Gifford v. Clark

• Decision Date: 25 June 1879
• Citation: 70 Me. 94
• Court: Maine Supreme Court
• Parties: CHARLES GIFFORD v. CHARLES H. CLARK & others.

70 Me. 94

CHARLES GIFFORD v. CHARLES H. CLARK & others.

Supreme Judicial Court of Maine.

June 25, 1879

ON MOTION to set aside verdict.

This action which was for breach of warranty in the sale of a horse, was tried by a jury at the February term, 1879, of the superior court for Kennebec county, and a verdict found for the defendants. Thence the action was continued to the next April term on plaintiff's motion for a new trial, because of the alleged misconduct of jurors. The motion sets out the following causes alleged by the plaintiff:

" Because, he says, that he has been informed since the trial in this case, during the trial and while the case was pending, sundry members of the panel, before whom the case was being tried, to wit: Hosea Blaisdell, Levi Perkins Joseph Douglass and Frank B. Lowell, went to the stable of Hiram Reed, in Augusta, and there examined the mare, whose soundness was in controversy in the case, and then and there examined the size and condition of her off hind leg and thigh and the bunch thereon, in the absence of the plaintiff or his attorney, and without his knowledge or assent, and without the order of the court in that behalf; and the size and condition of said leg and thigh of said mare, and the bunch thereon, were material facts in controversy between the parties, there being conflicting testimony in regard to the same as will appear by a full report of the same. And the plaintiff further says that he expects to prove the facts herein stated by Alfred M. Reed, of Augusta. Charles Gifford. By L. Clay and H. Farrington, his Atty's."

The motion was not verified by the affidavit of the plaintiff or his attorneys, nor was there any report of the evidence; but the testimony of Hosea Blaisdell, Levi Parker, John Morrill Joseph Douglass and F. B. Lowell (who were five of the jurors who tried the case), and Alfred M. Reed, who kept a stable where the horse remained during the trial, accompanied the motion.

The facts sufficiently appear in the opinion.

L Clay & H. Farrington, for the plaintiff, cited Dennett v. Dow, 17 Me. 20, and note. Winslow v. Morrill, 68 Me. 362. Bowler v. Washington, 62 Me. 302.

J. Baker, for the defendants.

BARROWS J.

Much waste of time may be prevented by adhering to the useful rules of procedure, both in the supreme judicial court and the superior court for the county of Kennebec, which require that all motions based upon facts not appearing of record, or in the papers on file in the case, and not agreed on and stated in writing duly signed, shall be verified by affidavit.

A defeated party hardly ever attributes the loss of his case to what is usually the real cause, its own demerits; but this is no reason why he should be permitted to waste time and make expense in the investigation of the numerous idle rumors which almost always accompany a law suit, mere creatures of the imagination, the fruit of the unwholesome suspicions of the parties or their sympathizing friends, or of the idle babble of partially informed bystanders. The information must come in such shape that the moving party can properly verify it in the manner required by the rule before it can be deemed worthy of attention. If there were no other reason why the motion for a new trial should be overruled, this defect would be sufficient.

But the case when examined is a good illustration of the utility of the rule. A comparison of the testimony of the single witness called in support of the motion and that of the five jurors called by the defendants, shows that the only important facts that can...