Prince v. Brackett, Shaw & Lunt Co.

• Decision Date: 17 October 1925
• Citation: 130 A. 509
• Parties: PRINCE et al. v. BRACKETT, SHAW & LUNT CO.
• Court: Maine Supreme Court

130 A. 509

PRINCE et al.

v. BRACKETT, SHAW & LUNT CO.

Supreme Judicial Court of Maine.

Oct. 17, 1925.

Exceptions and On Motion from Supreme Judicial Court, Somerset County, at Law.

Action by Harold W. Prince and others against the Brackett, Shaw & Lunt Company. Verdict for plaintiffs, and defendant excepts, and files motion for new trial. Exceptions overruled, but motion sustained, and new trial granted.

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

Gower & Shumway, of Skowhegan, for plaintiffs.

Pattangall, Locke & Perkins, of Augusta, for defendant.

BARNES, J. In the course of their business, sawing logs into lumber, the plaintiffs lost their machinery and other property from fire communicated from a gasoline kerosene driven engine which they had purchased from the defendant, and brought this action by a writ charging in separate counts deceit and negligence on the part of the defendant in the sale of the engine.

Defendant was not the manufacturer, but a distributor, a mere vendor, of the machine, an internal combustion engine; and the flame or spark that ignited the material destroyed appeared in what is commonly known as back-firing on the part of the engine while being operated by the plaintiffs in person. During the trial plaintiffs introduced as an exhibit the "order" upon which the engine was shipped, a paper partly in print and partly written by plaintiffs and the agent of the defendant, naming the engine, the price and terms of payment, and containing certain stipulations as to title, repossession by defendant in case of nonpayment, claim for damages for nonperformance of the machine, replacement of defective parts, and an agreement to pay the price, together with other stipulations and some particulars of guaranty. This "order" was signed by plaintiffs and by the agent of the defendant as a witness, but not signed by defendant. It included the following words:

"All previous communications between the parties hereto, verbal or written, are hereby abrogated and withdrawn, and this agreement, when duly signed, constitutes the only agreement between the parties hereto."

It appears from the evidence that for a period of only a few days less than seven months negotiations looking to a contract of purchase had been carried on between plaintiffs and the defendant and its agent, and to plaintiffs' introduction of evidence of representations regarding the peculiar fitness of the engine to do the work required by plaintiffs defendant seasonably reserved exception.

Defendant further presented 14 several requests for instructions to the jury, which the justice presiding refused to give, except so far as given by him in his charge, and to such refusal exceptions were taken. The charge of the justice is made part of the bill of exceptions. Special findings were submitted to the jury, they returned a verdict for plaintiffs, on the counts charging deceit, and the defendant filed a motion for a new trial, on the usual grounds.

The first exception noted above may have been relied upon through misapprehension of the nature of the action. But, the action being upon deceit and not upon warranty, the exception has no merit.

As to the second exception, a careful study of the charge satisfies this court that such of the requested instructions as were correct and pertinent were substantially given, and the defendant is found not to have been prejudiced by the refusal of the justice to read them in the very words in which they were written.

Upon the motion, however, it becomes our duty to decide that the verdict cannot be sustained, for the reason that deceit is not clearly and convincingly proven. The rule in this state, never departed from, is well expressed in Strout v. Lewis, 104 Me. 65, 71 A. 1020:

"The vital question is the proof of deliberately planned and carefully executed fraud on the part of the plaintiff's agent, * * * for on no other hypothesis can the verdict be sustained. The charge is a serious one and the law imposes upon the defendant the burden of substantiating it by clear and convincing proof."

The representations alleged to be false, which plaintiffs claim to have been acting on when their sawmill was destroyed by fire, are found in a letter written by defendant's agent on January 17, 1920, at the very beginning of the seven months of inquiry and investigation into the fitness of the engine to do the work their immediate business seemed to them to require.

No representations in addition to or differing from those in the letter are satisfactorily proven. In fact, Mr. Prince, one of the plaintiffs, expressly admits this, as shown in the following questions and his answers:

"Q. He (referring to defendant's agent who wrote the letter and negotiated the sale) didn't tell you anything different or change the statements made in...