Rawley v. Palo Sales, Inc.

• Decision Date: 29 December 1949
• Citation: 144 Me. 375,70 A.2d 540
• Parties: RAWLEY v. PALO SALES, Inc., et al.
• Court: Maine Supreme Court

Page 540

70 A.2d 540

144 Me. 375

RAWLEY v. PALO SALES, Inc., et al.

Supreme Judicial Court of Maine.

Dec. 29, 1949.

A. Alan Grossman, Rockland, for plaintiff.

Alan L. Bird, Rockland, Samuel W. Collins, Jr., Rockland, for defendants.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

This case is before the Law Court on defendant's general motion and exceptions, after jury verdict for plaintiff in Superior Court for Knox County.

The action is assumpsit, with account annexed to the writ and a count in quantum meruit. The account was for the following items furnished to the defendant corporation during the years 1946, 1947 and 1948: 64 spiles at $6, $384; 2 platform scales at $80, $160; 140 feet double bar chain $400; mooring in harbor $150; water supplied from well 2 years at $600 per year, $1200; use of ice house 2 years at $200 per year, $400; use of barn 2 years at $240 per year, $480. The total claim was $3174. The jury verdict was $2171.

The defendant corporation was engaged in the lobster and fish business at Tenant's Harbor. The plaintiff leased certain of his property there to the corporation in 1946, and was employed by the corporation as the Branch Manager. The items for rent of ice house and barn were not covered by the lease, nor was there a lease of the well. The plaintiff testified that he often talked with H. K. Draper, president of defendant Palo Sales, Inc., who had full power to act for the corporation, and at his request, or order, furnished the items in the account, and that during the various transactions and after the items had been furnished, he talked several times personally or by telephone with Mr. Draper about payment, and that each time Mr. Draper assured the plaintiff that the corporation was not then making money but he would be paid. The plaintiff said 'every time I would ask him he would say 'you are losing money down there. You are getting your pay every week. Now wait awhile. I will pay you. I will pay you the full amount and more too''.

The defendant offered testimony of officers and employees in an endeavor to show to the jury that there was no understanding with the defendant corporation, or its president, as claimed by the plaintiff in regard to the items sued for; that they were furnished to the defendant by the plaintiff free of any charge or expectation of pay; that the plaintiff was employed by the defendant on a salary, which salary had been increased; and that the defendant did work for the plaintiff on plaintiff's home and other property, and furnished some building materials to the plaintiff in return for these items. Mr. Draper, the president of the corporation, however, who was the only person other than the plaintiff that knew the complete facts, did not testify to deny the statements of the plaintiff regarding arrangements or agreements to obtain the items from the plaintiff, and the subsequent promises to pay. Further than this, a deposition of Draper, which the record shows was taken in Boston at the request of defendant, was never offered by defendant's counsel. Many witnesses testified for the defendant during the long trial, but the testimony related to market values primarily, although some testimony was produced by defendant in an attempt to show contrary and contradictory statements by the plaintiff, relative to giving the rent and materials to the corporation with no expectation of pay.

The evidence for the plaintiff of the fair market valuse of the foregoing articles and items furnished, came from the plaintiff himself, and in several instances the cross examination of the plaintiff elicited the information that his opinion may have been based wholly, or in part, on replacement values. The jury was carefully instructed that, if the verdict was for the plaintiff, replacement was not the criterion but fair market value was, and that if there was no evidence from which fair value of any item could be ascertained, nominal damages only were to be assessed. No exceptions to the charge were taken.

The evidence introduced by the defendant challenged every value of every item as claimed, and as testified to by the plaintiff. For example, witnesses for defendant placed values on long spiles at less than one dollar each, because of board measure; on the platform scales at one dollar each, and one dollar for 140 feet of double bar chain, and one dollar for the mooring in harbor. The defendant in its brief claims that the total values of all the items does not exceed $245.19. The defendant corporation also denies any agreement or expectation to pay, and claims that the circumstances were such that the plaintiff had no ground to expect pay.

The law applicable to this case was fully and very clearly given by the presiding justice. There is nothing to indicate that the jury did not follow the law as stated in the charge. There were no exceptions to the instructions as given, and no other or further instructions requested. There are about 400 pages of testimony taken during a careful and hotly contested four day trial. The evidence is conflicting. The jury found for the plaintiff, but the claim of the plaintiff was reduced in the verdict by more than one thousand dollars. It is only possible to conjecture what items were reduced by the jury, and what items, if any, were not favorably considered. The jury could find under the evidence the amount that it assessed, or it could have found for a lesser or a larger amount. It could have rendered a verdict for defendant.

This Court cannot say that the verdict here is clearly wrong. There is competent evidence on which reasonable men might differ in conclusions. Eaton v. Marcelle, 139 Me. 256, 29 A.2d 162. We do not have the benefit of a 'close up...