Dennis v. Waterford Packing Co.

• Decision Date: 03 March 1915
• Citation: 113 Me. 169,93 A. 58
• Parties: DENNIS v. WATERFORD PACKING CO.
• Court: Maine Supreme Court

93 A. 58

113 Me. 169

DENNIS

v. WATERFORD PACKING CO.

Supreme Judicial Court of Maine.

March 3, 1915.

Exceptions from Superior Court, Cumberland County, at Law.

Action by Henry Dennis against the Waterford Packing Company. Verdict for defendant, and plaintiff brings exceptions and moves for a new trial. Exceptions and motion sustained.

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

Hinckley & Hinckley, of Portland, for plaintiff. Eben Winthrop Freeman, of Portland, for defendant.

SAVAGE, C. J. Action by a broker to recover commissions. The verdict was for the defendant, and the case comes before this court on the plaintiff's exceptions and motion for a new trial.

The defendant moves that the exceptions be dismissed on the ground that they are not sufficiently definite, specific, and summary. The bill of exceptions states that:

"During the trial, the plaintiff seasonably objected to the admission of certain testimony, and when the same was admitted noted his exceptions.

"During the trial the plaintiff offered certain testimony which the presiding justice excluded, and the defendant (plaintiff?) duly excepted.

"At the close of the evidence the plaintiff duly requested the presiding justice to give certain instructions to the jury, which the presiding justice refused to give, and the defendant (plaintiff?) duly excepted."

There is in the bill no other or particular statement of what the evidence was which was thus admitted or excluded. Nor is there anything in the bill to show that the evidence admitted was irrelevant, immaterial, or Incompetent; nor that the evidence excluded was relevant, material, and competent; nor is there anything to show that the requested instructions were appropriate. There is nothing to show that the rulings and refusals to rule were erroneous or prejudicial. This statement brings this bill of exceptions precisely within the teeth of McKown v. Powers, 86 Me. 291, 29 Atl. 1079. It does not present separately each issue of law in that clear, distinct, summary manner required by the statute. R. S. c. 79, § 55; Salter v. Greenwood, 112 Me. 548, 92 Atl. 786.

It is needless to cite the long line of cases in this state which hold that the excepting party must on the face of the bill show that he has been aggrieved, and this rule requires that the bill should state the evidence concerning the admission or exclusion of which complaint is made, and enough of the contentions or issues in the case to show that it was relevant or irrelevant, material or immaterial, competent or incompetent, as the case may be. In the case of McKown v. Powers, which was but a restatement of the existing rule, the court declared in substance that it would not feel bound to consider exceptions so irregularly presented, and that it would not do so, unless in exceptional cases. This warning was repeated in Wilson v. Simmons, 89 Me. 242, 36 Atl. 380, in which the court used this language:

"An imperative rule has been established and repeatedly reaffirmed in order to secure greater regularity and certainty in the administration of justice, and no material relaxation of the rule will be countenanced, unless for special and peculiar reasons in the furtherance of justice."

The doctrine of McKown v. Powers has been many times reaffirmed since that case was decided, the latest instance being in the very recent case of Salter v. Greenwood, 112 Me. 548, 92 Atl. 786.

It is true in this case, as it was in McKown v. Powers, that the record of the evidence is made a part of the bill of exceptions; but that does not help the matter. It is not a "summary" bill, as contemplated by statute. It is not an infrequent practice in framing a bill of exceptions to refer to the evidence and make it a part of the bill. This is not improper. The evidence may help to illuminate the exceptions. But neither the statute, nor approved practice, contemplates that a reference in the bill to the body of the evidence, or the incorporation of the evidence as a part of the bill, is to take the place of succinct and summary statement of the specific grounds of exception in the body of the bill itself. In view of the statute and the rule, we do not think it is the duty of the court to hunt through a mass of undigested, and sometimes indigestible, testimony, to find the points of exception, and determine their value.

The motion of the defendant might well be granted, if that would end the case. But, as an examination of the record under the motion for a new trial has led us to the conclusion that the case must be sent back for a new trial, we deem it to be for the interest of both parties to consider now one or two questions concerning which exceptions were taken. And this necessitates a brief statement at this point of the issue between the parties.

The defendant corporation is a packer of corn. The plaintiff is a broker of corn packing products. On October 12, 1912, the defendant wrote to the plaintiff as follows:

"Having finished packing corn we are now in the market with about ten thousand cases fancy, which we offer at $1.00 net per dozen cases, f. o. b. Harrison, Maine, with the customary label allowance."

Thereupon the plaintiff offered the corn to Austin-Nichols Company of New York, upon the terms named in the letter. October 14th, Austin-Nichols Company accepted the offer subject to approval of case of "fa...