Lancaster v. Ames.

• Decision Date: 19 September 1907
• Citation: 68 A. 533,103 Me. 87
• Parties: LANCASTER v. AMES.
• Court: Maine Supreme Court

68 A. 533

103 Me. 87

LANCASTER

v. AMES.

Supreme Judicial Court of Maine.

Sept. 19, 1907.

Exceptions from Superior Court, Cumberland County.

Action by Charles E. Lancaster against Morrill H. Ames. Verdict for plaintiff. Heard on exceptions and motion by defendant. Motion and exceptions sustained.

The declaration in the plaintiff's writ is as follows:

"In a plea of the case, for that the said defendant, at said Portland on the 13th day of July, 1903, agreed with the plaintiff, that if he, the said plaintiff, would put one hundred dollars ($100) into a certain investment, he (Ames) would give or make him a suit of clothes for his first year's profits, or he would guarantee him the value of said suit of clothes at the end of the first year as a profit; that said defendant on said date promised to account for or return said one hundred dollars at the end of one year, if so requested; and the said Lancaster, relying upon said representations, promises, and guarantee of the defendant, did then and there let the said Ames have said sum to invest; that said Ames, though requested, has never paid said profit to the plaintiff, nor any part thereof, neither has he accounted to said plaintiff for said one hundred dollars or any part thereof, though also requested so to do." Also, under the money counts in the writ, the plaintiff made the following specification:

"The plaintiff will prove the defendant accepted $100 on July 13, 1903, for use of plaintiff; and that he agreed to repay or account for said sum at the end of one year but has neglected so to do upon request, and that said money was accepted by the defendant to invest."

Verdict for plaintiff for $116. During the trial the defendant excepted to certain rulings made by the presiding justice, and also after verdict filed a general motion for a new trial.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, CORNISH, and KING, JJ.

Clarence E. Sawyer, for plaintiff. Seiders, Marshall & Sturgis, for defendant.

SAVAGE, J. The plaintiff in his declaration alleges, among other things, that he let the defendant have $100 to invest, and that the defendant promised to account for or return the same at the end of one year, if so requested. Also, under the money counts in his writ, the plaintiff made the following specification: "The plaintiff will prove the defendant accepted $100 on July 13, 1903, for use of the plaintiff; and that he agreed to repay or account for said sum at the end of one year, but has neglected so to do upon request, and that said money was accepted by the defendant to invest." We can discover no substantial difference between the special count, and the specification under the money counts. Although other promises are set out in the special count, the amount of the verdict for the plaintiff, considered in the light of the evidence, makes it certain that the jury based their verdict upon the allegations which we have already stated. The plaintiff's testimony, or at least some portions of it, tended to support these allegations.

The defendant, on the other hand, denied making the alleged promise, but claimed that the plaintiff let him have the money to be sent to a concern in Boston, known as the Financial Indicator Company, to be used by that company in buying on the plaintiff's account stock in the American Sugar Refining Company on margins. He also claimed that the sole responsibility assumed by him was the forwarding of the money to the Boston concern, and that he forwarded the money as agreed. Either one of the defendant's claims, if sustained by proof, would constitute a defense. The defendant, therefore, as a part of his defense, had a right to show that he forwarded the money to the Financial Indicator Company.

It seems to be undisputed that when the plaintiff paid his money to the defendant the latter gave him a receipt of the following tenor:

"Portland, July 13, 1903. Received of Charles E. Lancaster one hundred dollars to be invested in the Financial Indicator Co. 31 State St., Boston, Mass. This receipt to be void when he receives receipt from said Co."

The defendant testified, without objection, that he sent a check for the money to the Financial Indicator Company by mail, the night of the 13th of July; that the check came back to him in the ordinary course of banking as paid, and bearing the indorsement of W. H. Gilman, the treasurer and manager of the Indicator Company; and that on the 15th of July he received the letter which he offered as a reply to his remittance of the plaintiff's money. This letter bore date "Boston, July 14, 1903." Upon it was printed what appeared to be the letter head of the Financial Indicator Company at 31 State street, Boston, together with the names of the president, and of W. H. Gilman as treasurer. The whole body of the letter, including the name of the one purporting to be the writer, was typewritten. There was no written signature.

The defendant further testified that he had before that time received letters from Gilman or the Indicator, having a letter head like the one in question; that usually they had been...