137 Me. 148 | Me. | 1940
The defendant brings this case before the court on exceptions to the finding and ruling of a justice of the Superior Court, acting pursuant to Section 26 of Chapter 91 of the Revised Statutes (1930), who decided the cause without the aid of a jury and ordered judgment for the plaintiff for the full amount of the draft on which the suit is based.
The plaintiff asks that the exceptions be overruled on the authority of Frank v. Mallett, 92 Me., 77, 42 A., 238, 239, where defendant, after exceptions alleged by him had been disallowed, sought to have them established in this court, in accordance with the provisions of what is now Section 24 of Chapter 91. His petition was dismissed in accordance with the well-established rule of law that “when a cause is tried by the presiding justice without the intervention of a jury,” in accordance with the statute now in question, “exceptions to his rulings in matters of law do not lie, unless there has been an express reservation of the right to except.”
This rule dates back to 1855 when, shortly following the enactment of the statute, originally found in Section 12 of Chapter 246 of the Public Laws (1852), it was first declared by a member of the court who had served prior to his judicial appointment as chairman of a commission authorized by the legislature to consider and report upon the consolidation of the District and Supreme Judicial Courts in language which may be considered as a reliable exposition of the legislative purpose:
“The obvious intention of the Legislature, was to make the adjudication of the presiding Judge final and conclusive. This section confers on the presiding Judge the power to determine all causes, when both parties agree and enter their agreement*150 upon the docket, and that he shall direct what judgment shall be entered up. No exceptions are given in terms and the whole language of the Act shows none were intended. The design was to make his decision the end of all controversy, not that the losing party, after having agreed to submit to the decision of the Judge, and that he should direct what judgment should be entered up, should be permitted indefinitely to renew litigation. The decision of the presiding Judge in all matters of law or fact, submitted to his determination under this section, is final.” ■ •
* * *
“The parties may agree that the presiding Judge shall hear the cause, and upon hearing decide the facts, reserving by express stipulation the right to except to his ruling as to any question of law which may arise.” Proprietors of Roxbury v. Huston, 39 Me., 312.
In the application of this precedent the court has heretofore determined that the certification of exceptions by the justice hearing a cause shall be conclusive in this respect in the absence of anything in the bill of exceptions to show the contrary. Dunn, v. Motor Co., 92 Me., 165, 42 A., 389; State v. Intox. Liquors, 102 Me., 385, 67 A., 312; Waterville Realty Co. v. City of Eastport, 136 Me., 309, 8 A., 2d, 898. The record before us is silent on the point but we note that thirteen exceptions on questions of evidence were taken in the course of the hearing and that counsel for the plaintiff who state in their brief, as the record supports, that the bill of exceptions was agreed to by them “as to form only” were allowed ten of them. In a case where counsel for both parties so obviously laid the groundwork for coming to this court on exceptions, this practice seems obviously just and proper. The endorsement “seen and agreed to as to form only” can hardly be expected to bring before a justice, to whom a bill of exceptions is presented for allowance, the question as to whether or not the docket entry by which the cause was submitted to him reserved the right of exceptions. We think the better practice in any case where no such reservation had in fact beeli noted would be to object to the allowance and call direct attention to the docket omission.
The decision here recites no factual findings but it must be based, as the second and third exceptions allege, either upon a finding of fact that the draft in question was a sight draft or upon a ruling of law that it should have been handled by the defendant as such. This court may properly disregard the former since a copy of the draft is in evidence and recites the terms of payment clearly in the words “Net cash ten days from arrival.” The issue arises under the third exception which alleges error of law in the finding that the defendant “wrongfully released the bill of lading attached to the draft.”
The action is assumpsit, brought by the plaintiff in his capacity as trustee for a manufacturer, to recover on a draft delivered to the defendant bank for collection with a bill of lading attached. Plaintiff was acting under a three-party trust agreement, of which defendant had full knowledge, which recited a purpose to secure all credit advanced to the manufacturer; conferred authority on the trustee to pledge “sight drafts with bills of lading attached” with
Upon these facts it is apparent that the decision below was based upon a ruling of law that the provisions of the trust instrument required that the defendant handle the particular draft as a sight draft notwithstanding the credit terms stated in the draft and invoice. Defendant’s third exception raises squarely, within the rule laid down in Sardine Co. v. Olsen, 117 Me., 26, 102 A., 797, the question of error of law in the interpretation of that document. The decision can only be supported if, as a matter of law, the defendant was limited to extending credit to the trustee against sight drafts or, accepting drafts which on their face extended credit, to handling such as if they were drawn at sight.
We do not believe, upon a consideration of all the facts, that such an interpretation was either necessary or proper. Not only was the purpose of the trust a limited one which the evidence discloses has been fully accomplished, but the record discloses that the limitation imposed upon the trustee for negotiating loans upon the basis of
The manufacturer, who is now the sole beneficiary of the trust, will become entitled to the entire proceeds thereof upon certification to the trustee of the facts disclosed in the record. It would be an anomaly to permit the plaintiff, notwithstanding his own assent to the use of a time draft, to recover of this defendant, for the benefit of a cestui who as against the defendant is clearly barred from retaining it, the amount of the draft in question. Under these circumstances we believe a proper construction of the trust instrument is that the word “sight” was not intended to be a limitation for the benefit of the cestuis que trustent, but was incorporated in the instrument for the convenience, if not for the protection, of the defendant and imposed no limitation except one which the defendant, at the request of the trustee and beneficiary certainly, if not at the request of the trustee alone, was fully entitled to waive. The mandate must be
Exceptions sustained.