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urer Portland & Brunswick Street Railway, for S. A. Nye and A. B. Page, all of Fairfield, in the Portland & Brunswick Street Railway, and the county of Somerset and state of Maine, John Chaplin for myself, my heirs and assigns, Cyrus W. Davis and Henry M. Scule, all of agree together by our signatures herewith affixed, that the above settlement shall be final and Waterville, in the county of Kennebec and said conclusive. Made in duplicate this ninth day state, associates, and the Portland & Brunsof February, A. D. 1903.” This instrument wick Street Railway, a corporation created was duly signed by the defendants Gerald and the Portland & Brunswick Street Railway, and by law and having its office at Waterville, also by the plaintiff. The plaintiff claimed that in the county of Kennebec and said state of at the time the aforesaid instrument was exe- Maine." Writ dated September 9, 1905. Ad cuted the defendants orally agreed, in addition to the $1.000, named in the aforesaid instru. damnum, $10,000. Plea, the general issue, ment as the consideration therefor, to furnish with brief statement alleging "that the conhim employment at $65 per month so long as he tract declared on was not in writing, and no could work, and that afterwards, having entered memorandum thereof was signed by the dethe employ of the defendants, he continued to work for them until March 2, 1904, when he fendants to this suit or either of them.” was wrongfully discharged. The plaintiff then Tried at the April term, 1907, Supreme brought an action of assumpsit to recover dam- Judicial Court, Sagadahoc County. Verdict for ages for breach of the alleged oral contract. The defendants denied that any such oral con: plaintiff for $6,944.19. The defendants then trart was made. The jury returned & verdict filed a general motion to have the verdict for the plaintiff for $6,944.19.

set aside. Held: (1) That to establish, by parol evidence, such

Argued before EMERY, O. J., and WHITEan extraordinary agreement, as a part of the HOUSE, SAVAGE, SPEAR, CORNISH, and consideration for the aforesaid written release, KING, JJ. wherein it was stipulated to be given in consideration of the sum of $1,000, the proof must Foster & Foster and C. E. Sawyer, for arise above the mere conflict of testimony and plaintiff. Edward W. Wheeler and Wm. H. become clear, convincing, and conclusive.

(2) That the unsupported testimony of the Newell, for defendants. plaintiff, resting only upon his memory of a conversation at occurred four years before the trial, was not such clear, convincing, and

KING, J. This cause is before the court conclusive proof as should be required to estab- on defendants' motion to set aside a verdict lish a contract so indefinite in its term of dura- against them of $6,944.19 rendered in an action and so unreasonable and improbable as that upon which the plaintiff's action tion of assumpsit for breach of an alleged oral founded

contract to furnish the plaintiff employment (3) That the finding of the jury that such a at $65 per month so long as he could work. contract was made was so manifestly against the weight of evidence that it ought not to

July 23d, the plaintiff sustained the loss stand.

of his right foot in a collision between two TEd. Note.-For other cases, see Release, Dec. cars on the defendants' railway, one of which Dig. § 57.*]

he was operating as motorman. No action 3. EVIDENCE (8 419*)-PAROL EVIDENCE AF- for damages was brought for his injuries,

FECTING WRITINGS-RELEASE OF PERSONAL but on the 9th of February, 1903, he met INJURY-LIABILITY.

Although in the case at bar no exception the defendants in Waterville at the office of was taken to the admission of the testimony of Mr. Davis, where he received from them, the plaintiff that the defendants agreed, in ad- $1,000, and the following contract or agreedition to the $1,000 expressed in the release as ment was executed in duplicate: the consideration therefor, to furnish him employment so long as he should be able to work, “In consideration of the sum of one thouand consequently the question of the admissibil sand dollars ($1,000) to me in hand paid, the ity of such testimony was not directly raised, receipt whereof i herewith acknowledge, yet the court is of the opinion that the plaintiff's testimony was subject to the general rule 1, John Chaplin, of Topsham, Maine, for my. that oral evidence will not be received to add self, my heirs and assigns, do hereby release to or vary the terms of a written contract which Amos F. Gerald, E. J. Lawrence, A. B. Page, is complete on its face and appears to embrace S. A. Nye, Henry M. Soule and Cyrus W. an entire contract between the parties, and that the plaintiff's testimony was not competent. Davis, associates, and also the Portland &

(Ed. Note.-For other cases, see Evidence, Brunswick Street Railway, from any claim Cent. Dig. § 1928; Dec. Dig. $ 419.*]

by me of any name or nature in the past or (Official.)

at the present time, or that may arise in

the future, by reason of the accident occurOn motion from Supreme Judicial Court, ring on the line of the Portland & Brunswick Sagadahoc County.

