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in one month after such dissent is so filed, enter a petition with the Supreme Judicial Court, sitting in equity, in the county where it held its last annual meeting, in term time or in vacation, setting forth in substance the material facts of the transaction, the action of the cor

poration thereon, the names and residences of all dissenting stockholders whose dissents were so filed, making such dissenting stockholders parties thereto, and praying that the value of the shares of such dissenting stockholders may be determined, and for other appropriate relief."

Section 62 of the act provides that if the corporation should fail to enter the petition mentioned in section 61, then the dissenting stockholder, within certain statutory time, may enter such petition and prosecute the same, making the corporation party defendant. In the case at bar, the corporation did not file its petition, and on July 16, 1917, the plaintiff filed her petition under the provisions of statute just referred to. Her dissent was dated May 19, 1917, and served on the treasurer of the corporation May 21, 1917. The time within which the corporation could file its petition, under the provisions of section 61, just above quoted, expired on June 21, 1917. So much of the statute as gives the minority stockholder the right to file petition reads thus:

"If any such corporation shall fail to enter such petition as aforesaid, any stockholder dissenting as aforesaid may within one month thereafter enter such petition and prosecute the same, making such corporation party defendant."

the date of hearing, April 16, 1920, may and probably is accounted for by reason of the fact that the defendant sought the necessary consent of the Public Utilities Commission to make the sale which had been previously voted. By stipulation annexed to the record, it will appear that the report of the Public Utilities Commission for 1918, pages 112-120, inclusive, may be referred to as part of the record. We there learn that the defendant and other corporations kindred and allied in their purposes and business were seeking fendant company was desirous of making the consolidation, and for this purpose the desale indicated in the vote. Public hearings were held before the Commission on October 18, 1917, and on December 5, 6, 1917. The decision of the Commission is dated December 20, 1917, in which that tribunal said that authority to sell would be granted only upon certain conditions. It is evident that these conditions were not carried out and that no

sale was made because in the bill of exceptions, allowed by the justice in the court below and to which no objection appears on the part of the plaintiff's counsel, we find the

statement that no sale was made or could be made in accordance with the preliminary

vote.

This raises the crucial question with reference to the bill of exceptions. The defendant claims that the vote to sell having been passed without any previous authority from the Public Utilities Commission or without subsequent approval by said Commission was a mere nullity and without any legal force and was not such a vote as the statute contemplates as the foundation for the valuation of stock by a dissenting stockholder.

The justice sitting in equity held to the contrary, and in effect decided that such vote was the vote contemplated by the Revised Statute of the state giving minority stockholders a right to have an appraisal of their

lic Utilities Commission refused to permit a sale in accordance with the vote so passed.

Assuming, but not deciding, that the words "within one month thereafter" means within one month after the expiration of the time allowed for filing petition by the corporation, the steps taken by the plaintiff, so far as dates are concerned, were proper. Her petition was ordered returnable on the second Tuesday of September, 1917, which was Sep-stock, notwithstanding the fact that the Pubtember 11th of that year. The cause did not come on for hearing until April 16, 1920, and the decree of the sitting justice who deter mines the value of the shares was dated June 21, 1920. The record does not disclose the date when the decree was entered and filed in court, but on October 11, 1920, the defendant took an appeal "to the next law court to be held in the district where said cause was pending." This appeal was valueless and void, because section 64 of the act from which we have been quoting provides that an appeal from a decree determining the value of the shares shall be heard at the next term of the Supreme Judicial Court where such petition is pending, and where, at the request of either party, the issue may be submitted to a jury. The appeal to this court, therefore, is not properly here, cannot be considered, and must be dismissed.

[2] The long silence between the return

This question has never before been presented to this court, and we find no precedent elsewhere upon which to base a ruling; but reason, good conscience, and equity lead us to decide that the ruling below was error, and that the exceptions should be sustained. It is the sale, and not the vote to sell, which gives the minority dissenting stockholder the right to have his stock appraised. If a corporation by majority vote should decide to sell and subsequently for good reason rescind that vote, it cannot be reasonably held that the Legislature intended such vote to give minority dissenting stockholders the benefits conferred by the statute under consideration. A fortiori when the vote to sell proves to be a nullity and incapable of execution the dissenting minority stockholders' rights cannot be held to have accrued under the statute.

(113 A.)

tions lie to an interlocutory decree; but, as our decision makes final disposition of the case, the exceptions may be entertained and disposed of as we have now done.

(120 Me. 220)

HANSCOM et al. v. NORTH ANSON MFG. CO.

It follows that the bill is unavailing, and (Supreme Judicial Court of Maine. April 9,

entry in the court below should be made dis-
missing the same, but we do not allow costs
to either party.
Appeal dismissed.

