term of years and assign the same to the plaintiff. The breach set forth in the declaration is a failure to obtain a lease for the term agreed upon. In the trial of the cause in the court below it appeared that the agreement, except for the part relating to the furniture, which was afterwards reduced to writing, was an oral one. At the close of the plaintiff's evidence the court ruled, in substance, that the agreement to obtain a lease and assign it to the plaintiff was a contract concerning an interest in real estate, and must therefore be in writing, and that such documentary evidence as was introduced in the case by the plaintiff was not sufficient to comply with the statute of frauds in this particular, and ordered a nonsuit, to which ruling the plaintiff excepted. ute of frauds and could not be proved by oral testimony. Dunphy v. Ryan, 116 U. S. 491, 6 Sup. Ct. 486, 29 L. Ed. 703; Howland v. Blake, 97 U. S. 624, 24 L. Ed. 1027; Kendall v. Mann, 11 Allen (Mass.) 15, 17; Davis v. Wetherell, 11 Allen (Mass.) 19, note; Parsons v. Phelan, 134 Mass. 109. Also see Collins v. Sullivan and Schmidt v. Bieseker, supra; Myers v. Byerly, 45 Pa. 368, 81 Am. Dec. 497. Entry will be: Exceptions overruled. KIDNEY v. AROOSTOOK VALLEY R. R. 1920.) Death 103(3)-Directed verdict on issue of contributory negligence held proper. The plaintiff now concedes that the evi (Supreme Judicial Court of Maine. Oct. 15, dence in writing introduced by him as to the procuring and assignment of the lease is not sufficient to comply with the statute, but contends that the agreement is not one concerning an interest in real estate, and hence writ-presumption in actions for negligent death that ten evidence of the agreement was not nec- deceased exercised due care, and imposing the essary. burden of pleading and proving contributory Under Pub. Laws 1913, c. 27, creating the Exceptions from Supreme Judicial Court, Aroostook County, at Law. Action by George Kidney, as administrator of the estate of Hanford Kidney, deceased, against the Aroostook Valley Railroad. Judgment for defendant on directed verdict, and plaintiff accepts. Exceptions overruled. [1] The contract in the case, however, is negligence on the defendant, defendant, pleadnot one of simple agency by which one partying contributory negligence of one killed by a agreed to obtain a lease or purchase real estrain at a crossing, is entitled to a directed verrate for another and in the principal's name, dict, where the testimony of the only witness to the accident shows conclusively that decedent which the authorities are all agreed need not was not exercising due care. be in writing (Snyder v. Wolford, 33 Minn. 175, 22 N. W. 254, 53 Am. Rep. 22; Carr v. Leavitt, 51 Mich. 540, 20 N. W. 576; Trowbridge v. Wetherbee, 11 Allen [Mass.] 361: Baker v. Wainwright, 36 Md. 336, 11 Am. Rep. 495), nor even, we think, a contract of agency by which the agent agrees to purchase an interest in real estate and convey or assign it to his principal, concerning which and the kind of evidence required in proof the courts are not in accord (Johnson v. Hayward, 74 Neb. 157, 103 N. W. 1058, 107 N. W. 384, 5 L. R. A. [N. S.] 112, note, 12 Ann. Cas. 800; Schmidt v. Bieseker, 14 N. D. 587, 105 N. W. 1102, 5 L. R. A. [N. S.] 132, and note, 116 Am. St. Rep. 706; Burden v. Sheridan, 36 Iowa, 125, 14 Am. Rep. 505; Collins v. Sullivan, 135 Mass. 461). Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, and MORRILL, JJ. Shaw & Thornton, of Houlton, for plaintiff. Powers & Guild, of Ft. Fairfield, and W. R. Pattangall, of Waterville, for defendant. PER CURIAM. This is an action on the [2] The case at bar, therefore, does not in case by the administrator of the estate of volve a question of agency. The declaration Hanford Kidney. Plaintiff's intestate was indoes not so allege, but sets forth a contract stantly killed in a collision between an aubetween two principals. The agreement to tomobile in which he was riding, and defendobtain and assign the lease, from the plain-ant's train, at Parsons Crossing, so called, tiff's own testimony, was clearly a part of the consideration for the purchase of the furniture, which in effect was the acquiring of the defendant's lodging house business. [3] That the assignment of a lease is a contract concerning an interest in lands there can be no question. Kingsley v. Siebrecht. 