Street Railway during the summer of 1902, Assumpsit by John Chaplin against Amos at or near Mallett's gulley, so called, in Free F. Gerald and others. Verdict for plaintiff, port, Maine, in which accident I sustained and defendants move to set the same aside. the loss of my right foot; and in consideraMotion sustained and new trial granted.

tion of the above payment Amos F. Gerald, Action of assumpsit to recover damages for the associates, Cyrus W. Davis, Treasurfor breach of an alleged oral contract to fur- er Portland & Brunswick Street Railway, nish the plaintif employment at $65 per and John Chaplin for myself, my heirs and month so long as he could work. The action assigns, agree together by our signatures was against "Amos F. Gerald, E. J. Lawrence, I herewith affixed that the above settlement shall be final and conclusive. Made in du- , where from an inspection of the instrument plicate this ninth day of February A. D. 1903. it appears to be incomplete and not to em"A. F. Gerald. [Seal.]

brace the entire contract. In such case re“Portland & Brunswick Street Railway, sort may be had to oral testimony to supple"By Cyrus W. Davis. [Seal.]

ment, but not to vary or contradict, the writ"John Chaplin. [Seal.]”

ten instrument. In his action the plaintiff alleges: That at The instrument in the case at bar is not the time the above release was executed the incomplete, but comprehensive, and appears defendants “promised him that if he would to embrace an entire contract between the sign a certain acknowledgement of satisfac- parties. It is not merely a receipt for montion, and accept the sum of $1,000 in money, ey, which may be explained by parol. On they on their part would pay him $1,000 the contrary, it is a formal release witnessand give him employment at $65 per month ing in plain and explicit terms an agreement as long as he could work";' that afterwards discharging the defendants from all liability he did "enter the employ of the defendants to the plaintiff for the injury he had receive at their car barn and power house at Freeport, ed and “which was to be final and concluMe., and continued in their employ in a faith- sive.” The testimony of the plaintiff that ful attempt to perform his duties for them

the defendants agreed, in addition to the until the 2d day of March, 1904,” when he $1,000 expressed as the consideration for was wrongfully dismissed. The writ is dated

the release, to furnish him employment as September 9, 1905.

long as he should be able to work, is, we The defendants contended that no such think, inconsistent with and tends to vary oral agreement was made, that the plaintiff and contradict the written instrument. My. became so inefficient, remiss, and negligent ron v. Union Railroad Co., 19 R. I. 125, 32 in his work that his discharge was justifi- Atl. 165; White v. Richmond & D. R. Co., able, but that in fact he secured a position 110 N. C. 456, 15 S. E. 197; Horn v. Miller, elsewhere and left their employ without

142 Pa. 557, 21 Atl, 994; The Cayuga, 59 being discharged.

Fed. 483, 8 C. C. A. 188; James v. Bligh, 11 The testimony of the plaintiff in support of Allen (Mass.) 4; Goss v. Ellison, 136 Mass. the alleged oral agreement is contained in his

503. answer to the following question: "Q. Now, what other consideration, other than that in support of the general rule, but as show

The above authorities are cited not merely contained in the writing, was offered you at ing its applicability to the case at bar. that time? A. Mr. Davis had a clerk read

