Mccully v. Bessey.
| Decision Date | 14 October 1946 |
| Citation | 49 A.2d 230 |
| Parties | McCULLY v. BESSEY. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Somerset County.
Trover action by Clarence F. McCully against Earl B. Bessey to recover the value of pulpwood alleged to have been taken by defendant. Verdict for plaintiff and defendant moves for a new trial and brings exceptions.
Motion for new trial overruled and exceptions overruled.
Harvey D. Eaton, of Waterville, for plaintiff.
Burleigh Martin, of Augusta, and Clayton E. Eames, of Skawhegan, for defendant.
Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, and FELLOWS, JJ.
This is a trover action to recover the value of 250 cords of pulpwood alleged to have been taken by the defendant. The jury returned a verdict for the plaintiff in the sum of $1,208.12. The case is before the Law Court on general motion for new trial, and also on exceptions to the admission of certain evidence and for refusal to direct a verdict.
The record shows that in May 1943, one Archie M. Kent, by warranty deed, conveyed to Mrs. Leslie Dodge a three years right to cut the wood growing on a tract of land in Benton, Maine. Later, Leslie Dodge arranged to sell some of the wood to Clarence F. McCully, the plaintiff. The wood sold to McCully was soft wood to be cut into pulp for the use of Keyes Fibre Company at Fairfield, Maine, and payments were to be made as the work of cutting was done. Dodge began the work of cutting for McCully; and during the spring and summer of 1943, McCully, without going to see the wood, made payments to Dodge of $4,000. The payments by McCully to Dodge, for wood cut and to be cut, were made as a result of statements of amounts by Dodge. Nothing was done, in 1943, relative to delivery of wood to McCully, or to Keyes Fibre Company, his customer.
In June 1944, the plaintiff McCully and Leslie Dodge met at the Keyes Fibre Company office to arrange for delivery by scaling and marking; and as a result of the conference, McCully and Dodge, with Clifton Gerald and John H. White of the Fibre Company, went to the Kent lot to see the wood. While on the lot, Dodge pointed out the McCully wood. The wood was measured or estimated, by Gerald, the Assistant Superintendent of the Fibre Company, while McCully, Dodge and White marked some of the wood with a marking hammer. Gerald testified that there were 328.4 cords measured and marked. There was then on the lot other wood that was not marked or measured, because Dodge stated that it belonged to Earl D. Bessey.
It appears that in May 1944, the defendant Bessey also purchased pulpwood from Dodge, which wood was to be delivered to the Hollingsworth and Whitney mill at Winslow, Maine. The defendant, Bessey, received from Mr. and Mrs. Dodge on July 22, 1944 a bill of sale of ‘all the pulpwood, and without limiting the generality, including 4' lengths and tree lengths, belonging to us, and located on the Archie Kent place’ and other lots.
After the scaling of the McCully wood, no wood was received at the mill by McCully or by his Fibre Company customer. The wood that had been marked and measured by McCully disappeared. McCully then sued Dodge to recover the $4,000 he had advanced. Judgment was obtained, but Dodge filed petition in bankruptcy in 1945 and collection was impossible.
At the Dodge bankruptcy hearing on November 23, 1945, this defendant, Bessey, was summoned as a witness and testified that he bought pulpwood for different companies including Hollingsworth and Whitney, that he took a bill of sale from Mr. and Mrs. Dodge of all the wood on the Kent lot and other lots, and later got the wood.
At the trial of this action, however, the defendant Bessey testified that he got no wood other than the wood cut expressly for his customer, and explained his previous testimony by saying that the wood he referred to at the bankruptcy hearing, and that he took from the Kent lot, was only the wood on which he had advanced money for cutting. The defendant also claimed that his wood was cut on another portion of the Kent lot from where the McCully wood was cut; that his wood was cut in 1944 and not in 1943; that he purchased no marked wood; that no wood was received by him or by his customer other than the wood that belonged to him and was cut for him.
The defendant pleaded the general issue with a brief statement denying that plaintiff owned the wood, but the record shows that at the trial the main defense was that neither the defendant, nor the defendant's customers, ever took or received any McCully wood. No witness for the defense, and many of them worked on the lot, seemed to know what became of the wood marked by or for McCully, or any of it. The evidence of conversion came from the admission of the defendant himself, if he made the admission as plaintiff claims.
A general motion for a new trial is based on the proposition that injustice will plainly be done if the verdict is allowed to stand. It is a motion that asks that the verdict be set aside because it is against the evidence, and the weight of evidence, and that it is against the law, and that the damages are excessive. Under our system, if a jury hears and determines disputed facts, that determination is final, unless so clearly wrong that it is apparent that the verdict was the result of prejudice, bias, passion, or a mistake of law or fact. The Court cannot, and does not, pass upon credibility or number of witnesses. If the evidence in support is substantial, reasonable, coherent, and consistent with circumstances and probabilities, the verdict should stand. The values of conflicting bits of testimony are for the jury, and the...
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Sanborn v. Stone
...showing, to the satisfaction of the Court that the verdict is manifestly wrong, is upon the one seeking to set it aside. McCully v. Bessey, 142 Me. 209, 212, 49 A.2d 230; Kennebec Towage Co. v. State of Maine, 142 Me. 327, 52 A.2d Violation of law, if proven by the evidence, is sometimes pr......
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State v. Bellino
...and admissible at trial, unless it be excluded by statute, or by some rule or principle of law. As stated in McCully v. Bessey, 142 Me. 209, 214, 49 A.2d 230, 233 (1946): "Rules of evidence are usually rules of exclusion, and evidence is often admitted, by the trial court, not because it is......
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Torrey v. Congress Square Hotel Co.
...somewhat to different degrees of light. In any event, the exclusion was harmless and no exception lies unless prejudicial. McCully v. Bessey, 142 Me. 209, 49 A.2d 230. Second The plaintiff offered evidence tending to show that employees of the defendant had previously reduced the amount of ......
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