Starkey v. Lewin
| Decision Date | 24 March 1919 |
| Citation | 118 Me. 87,105 A. 858 |
| Parties | STARKEY v. LEWIN et al. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Aroostook County, at Law.
Action by Charles W. Starkey against Willard S. Lewin and another. From a Judgment against the defendant Lewin, he brings exceptions. Exceptions sustained.
Argued before CORNISH, C. J., and SPEAR, HANSON, WILSON, and DEASY, JJ.
Doherty & Tompkins, of Houlton, for plaintiff.
Tierce & Madigan and Shaw & Thornton, all of Houlton, for defendants.
This is an action of assumpsit to recover for certain supplies delivered by the plaintiff to the defendant Horton, who was engaged in conducting a lumber operation for defendant Lewin. The jury found a verdict against the defendant Lewin for the sum of $430.
The case comes before this court on exceptions of the defendant Lewin to the admission of certain testimony and to a certain part of the judge's charge, and to the refusal of the presiding justice to give a certain requested instruction, and also on motion for a new trial on the usual grounds. We shall consider only the exceptions.
The only issue was, Did the defendant Lewin promise to pay for the goods delivered to Horton; or, to put it in another form, on whose credit were the goods sued for delivered? If upon an original promise of Lewin before delivery, as claimed by the plaintiff, then Lewin was, of course, liable; but if in any part upon the credit of Horton, Lewin was not liable, the alleged promise, if any was made, being an oral one. 20 Cyc. 165c. Chitty on Contracts, *442.
In the course of the trial the plaintiff's counsel asked him the following question: "Upon the strength of whose credit did you deliver these goods?" Against the defendant Lewin's objection he was permitted to answer "I gave them on Mr. Lewin's credit." To this ruling the defendant Lewin excepted on the ground that it involved the issue which the jury were to determine from all the evidence.
We are of the opinion that the defendant's contention is correct in principle and in accord with the authorities, and that the correct rule is laid down in Walker v. Moors, 125 Mass. 352. It would have been permissible, as held in Folsom v. Skofield, 53 Me. 171, to have inquired of the plaintiff as to whom he intended to give credit when he delivered the goods, but to inquire on whose credit they were delivered involved not only his own intent, but the defendant Lewin's acquiescence, which war the very point in dispute for the jury to determine. Pope v. McGill, 58 Hun, 294, 12 N. Y. Supp. 306; Drew v. Keufer, 81 Hun, 144, 30 N. Y. Supp. 733.
However, since the real issue, as stated above, was, Did the defendant Lewin promise to pay for these goods at all, except upon conditions which he claims were never fulfilled, we deem more prejudicial to him the refusal of the court to give the following requested instructions: "The plaintiff cannot recover upon the ground that Lewin received the benefit of the goods sold by Starkey, unless you find that Lewin agreed to pay for them;" or, to state the necessary inference to be drawn from the refusal: If you find that Lewin received the benefit of the goods delivered to Horton, Lewin is liable, even though he did not agree to pay for them.
The court saying: "I cannot give you that in the face and eyes of the Colbath Seed Case," referring to 112 Me. 277, 91 Atl. 1007. "I call your attention again to the fact," and, after again reading the requested instruction, said: "I must decline to give you that statement." To appreciate the probable mischievous effect on the jury, it is only necessary to state briefly the contentions of the parties.
The plaintiff's contention is that prior to the delivery of the goods sued for, the defendant Lewin, over the telephone and in conversation on the street, told the plaintiff to let Horton have such goods as he wanted for his operation and he (Lewin) would pay for them. It was also contended by counsel that liability on the part of Lewin might also arise from the furnishing of the goods to Horton since Horton was at the time engaged in conducting a lumbering operation for Lewin, and Lewin was indirectly, at least, benefited thereby.
The defendant Lewin's contention is that he only agreed to pay for the first bill of goods delivered to Horton to enable him to get started on his contract, which goods it is admitted have already been paid for, and are not a part of the goods sued for in this action; and that the conversation on the street went no further than that, while he would not be personally responsible for Horton's bills, if the plaintiff would present bills every 30 days and Horton would approve...
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Minott v. F. W. Cunningham & Sons
...or conclusion on an ultimate fact in issue in a case. E. g., State v. Libby, supra, 153 Me. at 9, 133 A.2d at 882; Starkey v. Lewin, 118 Me. 87, 88, 105 A. 858, 859 (1919); United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 276, 79 L.Ed. 617 (1935). This "ultimate issue" rule was ......
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...was nevertheless outside the Statute of Frauds when based upon a consideration flowing directly to the promisor. In Starkey v. Lewin, 118 Me. 87, 90, 105 A. 858, 860 (1919), another case involving the main purpose doctrine developed in Colbath, the court held that it was necessary in such a......
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...might have arrived at a contrary verdict, which, in law, would be permitted to stand. The rule laid down in the case of Starkey v. Lewin, 118 Me. 87, 91, 105 A. 858, therefore, appears to be a correct statement of what constitutes prejudicial error, viz., if the jury may have been misled an......
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...verdict could not have been given, or if given could not have been permitted to stand, exceptions thereto must be sustained. Starkey v. Lewin, 118 Me. 87, 105 A. 858, and cases there cited; Colbath v. H. B. Stebbins' Lumber Co., 127 Me. 406, 144 A. 1; Blumenthal v. Serota, 130 Me. 263, 155 ......