However, in view of the fact that the that paper to me and then passed it to me question of the competency of this testimo and asked me if I would sign it. I says: 'I don't hardly think I can. It don't look to ny is not presented by exceptions, and upon me as if there was anything after the bills which counsel bave not been heard, we pass

to a consideration of the motion for a new were paid.' He says: 'Look here, we are going to employ you. We are going to make trial upon the evidence as presented to the

jury. a further agreement from that paper and

It is of the utmost importance, we think, give you a chance to work in the Freeport car barn and give you $65 a month, same

in passing judgment upon conflicting testias you were getting when you were hurt, mony in cases where an attempt is beingo and give you employment as long as you lateral to a written one, not to forget the

made to establish an oral agreement as cola are able to do any work. Furthermore,' he says, there will be no time, if we should old and salutary rule that when parties resell out the Brunswick & Portland Railroad, duce their contract to writing the law pre there will be no time but some one of us

sumes that the writing contains the whole are doing business, and we will see

agreement. you have a job.' 'If you are going to use

In such cases the scal of proof at the me that way it is all right.' I says: 'I don't start are materially borne down against the think I should sign that paper for $1,000 plaintiff by that presumption. He should unless I have a writing for my continuing therefore be required to adduce clear, strong, labor.' They says: 'You don't mean to doubt and convicting evidence to outweigh it; oth. our word, do you?' I says: 'No, sir; if erwise, the stability of written contracts will you say you will honestly and justly give be impaired, and resulting confidence therein me $65 a month as long as I am able to work destroyed. to earn my living, I will sign the paper.' The oral agreement, as claimed to have Mr. Page says: “We will certainly do that, been made at the meeting in Waterville, is Jack, just as we say we will.'”

most extraordinary. The defendants did No exception was taken to the admission not admit liability on account of the accident of this testimony. The general rule that oral to the plaintiff. The $1,000 paid over to the evidence will not be received to add to or plaintiff by the defendants was made up of vary the terms of a written contract applies, the amount of the plaintiff's lost time bewe think, to such a release as the one above tween the time of the accident and Februquoted.

ary 9, 1903, at full wages, his expenses for

men

*

withstanding a denial of liability on the part, es at $65 a month? A. I think not. Q. Or of the defendants, and the payment of the that he should have employment as long as $1,000, the plaintiff claims that the defend- he was able to work? A. It never was menants further agreed to furnish employment tioned.

Q. Did Mr. Chaplin re. for him so long as he should be able to work. quest you and your associates to agree with The full import and meaning of the alleged him that he should have employment? A. oral agreement is now clearly manifested by Yes, sir; he asked us. Q. Did he ask that what has since transpired as the result of as a condition of his signing this agreement? it. The services of the plaintiff while in A. He wanted it inserted in the agreement. the defendants' employment after February Q. What answer was made to him? A. We 9, 1903, were unsatisfactory, at least, and refused to do it. Q. Did you give him any the cause of much annoyance to them. The reason why you declined to do it? A. I cessation of those services has produced liti- think Mr. Gerald cited something about it gation resulting in this verdict of $6,944.19 where he had some trouble once. Q. What as damages for the alleged breach of that further was said about including that in the oral agreement.

written agreement? A. I don't remember, To establish by parol evidence such an ex- but he iatly refused to do it.

Q. traordinary agreement, as part of the con- Will you state to the jury the entire con sideration for a written release, wherein it versation relating to Mr. Chaplin's employ. is stipulated to be given in consideration of ment by you and your associates? A. At the sum of $1,000, the proof "must rise above that time? Q. Yes, sir. A. He asked, as I the mere conflict of testimony and become remember it, if he could have a job in the clear, convincing, and conclusive." Liberty car barn, and it was assented to. I think V. Haines, 103 Me. 182, 68 Atl. 738.

Mr. Gerald made the remark, if I remember All the individual defendants, except Hen- right, that he had a job there which we ry M. Soule, viz., Amos F. Gerald, E. J. could probably give him if he could attend Lawrence, S. A. Nye, A. B. Page, and Cyrus to it, and was satisfactory. Q. Were any W. Davis, were present at the Waterville wages stated ? A. Nothing. Q. Or the time conference of February 9, 1903, and J. W. of the employment? A. It was not menAmick, a director of the railway company, tioned." was also present.

