Hamilton v. Smith , 126 Me. 607 ( 1927 )

On motion. Action of special and general assumpsit to recover money paid for defendant.

■ The plaintiff, owning a farm which had been attached by a fertilizer company to recover for fertilizer sold, sold it to. one Holmes upon the agreement that a first mortgage would be given by the vendee to a Federal Land Bank, the proceeds of which should be used to settle the plaintiff’s indebtedness to the fertilizer company, and a second mortgage given by the vendee to the plaintiff to secure the rest of the purchase price. The deed of the farm and the two mortgages were recorded in April before the loan by the Federal Land Bank had been completed and pending the perfecting of the Bank’s title. Subsequent to the recording the defendant took from Holmes a crop mortgage for that season, the plaintiff agreeing to waive his rights as second mortgagee. In August the Bank refused to complete the loan unless the 1924 tax on the farm, which had not been paid, was paid. The plaintiff testified that he refused to pay the tax and the defendant, in a conversation which the plaintiff had with him or his attorney, promised that he would take care of the tax and to obtain a record payment of the tax the plaintiff gave to the tax collector his note for the amount of the tax. The defendant did not pay the note and the plaintiff did. The defendant testified that he had not by himself or by authority, given his attorney, agreed to pay the tax and claimed that the plaintiff paid the tax in order to insure a loan which would be largely for his benefit.

O. L. Keyes, for plaintiff. R. W. Shaw and John B. Roberts, for defendant.

The jury gave a verdict for the plaintiff for the full amount paid on the note. Case comes up on general motion.

The issues raised are of fact only. The witnesses were the plaintiff, defendant and his attorney. The evidence was conflicting but it was for the jury to say on which side was the greater weight of evidence. They passed upon the credibility of the witnesses and upon such corroborative evidence as was offered. We cannot say they, who saw and heard the witnesses, erred in giving greater weight to the evidence of the plaintiff. Sufficient evidence appears in the record, if believed, to warrant the verdict. Motion overruled.