125 Me. 386 | Me. | 1926
This is an action in assumpsit on an account annexed to recover payment for six hundred sixty and five elevenths (660 5/11) barrels of potatoes which plaintiff claims were sold and delivered to the defendant. The price per barrel, as charged by the plaintiff, is eight dollars, mailing a gross debit of five thousand two hundred eighty-three dollars and sixty-four cents, ($5,283.64). Credits given amount to one. thousand four hundred ninety-six dollars and seventy cents, ($1,496.70), leaving a balance of three thousand seven hundred eighty-six dollars and ninety-four cents, ($3,786.94).
The defense is twofold. First, that the plaintiff, by setting forth three counts in his declaration, viz., (a) account annexed for goods sold and delivered, (b) quantum meruit, (c) omnibus count, is seeking to recover upon an implied contract, whereas in fact and in truth, as defendant claims, there was an express contract between the parties which was recognized, accepted, and operated under by both of them, and by which the plaintiff was bound; hence that there could be no implied contract, under the familiar legal principle that where an express contract exists there can be no implied contract. Broom’s Legal Maxims, 7 Am. Ed., 651; Holden Steam Mill Co. v. Westervelt, 67 Maine, 446; Prest v. Farmington, 117 Maine, 348. Second, that the damages assessed by the jury were excessive.
Express Contract. The plaintiff is a farmer, owning and operating a farm at North Newport, Maine. The defendant is a corporation, having its main office at 990, Noble Avenue, Bridgeport, Connecticut. In the latter days of December, 1924, or the early days of January, 1925, Mr. J. E. Sullivan, farm superintendent for the defendant, prepared a written contract to be executed by the parties hereto, which the plaintiff signed. This contract was then sent to the Bridgeport office of the defendant where it was held until the spring months of 1925. Bearing the signature of the defendant, it was returned to the plaintiff in May, but the latter said he did not then like it, because of changes made in it and would not have anything to do with it. When signed by the plaintiff it provided, among other things, that the plaintiff was to plant twenty acres of potatoes on his farm, to do all the labor in preparing the land for planting, to haul the fertilizer, seed and spray materials, and to cultivate, spray, dig, harvest, and deliver the crop to the defendant. When thus delivered, one half of the same was to become the property of the defendant and the other half was to be the property of the plaintiff. Still referring to the contract as signed by the plaintiff, it was therein provided that the defendant was to furnish the plaintiff one hundred twenty barrels of seed potatoes, and that the plaintiff, out of the half crop belonging
Whether a contract was entered into by the plaintiff and the defendant, and the terms thereof if made, were questions of fact for the jury, and when submitted with proper instructions as to the force and effect of the testimony, the acts and conduct of the parties, the degree of credit to be given to witnesses, and the explanations of their acts and conduct, the finding of the jury must be binding upon the parties, and the court should not substitute its judgment for that of the jury, unless such finding was clearly wrong because based upon .bias, prejudice, or plain misunderstanding of the evidence and the law governing the case. Darling v. Bradstreet, 113 Maine, 136. No exceptions were taken to the charge of the presiding Justice and we must assume that his instructions were complete and correct. In order to arrive at the verdict which was rendered the jury must have found that the minds of the parties did not meet, with reference to the alleged written contract, and that an implied contract to pay for the potatoes did exist. We do not find competent reason to set aside the jury verdict and the first ground of defense cannot prevail.
Bxces'sive damages.- From such evidence as we find in the record we are of opinion that the fair market value of the potatoes at the various times of delivery did not exceed four dollars and fifty cents per barrel. At this price the proper debit would be $2,972.05. Deducting the admitted credits, $1,496.70, we have a balance of
So ordered.