67 Me. 535 | Me. | 1877
The defendant contends that the verdict against him for $232 is against law and the weight of evidence.
Against law, for the reason that the first item in the account annexed, being for a balance due for intoxicating liquors sold in violation of law, is illegal.. But in the absence of any agreement or understanding to the contrary, the items of the account are not to be regarded an entirety. The action is upon these items as so many distinct and independent demands of different natures and dates; and if the verdict include no part of the illegal item, but is based wholly upon the others, it cannot be held, on the ground claimed, to be against law. Goodwin v. Clark, 65 Maine, 280.
2. Against law and evidence, for the alleged reason that the three barrels of liquor left at the store of the defendant, at Indian Island, N. B., were never bought or paid for by him.
The plaintiff testified in substance that he sold and delivered to the defendant the ninety-four cases and three barrels of liquors specified in (the paper which'he styles) “the memorandum of settlement,” received the several items of credit mentioned therein in payment pro tanto, leaving a “'balance due of $295.81,” the first debit item in the account annexed. And to convince the
The plaintiff also testified in substance that soon after the above named settlement, and just before starting upon a voyage to St. Pierre, he called upon the defendant for the balance of the account; that the defendant said he was short and could not pay then, but that he would, and did honor a draft, during the month, for $226. This sum the plaintiff appropriated pro tanto in payment of the $295.81 “balance,” and it is the first item of credit in the account annexed.
From the fact that the defendant agreed to, and did pay the draft when called upon to pay the balance of the account as it then stood ; that the only indebtment to which it could be applied was this balance; that there is no intimation that either party intended it as a loan — those facts, together with the other settlement and former dealings of the parties, might well lead the jury to the conclusion that the defendant impliedly consented to the appropriation which the plaintiff made.
If the jury, therefore, had thrown out of the account the first item on each side of it — i. e. on the debit side, the $295.81,, because so much as was not paid by the draft, was not recover
Motion overruled.