Bouchles v. Tibbetts

• Decision Date: 15 March 1918
• Citation: 103 A. 71,117 Me. 192
• Parties: BOUCHLES v. TIBBETTS.
• Court: Maine Supreme Court

103 A. 71

117 Me. 192

BOUCHLES

v. TIBBETTS.

Supreme Judicial Court of Maine.

March 15, 1918.

Exceptions from Superior Court, Androscoggin County.

Action between George Bouchles and Edward P. Tibbetts.Upon denial of defendant's motion for directed verdict, he excepts.Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, HANSON, and PHILBROOK, JJ.

Harry Manser, of Auburn, for plaintiff.George S. McCarty, of Lewiston, for defendant.

PHILBROOK, J.This is an action of deceit tried in the superior court for Androscoggin county.After all the evidence had been offered and at the conclusion of the evidence, the defendant moved that the presiding justice order a verdict for the defendant on the ground that the action should have been in contract rather than in tort.The presiding justice refused to grant the motion, to which refusal the defendant seasonably excepted and the exception was allowed.The case is before us solely upon that exception.

The record contains only the declaration and the bill of exceptions.No word of the testimony or charge of the presiding justice is to be found in the record.

In People's National Bank v. Nickerson, 108 Me. 341, 80 Atl. 849, the court said:

"When a nonsuit is ordered, or a verdict is directed, and exceptions are taken, all of the evidence necessarily becomes a part of the case on exceptions, whether it is mentioned in the bill of exceptions or not.Such a ruling is based upon the entire evidence, and will stand unless it is shown to be erroneous.The burden is on the excepting party to show that it is erroneous, and that he is aggrieved.And it cannot be determined to be erroneous without an examination of all of the evidence.For it may be that the errors complained of are cured, or the omission...