Levine v. Reynolds.

• Decision Date: 05 August 1947
• Citation: 54 A.2d 514
• Parties: LEVINE v. REYNOLDS.
• Court: Maine Supreme Court

54 A.2d 514

LEVINE

v.REYNOLDS.

Supreme Judicial Court of Maine.

Aug. 5, 1947.

Exceptions from Supreme Judicial Court at Law, Kennebec County.

Action on the case by Aaron Levine against Sanford Reynolds for money had and received by defendant to the use of the plaintiff. The jury returned a verdict for the plaintiff, and the case comes before the law court on defendant's motion for a new trial and on defendant's exceptions.

Exceptions sustained, verdict set aside, and new trial granted.

F. Harold Dubord, of Waterville, for plaintiff.

Harvey D. Eaton, of Waterville, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS and FELLOWS, JJ.

TOMPKINS, Justice.

Action on the case for money had and received by the defendant to the use of the plaintiff, in which the plaintiff seeks to recover the sum of $351. The jury returned a verdict for the plaintiff in the amount of $244.33. The case comes before the Law Court on defendant's motion for a new trial and on exceptions by the defendant to certain portions of the charge of the presiding justice, and the refusal of the presiding justice to charge the jury in accordance with certain requests by the defendant.

In April 1945 the plaintiff entered into an agreement with the defendant whereby the defendant agreed to sell to the plaintiff ten large heifers, one small heifer, two veal calves, two skimmed milkers, one bull, seven cows, nineteen sheep and a small quantity of hay, for an agreed price of $1,700. Both parties allege an oral contract for the purchase and sale of the animals. The defendant pleaded the general issue and a brief statement setting up as special matter of defense the oral contract which defendant claimed was entered into on the tenth day of April 1945; that it was an entire contract for the sale of a specified number of animals by the defendant to the plaintiff for one entire lump sum; and that the defendant was able, ready and willing to deliver said animals as agreed and repeatedly offered to do so, and repeatedly requested the plaintiff to accept said animals and pay for them; but the plaintiff neglected and refused to accept the animals or complete payment therefor as agreed.

The plaintiff was a cattle dealer and farmer living in the town of Fairfield and the defendant was a farmer living in the town of Winslow, in the county of Kennebec. Some time in April of 1945 the plaintiff called on the defendant and they entered into a conversation relative to selling the cattle and sheep described in the plaintiff's writ. Defendant at the outset wanted $2,000 for the aggregate number of animals, and after some bargaining they arrived at the price of $1,700 by placing a separate price upon the various animals, including a small quantity of hay that the defendant had in the barn. The defendant claimed that the cattle were to be all taken away by the plaintiff within a week from the tenth of April, being the date on which he claimed the contract was made, and the purchase price paid in full when the defendant came for the animals within the time specified. The plaintiff claimed the bargain was made some time the latter part of April or the first of May. The plaintiff claimed that no time was set for taking the animals; that one of the conditions involved in the contract was that the milch cows were to be taken away after plaintiff was notified by the defendant, who wished to inform his butter customers so that they could buy elsewhere, that he was ready to deliver them. Plaintiff said ‘Our agreement was I should take the cows after he let his butter customers know.’ The plaintiff was to take delivery at the farm of the defendant.

The plaintiff paid the defendant $500 on account of the purchase price on the day the agreement was made, and in a day or two after the trade was made the plaintiff called at the farm of the defendant and removed one of the cows, two veal calves, one small heifer and five of the large heifers, leaving a check for $411 with the defendant's wife. Defendant's wife testified that the plaintiff remarked that he would take the rest of the cattle the next Sunday, which would give a week. Three or four days later he took the bull.

Defendant testified that he called the plaintiff on the 26th of April and asked him when he was coming after the rest of the animals, and claimed the plaintiff promised to come after them the following Thursday. This the plaintiff denied. The defendant further testified that he called the plaintiff again after that, and this the plaintiff disputed. Some time in June the plaintiff called by telephone and told the defendant ‘I am sending a man out to get the cattle,’ and the defendant then informed the plaintiff that the time had elapsed under he agreement and that he would not deliver the cattle to him.