Exceptions sustained.

Decree below annulled, new decree to be executed in accordance with this opinion.

(120 Me. 543)

MacDONALD'S CASE.

1921.)

1. Logs and logging 10(1)-Scale of agreed scaler conclusive, in absence of fraud or mathematical error.

When the parties have agreed upon a surveyor to scale logs, they are bound by his scale in the absence of fraud or mathematical mistake.

2. Logs and logging 10(3)-Defendant attacking scale has burden of showing fraud by agreed scaler.

A defendant who attacks the scale of logs made by the surveyor agreed upon by the par

(Supreme Judicial Court of Maine. April 4, ties and makes no complaint of mathematical

1921.)

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error has the burden of proving fraud by the scaler in order to avoid the conclusive effect of his scale.

3. Logs and logging

10(4)-Employment of loggers' relatives by agreed scaler not fraudulent as matter of law.

The mere fact that the scaler agreed upon by the parties employed relatives of the log owners to make the scale does not conclusively establish fraud, where it was understood he

Appeal from Supreme Judicial Court, An- would necessarily have to employ others to droscoggin County, in Equity.

Proceedings under the Workmen's Compensation Act (Rev. St. c. 50) by Basil MacDonald for compensation for injuries, opposed by the Bates Manufacturing Company, employer, and the American Mutual Liability Insurance Company, insurer. From a decree sustaining award of the Industrial Accident Commission to claimant, the employer and insurer appeal. Appeal dismissed and decree affirmed.

Argued before CORNISH, C. J., and SPEAR, DUNN, WILSON, and DEASY, JJ.

B. L. Berman, of Lewiston, for plaintiffs. Andrews & Nelson, of Augusta, and W. T. Gardiner, of Gardiner, for defendant.

PER CURIAM. Appeal from decree sustaining decision of the Industrial Accident Commission awarding claimant damages for an injury alleged to have been sustained by him on May 15, 1920, while employed by the Bates Manufacturing Company.

Two issues are involved: First, whether the claimant sustained an injury; and, second, whether the employer or his agent had knowledge of the accident. Both are questions of fact. On both the Commissioner has found in favor of the claimant, and the record contains evidence upon which, if deemed true, the findings could be based. tion of credibility was for the Commissioner, and his decision thereon was final. Appeal dismissed, with costs. Decree of sitting Justice affirmed.

The ques

make the scale, but it was a question for the in selecting such scalers. jury whether he exercised his honest judgment

4. Logs and logging 10(1)-Scale by owners under employment of agreed scaler not conclusive.

Where the scaler agreed upon by the par ties employed the owners of the logs themselves to make a scale of part of the logs, such scale is not conclusive, unless the work was personally verified or so carefully supervised that the scaler could vouch for it as his own. 5. New trial 168-Jury's finding in support of scale made by loggers sustained.

A verdict in conformity with a scale made by the log owners under employment of the scaler agreed upon by the parties, after the jury had heard the testimony of the scalers, will not be set aside, where the court cannot say their conclusion was manifestly wrong. 6. Evidence 591 - Buyer cannot attack measurements against testimony of his man

ager.

In an action for the balance due on a contract for the sale of logs, where the evidence was conflicting as to whether the bark should be included in measuring the diameter, but there was testimony by the buyer's manager that he knew it was the general custom to scale outside the bark, and price was made accordingly, the buyer cannot attack the scale on the ground the bark should have been excluded.

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

Action by William Hanscom and others against the North Anson Manufacturing

Company. Verdict for plaintiffs and defend- lucidly discussed by Chief Justice Whitman
ant moves for new trial. Motion overruled.
Argued before CORNISH, C. J., and
SPEAR, HANSON, PHILBROOK, MOR-

RILL, and WILSON, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiffs.

A. K. Butler, of Skowhegan, and W. R. Pattangall, of Augusta, for defendant.

CORNISH, C. J. On defendant's general motion for new trial. The controversy aris

in the early case of Robinson v. Fiske, 25 Me. 401. To the strictness of this principle that the agreed scaler is like an arbitrator and his scale bill is conclusive and cannot be impeached except for fraud or mathematical error, the court has closely adhered. Berry v. Reed, 53 Me. 487; Bailey v. Blanchard, 62 Me. 168; Ames v. Vose, 71 Me. 17; Nadeau v. Pingree, 92 Me. 196, 42 Atl. 353; Burton v. Mayo, 106 Me. 195, 76 Atl. 486.

