Cont'l Jewelry Co. v. Minsky

• Decision Date: 25 December 1920
• Citation: 111 A. 801
• Parties: CONTINENTAL JEWELRY CO. v. MINSKY.
• Court: Maine Supreme Court

111 A. 801

CONTINENTAL JEWELRY CO.

v. MINSKY.

Supreme Judicial Court of Maine.

Dec. 25, 1920.

Exceptions from Supreme Judicial Court, Somerset County, at Law.

Action by the Continental Jewelry Company against Sam Minsky. Verdict directed for plaintiff, and defendant excepts. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, MORRILL, and WILSON, JJ.

Fred F. Lawrence, of Showhegan, for plaintiff.

James H. Thorne, of Madison, for defendant.

PHILBROOK, J. This case comes to us upon defendant's exceptions, two in number; the first based upon refusal to grant a motion to dismiss, the second upon a directed verdict in favor of plaintiff.

First Exception.—The docket entries, made part of the case, show that the action was entered at the January term, 1920; that there was a general appearance by defendant through counsel; that on the second day of the following April term pleadings, with brief statement, were filed and trial begun before a jury. The record of the evidence shows that the plaintiff introduced the notes, which were the basis of the action, and rested its case. At this point the defendant presented a motion to dismiss on the ground that the plaintiff is not a corporation, as alleged in the writ, but is an individual, one Bixler by name, and that the Continental Jewelry Company does not exist as a corporation, as alleged. This motion was overruled and exceptions allowed. It is quite plain that the ruling is correct, for upon a motion to dismiss the court has no jurisdiction to determine any issue upon any matter that is not apparent by an inspection of the writ. If no defects nor defenses appear on the face of the writ, the motion to dismiss must be denied regardless of the merits of the case. Such motion does not lie where, to support or resist it, proof is necessary dehors the writ. Hunter v. Heath, 76 Me. 219; Shurtleff v. Redlon, 109 Me. 62, 82 Atl. 645; Hubbard v. Limerick Water & Electric Co., 109 Me. 248, 83 Atl. 793.

Second Exception.—Where a verdict is directed, and exceptions are taken, such ruling is based upon the entire evidence and will stand unless it is shown to be erroneous. Bouchles v. Tibbetts, 117 Me. 192, 103 Atl. 71; People's National Bank v. Nickerson, 108 Me. 341, 80 Atl. 849. The test of such error is whether a jury would have been warranted by the evidence in finding a verdict contrary to the one ordered. If such jury verdict would be sustainable, then the issues of fact should be submitted to that tribunal. Royal v. Bar Harbor & Union River Power Co., 114 Me. 220, 95 Atl. 945.

The issues of fact raised by the defendant in his plea and brief statement are six in number. Although this is not the order in which those issues are stated by the defendant, yet for convenience of discussion they may appear as follows: (1) That because he was examined and accepted for service in the United States army, and was obliged to hold himself in readiness for a call to the colors, he should be excused from performance of the civil contract involved in this controversy, even though he was not actually so called; (2) that his signature to the contract was obtained by fraudulent reppresentations, or by misrepresentations, made by the plaintiff's agent who was authorized to make the contract; (3) that the contract, consideration for which are the notes in suit, was a conditional sale agreement, in which certain warranties were made, and that those warranties failed; (4) that by reason of such failure he seasonably and properly rescinded the contract, which rescission was accepted by the plaintiff; (5) that although he took all precautions, in the rescission of the contract, to place the plaintiff in as good a position as it occupied before the contract was made, yet the plaintiff has taken no steps to minimize the damages alleged to have grown out of said rescission; (6) that the plaintiff has suffered no damages.

Our attention has not been called to any state or federal statute, or rule at common law, nor do we know of such, which releases a person from the obligations arising from a civil contract, like the one at bar, because he has been accepted for military service to be rendered to his country. The act "to extend protection to the civil rights of members of the military and naval establishments of the United States engaged in the present war," approved by the President March 8, 1918, cited as the Soldier's and Sailor's Civil Relief Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3078 1/4 a-3078 1/4 ss), while being in the nature of a moratorium for the benefit of those who were at the time engaged in actual service, obviously affords the defendant no immunity in the case at bar, and the first issue raised by his brief statement, therefore, avails him nothing.

Are any one or more of the other issues so supported by the evidence that under correct rules of law the jury could have properly found for the defendant. Johnson v. N. Y., N. H. & Hartford Railroad, 111 Me. 263, 88 Atl. 988; Bixler v. Wright, 116 Me. 133, 100 Atl. 467, L. R. A. 1917 F, 633.

The plaintiff is a wholesale dealer in jewelry, with its principal office in Cleveland, Ohio. It reaches the retail trade, in part at least, through traveling agents. One of those agents called on the defendant at his store in Madison, Me., and obtained his signature to a printed paper, which he says he did not read, giving lists of jewelry, partial description of the same, prices, terms of payment, warranty, exchange privilege, and other information concerning and governing the transactions between the parties, concluding with an order, signed by defendant, for goods which he might "purchase on the above terms and conditions." This paper is referred to by the parties as the "contract." The defendant ordered certain goods described and priced in the contract to the amount of $192. In due course of time the goods were shipped to and received by the defendant. A showcase, for which no charge was made, followed the goods. The latter were not unpacked until the showcase came; but, between the time of receiving the goods and that of receiving the showcase and unpacking the goods, the defendant had received and signed what the parties call "credit cards" and are declared upon in the plaintiff's writ as promissory notes. The defendant, after unpacking the goods, claimed that the prices were too high for the quality of the merchandise bought, and wrote the plaintiff, which writing was 12 days after he signed the credit cards, stating that the jewelry was "not satisfactory regarding prices and quality," and further stating that he could not handle the jewelry...