Sanders Eng'g Co. v. Small

• Decision Date: 24 April 1916
• Citation: Sanders Eng'g Co. v. Small, 97 A. 218, 115 Me. 52 (Me. 1916)
• Parties: SANDERS ENGINEERING CO. v. SMALL.
• Court: Maine Supreme Court

97 A. 218

115 Me. 52

SANDERS ENGINEERING CO.

v. SMALL.

Supreme Judicial Court of Maine.

April 24, 1916.

Motion and Exceptions from Superior Court, Cumberland County, at Law.

Suit by the Sanders Engineering Company against Fred C. Small, resulting in verdict for plaintiff. On defendant's motion for new trial and on exceptions. Exceptions sustained, and new trial granted.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

P. A. Bowie, of Portland, for plaintiff. Walter P. Perkins, of Cornish, and William Lyons, of Westbrook, for defendant.

PHILBROOK, J. This case comes up from the superior court of Cumberland county on motion for new trial by defendant and upon exceptions to the exclusion of evidence. The plaintiff constructed a dam in the town of Cornish, and having failed to receive pay for work done and materials furnished, brought suit against the defendant, claiming that he became personally liable to the plaintiff and promised to pay for building the dam. It is admitted that the erection of this structure was for the sole purpose of flowing a low and unsightly piece of land and thus beautifying the face of nature in a conspicuous place within the village border. The defendant claimed that this was a public enterprise, entered into by several citizens; that the funds were to be raised by subscription; that a subscription paper was circulated, signers thereto obtained; and that the plaintiff well understood when it began this work that this was the plan, and that it was to receive its pay from this subscription fund, looking to the subscribers for such payment. One of the subscribers was Arthur Colcord. In the course of the trial, as tending to show that the contention of the defendant was correct, and that the plaintiff so understood, and as tending to show that plaintiff's claim of personal liability against the defendant was inconsistent with its former attitude and understanding, a letter to Colcord from plaintiff's attorney was offered by the defendant. The letter is as follows:

"Mr. Arthur Colcord, Cornish, Maine—Dear Sir: Some time ago the Sanders Contracting Co., of this city, built a dam for several subscribers and persons represented by Mr. Fred C. Small. Among the names of the subscribers I find your name. I have communicated with Mr. Small in regard to the matter several times, but have never been able to adjust the claim of the Sanders Contracting Co. for the work done.

"Your proportional part of the debt would be about eight and 50/100 dollars ($8.50). Inasmuch as I have been authorized by the Sanders Contracting Co. to commence suit against the subscribers and persons represented by Mr. Small I thought that I would communicate with you in regard to the matter. You and the other subscribers and persons must appreciate the fact that you are responsible for the work done. I should be pleased to know what you intend to do in regard to the matter."

This letter was excluded, and to this ruling defendant was allowed exceptions.

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