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486. The contract being between two principals and to obtain and assign a lease, it is within the stat in the town of Presque Isle, on the 30th of September, 1918. At the conclusion of the evidence the defendant's counsel moved for a directed verdict, which was ordered by the presiding justice, and the case is before the court on plaintiff's exceptions to such order. We think the exceptions must be overruled. Counsel for the plaintiff in opposing the motion, and now in argument upon the ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) ceptions, urges the application of chapter 27, [northwest part of township No. 6, range 7, Public Laws 1913, which provides: W. E. L. S., known as the "Seboeis Farm," according to a plan and survey of said township made by Frank Fisk, containing 320 acres, more or less, in Penobscot county, 'and comes before this court on report. "In actions to recover damages for negligently causing the death of a person, or for injury to a person who is deceased at the time of trial of such action, the person for whose death or injury the action is brought shall be presumed to have been in the exercise of due care at the time of all acts in any way related to his death or injury, and if contributory negligence be relied upon as a defense it shall be pleaded and proved by the defendant." Contributory negligence of the decedent was pleaded as a defense, and was therefore in issue under the pleadings. The record shows that the case is not brought within the terms of the foregoing statute, but, on the contrary, the testimony of Mr. Allen Bull, the only witness to the accident, shows conclusively that the plaintiff's intestate was not in the exercise of due care, thus not only rebutting the presumption, but showing affirmatively that the accident was due largely, if not wholly, to the plaintiff's intestate's own want of care. Curran v. Railway Co., 112 Me. 96, 90 Atl. 973. The plaintiff claims under a deed from the treasurer of the state of Maine, obtained through a sale of said land for the state and county taxes assessed thereon for the year 1907, and that the proceedings herein were in accordance with the provisions of R. S. 1903, c. 9, § 41 et seq., as amended by the Laws of 1905, cc. 69, 150, and chapter 226 of 1909. The plaintiff says that he has established his title in full compliance with the requirements of the statute, and that no defect therein fatal to such title is or can be shown. The defendants' counsel in their brief claim that in several respects the substantial requirements of the statutes authorizing a sale of land for taxes in unincorporated places have not been strictly complied with. It will be necessary to consider but one of the provisions, and plaintiff's proceeding The ruling of the presiding justice was thereunder. R. S. c. 9, § 42; Laws 1905, c. correct. Exceptions overruled. MORRILL, J., concurred in the result. FOULKES v. NEVERS et al. €9, § 2; Laws 1909, c. 235; R. S. 1916, c. 10, § 44, provides: "When the Legislature assesses such state tax, the treasurer of state shall, within three months thereafter, cause the lists of such assessments, together with the amounts of the county tax on said lands so certified to him, both for the current year, to be advertised for three weeks successively in the state paper, and in some newspaper, if any, printed in the (Supreme Judicial Court of. Maine. Oct. 15, county in which the land lies, and shall cause Taxation 1920.) 363-Description in advertisement of list of assessment held defective. like advertisement of the lists of such state and county taxes for the following year to be made within three months after one year from such assessment." Advertisement of list of assessment, required by Rev. St. 1903, c. 9, § 42 (as amended by Laws 1905, c. 69, § 2, and Laws 1909, c. 235), The record shows that the land in question and Rev. St. 1916, c. 10, § 44, describing land was described in the advertisement of the as "Penobscot County 6 R. 7, W. E. L. S. list of the assessment as follows: "Penobscot 320, 6, 90," held fatally defective, in that the particular tract of the designated township County 6 R. 7. W. E. L. S. 320, 6, 90”—and being assessed was not specified. the list was signed by Pascal P. Gilmore, treasurer of state. We think the land de Report from Supreme Judicial Court, Pe-manded was not sufficiently described in the nobscot County, at Law. Action by Charles D. Foulkes against George A. Nevers and others. Judgment for defendants. list so advertised, and in consequence the plaintiff has failed to show a compliance with the statute, and therefore cannot prevail in this action. It has been uniformly held in numerous deArgued before CORNISH, C. J., and cisions of this court that such a description SPEAR, HANSON, PHILBROOK, MORin a deed is utterly ineffectual to pass any RILL, and WILSON, JJ. title to any specific tract or acre in the town P. B. Gardiner, of Bangor, and J. S. Wil- ship or to convey any title whatever. Larraliams, of Guilford, for plaintiff. bee v. Hodgkins, 58 Me. 412; Griffin v. CrepRyder & Simpson and C. P. Conners, all of pin, 60 Me. 270; Moulton v. Egery, 75 Me. Bangor, for defendants. HANSON, J. This is a real action, brought to recover a certain tract of land in the 485; Skowhegan Savings Bank v. Parsons, 86 Me. 514, 30 Atl. 110; Millet v. Mullen, 95 Me. 400, 49 Atl. 871; Powers v. Sawyer, 100 Me. 536, 62 Atl. 349. See Hatch v. Hollings For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes worth & Whitney Co., 113 Me. 255, 93 Atl. | ord to disturb the verdict upon the issue in541. The entry will be: Judgment for the defendant. volved, which was purely a jury question, STAHL v. H. G. BARKER CO. Oct. 15, (Supreme Judicial Court of Maine. 