[2] In this case therefore the Lockyear scale must stand unless it is successfully assaulted on one or both of the excepted grounds. There is no claim here of mathematical error, so that the issue is narrowed down simply to fraud, and on this issue the

es over an oral contract made between the parties in the summer or fall of 1918 for the sale and delivery of logs, within the limits of the Dead River Log Driving Company, in the spring of 1919, at specified prices. There is no dispute as to the terms of the contract. The general manager of the defendant cor-ufacturing Co., 103 Me. 394, 69 Atl. 622. poration, who was a witness for plaintiffs,

testified that he bought from the plaintiffs whatever logs they could procure during the logging season of 1918-1919, including what they might themselves cut and what they might procure from others; that the agreed price was $25 per thousand sound scale for spruce and pine; $20 per thousand for fir; $14 per thousand for cedar, and $20 per thousand for small fir and spruce, that is pulp stock; that they agreed upon one William Lockyear as a scaler, the scaling to be done by him or under his supervision, and that his scale should be final and binding upon both parties.

It was also agreed that the defendant should pay the plaintiffs a commission of $1 per thousand on all logs bought from other parties.

With all this the plaintiffs agreed. So that at the trial there was no controversy over the terms of the contract, the prices, nor the selection of the agreed scaler. The only issue finally was the quantity of logs for which under the well-settled rules of law the defendant was bound to pay.

The plaintiffs' claim was for 5,173,562 feet, amounting to $120,332.90 on which credits of $78,653.29 were finally agreed upon, leaving a claimed balance of $41,679.61. The jury returned a verdict in favor of the plaintiffs for $39,996.55, the presiding justice having directed them to disallow a claim of $1,750.82 under an alleged supplemental contract concerning the Savage logs, so called. It is this verdict which the defendant seeks to set aside on the usual ground that it is against the evidence.

burden is on the defendant. Atwood v. Man

It is agreed that the scale of all these logs was not made by Mr. Lockyear personally. That would have been physically impossible in an operation of that size which covered a territory extending 25 miles along the waters of the Dead river and involved 22 or 23 different camps. Nor did the parties contemplate that he should scale the logs personally. The work was to be done as usual in our Maine woods in like conditions, under his general supervision and inspection. The parties so testify. It was understood that he must employ others to do the actual work, log by log and in making his selection of those men he was of course bound to exercise his honest judgment. Here the defendant makes its first attack. It says that about a million feet of these logs were actually scaled by near relatives of the operators, and about one half million feet by the owners themselves; that therefore the entire Lockyear scale loses its binding and conclusive force, and should be compared with and has no more weight than the rescale made by the defendant at Fairfield, which gave a total of 3,301,846 feet, a difference of 1,871,716 feet.

This point was raised at the trial as is shown by the charge which is a part of the record, as various exceptions were taken by the defendant, although not pressed.

[3] As to the employment by Lockyear of relatives of the owners, as subscalers in certain instances, we cannot hold that this of itself constitutes fraud. The situation might be such that he would deem this to be the practical and proper thing to do, realizing the smallness of their cut, and know[1] We must begin the consideration of ing the men, their capacity and integrity. this case with the rule firmly established in The vital question is whether he exercised this state that when the parties have agreed his honest judgment in selecting them. If upon a surveyor to scale logs, in the absence so, there was no fraud on his part, actual or of fraud or mathematical mistake, they are constructive. This was left as a question of bound by this scale. This rule grew up out | fact to the jury, and they, after seeing and of the very nature of the logging contract | hearing both Mr. Lockyear and the subscaland the peculiar conditions under which the ers themselves, decided in his favor. A care

(113 A.)

voluminous, fails to convince the court that their conclusion was manifestly wrong.

[4, 5] As to the employment by Lockyear of the owners themselves as subscalers, as he did in several cases, a different rule applies. He had no authority, either express or implied, to do that unless he thereafter personally verified the work or so carefully supervised it that he could vouch for it as for his own. He could not simply accept their scale as the basis of his own, and without verification make his own scale of these logs conclusive upon the parties.

This aggregate therefore of about a half million feet was stripped of the badge of conclusiveness, and the question of the actual quantity was left for the jury to determine. They could hear all the testimony of the scalers who actually did the work and give to it such weight as it deserved, considering they were interested parties, and they could also hear the testimony of the defendant on the rescale which it claimed showed a large shortage. Again they sustained the plaintiffs' claim, and again the court is unable to find their conclusion manifestly wrong.

[6] The defendant further contends that in the use of the so-called Holland rule with which the logs were scaled, Mr. Lockyear and his helpers employed a wrong method, by including the bark in the diameter, while the true method should be the measurement inside the bark, and that this made a difference of 15 per cent.

