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2. EXECUTORS AND ADMINISTRATORS 451(2)|
-ACTION AGAINST ADMINISTRATOR-
TION FOR JURY-GENUINENESS OF ACCOUNT
Book.

In such action, it was for the jury to determine whether the account book offered by plaintiff was genuine.

[Ed. Note.-For other cases, see Executors

On Motion from Supreme Judicial Court, Cumberland County, at Law.

Action by Elizabeth O. Fairbanks against

and Administrators, Cent. Dig. § 1879; Dec. Edgar E. Barker, administrator of the estate Dig. 451(2).]

3. NEW TRIAL 168-FAILURE TO EXCEPT PRESUMPTION-CORRECT INSTRUCTION.

of Frank W. Barker, deceased. Verdict for plaintiff, and defendant moves for a new trial. New trial granted, unless plaintiff remit part of the verdict, and, if remittitur be

Where no exception to an instruction is presented, the Supreme Court on motion for new trial must assume that the instructions giv-made, motion overruled.

en were correct.

[Ed. Note.-For other cases, see New Trial, Dec. Dig. 168.]

4. LIMITATION OF ACTIONS 53(1) COUNTS.

-

Ac

Under Rev. St. c. 83, § 90, an account is alive and suable until there has been a period of at least six years during which there are no items, either debit or credit.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 285, 289; Dec. Dig. 53(1).]

5. FRAUDS, STATUTE OF

158(4)—QUESTION

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

Frank H. Haskell, of Portland, for plaintiff. John B. Kehoe, Jacob H. Berman, and John T. Fagan, all of Portland, for defendant.

PHILBROOK, J. This is an action on an account annexed consisting of several charg

for Jury-Original or CollATERAL PROM-es for which the defendant's intestate in his

ISE.

Evidence, in an action on an account annexed consisting of charges for board, room, etc., of another, which it was alleged defendant's intestate had promised to pay, held not to show an original promise by intestate to pay such other's board binding upon his estate.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 376; Dec. Dig. 158(4).] 6. FRAUDS, STATUTE OF 23(1)—"ORIGINAL PROMISE"-"COLLATERAL PROMISE.

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An obligation is "original" if the promise is made at the time or before the debt is created and the credit is given solely to the promisor, but "collateral" if the promise is merely super-added to the promise of another, he remaining primarily liable; no precise form of words is necessary to show an original promise or conclusive as to the intention of the parties.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. 23 (1).

For other definitions, see Words and Phrases, First and Second Series, Collateral Promise; Original Promise.]

7. EXECUTORS AND ADMINISTRATORS

221(1) ACTION AGAINST ADMINISTRATOR - PRESUMPTION-POSSESSION.

In an action against an administrator on an account annexed, where sums belonging to the decedent were shown to have been in plaintiff's

lifetime became liable to the plaintiff, as she claims. The verdict being for plaintiff, defendant presents the usual motion for a new trial. No exceptions are urged.

Charge for Board.

[1-3] By far the larger portion of the account was made up of charges for board, room, washing, mending, care, and nursing, from January 1, 1906, to August 13, 1913; the latter date being that of Barker's death. During the last months of his life he was It is ill and in need of considerable care. admitted that Barker lived at plaintiff's house during the period for which he is charged for board, but the defendant contends that plaintiff and Barker were living there together under some arrangement mutually agreeable to both, without expectation of payment other than such as she received from time to time in the way of money or goods, or Barker's assistance in running the farm, and probably with the expectation on plaintiff's part that if she outlived him he would leave her his property, since he had no wife or children. In support of this contention, the defendant calls attention to the tes

timony of Albert F. Fairbanks, a gentleman | on being told he did not have it, the plainwho married the plaintiff about two months tiff said, "Well, Frank, I should think you after Barker's death. The former wife of Mr. Fairbanks was a sister to Barker. According to his testimony, in the summer of 1910, while his first wife was alive, he and she were visiting Barker at plaintiff's house, and, upon Barker's being asked why he did not pay plaintiff for his board, he replied that he could pay her any time when she needed it; that she had plenty of money at that time; that she did not know the worth of money; that she was not practical, throwing her money away; that when she got hard up and wanted it he could let her have it, and, quoting Mr. Fairbank's testimony:

"He said if he outlived her, and if he didn't I won't say that he said he had made arrangements, or that he was going to, one or the other, that she could have the income of it; but he wouldn't give her the money because she would spend it all, she was so liberal. That is the drift of it. It may not be word for word, but

that is the substance of it."

