Carter v. Orne

• Decision Date: 23 November 1914
• Citation: 92 A. 289,112 Me. 365
• Parties: CARTER v. ORNE.
• Court: Maine Supreme Court

92 A. 289

112 Me. 365

CARTER

v. ORNE.

Supreme Judicial Court of Maine.

Nov. 23, 1914.

Exceptions and on Motion from Superior Court, Cumberland County.

Action by Grace M. Carter against Ernest B. Orne. Judgment for the plaintiff, and defendant excepts. Exceptions sustained.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Hinckley & Hinckley, of Portland, for plaintiff.

Harry E. Nixon and Jacob H. Berman, both of Portland, for defendant.

CORNISH, J. It is only necessary to consider the exception to the refusal of the presiding judge to order a verdict for the defendant.

This is an action of deceit.

After reciting by way of preliminary statement that one Haggett, the alleged agent of the defendant, on November 23, 1912, had secured from the plaintiff 100 copies of a song written by her, for the purpose of demonstrating the same in Lewiston, at an agreed price of four cents each, the declaration sets forth the false representations in these words:.

"That on or about the 28th day of November, 1912, the said Ernest B. Orne came to the home of the said plaintiff and informed her that Haggett received the 100 copies for him and sold them all in Lewiston while demonstrating, and he desired to get another 100 copies for the same purpose, and agreed that the second lot of 100 copies should be sold only in Lewiston while the said Haggett was demonstrating there and only for advertising purposes."

And the declaration further alleges that the misrepresentations were made with an intent to defraud the plaintiff, and that the defendant in fact intended to sell and did sell the copies in Portland.

In the first place there is a fatal variance between the first allegation of false representation and the evidence in support of the same. The allegation is that the defendant informed the plaintiff that Haggett had sold the 100 copies in Lewiston, while demonstrating there, but the only evidence on this point is the plaintiff's own testimony that the defendant said:

"I had a letter from Mr. Haggett, asking me if I would come to you and get another hundred copies of Regret, as the first hundred that he got the Monday morning before had gone like hot cakes," etc.

This falls fatally short of the allegation. It does not state that Haggett had sold all the copies, but simply that Orne had received a letter from Haggett to that effect, and there is no evidence to show that he did not receive such a letter. So far as the record...