Brown v. Moran , 42 Me. 44 ( 1856 )

Tenney, J.

In the action of assumpsit, which was to recover payment for work and labor done, and materials furnished for building certain houses, and for that part of the materials furnished for that purpose which had been removed by the defendant, the verdict was for the plaintiff, and exceptions were taken to the instructions of the Judge, and a motion filed, that the verdict be set aside. Those exceptions are not relied upon. No copy of the motion has been presented to the Court; but it is understood from the argument, that the ground of the motion is, that the verdict should have been for the defendant, because the payments made by him exceeded the amount of the value of the labor and materials furnished by the plaintiff; but, if not so, because the verdict for the plaintiff was unreasonably large.

At the trial, evidence was introduced in the opinions of witnesses, touching the work done by the plaintiff, and that left undone, according to the contract made between him and the defendant, and the value of each part; and also in relation to work done and materials furnished, in alterations agreed upon, and extra work performed, and the value thereof. The jury inspected the buildings for the purpose of more fully understanding the facts in controversy. Their general knowledge of such matters, and that obtained from inspection, may have essentially controlled and corrected certain opinions, expressed by witnesses, and enabled them to form an opinion differing in some respects from those given in evidence. When all the facts and circumstances, presented by the report, are considered, we are not satisfied that the jury were influenced by such causes as are held authority to the Court to disturb verdicts, and it is not shown, that they failed to understand the evidence adduced.

The two actions were commenced on the same day, and that of trespass was for causes embraced in the one of assumpsit, which was first tried. Exceptions were taken by the plaintiff in the action of trespass, the verdict having been for the defendant, upon a plea of the general issue, and a former recovery, and upon evidence introduced, by both parties.

The plaintiff had the benefit, which he sought, on account of the materials alleged to have been removed by the defendant, in the action of assumpsit, proof having been offered and introduced therein without objection of any kind. It does not appear, that any obstacle to a recovery was presented in any ruling or instruction of the Judge; and if the evidence satisfied the jury, that the defendant had the benefit of the materials, it was included in the damages found; if otherwise, the matter was passed upon by them, and became res adjudicata, so far as a verdict could make it so.

In the tidal of the action of trespass, the writ, bills of particulars, which had been presented in evidence in the action of assumpsit, the verdict, and the whole proceedings of record therein, were submitted to the jury without objection; and they were instructed that the plaintiff was not entitled to his pay twice for the same materials, and that he could not recover in this action for any of the articles and materials furnished for building the houses, which were embraced in, sued for, and proved in said action of assumpsit, between the same parties.

No objection was made to the plea of general issue and former recovery, and the evidence introduced without objection, must be understood as given under that issue by consent. The jury therefore had the right to consider the evidence before them, and each party could claim that it should be so considered; and the instructions in this case, in effect, were no more than to allow them to come to such a result in their verdict, as they should find the facts to warrant. No question was made during the trial and the introduction of the evidence in either of the cases, whether assumpsit could be maintained for the labor and materials furnished for building the defendant’s houses, if he, as a trespasser, intermeddled with the plaintiff’s materials. The proofs were offered, the trials proceeded and the juries were charged, on the idea, that such action could be maintained without any objection; and it is difficult to perceive how the plaintiff was aggrieved by the instructions in the action of trespass, at the time they wore given.

The instruction requested by the plaintiff’s counsel, and refused, was, that it was not competent for the plaintiff to have recovered, in the action of assumpsit, for the articles which were the cause of action in the writ of trespass, unless the defendant actually sold the articles taken. This might have been a proper instruction for the defendant to have requested in the action of assumpsit. But he did not invoke the principle embraced in the request, but was willing that the plaintiff’s claim should be wholly considered in the case in which it was made. The party now making the request for this instruction, brought his action of assumpsit for those materials, presented his proof in support of the claim, without objection, and after securing his verdict, upon which he now asks judgment, insists that the claim for these materials could not be supported in that action. The law does not lend its aid, in support of such an absurdity, to work injustice.

An exception was taken to another ruling, at the trial, but it is understood to bo abandoned by the plaintiff.

In the action first named,

jExceptions and motion overruled.

In the other action,

Exceptions overruled.

Rice and Appleton, J. J., concurred.