From the testimony it can be fairly inferred that the trade took place about the tenth of April and that it was some time the middle of June before the plaintiff notified the defendant that he was coming after the cattle. The sum of $351 as an overpayment for the value of the cattle received by the plaintiff was arrived at by subtracting the bargaining price of each animal as used in arriving at the total purchase price of $1,700, from the $911 that had been paid on account.

The presiding justice gave the jury the following instructions, to which the defendant excepted:

‘If you should say, for instance, that the plaintiff should have completed his contract the week after the tenth of April and paid the balance of the $1700 and failed, but was willing some time in June to carry out his contract and so notified the defendant, and the defendant refused to allow him to have the cattle by saying that the time had gone by when he could have them, then I instruct you that the plaintiff had a right at that time to complete the contract if he had the money to buy. But the defendant may deduct from this $351 such sum as it may have cost him in feed and labor to take care of these cattle during the interim, during the time when you say the plaintiff should have taken the cattle until such time as he did take them.

‘In other words, I am instructing you that under the evidence it would be unfair for the defendant to unduly enrich himself. If he has received from this plaintiff over and above what the contract calls for, there should be deducted whatever it cost the defendant to carry these cattle, if he did carry them, for an appreciable length of time beyond what you might find the agreement to be.’

The defendant says this instruction is an incorrect statement of the law and was highly prejudicial to him, and claims that the question of liability was taken from the jury and they were expressly instructed to find a verdict for the plaintiff. The plaintiff claims that the instruction was correct and, if erroneous, was harmless, and defendant was not prejudiced thereby, because the result of the entire case was correct and the jury had a proper understanding of the law from the entire charge. There are numerous cases in which it has been held a new trial will not be granted even if instructions are erroneous unless it appears also that they might have been prejudicial to the excepting party. Russell v. Turner, 59 Me. 256, at page 258, and cases there cited. Neither will a new trial be granted where there are erroneous rulings by the presiding justice on abstract principles of law not affecting the truth of the result. Gordon v. Conley, 107 Me. 286, 291, 292, 78 A. 365, 33 L.R.A.,N.S., 336. But where an erroneous instruction is given, or a correct instruction is refused, if the erroneous instruction or refusal may have misled the jury, and the court is not clearly satisfied that under a correct instruction a different verdict could not have been given, or if given could not have been permitted to stand, exceptions thereto must be sustained. Starkey v. Lewin, 118 Me. 87, 105 A. 858, and cases there cited; Colbath v. H. B. Stebbins' Lumber Co., 127 Me. 406, 144 A. 1; Blumenthal v. Serota, 130 Me. 263, 155 A. 40.

The plaintiff contends that independently of the instructions under consideration, upon a correct view of the law and the facts, the plaintiff is entitled to retain the verdict. It is not the province of the court when a case is presented by exception, to decide upon its general merits, but to determine whether the law applicable to it was correctly given to the jury. Miller v. Goddard, 34 Me. 102, 56 Am.Dec. 638. This court has always, while considering the matter of retention of benefits in cases similar to the one under consideration, considered the nature of the breach. It has recognized well-defined classes of cases where there has been an endeavor in good faith to perform, substantial performance, and some variance when the work and material was of value and benefited the other party; but where the breach is wilful, purposeful, or in bad faith, no recovery on quantum meruit is permitted. Thurston v. Nutter, 125 Me. 411, at page 418, 134 A. 506, 47 A.L.R. 1156, and cases there cited. The plaintiff claims the right of recovery on quantum meruit where an express contract exists. The action per se is an admission on the part of the plaintiff that he is guilty of a breach of his contract. Viles v. Kennebec Lumber Co. 118 Me. 148, 106 A. 431. The instruction complained of was on a material issue of law in the case and raised by the pleadings, and not on any abstract principles of law.

The contract was oral, and the defendant...