Starbird v. Henderson , 64 Me. 570 ( 1873 )

Appleton, C. J.

This is an action of assumpsit. The writ contained a count upon a note signed by the defendant, dated June 9, 1863, for thirty-seven dollars and fifty cents payable to the plaintiff in one year from date with interest, together with the money counts, upon an account stated, and for work and labor.

The plaintiff was permitted, subject to exception by the defendant, to amend by inserting a count upon a note of hand similar in its terms to the one declared upon, save that it was payable in labor, and alleging a request on the part of the defendant to perform said labor and a refusal on his part so to do.

This amendment was properly allowed. The note in suit was not properly described. The misdescription was corrected.

The case was referred to the justice presiding with the right to except. No ruling is stated to which exception has been taken. The case comes before us upon a motion to set aside the judgment of the justice presiding as against evidence. But the evidence cannot properly be reported for the revision of the law court as to the correctness of his decision upon the facts. His adjudication upon them is final. Motion and exceptions overruled.

Walton, Barrows, Dickerson, Virgin and Peters, JJ., concurred.