1920.) Appeal and error 1002-Verdict on conflicting testimony not disturbed. Where the evidence on an issue of fact is conflicting, the appellate court will not disturb the verdict based thereon. HAHNEL BROS. & Co. v. ALFRED HAN- (Supreme Judicial Court of Maine. Oct. 15, 1. Appeal and error 901-Appellant has burden of showing error in finding in equity. On appeal from a decree in equity, the decision of the single justice on a matter of fact On Motion from Superior Judicial Court, should not be reversed unless the appellant Lincoln County, at Law. Trover by Ida C. Stahl against the H. G. Barker Company. Verdict for plaintiff, and defendant moves for a new trial. Motion overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and WILSON, JJ. George A. Cowan, of Damariscotta, for plaintiff. Ralph W. Farris, of Augusta, for defend ant. PER CURIAM. This is an action of trover to recover the value of an opossum skin coat which the plaintiff delivered to the defendant to be made over. On completing the work the defendant sent the coat to the plaintiff by parcel post, and from the evidence it appears that the coat was lost in transit, and this suit followed. The jury returned a verdict for the plaintiff of $360.50, and the case is before the court on a general motion. The main issue was upon the method of delivery of the coat to the defendant when the work should be completed. The plaintiff contended that she told the agent of the defendant with whom the contract was made that, if he would let her know when the coat was done, she would call for it and pay for the coat. The defendant does not deny that such was the understanding when it received the coat, but says that later the plaintiff telephoned the defendant that it was getting late in the winter, and she would not be able to come, and "as soon as it was done she wished us to send it to her." This the plaintiff denies. The case was tried with that issue paramount, as appears by the ruling of the presiding justice denying the defendant's motion for a directed verdict. The jury believed the plaintiff's testimony, and we find no reason appearing in the rec sustains the burden placed upon him of show- full amount claimed reduced in accordance Where the parties had filed a binding admission in the court below that, if it were found that the last work was done on a date stated, judgment should be rendered against the owner of the mechanic's lien demand for the amount of the bill less a stated credit, and the trial justice must necessarily have found the hypothetical fact to render decree for plaintiff, a decree for the full amount without allowance of the credit must be reduced on appeal. Appeal from Supreme Judicial Court, Kennebec County, in Equity. Suit by Hahnel Bros. & Co. against Alfred Hanson & Son, the First Congregational Church of Gardiner, and others, to enforce a mechanic's lien. Decree for plaintiffs, and defendant First Congregational Church of Gardiner appeals. Decree modified by reducing the amount, appeal dismissed, and bill sustained. Argued before SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. Getchell & Hosmer, of Lewiston, for appellant. McLean, Fogg & Southard, of Augusta, for appellees. HANSON, J. This is a bill in equity brought to enforce a lien claim for work done and materials furnished in repairing the First Congregational Church of Gardiner. Alfred Hanson & Son were the contractors. The bill alleges: "That, at the special instance and request of said defendants, Alfred Hanson and Henry A. Hanson, the plaintiffs, furnished certain material to the value of $1.264.98 in repairing and improving a certain building with the appurtenances, standing upon a lot of land owned For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) by said association or corporation otherwise [2] But it is apparent from the record that the owner of which is to the plaintiff unknown, in settling the decree the sitting justice overwhich lot of land is situated in Gardiner, in looked the fact necessarily found that the said county of Kennebec, located on Bruns- last work "was done on December 15, 1917," wick avenue, so called, in said Gardiner," and and ordered judgment for the full amount "that said materials were furnished by consent of said Congregationalist Church Society, claimed as above, when the same should so called, the owner of said building and land, have been reduced by deducting therefrom and by virtue of a contract with said Alfred $250 as provided in the foregoing admission. Hanson and Henry A. Hanson, who were not The decree will be modified by reducing the