Amos F. Gerald also testified: “Q. Was Page, Gerald, and Amick were witnesses there any other promise or agreement made at the trial; Lawrence and Nye were sick; by you and your associates with Mr. Chaplin and Davis was in New York. Each of these as a condition, or consideration, of his signwitnesses in defense testified that no such ing this paper marked 'Piff's Ex. A,' except oral agreement was made. We deem it use the consideration stated in the instrument itful to quote in part some of their testimony. self? A. Nothing whatever. Q. Was this

Mr. Page testified: "Q. Who suggested paper written before or after Mr. Chaplin the basis of settlement between you and met the directors and associates in Mr. Dayour associates and Mr. Chaplin, at this vis' office? A. It was written, the whole of conference at Waterville on February 9, it, after he had been there and had discussed 1903? A. Mr. Chaplin. Q. Will you explain the amount of his bill and what he wanted, to the jury exactly what his proposition of and had had a general conversation in resettlement was made at that time? A. In a gard to the amount. Q. Did Mr. Chaplin ask general way, he said his medicine cost so that you and your associates would provide much, his doctor's bills were so much, he him with employment? A. Yes, sir. Q. Did had been out of employment so long, and he he ask that that promise be made to cover ought to have a thousand dollars. Q. Did his employment as long as he was able to he at that time name any other sum? A. work? A. Yes, sir; I think so. Q. Without No. Q. Was his proposition accepted by any wages stipulated that he was to receive? you and your associates ?

A. It was.

Q. A. No, sir. Q. Did you consent to making Did you or any of your associates that were such an agreement with Mr. Chaplin? A. present at that conference tell Mr. Chaplin No, sir. Q. Was any such agreement made? whether or not you recoguized any liabilities A. No, sir. Q. What reply did you make to from his injuries? A. We did. Q. What Mr. Chaplin when he requested you to make did you say to him? A. We told him we such a promise? A. If permitted, I would didn't consider we were in any way liable like to give an illustration. Court: Just the for the accident. Q. Was any promise or conversation, what was said and done. Q. agreement made by you, or your associates, State the entire conversation so far as you as a consideration of Mr. Chaplin's siguing can recollect it. A. I told him that we had this written contract or release, except the had trouble enough in hiring men for a given consideration of $1,000, stated in the paper? | length of time without any other condition A. None whatever. Q. Was any promise connected with it, and I says we will never made by you, or your associates, that Mr. do it again for even a very short time. We Chaplin should have employment by you? | hired a man in Bath, at the Bath car barn, A. None whatever, except in a general way. as a painter. I hired myself at a thousand

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painting in the car barn. The man's name A slight change in the words of that con-
was Mr. Dale. After he had been there a versation as reproduced would account for
short time, he took the notion in his head to the difference between the contentions of the
paint the cars in another color, and any parties. The defendants admit that they as.
designs he saw fit, and he told me one day sented, but without any reference to the re-
it was none of my business how he painted | lease and entirely independent of it, to the
the cars. He was boss of those cars, and he plaintiff's request for a place to work pro-
told the men afterwards that I couldn't dis- vided he was able to attend to it and was
charge him because he had been hired for a satisfactory. His contention is that they
year. I undertook to discharge him, and he promised him, as a part of the consideration
stayed a day or two longer, but the next for the release, to furnish him employment
time I went out he went out and didn't come so long as he should be able to work.
back, and he commenced a lawsuit for a The former contention is natural, reason-
year's time, and I gave that as a reason for able, and consistent with the situation of the
not doing it. Q. At that time, did Mr. Chap- parties at the time. The latter, however, is
lin request you to insert such provision as improbable, unnatural, and irreconcilable
that in the written agreement for settlement? with the circumstances and conditions of the
A. Yes, sir. Q. And what answer did you defendants.
make? A. I emphatically refused it, that is The unsupported testimony of the plaintiff,
the reason I made the illustration."

resting only upon his memory of a conversaMr. Amick also testified that no such oraltion that occurred four years previous, is agreement was made.

