104 Me. 184 | Me. | 1908
This was an action of trespass with a count also in trover, the writ being the same as in Young v. Chandler, 102 Maine, 251.
Upon trial of the cause before a jury the verdict was for the defendant.
The case is before the court on motion by the plaintiff for a new trial, and on exceptions to the charge of the presiding Justice.
The motion for a new trial would seem to have no sufficient basis since the issues were peculiarly within the province of the jury.
In the decision of the court above referred to, it was held that the greenhouse had become a part of the mortgage security and by foreclosure the defendant became the owner by accession as there was no evidence of his consent that the greenhouse should remain personal property after annexation. There being nothing in the evidence at the second trial to change "the legal aspect of this title, the presiding Justice properly charged the jury that in view of this decision they were to leave the greenhouse entirely out of consideration. The plaintiff’s first exception was to that portion of the charge and cannot be sustained.
It only remains to ascertain whether the plaintiff presents by his other exceptions any error in the charge of the presiding Justice which may have prejudicially influenced the jury in their verdict.
The second exception is to that part of the charge which relates to the abandonment of certain of the property described in the writ. The evidence tended to show that while the plaintiff was removing portions of the greenhouse from,the defendant’s premises the defendant ordered him to desist, making some reference to an official badge which he wore at the time but with no attempt to use actual
The presiding Justice instructed the jury that "the law requires men to use a reasonable amount of diligence and firmness in asserting rights to their property. They cannot, on the simple say-so of some one else, relinquish their personal property and allow that property to go to waste and ruin.”....."Unless his action at that time was that of an ordinarily and reasonably prudent man, a man of ordinary courage and spirit in the assertion of property rights, he could not abandon his property under those circumstances and the property be allowed to go to decay and then recover the value of it.”
The presiding Justice further said :
"Of course if the circumstances were such that he foresaw that a personal collision, a personal encounter would result, he would then be justified in abandoning the property because no man is required to break the law in order to enforce the law.”
It is apparent, therefore, that the jury were not misled by these instructions in reaching the conclusion that the compost and a few of the plants and other chattels which clearly belonged to the plaintiff were intentionally abandoned by him, and that the defendant was not chargeable with any violent act of dominion over them. This applies to a very small part of the property upon which the plaintiff founds his action, since it has been already determined that the greenhouse belonged to the defendant, and uncontradicted evidence in the case tended to show that the greater part of the plants remaining on the premises had been given to the defendant’s wife by the prior owner and so were not included in the property sold by him to the plaintiff.
The third, fourth, fifth and sixth exceptions relate to damages and need not, therefore, be considered, since the jury did not reach that question.
Motion overruled.
Exceptions overruled-
