Lord v. French , 61 Me. 420 ( 1873 )

Appleton, C. J.

This is a motion for a new trial. As no exceptions are taken to the instructions given, we must assume that they were correct and embraced all the questions of law arising in the case.

It seems the plaintiff on the twenty-eighth day of October, 1867, agreed to purchase of the defendants’ intestate, Hezekiah Means, “ the goods now in the (his) store, at the prices of said goods now in Boston, prices to be settled and delivery given on or before the tenth day of November next.” A bill of the goods was made out by Means and settled for by the plaintiff. As the bill was. made out by Means it was his duty truly to state the Boston prices as specified in the contract. The bill as made out was his representation of those prices. There was evidence tending to show that this bill did not truly represent the then Boston prices. The difference betw'een the bill as made out by Means and the prices as stated by the plaintiff’s witnesses as the then Boston prices, was so great that, with the other testimony, the jury must have found the setttlement and payment for the goods was made in consequence of his fraudulent representations as to prices. In that event, the plaintiff without rescinding the contract, might maintain an action for money had and received, in which he would recover the difference between the price of the goods sold as stated in the bill, and the Boston prices of the same goods as they were at the time of the contract. Cushing v. Bice, 46 Maine, 303. This the jury seem to have done and no reason is perceived for disturbing their verdict. Motion overruled.

Cutting, Walton, Dickeeson, ' BarRows, and Peters, JJ., concurred.