114 Me. 521 | Me. | 1916
In this action of assumpsit the plaintiff seeks to recover the price of goods sold, and profits, as per contract, on goods manufactured, and damages for breach of contract to manufacture other goods and divide the profits. The verdict was for the plaintiff, and the amount of the verdict shows that the jury-awarded a substantial amount on each of the several classes of claims. The case comes before this court on defendant’s exceptions and motion for a new trial.
The plaintiff bases its right to recover for the first two classes upon a written contract. The defendant denies that such a contract as claimed by the plaintiff ever existed. The first exception relates to the admissibility of oral testimony for the consideration of the jury of the existence and contents of the alleged contract. Such testimony was admitted. And the correctness of the ruling should be decided at the outset, because if the admission was wrong, the foundation for the larger part of the plaintiff’s claim is swept away, and it will be unnecessary to examine the evidence on this branch of the case under the motion.
Mr. Holmes testified as follows: “It was an agreement entered into between the St. Croix Company and the Seacoast Canning Company, whereby the St. Croix Company was to sell what fittings and furnishings were in their factory, the manufactured and unmanufactured stock that was in that factory, for which the Seacoast Company was to pay market prices and invoice price for the fittings and furnishings; that these fittings and furnishings were to be taken to the plant of the Seacoast Canning Company that was to be refitted and operated during the season of 1907, that they were to pack 10,000 cases of the St. Croix Company’s brands; that L. E. Holmes was to be superintendent and manager of the plant at a salary
The defendant contends in argument that “before the contents of a lost instrument can be introduced in evidence, provided its existence is denied, sufficient evidence must be first produced to satisfy the presiding Justice that such an instrument did at one time exist,” that in this case it “had a right to have the question of the existence or non-existence of the document passed upon by the court preliminary to the court’s receiving secondary evidence of its contents.” The admissibility of a given piece of evidence is for the Judge to determine. When its admissibility in law depends on some incidental question of fact, this also is for the Judge to determine. 4 Wigmore on Ev, 3590. When secondary evidence of the contents of a document is offered, its admissibility depends upon proof of the former existence of the document, and that it has been lost or destroyéd or has become inaccessible, and as well upon proof that the requisite diligence has been used and efforts made to find and produce the document. These preliminary questions are all for the court. Whether it is sufficiently shown that the document has been lost or destroyed, and whether proper efforts have been made to find and produce it, are questions addressed to the discretionary power of the court, and if there,be no apparent abuse of his authority, his determination, as in all cases of discretionary authority, is final and conclusive. Camden v. Belgrade, 78 Maine, 204. This is a rule of practice in matters of evidence to be administered according to the discretion of the court. It is not concerned with the final determination of any fundamental issue of fact between the parties. It relates only to the manner of proof, — how, when,- and under what conditions the issue may be proved.
It is also true that before secondary evidence of the contents of a document can be received, it must be proved to the satisfaction of the .court that such a document once existed. But that does not mean that the court’s preliminary determination is final and conclusive. It merely means that the court must be satisfied that there is sufficient evidence on the issue to go to the jury. To determine
The court is to be satisfied that there is sufficient relevant evidence to go to the jury. To what extent the court will hear evidence on the preliminary question is discretionary. It may permit cross-examination. It may hear the evidence on both sides, or not. But in the end, in a case like this, it determines only whether the evidence of the existence of the document is sufficient to go to the jury. The final determination is for the jury. It is not necessary that the court make and announce its determination in so many words. A ruling to admit the secondary evidence involves necessarily a finding that the preliminary question of fact is sufficiently proved to make the evidence admissible. The defendant can take nothing by the exception.
