Dudley v. Poland Paper Co. , 90 Me. 257 ( 1897 )

Walton, J.

When goods are sold to be delivered at a place named at a future time, and, before delivery, they are accidentally lost or destroyed, it often becomes a difficult question to determine whether the buyer or the seller must bear the loss. If at the time of the loss the title had passed to the buyer, he must bear the loss; otherwise the seller must bear the loss. But in many cases it is extremely difficult to determine whether or not the title had passed to the buyer.

This is such a case. The plaintiff agreed to furnish the defendant with a large quantity of pulp wood, to be delivered into the Androscoggin river during the spring of 1895. And a large quantity was so delivered. But some of the logs which had been surveyed remained upon the banks of streams leading into the Androscoggin river, and the next fall or winter were carried out to sea by a freshet and were lost. The question is whether, under the circumstances disclosed by the evidence, the plaintiff or the defendant must bear this loss. The plaintiff claimed in his writ that there was due him a balance of $2,095.25. He obtained a verdict for $969.38. How the jury reached this result we do not know. Perhaps they thought it would be equitable to apportion the loss. One of the questions is whether this verdict is so clearly wrong as to require us to set it aside and grant a new trial. We do not think it is.

The defendant insists that the form of the action is such that the plaintiff should not be allowed to recover. We think the form of the action is well enough. The writ contains a count on an account annexed in which the various lots of logs sued for are accurately specified. Such a form of declaring is sufficient when the goods sold have been delivered, and by the terms of the sale the price of the goods was to be paid in money. When the price of the goods sold was to be paid otherwise than in money, then a special count is necessary. But when, as in this case, the plaintiff claims that the goods have been delivered, and the price is payable in money, a count on an account annexed is sufficient. This mode of declaring has long been sanctioned in this and other states, and its sufficiency in a case like this can not now be questioned. Cape Elizabeth v. Lombard, 70 Maine, 396.

We think the defendant’s requested instructions were properly withheld. If they had been given, the effect would have been equivalent to a nonsuit. We think the evidence was such as to justify submitting the case to the jury; and, as already stated, we do not think their verdict is so clearly wrong as to require us to set it aside.

The defendant claims that evidence was improperly excluded. The record fails to show that the evidence referred to was excluded. Its admissibility was only reserved for further consideration, and it was not again offered. What took place was this: John Reed, a witness for the plaintiff, was asked on cross-examination to state whether it was the custom on Swift river, and wherever he had driven, before putting wood into the streams to drive, to know whether the booms at the place of destination were out or not. The plaintiff’s counsel objected, and the court said, “ Omit that for the present.” The defendant’s counsel then put substantially the same question in another form, and the court said, “ If that becomes material you may recall him ; I will save your rights in the matter.” And later in the trial the court allowed the defendant to introduce evidence of the custom referred to. And Mr. Reed was again put upon the stand, but the question was not again asked him. The right to again offer the testimony of Mr. Reed upon the point was reserved to the defendant, and Mr. Reed was again upon the stand, and the defendant had an opportunity to again offer his testimony in relation to the custom; and if the defendant had again offered it, we can not entertain a doubt that it would have been received.

But we rest our decision upon the ground that a postponement is not an exclusion; that when the admissibility of evidence is reserved for further consideration, and it is not again offered, and the attention of the court is not again called to it, an exception can not be sustained on the ground that it was excluded. We hold that in such cases postponement is not exclusion, and can not be so treated.

Motion and Exceptions overruled.