McCann's Sons v. Foley

Under the title of a bill of exceptions, appellant states that his petition for review was “dismissed” by a Justice of this court, and that he excepts to “said finding and decree,” and nothing further.

This is no bill of exceptions. .Repeatedly and with patient iteration the court has, in almost every alternate volume for the past decade, stated the fundamental requisites as to form.

That future bills of exception be drawn as prescribed-by good practice, pleaders should consult, Frost v. Livery Co., 126 Me., 409; State v. Wombolt, ibid., 351; Felts v. Power Co., 120 Me., 101; Doylestown Agr. Co. v. Brackett, 109 Me., 301, 308; Leathers v. Stewart, 108 Me., 96, 100; Jones v. Jones, 101 Me., 447, or Atkinson v. Connor, 56 Me., 546.

If exceptions herein were summarily dismissed opposition could not be maintained, for the claim of review is based on ability, after trial of an action in assumpsit between men of business experience and standing, to recover a commission for procuring the purchaser to whom plaintiff in review sold real estate, to show by testimony of the purchaser, who was not called as a witness at the trial, that plaintiff there did not perform the services.

At the trial defendant should have presented its customer as a witness, or at least have asked for delay to enable it to do so. Trial was in Portland; the witness a resident of Lewiston. In short, the testimony offered in review was available at the first trial.

Before the Justice in review, .the purchaser was presented as a witness and frankly admitted that defendant directed him to plaintiff and that he bought.

Here is plaintiff’s witness testifying that defendant did procure a customer able, ready and willing to buy.

Perjury is not proven. A petition for review is addressed to the discretion of the court. No abuse of sound discretion can be found. Exceptions overruled. Charles L. & Paul E. Donahue, for plaintiff. Samuel L. Bates, John J. Devine, for defendant.