108 Me. 347 | Me. | 1911
Under the count for money had and received it is incumbent upon the plaintiff to prove not only the receipt of the money by the defendant, but also that it was received by him to plaintiff’s use— that is, the plaintiff’s title to it. II Starkie on Ev. (Met. Ed.) 106; II Saund. on PL & Ev., pages 364, 371; Hearne v. Hearne, 55 Maine, 445, 447.
It is well established that a note, negotiable and expressing value received, may be given in evidence in support of the counts for
Vagueness and indefiniteness of proof are as much an objection to sustaining a count for money had and received as they are in other actions: Perkins v. Cushman, 44 Maine, 484, 491. A proposition is not proved so long as the evidence furnishes ground for conjecture only, or until the evidence becomes inconsistent with the negative. To choose between two possibilities is guess work, and not decision, unless there is something more which may lead a reasoning mind to one conclusion rather than to the other. McTaggart v. Railroad Co., 100 Maine, 223, 230, 231: See also Steward v. Church, 108 Maine, 83; Smith v. Lawrence, 98 Maine, 92, 97; Seamy v. Laughlin, 98 Maine, 517, 519. See also Haskins v. Haskins, 9 Gray, 390, 393.
A careful examination of the evidence in this case makes it manifest that the verdict cannot stand. Irrespective of the presumption arising from possession of the notes by the testator and the express statement in the specifications of the plaintiff that the notes were sold to the testator and disregarding also the testimony of the attorney of the testator that testator bought and paid for the notes and the testimony of plaintiff after the notes were transferred by defendant that he stated to defendant’s attorney that the amount paid to her was too large (which was clearly incompetent, Goddard v. Cutts,
Motion sustained.
Verdict set aside.