Shapleigh v. Abbott , 41 Me. 173 ( 1856 )

Tenney, C. J.

The action is assumpsit against the defendants as makers of a promissory note. They severally pleaded the general issue, and filed a brief statement, alleging that the note had been materially altered after it was signed, and without the consent of the makers. The jury found, that one of the makers did not promise, &c., and no verdict was returned for or against the other. The plaintiff filed his motion to set aside the verdict, on the ground that it was incomplete; and also on the further ground that it was against the evidence of the case.

In the case of Thatcher v. Jones & al., 31 Maine, 528, a verdict was returned in favor of one of the defendants only, the jury being unable to agree as to the guilt of the other. The verdict returned was received and affirmed, to which exceptions were taken. That case differs from this only in being an action of tort. No good reasons are perceived for a distinction on this account. The exceptions were overruled in that case, the Court having cited, in support of the result to which they came, analagous cases in actions of assumpsit as well as of tort.

It is a familiar principle, that generally, in actions in form ex contractu against two or more defendants, to entitle the plaintiff to judgment, the verdict must be against all. 1 Chit. Pl. 31-33.

A verdict was rendered for the defendant Pernald, upon a full hearing of the evidence. This was decisive of the rights of the parties in this action, as a verdict could not have been returned against the other defendant, and have been effectual; and Eernald cannot with propriety be subjected to the risk and expense of another trial, on account of the informality of the verdict, or the failure of the jury to agree as to the defendant Abbot.

Whether the note had been altered or not, was a question for the jury. The note was presented and much evidence adduced on one side and the other, as to the condition in which it was, soon after it was signed, and at the time of the trial. Some light might be expected to be thrown upon the question by an inspection of the note itself; and herein the Court might entertain a different opinion from that of the jury, but of this the latter were the judges in connection with the other evidence; and it is not a case, where the verdict can be disturbed. Motion overruled —

Judgment on the verdict.

Rice, Cutting and Hathaway, J. J., concurred.