Varney v. McCluskey , 115 Me. 565 ( 1917 )

This is an action involving the following contract:

“This Indenture made this 19th day of May, A. D. 1913, by and between Alden J. Varney of Hodgdon, Maine, of the first part, and John C. McCluskey of Houlton, Maine, of the second part, Witnesseth as follows, to wit: the said McCluskey agrees to plant on his farm in Houlton, Maine, 25 bbls. or 5 acres of the New Snow Potatoes and to sell and deliver to said Varney all merchantable potatoes grown on said 5 ' acres, excepting 50 bbls. and hold in storage said potatoes until April 1 first, 1914, said potatoes to be stored and delivered free of cost to said Varney at the nearest railway station.

And will further agree to deliver said potatoes at any time before April 1 first, 1914 within two days notice from said Varney, said McCluskey further agrees to plant said potatoes on his best potato soil and to use one ton of high grade fertilizer per acre and to grow one prize acre, said acre to be measured by three reliable men before it is dug. Said men to weigh each barrel of potatoes grown from said acre, said men shall vouch as to the number of pounds grown on said acre. Said McCluskey further agrees to remove the potato tops from several rows of said acre and have a photograph taken of said rows.

R. W. Shaw, and W. S. Lewin, for plaintiff. Hersey & Barnes, for defendant.

Said Varney further agrees to pay said McCluskey fifty cents per barrel for said New Sno>w Potatoes, than is paid for potatoe.' for table use, on the day said McCluskey delivers said potatoes to the station. Said McCluskey further agrees to pay said Varney $75, seventy-five dollars if said Varney fulfills this contract.

A. J. Varney

J. C. McCluskey."

The plaintiff recovered a verdict for $194.95 and the case is before this court on the defendants general motion for a new trial. The record discloses conflicting testimony throughout, and on the question whether or not the plaintiff made demand, or gave notice, “within two days before April 1st, 1914,” there appears great conflict, so great, in fact that the decision of the jury must have depended largely, if not wholly, upon the credibility of the witnesses. The jury having determined that question, we think the verdict should not be set aside, especially as it does not appear that it is wrong. Motion overruled.