Rundlett Co. v. Morrison

• Decision Date: 07 November 1921
• Citation: 115 A. 247
• Parties: RUNDLETT CO. v. MORRISON.
• Court: Maine Supreme Court

115 A. 247

RUNDLETT CO.

v. MORRISON.

Supreme Judicial Court of Maine.

Nov. 7, 1921.

On Motion from Superior Court, Cumberland County, at Law.

Action by the Rundlett Company against Marriner S. Morrison. Verdict for defendant, and plaintiff moves for new trial. Verdict set aside, and new trial granted.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, J.7.

Bradley, Linnell & Jones, of Portland, for plaintiff.

Jacob H. Berman, of Portland, for defendant.

MORRILL, J. This is an action to recover $350.70, which the plaintiff claims was an overpayment for hauling coal screenings, obtained through the misrepresentation of defendant. The jury returned a verdict for defendant, which the plaintiff moves to set aside for the usual reasons. The motion must be sustained.

The plaintiff operated a cold storage plant on Union wharf, Portland, where it used coal screenings purchased of the Lehigh Coal & Navigation Company, which had a place of business on the same wharf. The plaintiff had another place of business on Commercial wharf, where its treasurer's office was located.

The following facts are not disputed: In the fall of 1919 the defendant made a contract with the plaintiff to haul screenings from the Lehigh sheds for $1 per ton. The screenings were sold to the plaintiff for $2 per ton. Every Saturday morning the defendant presented to one Black, plaintiff's cashier, the weigh slips of screenings hauled during the week and collected $3 per ton; $2 per ton he paid to the Lehigh Company and received a receipted bill, which, so far as the case shows, he kept. This arrangement was made between the plaintiff and the superintendent of the Lehigh Company. The screenings were sold to the plaintiff, as shown by the weigh slips; the price did not appear thereon.

This course of dealing continued until some time in June, 1920; the defendant then began to collect $4.50 per ton, paying the Lehigh $2 as before, and retaining $2.50 for hauling. As to what took place at this time in June the witnesses differ. One Backleff, the superintendent of the cold storage plant, testifies:

"Mr. Morrison told me that the Lehigh was going to charge $3.50 for the coal and he would have to get $4.50—the price would be $3.50 for the coal and $1 a ton for hauling, which would make it $4.50."

He testifies further that he knew nothing to the contrary until in the latter part of October he received a bill from the Lehigh Company for a small amount of screenings billed at $2 per ton.

Mr. Black, the cashier of the plaintiff testifies:

"Some time in June he (Morrison) came over with his slips same as he usually does to be paid, and I started to figure them up, and he says, 'You will have to add on $1.50 more, because I have got to pay the Lehigh people $1.50 more.' I says, 'Does Mr. Rackleff know that?' He says, 'Yes.' I called Mr. Rackleff up to verify it, and he says, 'It is all right.'

"Q. You paid from then on that basis? A. Yes."

Mr. Peightel, to whom the defendant applied for the job of hauling the screenings, testifies that some time in the beginning of the summer the defendant said that the Lehigh Company was going up on the screenings.

The defendant denies these statements in this way: He was asked by his counsel:

"Q. Did you at any time tell any one the reason you went up to $4.50 a ton was because the Lehigh Valley had gone up on you? A. No, sir; they never went up on me."

He does not attempt to otherwise deny or to give his version of the conversation with Rackleff and Peightel.

His version of the conversation with Mr. Black is as follows:

"Q. Mr. Black has testified that when you called to get your money you told him $4.50 a ton? A. Yes, sir.

"Q. He paid you, and will you tell the court and jury what happened the first time you asked him for $4.50 a ton? A. Why, I went in and passed him my bill, or my slips which they always paid me by, and I told him the screenings had gone up to $4.50 a ton. Any further conversation I don't remember. And he paid me my money there and then.

"Q. Did he call up to inquire of anybody? A. I don't know whether he did or not; I can't say."

He also testifies that he notified Mr. Christian, the treasurer of the company:

"Q. What was the first thing you said to him? A. The first thing I said to him—that I meant to have notified him before over the phone when I talked with him regarding the horse. I told him then screenings were going to be $4.50 commencing Monday morning. 'All right,' he said. That is all there was to the conversation."

Mr. Christian positively denies that he had any such talk with the defendant; he says, "I had no dealings with Morrison."

If this case presented solely a question of credibility, of the weight to be given to the testimony, we might hesitate to interfere with the verdict, notwithstanding the number of witnesses stands three to one against it. As Mr. Justice Dunn aptly remarked in Ladd v. Bonn, 117 Me. 445, 104 Atl. 814:

"Witnesses are to be judged not so much by numbers as by the weight of the evidence given by them. And the weight of the evidence depends upon its effect in inducing belief."

But the version given by the defendant of his statements to Mr. Black and Mr. Christian unmistakably carried the implication that the price of coal had advanced. I told him (Black) the screenings had gone up to $4.50 a ton;" "I told him (Christian) screenings were going to he $4.50 commencing Monday morning"—were his words according to his own...