not such clear, convincing, and conclusive Against the testimony of these three wit-proof as should be required to establish a nesses is the plaintiff's uncorroborated state contract so indefinite in its term of duration, ment, unless, perhaps, the circumstance that and so unreasonable and improbable, as that he went to work in the car barn soon after upon which the plaintiff's action is founded. February 9th, 1903, and the letters from Mr. And when against that unsupported testi. Gerald, the general manager, in answer to mong is placed the positive statements of the his, may have some tendency to support his three witnesses for the defense that no such position; but the fact that the plaintiff went oral agreement was made by the defendants, to work in the car barn is not inconsistent together with the weight of that written rewith the defendants' contention about his lease in which the plaintiff himself declares subsequent employment, and for that reason that the settlement therein recited "shall be can bave no material probative weight in final and conclusive," the conclusion is irresupport of his testimony.

sistible that the finding by the jury that such Neither do the letters of Mr. Gerald rec-contract was made is so manifestly against ognize any agreement to furnish the plaintiff the weight of the evidence as shown by the employment, but rather the contrary is in- record that it ought not to stand. dicated therein. In his letter of March 1, Accordingly, the entry must be: 1904, Mr. Gerald says in part: “I always Motion sustained. New trial granted. put all the power of hiring and discharging men in the Super's hands and never do it myself, for they are responsible for their

(104 Me. 281) helps' labors. I have written Mr. Strout to

STATD V JELLISON. act as he thinks best about letting you go, (Supreme Judicial Court of Maine. July 10, and I think by his letter that he will do so."

1908.) It is unnecessary, were it possible within 1. CRIMINAL LAW ($ 293*)—PLEADING-DEreasonable limits, to analyze all the testi- MURRER--ADMISSIONS. mony in the record and point out that which While a demurrer admits the truth of almilitates against the plaintiff's contention. legations of fact well pleaded, it does not adIt is worthy of note, however, that the plain- of law made in the pleading demurred to.

mit the correctness of statements or conclusions tiff asserts with emphasis that no check for

[Ed. Note.--For other cases, see Criminal $1,000 was made to him, and even when Law, Cent. Dig. $ 672; Dec. Dig. 293.*] shown the canceled check with his name in- 2. CRIMINAL LAW ($ 293*)—PLEA OF FORMEB dorsed upon it he denied the signature with ACQUITTAL-DEMURRER. an imputation that it was a forgery. The

While a demurrer to a plea of autrefois acsignificance of this testimony is not merely quit may admit that the acts of the defendant

were the same in both cases, it does not admit that it is manifestly untrue, but rather that that the offenses charged were the same. it demonstrates the unreliability of his mem- [Ed. Note.-For other cases, see Criminal ory, and its apparent lack of capacity of Law, Cent. Dig. § 672; Dec. Dig. 293.*] being readily refreshed.

3. CRIMINAL LAW ($ 29*) — DIFFERENT OF. The Waterville conference was had more FENSES-SAME ACTS. than four years before the trial-a long peri- stitute two or more distinct offenses, different

The same act, or group of acts, may conod through which to carry the exact words in kind as well as degree. of a conversation, such as the plaintiff at

[Ed. Note.-For other cases, see Criminal tempts to reproduce in his testimony.

Law, Dec. Dig. § 29.*]

4. CRIMINAL LAW (200*)—FORMER JEOPARDY | there beat, wound, and in treat, and other -SAJE ACT.

While the constitutional provision that “no wrongs to the said Henry N. Pringle then person for the same offense shall be twice put and there did, to the great injury of the said in jeopardy” probibits another prosecution for Henry N. Pringle, against the peace of the the same offense when the jeopardy has been said state, and contrary to the form of the once incurred, it does not prohibit another pros statute in such case made and provided.” ecution for a different offense, though the act, or group of acts, was the same.

The defendant pleaded in bar an acquittal (Ed. Note.-For other cases,

see Criminal by the Bar Harbor municipal court, upon a Law, Cent. Dig. $$ 386; Dec. Dig. $ 200.*] complaint against him for the offense of as5. CRIMINAL LAW ($ 202*)-FORMER JEOPARDY sault and battery upon the aforesaid Pringle,

- UNLAWFUL ASSEMBLY AND RIoT-ASSAULT averring in his plea that the offense of which AND BATTERY.

