Dunn v. Auburn Elec. Motor Co.

• Decision Date: 25 November 1898
• Citation: 42 A. 389,92 Me. 165
• Parties: DUNN v. AUBURN ELECTRIC MOTOR CO.
• Court: Maine Supreme Court

42 A. 389

92 Me. 165

DUNN

v. AUBURN ELECTRIC MOTOR CO.

Supreme Judicial Court of Maine.

Nov. 25, 1898.

(Official.:)

Exceptions from supreme judicial court, Androscoggin county.

Action by Charles Dunn against the Auburn Electric Motor Company. Judgment for plaintiff, and defendant excepts. Exceptions sustained.

This was an action of assumpsit for an alleged breach of warranty in the manufacture of an electric motor. The defendant was a manufacturer of electric motors in the city of Auburn. The plaintiff was a brickmaker, and bargained with the defendant for an electric motor to be used to run his brick machines. The contract for the manufacture of the motor, and the warranty of the same by the defendant, was in writing, signed by the treasurer, under the seal of the corporation.

At the trial the plaintiff offered this written instrument under seal in evidence, and the court admitted the same, against the objection of the defendant, to which the defendant seasonably excepted, because the instrument, being under seal, is not admissible under this declaration. The jury returned a verdict for the plaintiff of $210.

The motor was manufactured and set, as to time, according to the contract, and was used by the plaintiff in the seasons of 1894, 1895, and 1890; but, as he claims, the motor did not do good work, and the interruptions caused by the same in his business made him great loss of time of his men.

At the hearing on the bill of exceptions before the law court, the plaintiff filed a motion, in substance as follows, to dismiss the case from the law docket:

"And now comes the plaintiff in the above-entitled case, and moves that the defendant's exceptions be dismissed, because they were not presented and filed in conformity to law and the rules and practice of the court. The case was tried at the January term, 1898, in Androscoggin county. No exceptions were prepared and submitted to plaintiff's counsel until the latter part of June, 1898.

"Exceptions were then irregularly and improperly allowed by the presiding justice, against the written protest of plaintiff, who refused to consent to the exceptions. No provision was ever made with plaintiff for extending the time of filing exceptions. Plaintiff files with this motion a copy of the court docket in this case, duly attested by the clerk, showing time of trial and time of filing exceptions, and also affidavit of plaintiff's attorney that he protested in writing to the presiding justice against the defendant's exceptions being allowed, in June, 1898."

Argued before PETERS, C. J., and EMERY, HASKELL, STROUT, and SAVAGE, JJ.

Tascus Atwood, for plaintiff.

J. P. Swasey and E. M. Briggs, for defendant.

SAVAGE, J. At the threshold of this case a question of practice is presented:

In the law court, the plaintiff filed a motion that defendant's exceptions be dismissed "because they were not presented and filed in conformity to law and the rules and practice of the court" By the certificate of the presiding justice, it appears merely that the exceptions were "allowed." There is no qualification or limitation whatever. We think this certificate Is, and should be, conclusive as to the regularity of the filing and allowance of the exceptions. It happens occasionally, through the exigencies of the business of the court, that it is inconvenient or practically impossible for counsel to draft a bill of exceptions after a trial, and during so much of the term as remains, in accordance with statute requirements. It is competent for the parties, with the consent of the presiding justice, to waive, expressly or Impliedly, these requirements. Such is not an uncommon practice. But in such case, at whatever time, in point of fact, the exceptions are actually filed, the certificate of the presiding justice that they are "allowed" is his official decision that they are regularly and properly filed and allowed. And this decision, like so many other decisions of the court at nisi prius upon questions of fact, is not reviewable by the law court. In Fish v. Baker, 74 Me. 107, cited by the plaintiff, the presiding justice incorporated in the exceptions his statement showing that they were not seasonably filed, and not showing that the statute provision had been waived, and said, "I wish to allow the exceptions now as of the October term, if I have authority to do so." This was only a conditional allowance of the exceptions, and was not a decision that they were seasonably filed, but, rather, the contrary. In McKown v. Powers, 86 Me. 291, 29 Atl. 1079, also cited by the plaintiff, the time of filing the bill of exceptions was not considered.

We now pass to a consideration of the principal question in the case, which is...