at the time said materials were furnished the amount so found to be due from $1,264.98 to owners of said building and its appurtenances $1,014.98, and ordering judgment against Alnor the lot or land on which said buildings and fred Hanson & Son for $250, with interest its appurtenances stand." from the date of the bill. Appeal dismissed. The cause came on to be heard on February 19, 1919, and in addition to the documentary evidence there was entered of record an admission to be binding on both parties, which reads as follows: "It is agreed that if on the allegations in the bill, supplemented by evidence of the fact that the last labor under the slating contract mentioned as the first item on the bill was done on December 15, 1917, for labor and materials furnished, judgment can be rendered against the church on the lien demand so reserved for the amount of the bill less $250, and judgment against Alfred Hanson & Son for the balance." The sitting justice in his decree found that the plaintiffs have a valid mechanic's lien upon said land and buildings for the sum of $1,264.98, and interest from the date of the bill, from which decree the defendant appealed. The record discloses that there was controversy as to whether the lien claimed had been seasonably perfected; the plaintiffs contending that some of the labor performed and material furnished under the slating contract were actually done or furnished on December 15, 1917. The defendants contended that the lien was not preserved and cannot be enforced, because it is alleged in the bill that the last items were furnished on the 20th of November, 1917, and that the statement required by statute was filed in the office of the city clerk of Gardiner more than 60 days after the last labor was performed or materials furnished. [1] The sitting justice sustained the plaintiff's contention, and, as to the facts so found, the decree must stand unreversed, because the defendants have failed to maintain the burden of showing that the decree is clearly wrong. "He "The decision of a single justice upon matters of fact in an equity hearing should not be reversed unless it clearly appears that such decision is erroneous." "The burden to show the error falls upon the defendant." must show the decree appealed from to be clearly wrong, otherwise it will be affirmed." Young v. Witham, 75 Me. 536; Paul v. Frye, SO Me. 26, 12 Atl. 544; Hartley v. Richardson, 91 Me. 424, 40 Atl. 336. Bill sustained. Decree in accordance with this opinion. SNOW et al. v. GOULD et al. (Supreme Judicial Court of Maine. Oct. 15, 1920.) I. Specific performance 121 (10)-Evidence held to show abandonment and rescission of contract. In a suit for the specific performance of a contract of defendant's intestate and others, the express purpose of which was to settle the rights of the parties in an intestate estate, evidence that the parties had not performed the agreement during four years thereafter, during which time defendant's intestate died, with a letter from plaintiff, acquiescing in delay of performance until further conversations between the parties which were not shown to have occurred, held to sustain the finding of rescission and abandonment of the contract necessary to sustain the trial justice's decree for defendant. 2. Appeal and error 901 show decree was clearly wrong. Appellant must In an appeal in equity from the decree of a sitting justice, the appellant has the burden of showing the decree to be clearly wrong, especially when the credibility of witnesses who testified personally before the justice is in issue. Appeal from Supreme Judicial Court, Knox County, in Equity. Suit for specific performance by Edward S. Snow and others against Edward K. Gould, as administrator, and others. From a decree dismissing the bill, plaintiffs appeal. Appeal dismissed. Argued before CORNISH, C. J., and HAN. SON, PHILBROOK, MORRILL, and WIL SON, JJ. Charles T. Smalley, of Rockland, for appellants. Edward K. Gould, of Rockland, for appellees. HANSON, J. This is an appeal from the final decree of the sitting Justice, dismissing a bill in equity brought to compel specific For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes performance of a written contract between appellants and defendant's intestate. The contract follows: "This agreement made at Rockland, Maine, 17, 1912: "Whereas, owing to the death of the late Lucy A. Snow, it is deemed necessary and expedient to adjust certain matters at issue between Lavinia M. Snow and the heirs of Lucy A. Snow. "There are certain papers of record at the Knox county register of deeds consisting of deeds, assignments, mortgages and bonds for deeds executed to Lucy W. Snow, Lavinia M. Snow and C. G. Moffitt and now standing by assignment in the name of Lavinia M. Snow. "It is the intent of this agreement to make a settlement of all these matters as they pertain to Lavinia M. Snow and Lucy A. Snow, in