As further supporting this contention of the defendant, he introduced testimony to show that Barker had worked on plaintiff's farm, had exchanged work with a neighbor who, in exchange, worked on her farm, had bought fertilizer which, it was claimed, was used on plaintiff's farm, and had bought grain and groceries which were consumed on her farm and in her family. The defendant also laid stress on the nature, time, and amount of payment of moneys from Barker to plaintiff, and especially to an entry in plaintiff's own book account showing that on April 6, 1909, she borrowed $90 from Barker and paid him the loan on May 20, 1909, together with $5 as interest. He urges that if Barker owed plaintiff, as she claims, she would not borrow from him and pay such large interest.

To meet this contention, the plaintiff urges that a fair construction of the testimony of Mr. Fairbanks would go far to prove that she was treating him as a boarder. She points out that, at the time of the conversation quoted from Mr. Fairbanks, the former wife of Mr. Fairbanks, a sister of Barker, as we have already said, was present and began the conversation by saying:

"Frank, Lizzie tells me that you haven't paid her any board for a long time, and that if she says anything to you about it you get mad. Why don't you pay?"

In the middle of April, 1909, apparently about the time of the borrowed money referred to, William M. Ross, a nephew of the plaintiff, was at the Fairbanks house, in the presence of plaintiff and Barker, and testified that:

"She was telling how much expense she had to go to lately, and she said she would be all right if Mr. Barker would pay her. And then she asked him and says, 'Won't you pay me, Frank? And he says, 'I will make it all right; that is all right,' he says."

In the fall of 1912, Mrs. Eva B. Crockett

might pay me something, some money." The same witness testified to hearing plaintiff ask Barker for money during the following winter, and his reply again was that he did not have it. A few moments afterward Barker gave some money to one Johnson, and the plaintiff then said: "I should think you might let me have some money. You owe it to me." To this the witness says Barker did not make much reply, but acted as though he did not like it. The plaintiff also presented her account book, accompanied by her suppletory oath, containing charges against the defendant's intestate for the periods and amounts which appeared in the account annexed to the writ. The defendant argues that this book contains strong internal evidence that the charges are not genuine. Under proper instruction from the court, it be came a question of fact for the jury to determine whether the book was or was not geniune. No exceptions to such instruction are here presented, and we must assume that the instruction given was correct. The jury must have favorably entertained the plaintiff's claim as to the book, and we are not convinced that they were so manifestly in error upon this element in the case as to require us to disturb the verdict so far as it depends upon this account book From all this testimony and all other evidential facts in the case from which inferences may be properly drawn, the court is of opinion that the jury was justified in believing that Barker was living in the plaintiff's home with an expectation and understanding on her part that he was to pay board, and on his part that he was to so pay. The rate of board, if any were due, was not seriously questioned and may be considered fair and reasonable.

Statute of Limitations.

[4] The defendant further contends that the charges for board prior to August 12, 1907, are barred by the statute of limitations. Upon the account filed in the probate court, a copy of which was attached to the writ, no credits appeared; but before going to trial the plaintiff was allowed to amend her account by adding credits of cash payments in January, March, May, August, and December in the year 1906, and like payments in January, April, September, and December in the year 1907. If these payments were actually made, then under the statute (R. S. c. 83, § 90) the entire account is unaffected by the statute of limitations, for "until there has been a period of at least six years during which there are no items, either debit or credit, the account is alive and suable." Rogers v. Davis, 103 Me. 405, 69 Atl. 618, 19 L. R. A. (N. S.) 126. The only testimony as to these particular payments is found in plaintiff's book account, to which we have already alluded as having been

to their finding, whatever might have been | miscarriage of another to be in writing in orthe finding by this court as a matter of primal impression, we must hold that we are not convinced of such manifest error as to require us to set that finding aside.

Statute of Frauds.

der to fix liability on the promisor, has been a
fruitful source of litigation. The general rule,
of course, is well recognized that it is a col-
lateral and not an original promise that is with-
in the statute. It is well understood, also, that
the obligation is original if the promise is made
at the time or before the debt is created and the
credit is given solely to the promisor, but col-
lateral if the promise is merely superadded to
the promise of another to pay the debt, he re-
form of words is necessary to show an original
maining primarily liable.
No precise
promise, or conclusive as to the intention of the
parties.' Note to Security Bank Note Co. v.
Shrader, Ann. Cas. 1914A, page 490, and cases
there cited.

