Heath v. Jaquith

• Decision Date: 21 October 1878
• Citation: 68 Me. 433
• Parties: FRANCIS E. HEATH, executor, v. ELVIN JAQUITH.
• Court: Maine Supreme Court

68 Me. 433

FRANCIS E. HEATH, executor, v. ELVIN JAQUITH.

Supreme Judicial Court of Maine.

October 21, 1878

ON EXCEPTIONS.

ASSUMPSIT on this note, made December 4, and dated back:

" $398.50. Clinton, Oct. the 1, 1874. One year after date, I promise to pay to the order of C. B. Mahan, agent three hundred ninety-eight 50-100 dollars, at the People's National Bank, Waterville, Me. Value received. (Signed) Elvin Jaquith."

The following was executed at the same time:

" Office of the Granite Agricultural Works. Proprietors of the Granite Mower and Reaper. Manufacturers and dealers in agricultural implements, iron and wood-working machinery. Lebanon, N. H., Dec. 11, 1874. Elvin Jaquith, of Clinton Me., bought of Granite Agricultural Works

2 ‡ 0 Mower, 4--9 150.00

2 ‡ 1 Mower, 4--6 150.00

1 ‡ 2 Mower, 4-- 75.00

2 ‡ 1 Side Hill Plower 23.50

1 Pair Shafts, 11.75

398.50

Received payment by note payable at the People's National Bank, Waterville, Me. We hereby agree with the said Jaquith that if he should not be able to sell all the above goods before July the 20th, 1875, and shall notify us of such fact, by mail or otherwise, at that time, we will then send a general agent to assist him in the sale of the same. If then neither our agent nor the said Jaquith can succeed in selling all the above goods before August the 1st, 1875, then we will take them off his hands and pay him the same prices at which they are now billed to him, with all money paid out for railroad freight charges on same from our factory. We hereby reserve the right to send an agent to assist the said Jaquith at any time when we deem it necessary, in order to secure the sale of the said goods, and will account to the said Jaquith for all goods so disposed of by us. It is also further agreed that if the said Jaquith shall succeed in selling all the said goods, either alone or with our aid, before August the 15th, 1875, then the said Jaquith shall pay his obligation given this day for the same, in good faith, and the same as if this agreement had not been given at all.

The above goods shall be well housed and properly cared for at all times.

All the above goods are warranted from flaws or other defects in manufacturing.

I hereby accept the terms of the above agreement, and will accept the goods named above in good faith, and do the best I can, soon as sent, to sell the same and pay for them as above specified. (Signed) Elvin Jaquith. Granite gricultural Works. C. B. Mahan, agent."

There was evidence that this note and the one described in Ticonic Bank v. Bagley, 68 Me. 249, were sold to S. Heath, the plaintiff's testator, for $600, without knowledge on his part of any infirmity therein.

The jury took the case under instructions and retired, and subsequently came into court and reported that they were unable to agree upon the facts. The presiding justice then addressed them as follows:

" Gentlemen. Rather than there should be a disagreement in this case I will give a rule that will relieve you from any trouble. I had serious doubts whether I should submit this case to you in the manner that I did. It has been once before the law court upon the evidence substantially as developed here, and the court held that the evidence was not sufficient to authorize a verdict in favor of the defendant, and sent it back again. And I instruct you now that the evidence is not sufficient to authorize a finding in favor of the defendant, and you may return a verdict for the plaintiff for the amount of the note, with interest from the 4th of October, 1875, to the present time."

The verdict was for the plaintiff; and the defendant alleged exceptions.

L. Clay, for the defendant.

E. F. Webb, for the plaintiff.

LIBBEY J.

This is an action on a promissory note for $398.50, dated October 1, 1874, signed by the defendant, payable to the order of C. B. Mahan, agent, in one year from date, and indorsed by Mahan.

I. Exception is taken to the ruling of the presiding judge, excluding evidence of the declarations of Coburn Ireland, the agent of the Granite Agricultural Works, who made the contract with the defendant and took the note in suit, made some time after the sale of the note to Heath, the plaintiff's testator, that he had not sold the note, but had left it with Heath for collection. Ireland was the defendant's witness, and testified to the sale to Heath. He could not introduce his declarations to contradict him. They were not made accompanying any act of the agent within the scope of his authority. It is well settled that they are not admissible.

II. After the case had been committed to the jury, and they had deliberated upon it for some time, they were brought into court and reported that they could not agree. The presiding judge, thereupon, directed them to retire and return a verdict for the plaintiff for the amount due on the note. They retired and returned a verdict in accordance with that direction.

The learned counsel for the defendant maintains that the direction of the judge to the jury is erroneous on two grounds.

1. It is contended that, where a case is opened to the jury, and there is evidence submitted to them by both parties, the judge has no power to direct a verdict for the plaintiff or defendant.

2. It is maintained that there was sufficient evidence in the case to authorize a verdict for the defendant.

Upon the first point relied upon by the defendant, we regard the rule as well settled by the modern decisions that, if the party having the burden of proof upon an issue necessary to the maintenance of an action, or to the defense of a prima facie case, introduces no evidence which, if true, giving to it all of its probative force, will authorize the jury to find in his favor, the judge may direct a verdict against him. Beaulieu v. Portland Company, 48 Me. 291. Cooper v. Waldron, 50 Me. 80. Bank v. Hagar, 65 Me. 359. White v. Bradley, 66 Me. 254. Polley v. Lenox Iron Works, 4 Allen 329. Denny v. Williams, 5 Allen 1. Dame v. Dame, 20 N.H. 28. Parks v. Ross, 11 How. 362. Hickman v. Jones, 9 Wall 197. Merchants' Bank v. State Bank, 10 Wall. 604. Improvement Co. v. Munson, 14 Wall. 442. Pleasants v. Fant, 22 Wall. 116. Commissioners v. Clark, 94 U.S. 278. Ryder v. Wombwell Law Rep., 4 Exch. 33, 39. Law Rep., 2 Priv. Council app's, 335.

In White v. Bradley, Barrows, J., in the opinion of the court, says: " But were the case before us upon exceptions to the ordering of a non-suit, we should not hesitate to declare that the later and better doctrine and practice are in favor of the course taken by the presiding judge, viewed merely as a question of practice; i. e., if upon the unquestioned facts, and the uncontroverted testimony introduced, by which party soever it is offered, it is apparent that the plaintiff's action cannot be maintained, it is competent for the presiding judge so to declare in the form of a ruling, the correctness of which may be tested upon exceptions or upon report in the present form… And this, although there may be some evidence to support the plaintiff's claim, if it is not sufficient to justify the jury in finding the issue in his favor."

In Denny v. Williams, Chapman, J., in delivering the opinion of the court, says: " But the practical line of distinction is that, if the evidence is such that the court would set aside any number of verdicts rendered upon it, toties quoties, then the cause should be taken from the jury by instructing them to find a verdict for the defendant."

In Commissioners v. Clark, supra, the rule is very clearly and succinctly stated by Clifford, J., as follows: " Matters of fact are involved in the second instruction. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence.

Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit: that before the evidence is left to the jury there is, or may be, in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed."

This rule is fully supported by the other cases cited from the supreme court of the United States. It is the same in principle as the well established rule that the judge, on request, is not required to give to the jury the law upon any abstract issue, when there is no evidence in the case which would warrant the jury in finding such issue in favor of the party requesting the...