Bennett v. Talbot

• Decision Date: 24 April 1897
• Citation: 38 A. 112,90 Me. 229
• Parties: BENNETT v. TALBOT.
• Court: Maine Supreme Court

38 A. 112

90 Me. 229

BENNETT

v. TALBOT.

Supreme Judicial Court of Maine.

April 24, 1897.

(Official.)

Exceptions from supreme judicial court, Waldo county.

Action by Richard D. Bennett against Sarah E. Talbot. Judgment for defendant, and plaintiff excepts. Overruled.

J. H. & C. O. Montgomery, for plaintiff.

O. P. Fellows, for defendant.

WHITEHOUSE, J. This is an action of assumpsit, brought by the plaintiff to recover a balance alleged to be due for labor performed by him in June and July, 1893, in the construction of a wharf on land owned by the defendant in Stockton Springs. The evidence is reported to this court on exceptions taken by the plaintiff to the ruling of the court below directing the jury to return a verdict for the defendant.

It is a well-established rule of procedure in this state that the court may properly instruct the jury to return a verdict for either party when it is apparent that a contrary verdict would not be allowed to stand on the evidence introduced. Bank v. Sargent, 85 Me. 349, 27 Atl. 192, and cases cited.

After a careful examination of all the evidence reported in this case, it is the opinion of the court that the ruling of the presiding justice ordering a verdict for the defendant was undoubtedly correct, on the ground that there was no evidence presented which would authorize a verdict for the plaintiff.

It is not in controversy that the plaintiff performed the labor in question in building a wharf on the defendant's land, and that he was employed by Francis T. Sargent, the defendant's son, who had charge of the work. But it is confidently urged in behalf of the defendant that she was not engaged in the granite business, and had not assumed any responsibility for the construction of the wharf, and that her son Francis T. Sargent, in superintending the building of it, and employing laborers for that purpose, was acting as the agent of the Penobscot Bay Granite Company, and not as the agent of the defendant.

The defendant's two sons, Francis T. and W. O. Sargent, for some time prior to the transaction in question, had been engaged in conducting operations upon different granite quarries in Waldo county, and the defendant appears to have furnished the money to purchase the tracts of land in question at Stockton Springs, containing granite suitable for quarrying, and to have taken the conveyances in her own name. Subsequently she executed a lease of a part of this property to Patrick Gallagher, and a second lease of another part of it to the Penobscot Bay Granite Company. It is admitted that Francis T. Sargent was employed by Gallagher and the Penobscot Company, successively, to superintend their respective operations in cutting and hauling granite, and that he was so acting as the authorized agent of the latter at the time the plaintiff performed his labor in building the wharf; but it is denied by that company that Sargent was acting as their agent in the construction of the wharf. The oral evidence introduced by the plaintiff only tends to show that Sargent personally employed the men to build the wharf, and agreed to pay them; and the depositions of Wheeler and Edgar of the Penobscot Bay Granite Company tend to show that "Sargent, on behalf of Mrs. Talbot, agreed to furnish the quarry, and equip it with a road leading directly to the river in front of it, and a wharf at the end of the road on...