[5, 6] Charges for board, room, laundry, and stabling of horse for Leon L. Jordan, which plaintiff says Barker promised to pay, the defendant says are barred by the statute of frauds. It appears from the testimony that Jordan, a colored man, was a more or less intimate friend of Barker's, and was in some way associated with him in certain In Reed v. Holcomb, 31 Conn. 360, the trades and deals. No contention is raised as | court says that in cases difficult to determine to the fact that Jordan boarded with plaintiff "courts must rely upon the circumstances during the time charged for, nor was there of each particular case, and its general feacontention as to the rate charged. The same tures, in order to ascertain the intention of may be said as to stabling of Jordan's horse. the parties, and how they viewed it, where As to whether Barker was an original promis-it is doubtful whether it was a contract of or to pay Jordan's bill, and so considered suretyship or guaranty, or an original unhimself, the plaintiff calls attention to the dertaking." Our own court, in Doyle v. fact that Jordan came there November 20, White, 26 Me. 341, 45 Am. Dec. 110, says that 1911, and after he had been there two or the test to decide whether one promising is three weeks, according to the testimony of an original debtor or a guarantor is whether Charles H. Skillin, apparently a disinterested the credit was given to the person receiving witness, the plaintiff complained to Barker, the goods. The account book, upon which saying she could not board Jordan any longer plaintiff confidently relies to prove her charge and did not want him around there. Where against the defendant for Barker's board, upon Barker said, "I will pay his board," and with equal force shows that she continued from that time, somewhere in November or to charge Jordan and not Barker, for JorDecember, 1911, to May 13, 1913, Jordan con- dan's board down to the time of his detinued to board with plaintiff paying nothing parture. Would she have done this if credit on his own account. An exhibit was also in- had been primarily given to Barker for Jortroduced, dated June 2, 1913, some two weeks dan's board during all those months? If after Jordan left plaintiff's house, in the Barker was slow about paying his own board, handwriting of Barker and in the form of a would the plaintiff take him as paymaster bill in which Barker charges Jordan for for Jordan also? If she had given credit boarding him and stabling his horse during to Barker, and he was as able financially at the time set out in plaintiff's account. It is last to pay as counsel says she knew him to admitted that Barker left this bill with an be, why was she "fretty" after Jordan went attorney for collection against Jordan. Not away, and why did she say that "I would as showing an original promise, but as con- like to know how I am going to get my pay firmatory of that theory, Mrs. Crockett tes-out of this"? While it is true, as a general tified that after Jordan went away plaintiff asked Barker who was to pay Jordan's unpaid bill, and the reply was that he would. On the other hand, the defendant calls attention to the further testimony of Mrs. Croc-opinion that there was no promise to pay kett, who says that, after Jordan had left plaintiff's home as a boarder, “she was kind of fretty about his board, and at last says 'I would like to know how I am going to get my pay out of this,' and he says 'Well, if you don't get it any other way, I will pay it.'" From this the defendant argues that no original promise had been made by Barker to pay Jordan's board, but that if any promise was made it was a collateral one, and so within the statute of frauds and void. A significant piece of testimony is found in the plaintiff's account book, where is to be found an account charging Jordan with his board and stabling down to the day of his final departure.

"The provision of the statute of frauds requiring a promise to answer for the debt, default, or

rule, that the question as to whether the promise is original or collateral is one of fact for the jury to determine, yet from a careful study of all the testimony we are of

Jordan's board which was legally binding upon Barker or upon his estate.

The other charges in plaintiff's account, except certain small ones which the court instructed the jury could not be considered, seem to be sufficiently sustained by the evidence.

Payment.

[7, 8] The defendant stoutly claims as a final defense that, whatever the charges may be which plaintiff has against the estate, they were wholly or largely paid in the lifetime of Barker, and that at best the verdict of the jury was greatly in excess of what is lawfully due the plaintiff. Exclusive of interest, the total bill of the plaintiff was $2,229.90. With interest, the bill amounts

We therefore deduct from the plaintiff's bill

Amount drawn from Portland Savings
Bank and not accounted for....
Amount drawn from Maine Savings
Bank and not accounted for.....
Check on Casco National Bank.
Credits on amended bill...
Jordan's board...

Small items, teams, etc..

