, defeat it, if it is bad on demurrer. Tweed v. Libby, 37 Me. 49. State v. Sweetsir, 53 Me. 438.

The supposed cause of abatement is in substance an insufficient service--insufficient, it is claimed, because the arrest was unlawful.

If the service is by an unlawful arrest, it seems to be good ground of abatement if seasonably pleaded, or upon seasonable motion, if the defect or illegality appears in the record. Cook v. Lothrop, 18 Me. 260. Sawtelle v. Jewell, 34 Me. 543. Shaw v. Usher, 41 Me. 102. Bailey v. Carville, 62 Me. 524. Willington v. Stearns, 1 Pick. 497.

If it be conceded that we may go beyond the averments in the plea, and look into the record to ascertain that the service was by arrest, and that the plaintiff was a resident of Massachusetts at the time when the writ was sued out, still we think there is not enough to show the arrest illegal.

If it be true that the acceptance of jurisdiction in personal actions between foreigners depends upon comity and sound judicial discretion, so far as we know, that comity and discretion are always favorably exercised when the court has actual jurisdiction of the parties and the subject matter of the suit. It must be a case where there was at least reason to suspect a disposition to oppress, or to obtain an unfair advantage on the part of the plaintiff, which would induce us to close our doors to a citizen of a neighboring state, claiming redress against another non-resident upon whom personal service within our borders had been made in a suit upon a contract, made in this state, and mainly to be executed here. The question remains whether the facts alleged in the plea in abatement, exclude the supposition of a lawful arrest. By R. S., c. 113, § 2, it is provided that " any person, a resident within this state or not, may be arrested and held to bail …. on mesne process on contract express or implied, if the sum demanded amounts to ten dollars," upon certain conditions which are substantially identical with those prescribed in the Revised Statutes of 1841, c. 148, § 2. The construction of that section was before the court in Marston v. Savage et al., 38 Me. 128, and the court held that the proof of the facts necessary to the exercise of the right to arrest, is the oath of the creditor, his agent, or attorney, that he has reason to believe and does believe that they exist, and that when no fraud is imputable to the creditor, and the certificate required by the statute is indorsed upon the writ, an arrest may be legally made, and the obligors in the bond given, cannot be permitted to defend, by showing that in point of fact, the debtor was not about to depart and reside beyond the limits of the state, & c.

It would seem that the arrest of either a resident or non-resident of the state is legal, if the certificate indorsed on the writ shows that the plaintiff has made the requisite oath, unless the plaintiff's good faith in so doing is impeached.

Now, it is not averred in the plea under consideration, that the plaintiff did not have good reason to believe, and did not believe the various facts alleged in the certificate. The only averments are of certain facts apparently inconsistent therewith. But, as we have seen, the validity of the arrest is not affected by the simple non-existence of those facts where the plaintiff has acted in good faith, when he made oath to his belief and reason to believe therein.

The plea is insufficient in substance. It presents no facts which are decisive against the validity of the arrest. The case which the defendant's counsel has ingeniously argued, of a " non-resident lurking upon our borders prepared to arrest and impede other non-residents invited to cross our territory," is not presented by it.

The demurrer to the plea was rightly sustained, and the first bill of exceptions must be overruled.

The case developed at the trial was this: The defendant was trustee for the parties interested in a Nova Scotia grind-stone quarry, which one Cutter was operating under a lease. In March, 1867, the plaintiff became Cutter's selling agent in this country, under a written agreement, and was to receive as his compensation, his expenses and one-half the profits under certain limitations, and with certain exceptions, and was to have a lien upon the stones and funds in his possession to secure him for his disbursements and liabilities, and for advances which he agreed to make, not to exceed $5000 at any one time. The following year by a supplementary agreement, Cutter agreed in writing to allow the plaintiff upon settlement, " $2 per ton on all stones he has sold, over and above the expenses of same, if the amount in the agreement which I entered into with him, should not prove satisfactory upon final adjustment."

In December, 1869, the plaintiff was liable upon his acceptances of Cutter's drafts, to an amount exceeding $10,000, and Cutter was largely indebted to him for expenses incurred interest, and commissions. The plaintiff was unable to meet the drafts as they fell due, and one or more of them was protested. He commenced suit against Cutter, and attached stones which had been sent to this country for sale, the value of which was at that time variously estimated by the parties to the contract presently to be noticed, at from $12,000 to $18,000. Under these circumstances, the defendant, Macfarlane, in whose...