Rich v. Hayes

• Decision Date: 05 February 1903
• Citation: 97 Me. 293,54 A. 724
• Parties: RICH v. HAYES.
• Court: Maine Supreme Court

54 A. 724

97 Me. 293

RICH

v. HAYES.

Supreme Judicial Court of Maine.

Feb. 5, 1903.

(Official.)

Exceptions from Supreme Judicial Court, Kennebec County.

Action by Abraham Rich against Alvah R. Hayes. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Action of assumpsit on a promissory note. Besides the count on the note, there was a money count, with a specification making reference to the note.

The plea was the general issue, with a brief statement of special matter of defense, upon which, however, the decision in no way turned.

In addition to his bill of exceptions, the defendant also filed and argued a general motion for a new trial.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, and SAVAGE, JJ.

L. A. Burleigh and Joseph Williamson, Jr., for plaintiff.

G. W. Heselton, for defendant.

EMERY, J. This was an action against an administrator representing the deceased partners of the late firm of Dingley Bros. One of the issues was whether certain indorsements or entries in the handwriting of the plaintiff upon the back of a $3,000 note given to him by the Dingley Bros, were made accidentally and erroneously. The plaintiff claimed they were, and that he had written and personally delivered to the Dingley Bros, in their lifetime a letter stating that the indorsements or entries were erroneous, and explaining how they happened to be made, and that they orally assented to the statement and explanation as correct and satisfactory. A copy of this letter was admitted in evidence, the original not being produced in response to due notice to do so.

At the top of this copy of letter was the following memorandum, signed by R. W. Rich, a son of the plaintiff, viz.:

"The original letter from Abraham Rich to Dingley Brothers of this date of April 18th, 1895, of which this is a true copy, was handed by Abraham Rich to Fuller Dingley of Dingley Brothers in their (Dingley Brothers) office in Gardiner, Maine, in my presence at about three o'clock p. In., of this 'afternoon' of April 18th, 1895. Fuller Dingley read the letter and said, 'Your explanation in this letter of your erroneous entries on our $3000.00 note is satisfactory to and agreed to by us, Captain.'

"Attest: R. W. Rich."

The plaintiff was known as "Captain Rich." It does not appear that this memorandum was read or offered in evidence, or used at the trial by any witness to refresh his memory.

When, at the close of the trial, the various documentary exhibits...