Total charges without in-
terest
.$2,229.90
Deductions to be made.... 1,001.50
Balance
.$1,228.40

$ 385.00

275.00

25.00

60.00

248.50

8.00

$1,001.50

As to claims for grain and fertilizer furnished, labor performed, and other minor claims made by defendant, we leave them without comment as within the undisturbed province of the jury.

The entry will be:

to $2,389.71. The verdict was for $2,196.16. [ credit some of the proceeds of orders, does The defendant shows orders on the Portland not satisfy the burden laid upon her. Savings Bank, amounting to $630, drawn payable to the plaintiff, and, while they do not bear her indorsement, yet the teller of the bank testifies that the money drawn on them was paid to her. He also shows orders on Maine Savings Bank, amounting to $555, drawn payable to the plaintiff and bearing her indorsement. He also shows a check on Casco National Bank, amounting to $25, drawn payable to the plaintiff and bearing her indorsement. The defendant claims that these several amounts, the credits of $60 given on her bill, Jordan's board amounting to $248.50, together with the small items before referred to, should all be deducted from plaintiff's account. As to the orders drawn on the two savings banks, the plaintiff claims that the regular employment of Barker as station agent for the Grand Trunk Railway prevented him from visiting the banks during banking hours, and that these orders were given to the defendant in order that she might draw the money and deposit the same to the credit of Barker in the Casco National Bank. Her counsel argues that Barker's deposit in each savings bank had reached the sum of $2,000, the limit under the statute on which such banks could pay interest, and that these orders corresponded in amount to the accrued interest. Hence (Supreme Judicial Court of Maine. April 10, he argues that she only acted as his agent in drawing and depositing the money repre- 1. CONTRACTS 303(1)-GROUNDS FOR REsented by these orders. In support of this argument, attention is called to the fact that in many instances there was deposited the same amount or approximately the same in the Casco National Bank as was drawn from the savings banks, and that the date of drawing and that of deposit was the same in many instances. As to the Portland Savings Bank orders, this argument holds true as to seven, but as to the other seven there is no deposit in the Casco Bank to correspond with orders drawn on the savings bank. As to the Maine Savings Bank orders, the argument holds true as to seven, but not as to the other seven. In other

New trial granted unless with 30 days after filing of rescript plaintiff remits all the verdict in excess of $1,228.40. Interest on said sum to be allowed from date of writ. If remittitur be made, motion overruled. So ordered.

(115 Me. 19)

BERMAN v. ROSENBERG.

SCISSION.

1916.)

the making of a contract cannot excuse nonperformance thereof.

Matters known at the time of and inducing

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1409, 1410, 1420-1423, 14401443; Dec. Dig. 303(1).] 2. CONTRACTS 32. FORMAL DRAFTS.

AGREEMENT FOR MORE

An agreement in writing, signed by the parties, clearly embodying just what they wanted, is binding, though a more formal draft which not signed, as agreed. the attorney at his own suggestion drew was

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 159; Dec. Dig. 32.]

Report from Supreme Judicial Court, An

words, the testimony shows that the plaintiff droscoggin County, at Law.

Action by Myer Berman against William Rosenberg. Case reported. Judgment for plaintiff.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

drew $385 from the Portland Savings Bank and $275 from the Maine Savings Bank which she has not accounted for. Through argument of counsel, she says that as agent she delivered these sums, or paid them to Barker, her principal. These sums having been shown to be in her possession, if she Benjamin L. Berman, of Lewiston, and Jawould relieve herself from responsibility up-cob H. Berman, of Portland, for plaintiff. on the ground of payment, then the burden Ralph W. Crockett, of Lewiston, for defendis upon her to show such payment. This ant.

principle is too elementary to require cita

tion of authorities. There is no direct evi- HANSON, J. Action for breach of condence to prove her contention as to payment tract, reported for the determination of this of these sums to Barker or deposit to Bark-court.

er's credit, and the presumption upon which The plaintiff and defendant were copartshe leans, namely, that she deposited to his ners in the shoe and clothing trade in the

city of Lewiston, and began business in February, 1915. The plaintiff was manager of the business. Disagreement arose in relation to the appropriation by the plaintiff of $150 from the partnership funds for the purpose of paying a personal note; and, being unable to adjust their difference, the partners talked of dissolving the partnership. In the absence of the plaintiff, the defendant invited Mark Berman, the plaintiff's father, to come to their store, and there discussed with him the affairs of the partnership, with the result that the defendant agreed to a dissolution of the copartnership, and to continue the business, assume its obligations, and pay the plaintiff $400 for his interest in the firm. The plaintiff later in the day, in the presence of his father, assented to the arrangement so made by his father and the defendant, and on request of the defendant sent for an attorney to come to their store, and, after consultation with all the parties involved, the following agreement was written by the attorney and signed by the parties:

"Lewiston, Me., June 4, 1915. "Dissolution agreement by and between Myer Berman and William Rosenberg:

"(I) In consideration of $400 My. Berman transfers all his right, title, and interest in the business formerly conducted by them jointly, including book of accounts and stock, etc.

