Duffy v. Patten

• Decision Date: 15 February 1883
• Citation: 74 Me. 396
• Parties: FRANCIS H. DUFFY v. JOHN S. PATTEN and another.
• Court: Maine Supreme Court

74 Me. 396

FRANCIS H. DUFFY v. JOHN S. PATTEN and another.

Supreme Judicial Court of Maine.

February 15, 1883

ON EXCEPTIONS AND REPORT.

Assumpsit on an alleged contract, of October 26, 1873. The writ was dated December 20, 1881. Plea, general issue and statute of limitations.

The original declaration was, " In a plea of the case for that on the twenty-sixth day of October, A. D. 1873, at said Bangor, it was agreed between the plaintiff and said defendants in manner following to wit: that the said defendants should deliver to said plaintiff one piano which the said plaintiff was to receive and keep and use at the plaintiff's dwelling house in said Bangor, and the plaintiff agreed to pay defendants, rent for the use of said piano, at the rate of four dollars per month, and it was further agreed on said twenty-sixth day of October, at said Bangor, in manner following, to wit: that said defendants would at the request of the said plaintiff sell and deliver at a fair market price to the plaintiff a new and other piano, and allow in part payment, all the rent that had been paid the defendants for the first named piano and the plaintiff avers that the said first named piano was duly delivered to him by the said defendants on said twenty-sixth day of October, in pursuance of said agreement and the plaintiff avers that he paid said defendants a large sum of money, namely, one hundred and fifty dollars rent for said first named rented piano, and the plaintiff avers that on the third day of June, 1879, he demanded of said defendants to sell and deliver him said piano in pursuance thereof, and defendants neglected and refused so to do."

At the commencement of the trial the plaintiff asked leave to file a new declaration to his writ, as follows:

" Also for that the said defendants at said Bangor heretofore, to wit: on the twenty-sixth day of October, A. D 1873, in consideration that the plaintiff would buy of them when he bought a new piano, and pay them therefor a fair and reasonable price, undertook and promised the plaintiff that they would rent to him for use in his family till he desired to buy said new piano, a certain second-hand piano, then and there being in said defendants' possession, at the rate of twelve dollars per quarter, and at their own expense keep the same in tune, and that they would receive and allow to the plaintiff the rent paid to them by the plaintiff for the use of said second-hand piano, in part payment for the new piano so by the plaintiff to be bought of them as aforesaid, and the plaintiff avers that thereupon in pursuance of said agreement and undertaking on the part of said defendants, and in consideration thereof he received, and said defendants delivered to him said second-hand piano, and he thereafterwards kept and used the same in his family till the third day of June, A. D. 1879, and that he paid the said defendants at different times, and in different sums, a large sum of money, to wit: the sum of one hundred and fifty dollars, as rent and for the use of said secondhand piano, and the plaintiff avers that afterwards, to wit: on said third day of June, A. D. 1879, he made a demand upon the defendants to sell to him then and there a new piano for a fair and reasonable price, and to allow in part payment therefor the said several sums so paid as aforesaid for the use and rent of said second-hand piano; and then and there offered to surrender said second-hand piano; yet the said defendents have heretofore wholly neglected and refused to sell to the plaintiff a new piano, and to allow in part payment therefor the rent so paid as aforesaid and still so neglect and refuse to do."

The court allowed the amendment against the defendants' objection.

In charging the jury the court made the following suggestions in regard to a receipt claimed to have been fraudulently altered:

" Now I wish to suggest to you whether this is not the true solution of the matter; two quarters' rent has been paid at the rate of twenty-four dollars. Then this, (referring to the receipt,) is dated 1874, but it is manifest it should not have been 1874, because it would be claiming rent when there was not any due. The truth is, the receipt of December twenty-sixth, runs into the last of March, so that this receipt was not in 1874, probably; you will consider whether it is not a receipt from June twenty-sixth, to December twenty sixth, 1875, and a mistake of the date; then if you look at the books; at the book at this time you find that the credit is twenty dollars. Now is not this the real solution of the matter; that Duffy had paid twenty-four dollars for the first half of the year, that when this came around, Duffy says to Mr. Patten, that is too much, twenty dollars is enough, and Mr. Patten just made an 0 crediting him twenty dollars, and that explains the matter without the slightest imputation of want of integrity on any body. That is to say, that this bill was presented at twenty-four dollars, that Duffy thought it was a little too much, that Patten altered it to twenty dollars, crediting him in his book for twenty dollars, and that solves the whole matter without the slightest imputation of wrong upon anybody. I mention this because I have looked at the books; you can look at the books and see whether or not there is any question about this as being the true solution of the twenty-four dollars."

Other material facts are stated in the opinion.

Peregrine White, for the plaintiff.

A. L. Simpson, for the defendants.

APPLETON C. J.

The following facts may be regarded as established by the finding of the jury: That the plaintiff being about to purchase a piano called on the defendants, who proposed to let a piano at a reasonable price and that the...