Leavitt v. Fairbanks

• Decision Date: 11 March 1899
• Citation: 92 Me 521,43 A. 115
• Parties: LEAVITT v. FAIRBANKS.
• Court: Maine Supreme Court

43 A. 115

92 Me 521

LEAVITT

v. FAIRBANKS.

Supreme Judicial Court of Maine.

March 11, 1899.

(Official.)

Action by John Leavitt against Charles Fairbanks. Verdict for plaintiff. Defendant moves for a new trial. Motion sustained.

This was an action of trover, commenced by writ September 4, 1896, to recover the value of a mare claimed to have been the property of the plaintiff, and alleged to have been converted by the defendant on October 31, 1894. The case was tried to a jury in Piscataquis county on the second day of the September term, 1897, and resulted in a verdict for the plaintiff for $33.10. The case came to this court on two motions: First, a general motion for a new trial; second, on the ground of newly-discovered evidence,—filed at the February term, 1898.

Defendant pleaded the general issue, and filed a brief statement denying the plaintiff's title to the property.

The facts are stated in the opinion.

Argued before PETERS, C. J., and HASKELL, WHITEHOUSE, WISWELL, SAVAGE, and FOGLER, JJ.

J. S. Williams, for plaintiff.

A. M. Goddard, J. Williamson, Jr., and L. A. Burleigh, for defendant.

WHITEHOUSE, J. The verdict in this case is manifestly wrong. It was an action of trover for the conversion of a horse. The verdict was for the plaintiff, and the case comes to this court on a motion to set it aside as against the evidence, accompanied by a second motion for the same purpose based on newly-discovered evidence.

The defendant purchased the horse in good faith of Corydon A. Sawyer, of Vienna, the husband of the plaintiff's niece. The plaintiff resided in Guilford, and in August, 1894, owned the mare in question, but allowed Sawyer to take her to Vienna, as he says, to keep until the following May, to be returned "all sound and smooth as she was then, * * * or money to make her so."

On the 12th day of November following, Sawyer, being still rightfully in possession of the mare, and claiming to own her, sold and delivered her to the defendant, who had no knowledge of the plaintiff's title, and no reason to suspect it. The plaintiff learned of the sale in January following, but gave the defendant no notice of his title until June 20, 1896, nearly 17 months afterwards. In the meantime, instead of making a demand upon the defendant for his horse, or the value of her, the plaintiff wrote several letters to Sawyer in regard to an adjustment of the matter, and received from him four payments, amounting in the aggregate, according to the plaintiff's own admission, to at least $45, on account of the...