Foye v. Turner

Foster, J.

This case was tried at the Superior Court for Kennebec County, and a verdict for §98.80 rendered in favor of the plaintiff.

The suit was on account annexed to recover §95 “for administering your treatment at the Ensor Institute for Liquor and Morphine Habits, at five dollars apiece, for tbe following persons,” then follows a list of names of nineteen persons.

The plaintiff and his wife had been in the employment of the company for some time prior to the time of the alleged contract with the defendant, who was a physician employed by the company.

The defendant denies that any such promise as is set up by the plaintiff was ever made, and denies that he ever employed the plaintiff to administer “his treatment,” or any treatment, to the

persons named; and claims that whatever the plaintiff did in administering whatever treatment was administered to such persons, was done by the plaintiff in performing only such duties as devolved on him by virtue of his employment by the company, and only the same duties he had been performing for a long time prior to the date of the alleged special promise or contract on the part of this defendant. Defendant furthermore claims that any talk he made with plaintiff was only in the nature of a gratuity, or gift, not enforceable in law, and also that in any event the plaintiff can recover no such sum as he now has undertaken to sustain by this verdict, and furthermore that no promise was made to plaintiff by way of gift or otherwise to pay him anything except conditionally.

A careful examination of the evidence satisfies us that a new trial ought to be granted.

The motion, in addition to the usual grounds, is supported by newly-discovered evidence, and which might have had a material bearing in the case had it been adduced at the trial. It seems to be no fault of the defendant, or his counsel, that the same was not discovered and produced at the trial.

For these and other reasons not necessary to be particularly stated, we believe that justice will be best subserved by granting another trial.

Motion sustained.

New trial granted.