"(II) Wm. Rosenberg is to assume all outstanding indebtedness and to save the said Berman harmless by reason thereof.

"(III) William Rosenberg is to collect all outstanding bills, owing to said firm at his own expense and for his benefit.

(IV) Said consideration of $400.00 to be in full satisfaction of all claims and demands which the said Rosenberg has against the said Berman. Wm. Rosenberg. "Myer Berman."

The above document, which was written at the store on the firm's letter head, was retained by the attorney and taken to his office for the purpose, as the plaintiff claims, of making a copy of the same for the use of one of the parties, while the first copy would be kept by the other, or a copy, for the use of each; that the document represented and inIcluded all that was agreed to, and was the completed contract between the parties.

The defendant denies this, and says that the agreement was not completed on June 4th, and never was perfected, that the first paper was a memorandum merely from which the contract was to be drawn, and he says that the attorney remarked, "I am going to scribble it off here; it is only a temporary agreement, a temporary paper; I will make the real papers out to-morrow," and contin

ues:

"Q. What was said about the paper he was going to draw the next day?

"A. Well, it was stated that the paper that was going to be drawn the next day is going to be a binding paper. This is only a temporary agreement.

"Q. Was anything said about your having a chance to look over the paper that was to be made the next day?

"Q. What was said about that? "A. Well, after I am satisfied with the papers that I could sign it."

The attorney prepared the following document:

"Know all men by these presents that William Rosenberg of Lisbon Falls, in the county of Androscoggin, and Myer Berman, of Lewiston, in said county, agree as follows: parties under the firm name of Myer Berman "(1) The partnership existing between the said & Co., is hereby dissolved by mutual consent. Said Myer Berman in consideration of four hundred dollars ($400.00) paid to him by the said William Rosenberg, grants and assigns to the said William Rosenberg, all his right, title, and interest in and to all the goods, stock, fixtures, and good will of said firm, and in all the debts, demands, and accounts due said firm, with full power to the said William Rosenberg to collect the same by suit, or otherwise, in the name of said firm, for his own use and benefit, but without expense to the said Myer Berman. "(2) The said Myer Berman agrees that he will not do any act by which the said William Rosenberg may be delayed or hindered from collecting any of said debts or demands, and that he will at any time, on request, execute any proper instrument and give any information for enabling the said William Rosenberg to collect the same.

"(3) The said William Rosenberg agrees to pay all the debts and demands existing against said firm, and to indemnify and to save the said Myer Berman harmless from all loss, damage, or expense to which he may be subjected by reason of the same.

"(4) It is hereby agreed by and between the parties hereto that the said consideration of four hundred dollars ($400.00) is in full satisfaction of whatever claim or demand the said William Rosenberg has or might have against the said Myer Berman arising out of the business formerly conducted by them jointly.

"(5) It is hereby further agreed by and between the aforementioned parties that the said William Rosenberg shall not be holden for any account contracted by the said Myer Berman in his private capacity and for his personal in

terest.

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The defendant in his direct examination says simply that he declined to sign the new draft, without stating any reason, but on cross-examination says:

transaction between him and I: he miscalculat"I told him he didn't deserve it, the whole ed the whole affair. He did business with mismanage, and I am the loser of about $2,000 in this affair, and I thought myself I hadn't ought to pay another cent. In fact, he ought to pay for the damages himself."

"Q. That was the reason you didn't sign the draft in the morning?

"A. That is one of the reasons. Then I got this check here, which he drew in the bank. He had no business to do that.

"Q. That was a reason, too? "A. That is another reason. I thought I was losing enough without paying any more money.

"Q. Did you offer Mr. Berman $225?

"A. I thought I would do it rather than go to law about it. It is a disgraceful_affair, anyway, to me; so I thought I rather pay

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