order to avoid confusion in the settlement of both estates in the future. "Following is the agreement: "First. That the deed to Lavinia M. Snow of the interest of Lucy A. Snow in the South Marine Railway shall stand and remain the sole property of Lavinia M. Snow. "Second. A mortgage of sixteen hundred twenty-one (1621) dollars, and interest at five per cent. (5 per cent.), shall be executed on the property known as the Pleasant street property, in favor of Lavinia M. Snow. "Third. The said Lavinia M. Snow agrees to deed back to the Lucy A. Snow heirs certain quarry property covered by deed, now recorded at Knox county register of deeds, to Lucy W. Snow and assigned to Lavinia M. Snow, also to cancel or discharge a mortgage in favor of Caleb G. Moffitt and assigned to Lavinia M. Snow for five hundred (500) dollars, also a mortgage for fifteen hundred (1,500) dollars in favor of Lucy W. Snow and assigned to Lavinia M. Snow, both on the Pleasant street property. "By this agreement it is intended to make a final settlement of all the matters which are now somewhat in doubt, and to form a basis for the settlement of the estate of Lucy A. Snow." The record shows that in November, 1912, while the condition of the parties remained as before the contract that, defendant's intestate declined to carry out the terms of the contract and repudiated the same. Correspondence followed, in which Edward S. Snow inquired the "reason" for such refus al, and on receiving an answer wrote defendant's intestate as follows: "Boston, Mass. house if you prefer and let them stay there. Regarding the deeding of the quarry property the signing of the agreement is binding to all of us there is no need to do anything about it now. I prefer to let it wait and I am glad you did not make out any deeds to the individual heirs. Perhaps when it is done it can be arranged so that it cannot be sold with the consent of the other owners or of the administrator. Wouldn't you like to come up and stop with us this winter. Would you be willing to buy the part of the house Annie deeded to C. W. Snow. This would settle the whole matter and would prevent Mary from being there. "Sincerely yours, E. S. Snow." There was oral testimony on each side as to the circumstances attending the contract, and from the record it appears that from the date of the above letter until the demand upon the defendant before the bringing of the bill, no steps were taken to enforce any claim or right under the contract. The defendant's intestate died about 41⁄2 years after the date of the contract. During these years Edward S. Snow does not appear to have sought an interview with his aunt "to talk over" her refusal to sign deeds or in any manner to have the terms of the contract complied with.. [1] The sitting Justice made no finding of fact, but having before him all the witnesses and documentary evidence, and considering, as he must have, the appellee's claim of fraud, rescission, and abandonment, it is very clear that the decree is well founded, and especially so upon the grounds of rescission on the part of defendant's intestate, and abandonment upon the part of the appellants. The last section of the contract declares: "That the intention of the agreement was to make a final settlement of all matters which are now somewhat in doubt, and to form a basis for the settlement of the estate of Lucy A. Snow." An intent necessarily to settle with defendant's intestate during her life, and not with her administrator, and to settle in a reasonable time an intestate estate then being settled in probate court. Waiting more than 4 years under such circumstances is in itself evidence of abandonment. [2] In an appeal from the decision of a sitting Justice, the appellant has the burden "Dear Aunt Lavinia: Your kind note at hand of showing the decree to be clearly wrong. and noted. I do not blame you one mite and especially when the credibility of witnesses I have already taken the matter up with Annie is an issue. In this case the credibility of and something will be done. Do not sign the the witnesses was an important issue. The deeds as we understand the matter until you sitting Justice had the advantage of observaget ready. In fact in thinking the matter over tion of the persons testifying, and their tesI have decided that it is better to leave it as timony, weighed by him, must have aided it is until we can talk it over. If you should in forming his judgment. It is sufficient to sign now it would only make trouble. Mary say that the testimony as a whole satiswould get hers, sell it to any one right away and it might make trouble for us all. Regard-fies us that the decree of the sitting Justice ing the trouble you are having it is a shame and is justified by the record. Hartley v. RichI shall see what I can do. Mary will have to ardson, 91 Me. 424, 40 Atl. 336. be brought up here or you can come up to our Appeal dismissed. |