Cunningham v. Long

• Decision Date: 01 December 1926
• Citation: 135 A. 198
• Parties: CUNNINGHAM v. LONG.
• Court: Maine Supreme Court

135 A. 198

CUNNINGHAM

v. LONG.

Supreme Judicial Court of Maine.

Dec. 1, 1926.

Exceptions and Motion from Supreme Judicial Court, Aroostook County, at Law.

Action by H. Merritt Cunningham, receiver, against W. Burns Long. Verdict for plaintiff. On defendant's exception and motion for new trial. Exceptions and motion overruled.

Argued before WILSON, C. J., and PHILBROOK, DEASY, STURGIS, and BASSETT, JJ.

Archibalds, of Houlton, for plaintiff.

Herbert T. Powers, of Fort Fairfield, and Balph K. Wood, of Presque Isle, for defendant.

PHILBROOK, J. This is an action in assumpsit brought by the plaintiff, admittedly the duly appointed and qualified receiver of the Maine Potato Growers' Exchange, to recover from the defendant a balance of $336.81, the items of debit charged to the defendant, in the account annexed, being for money paid by said Maine Potato Growers' Exchange to the defendant for potatoes delivered, or to be delivered, by the defendant, and for storage of potatoes of the defendant furnished at his request. The credit items are for potatoes delivered by the defendant to the Growers' Exchange. There is also a money count in the plaintiff's writ. The general issue is pleaded. The jury returned a plaintiff verdict in the sum of $339.33, being the full balance sued for, plus allowable interest. The defendant brings the case to this court upon exceptions and the usual motion for a new trial.

The exceptions. These are five in number, and will be discussed in the order following:

1. Motion by defendant for continuance. The writ was dated January 1, 1926, real estate attachment was made the same day, and service on the defendant made January 2, 1926. The writ was returnable on the first Tuesday of February, 1926, the plaintiff giving notice, at the time when the writ was served, that he demanded trial at the return term. Since the notice demanding trial was given on January 2d, and the return term opened on February 2d, the plaintiff had complied with Supreme Court rule 28, which provides that any action shall be considered in order for trial at the return term when the party desiring it shall have given written notice thereof to the adverse party, which notice, when given by the plaintiff, must be so done 30 days before the sitting of the court. Under the provisions of R. S. c. 82, § 3, the Supreme Judicial Court may establish, and cause to be recorded, rules not repugnant to law, respecting the modes of trial and conduct of business in suits at law and in equity. When so estabtablished, these rules have the force of law, and are binding upon the court, as well as upon parties to an action, and cannot be dispensed with to suit the circumstances of any particular case. Fox v. Conway Fire Ins. Co., 53 Me. 107; Nickerson v. Nickerson, 36 Me. 417; Maberry v. Morse, 43 Me. 176. Under the rule now being considered, this case must be considered in order for trial at the return term, since the plaintiff had complied with the rule, thereby gaining some legal right, and the defendant had the burden of showing sufficient grounds for the continuance which he requested.

The motion for continuance shows two grounds upon which the defendant relied for support: first, alleged interest of the presiding justice; Second, insufficient time for properly examining records and other evidence, and properly preparing his defense, is to the first ground, the defendant alleges, and offered testimony in support thereof, that at the time when he entered into his contract with the Maine Potato Growers' Exchange, the construction of which and the determination of the legal rights of the parties thereunder, form the real issues in the case at bar, the justice presiding at the return term was counsel for the exchange; that said justice was also a signer of a similar contract with the Houlton District Potato Growers' Association, and was a member of that corporation, which last named association was interested in the result of this suit, as its members would be entitled to share proportionately in any funds remaining in the hands of the receiver for distribution.

The theory of the common law is that any person having a direct pecuniary interest in the result of any controversy ought not to adjudicate in such case from fear that his interest might influence his judgment. He was required, therefore, to be indifferent as to both parties to the litigation, having no pecuniary interest either way. But there are exceptions to that rule, sometimes from the necessities of the case, and more generally where the interest either way is too remote, uncertain, contingent, speculative, theoretic, and unsubstantial to be legally estimated. State v. Bangor & Brewer, 98 Me. 114, 56 A. 589; Fletcher v. Somerset R. Co., 74 Me. 434. The Maine Potato Growers' Exchange is in the hands of a receiver, and the record does not disclose any likelihood that any dividend from the assets of the exchange would ever be paid to the Houlton Association.

The ruling of a presiding justice denying a motion for continuance is clearly a matter of discretion, and, in the absence of anything tending to show that this discretion was not properly exercised, the ruling is not subject to exceptions. Fitch v. Sidelinger, 96 Me. 70, 51 A. 241. Such rule has been adhered to by this court since the decision in Rumsey v. Bragg, 35 Me. 116, more than 75 years ago, and its universality in other courts of justice is shown by the statement in 6 R. C. L. 544:

"The fundamental principle running throughout the subject of continuances is that the granting or refusal of a continuance rests in the discretion of the court to which the application is made, and that its ruling in reference thereto will not be disturbed by an appellate tribunal, unless an abuse of discretion is shown,"

—which statement is supported by citation not only of federal authorities but also from more than 20 state jurisdictions, as well as from English courts. In the light of these authorities and the record of the case, after careful examination, we are unable to find that this exception will avail the defendant.

2. Exclusion of evidence that certain provisions of the contract between the defendant and his district association, which contract, as defendant claims, was incorporated in and formed a part of the contract between the district association and the exchange, were not carried out by the exchange. For a better understanding of the defendant's position under this exception, we may briefly state the genesis and gist of the transactions which developed the controversy in the case at bar.

In the so-called potato belt of Aroostook county, a proposition arose to organize nonprofit associations, without capital stock, under appropriate laws, for the purpose of promoting, fostering, and encouraging the business of marketing potatoes co-operatively; for reducing speculation; for stabilizing potato markets; for co-operatively and collectively handling the problems of potato growers; and for other pertinent purposes. About 30 of these associations were formed, each controlling certain territorial districts. On January 25, 1923, the defendant became a member of the Presque Isle district association by signing an instrument which was declared to be "one of a series substantially identical in terms. All such instruments shall be deemed one contract for the purpose of binding the subscriber, to the same extent as if all the subscribers had signed only one such contract."

In paragraph 13 of this instrument, so signed by the defendant, it was provided that—

"This association shall unite with other associations, organized under a similar agreement, and for similar purposes, to form a central agency for co-ordinating the activities of all such associations within this state, and for carrying out the purposes thereof in an efficient and centralized manner. This central agency shall be organized as soon as five such organizations have been duly and legally incorporated according to this standard association agreement. The central agency shall be called the Maine Potato Growers' Exchange."

The same paragraph stipulated expressly that the exchange shall not act for itself, but "wholly and solely as the agent, under specified and authorized powers, of such association." Thus the Maine Potato Growers' Exchange came into being. It was purely and simply an agency, whose principal was the combined district associations. The defendant did not sign a contract with the exchange but did sign one with the Presque Isle district association, a constituent part of the principalship. The contract between the defendant and his district associati6n contained the following provisions:

"(5) The association...