To understand the merits of the case under the motion for a new trial it is necessary to state some preliminary history. Prior to 1905, the Robbinston Packing Company, in which Mr. Holmes and his family were interested, became insolvent, and assigned for the benefit of its creditors. Mr. Holmes likewise assigned. The International Trust Company, of which Mr. Curran was president, was a large creditor. Evidently with a view to protect the interests of the Trust Company, Mr. Curran became interested in the settlement of the estates under the assignments. In the end, a settle
The defendant denies that any such contract was ever made. Mr. Holmes testifies that Mr. Curran and Mr. McCall were both present
Such a contract as the one described was introduced in evidence. Though Mr. Curran and Mr. McCall 'both testify that Mr. Holmes was present when it was executed, Mr. Holmes denies it. He says he never heard of this contract until the case came on for trial. But the defendant introduced in evidence a writing, admittedly signed by Mr. Holmes, for the plaintiff, in which the contract between Mr. Curran and the defendant is distinctly referred to, and in which “the St. Croix Company agrees that the brands heretofore packed by it may be packed under said contract [of Curran] with the Seacoast Canning Company and assents to all the conditions of said contract so far as the same in any way affects the St. Croix Company.” And it may be said here that except in the particular of the sale of the fittings, furnishings and stock manufactured and unmanufactured, which Mr. Holmes testified was embraced in the contract he signed, and of which some items were embraced in the Curran contract, the two contracts would work out essentially the same result. For the profits of the Curran contract, under Mr. Curran’s version of his understanding with Mr. Holmes, would in equity have belonged to Mr. Flolmes, and Mr. Curran would have been accountable to him for them. And except in name and legal ■entity, Mr. Holmes seems to have been the St. Croix Company. Mr. Holmes attempts to explain how he came to sign the writing of assent, dated May 6, quoted above. He says that paper “was given
Upon the whole evidence, the fact that Mr. Curran was the legal owner of the property, the contract itself, the testimony of Mr. McCall and Mr. Curran, supported and emphasized by Mr. Holmes’ written assent, we can entertain no doubt that the Curran contract was made and executed on or about its date. To .conclude otherwise would be absolutely to disregard the effect of evidence, which the court will not do, and the jury have no right to do.
As already shown the two alleged contracts embrace for the most part the same subject matter, and as to matters embraced, they are inconsistent. It could not have been intended that both should be in force at the same time. Starting then with the premise which we find established, that the Curran contract of May 6 was made and signed by the parties to it, we are forced to take one of two alternatives, either that there was no prior existing contract, or if there was, that the Curran contract was intended to be substituted for it. Either conclusion is fatal to the plaintiff’s contention. It is true that the Curran contract was afterwards repudiated by the management of the Seacoast Canning Company, and was thereupon cancelled by Mr. Curran. But that did not revive the prior contract, if any such there was.
We have not overlooked the fact that in April, 1907, there were various conferences and negotiations among the parties interested looking to the taking over and the operation of the St. Croix plant by the defendant, nor that Mr. Holmes testifies that prior to May 6 he had begun to move, or to prepare to move, material and stock from the St. Croix factory to the defendant’s. It may well be that the parties confidently expected that a satisfactory arrangement would be made, and, in the interest of time, anticipated the execution of the formal contract. The plaintiff claims that-the conduct and correspondence of the parties are strong confirmatory evidence of the contract which Mr. Holmes says was made. But however that may be, we must find that all prior understandings and negotiations
Our conclusion then is that the jury were not warranted in finding that any contract was in existence after May 6, except the Curran contract. But for reasons already stated, that contract was never performed. It was abandoned. It follows that the basis of the plaintiff’s claim for the price of goods sold and delivered, as under the alleged April contract, and for a share of the profits for the season of 1907 is shattered. And the case discloses no evidence to support the claim in the third and fourth counts of the writ, based on a subsequent contract by the defendant to can 10,000 additional cases of sardines.
But the defendant did receive several thousand dollars’ worth of goods and stock from the St. Croix plant which it was bound to pay for to somebody. Since the April contract, if made, was no longer in force, we look further for the evidence of a sale. And we think it clearly appears that after the Curran contract was can-celled, the parties made new arrangements. The defendant purchased of Mr. Curran a large amount of material and stock, at prices agreed upon between them. And Mr. Holmes went to work for the defendant as foreman at $18 a week, instead of as superintendent at $1000 a year, as he says the original contract stipulated. Mr. Curran, holding the legal title, had the right to sell, and to agree upon a price, and his sale was valid as to the purchaser, without notice of any equitable infirmity in his title. Besides Mr. Holmes testifies that Mr. Curran was acting for the plaintiff in all this matter. - So that whether he sold as owner, or sold as agent, his acts were valid as to third parties, in the absence of any proof of fraud. If Mr. Curran exceeded his authority, the plaintiff must look to him. It appears that the defendant paid Mr. Curran the agreed price, and that Mr. Curran applied it in reduction of the obligations he was under as endorser for the plaintiff. Later the
The jury found for the plaintiff for every one of its claims, proved •or unproved. We think the verdict was unmistakably wrong. Whether it was due to misunderstanding of the facts, or of the law, or due to prejudice, we have no occasion to inquire.
It is unnecessary to consider the remaining exceptions.
Motion for a new trial sustained.