Freeman v. Fogg

• Decision Date: 22 February 1890
• Parties: FREEMAN v. FOGG.
• Court: Maine Supreme Court

19 A. 907

82 Me. 408

FREEMAN

v. FOGG.

Supreme Judicial Court of Maine.

Feb. 22, 1890.

(Official.)

Exceptions from supreme judicial court, Somerset county.

Walton & Walton, for plaintiff. Merrill & Coffin, (D. D. Stewart, of counsel,) for defendant.

PETERS, C. J. In the account annexed the plaintiff's claim is alleged in this form: "To consideration for my conveyance to you [defendant] of one-sixth interest in your farm in Cornville, $1,000.00." After the trial had proceeded at some length the plaintiff was allowed to amend his writ by adding a special count alleging a sale to defendant of one-sixth of the farm, a promise of the defendant, in consideration of such conveyance, to render to the plaintiff a life support at his home, a breach of the promise, and the damages occasioned thereby; a condition of the amendment to be that no more than $1,000 should be recoverable under such new count.

The propriety of this amendment is denied. We are unable to perceive that its allowance transcended the legal limit. The elements of the unamended and of the amended declaration are in substance the same; those of the latter being elaborated. By the writ as it was, the plaintiff sues for $1,000 for her interest in land. By the writ as it is, she sues for the value of something worth $1,000 for her interest in land. It will be noticed that the declaration, as it originally stood, does not claim the value of the land, but an amount agreed to be paid therefor. The plaintiff now asserts that the consideration which she was to receive, instead of being $1,000 in money, was something actually worth $1,000, if reduced to or converted into money. At first it was the skeleton bare. Now it is the skeleton clothed.

As bearing on the improbability that plaintiff and defendant would contract for her support in his family after he had been divorced from his wife, plaintiff's daughter,— the defendant denying such agreement,—the counsel for the defendant offered in evidence the libel and its allegations upon which the divorce was decreed. The judge admitted the fact of divorce and its date, but not the causes alleged for a divorce. This was undoubtedly correct. The evidence excluded was too remote, and, had it been admitted, would have introduced collateral matter very foreign to the issue.

The case discloses that, when a contract was made by the parties, which plaintiff says was for her support,—the defendant denying it, and contending that it was altogether a different transaction which then took place, —Mr. Walton and Mr. Merrill, opposite counsel in this trial, were present at the time. Neither of the counselors was called as a witness; and neither...