The offense of unlawful assembly and riot, he was acquitted by the Bar Harbor muunder Rev. St. 1903, c. 124, § 2, and the offense nicipal court and the offense for which he of assault and battery are distinct offenses, dif- was indicted were one and the same offense. ferent in kind, and a conviction or acquittal for

To this plea the state by the county attoreither does not bar a prosecution for the other offense, even though based on the same acts. ney filed a general demurrer. The presiding

(Ed. Note.-For other cases, see Criminal justice sustained the demurrer, and the deLaw, Cent. Dig. $ 391; Dec. Dig. 202.*] fendant excepted. 6. CRIMINAL LAW ($ 296*)—DILATORY PLEA- The case appears in the opinion. RIGHT TO PLEAD OVER. When a plea of autrefois acquit is over- AGE, PEABODY, CORNISH, KING, and

Argued before EMERY, C. J., and SAVruled, and the defendant excepts and stands upon his exceptions, instead of pleading over, he BIRD, JJ. must abide the fate of the exceptions. If they be determined against him, there must be final

Charles H. Wood, Co. Atty., for the State. judgment for the state. Rev. St. 1903, c. 79, Edward S. Clark, for defendant. $ 56.

[Ed. Note.-For other cases, see Criminal EMERY, C. J. The defendant was indicted Law, Cent. Dig. § 679; Dec. Dig. & 296.*]

for the offense of unlawful assembly and riot, (Official.)

under Rev. St. 1903, c. 124, § 2, viz., for being Exceptions from Supreme Judicial Court, one of three or more persons who unlawfully

assembled in a violent and tumultuous manHancock County.

ner to commit an assault upon Henry N. Otha H. Jellison was indicted for the offense of unlawful assembly and riot. A plea Pringle, and who, being so assembled, did in of former acquittal was interposed, to which the same manner commit the assault. He a demurrer was sustained, and Jellison ex- pleaded in bar an acquittal by the Bar Har

bor municipal court upon a complaint against cepts. Exceptions overruled, and judgment

him for the offense of assault and battery upfor the state.

on the said Pringle, averring in his plea that Indictment against the defendant for the the offense of which he was thus acquitted offense of unlawful assembly and riot, under and that for which he is now indicted are the provisions of Rev. St. 1903, c. 124, § 2, one and the same offense. To this plea the found by the grand jury at the April term, county attorney demurred. The court sus1907, Supreme Judicial Court, Hancock coun- tained the demurrer, and the defendant exty, charging that the defendant, on April 5, cepted. The demurrer, of course, did not 1907, at Eden in said county, "with certain admit the correctness of any statements or other persons to the number of three and up- conclusions of law made in the plea. Hence, wards, to wit, with Joe Emery, Charles Con-though it admits that the acts of the defendners, Frank Leighton, and certain other ant were the same in both cases, it does not wicked and ill-disposed persons, said certain admit that the offenses charged are one and other wicked and ill-disposed persons being the same. Whether they are the same or difto the jurors unknown, with force and arms, ferent offenses is a question of law now to to wit, with eggs, stones, sticks, staves, and be determined by the court. clubs as rioters, routers, and disturbers of It was said by the Connecticut court in the peace of the state, in a violent and tu- Hurd v. State, 2 Root, 186: “If a prosecution multuous manner and unlawfully, did assem- and conviction before a justice for a simple ble and gather themselves together to do an breach of the peace be a good plea in abateunlawful act, to wit, to make an assault upon ment or bar of information for riot, it would one Henry N. Pringle, and so being assem- be attended with the most pernicious conse bled and gathered together the day and year quences, and the most atrocious offenders aforesaid, at the county aforesaid, with force would be exculpated by punishments totally and arms, in a violent, unlawful, and tumult inadequate to their crimes." As to tbat, an uous manner, to the terror and disturbance of acquittal would be attended with as perniothers, in and upon the said Henry N. Prin- cious consequences; but, passing that considgle, in the peace of the state then and there eration, we proceed to consider whether the being, an assault did make with said eggs, offense of unlawful assembly and riot charged stones, sticks, staves, and clubs, and him, in the indictment is the same offense as that the said Henry N. Pringle, did then and' of assault and battery charged in the com

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