Int'l Agricultural Corp. v. Willette

• Decision Date: 05 November 1921
• Citation: 115 A. 170
• Parties: INTERNATIONAL AGRICULTURAL CORPORATION v. WILLETTE et al.
• Court: Maine Supreme Court

115 A. 170

INTERNATIONAL AGRICULTURAL CORPORATION

v. WILLETTE et al.

Supreme Judicial Court of Maine.

Nov. 5, 1921.

On Motion from Supreme Judicial Court, Aroostook County, at Law.

Action by the International Agricultural Corporation against Walter Willette and others. Judgment for defendants. Motion to set aside verdict and special motion to grant new trial. Special motion sustained, and new trial granted.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Doherty & Tompkins, of Houlton, Powers & Guild, of Fort Fairfield, and Cook, Hutchinson & Pierce, of Portland, for plaintiff.

Charles P. Barnes, of Houlton, for defendants.

CORNISH, C. J. In an action of assumpsit to recover a balance of $9,905.74 for potato fertilizer sold and delivered to the defendants in the winter and spring of 1917 for use upon their farms in Aroostook county the jury returned a verdict for the defendants, the suit being resisted on the ground that the fertilizer was adulterated and misbranded and was sold in violation of R. S. c. 36.

The case is now before the law court on a general motion to set aside the verdict as manifestly against the evidence, and also upon a special motion to grant a new trial because of the disqualification of a member of the jury. It is necessary to consider only the special motion.

From the evidence taken out under the special motion, it appears that unusual care was taken, and each juror was examined on the voir dire by counsel for the plaintiff. One of the jurors so examined was Amos G. Libby, who was engaged in farming in company with his brother under the name of Libby Bros. The evidence was not taken by the stenographer, but plaintiff's attorney who conducted this examination describes it as follows:

"As nearly as I can recollect, I asked Mr. Libby whether he had any claim or interest in any claim against any fertilizer company for adulterated fertilizer, and he replied, 'Not yet.' I then asked him what his answer meant and whether he did in fact have any claim or interest in any claim against any fertilizer company, practically repeated the first question, to which he said, 'No; he had none.'"

This juror was then allowed to serve.

This testimony as to what took place at the trial is not controverted. The plaintiff had at that time exercised none of its peremptory challenges.

The trial was had at the November term, 1919, and the record shows that on December 15, 1919, the Hubbard Fertilizer Company made a settlement with the Libby Bros., whereby the company's bill for fertilizer sold the Libby Bros, in the season of 1919, and amounting to $1,720, was reduced $1,344.75 because of the counterclaim of Libby Bros, for injury to their potato crop because of the quality of the fertilizer, leaving a balance of $375.25 due the fertilizer company. This settlement is in writing.

Mr. Libby seeks to explain his former testimony on the voir dire, when he denied the existence of any such claim, by stating that, although he had told the fertilizer agents that their crops were not satisfactory, and although the agents had visited their farms several times during the summer to examine the crops and to ascertain their condition, still he did not regard that as a claim. "I don't call it a claim. They was around looking the crops over, as I said before," was his language. Perhaps he was attempting to differentiate between a claim reduced to figures, put in written form, and presented to the other side, and a claim existing in fact, although its amount and extent might remain indefinite. He seems to have had something of the sort in mind when in response to the question on the voir dire as to having any claim, he at first answered, "Not yet," and as this was somewhat vague, the attorney put the question again in the broadest possible form so as to give him an opportunity to explain and to state all the facts, if there were any qualification. He then answered without reservation or qualification, "No; he had none." This disarmed any suspicion that his first answer may have aroused. The attorney was justified in taking him at his word and accepting him as a disinterested juryman. He had the right to rely upon his statements, and he waived nothing by accepting the juryman after his denial of interest, Flagg v. Worcester, 8 Cush. (Mass.) 69.

The answer, however, was in fact untrue, as the evidence...