Which was or is the correct method was

that a large number of small logs which should have been scaled as pulp logs and put in at the pulp price of $20 per thousand were scaled as sawlogs and put in at the sawlog price of $25 per thousand. This, however, simply attacks the judgment of the agreed scaler, and is not open to the defendant, unless his scale is deprived of its binding force.

The result is that the defendant has not sustained in the judgment of the jury the burden of overthrowing the Lockyear scale either in whole or in part, and therefore it is unnecessary to consider the force of the rescale at Fairfield, its merits or its demerits. The parties sold and bought and the price was fixed, according to the Lockyear woods scale, and not according to a rescale in the water at Fairfield, where the defendant's mill was located, nor a mill scale after the lumber was sawn.

That woods scale was unsuccessfully attacked at the trial, and we are unable to discover from the evidence any substantial justification for holding that the action of the jury was manifestly wrong, and that their verdict should be overturned. The entry will be:

Motion overruled.

(120 Me. 194)

CITY OF LEWISTON v. GRANT et al.

1921.)

1009(1)-Findings of

sitting justice sustained unless clearly er

roneous.

The findings of fact by the sitting justice are to be sustained unless clearly erroneous.

2. Municipal corporations 63(1)-In suit to restrain enlargement of building contrary to ordinance, court has no discretion, as ordinance controls.

a disputed question of fact. Mr. Forrest H. (Supreme Judicial Court of Maine. April 8, Colby, the land agent, and a man of large experience, testified that the bark should be. Appeal and error excluded, while Mr. Lockyear, also a man of many years' experience, testified that the bark should be included. He said that under a straight and sound survey it was customary to exclude the bark, but under a sound survey it should be included, and others claimed that with the old-fashioned circular saws so much of the log was wasted in sawing that the bark was excluded, while with the modern band saws there is little wastage, and the bark should be included. Some of the subscalers on this operation testified that they included, and others that they excluded, the bark. No fixed custom was proved. It was for the jury to decide which was the proper method, if there is a proper method recognized among lumbermen. 3. Municipal corporations |||(4) Moreover, Mr. Hume, the general manager of the defendant, testified that when he made this contract he knew it was the general custom to scale outside the bark, and the price was made accordingly. Under these circumstances the defendant cannot with reason complain, if the scaler did what it assumed he would do.

In suit by a city to restrain defendants from enlarging a certain building in violation of an lot within described limits should be repaired ordinance providing no wooden building on any or altered to increase its height or size, the court could not exercise discretionary power, the ordinance controlling.

Provision of ordinance relative to repair of wooden buildings held separable.

Provision of city ordinance that no wooden building on any lot within described limits should be repaired or altered to increase its present height or size held separable from provisions of the same paragraph forbidding the erection of any building less than three stories in height, etc. for purposes of considering its

Another claim set up by the defendant was constitutionality.

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Ordi

4. Municipal corporations 111(3) nances and by-laws must be reasonable. Ordinances and by-laws of municipal corporations, to be valid, must be reasonable, and not oppressive, in their character.

5. Municipal corporations 63 (2)-Principle that reasonableness of ordinance is a question for court without application where ordinance is pursuant to legislative authority.

The principle that whether a by-law or ordinance of a municipality is reasonable or oppressive is a question for the court, does not apply where the municipality does that which it is expressly authorized to do by the Legislature, but, where the power to act is general, the ordinance pursuant to it must be a reasonable exercise of the power or it is invalid.

provides that no wooden building standing on any lot within certain described limits shall be repaired or altered so as to increase its present height or size. These limits are within the restricted area known as the fire district in the plaintiff city.

The case was heard before a single justice upon a petition for temporary injunction, but, all the evidence available having been put in at the hearing, it was agreed by the parties that an answer might be filed and the case decided upon its merits. The answer was filed, and the presiding justice thereafter made finding and decree in decision of the

case.

6. Municipal corporations 625-Ordinance of the building in question; that the alteragainst increasing size of wooden buildings

not unreasonable.

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He found that the ordinance was clear and explicit; that it applied to the enlargement ations increased the present size of the buildthat by ordinance the new part of the building; that the ordinance was constitutional; ing in question was forbidden; that a structure erected contrary to the ordinance is a statutory nuisance; that in such case the court cannot exercise discretionary power; that when the statute declares a certain condition to be a nuisance the court must hold it to be such, otherwise the statute would be rendered a nullity. The following is the decree:

"This case having been heard before a single justice on the 7th day of October, A. D. 1920, and a finding therein entered for the plaintiff on the 11th day of October, A. D. 1920, it is therefore, in accordance with the decision of said justice, ordered, adjudged, and decreed as follows: That the new wooden structure in the rear of the defendant's buildings, and adjoining thereto, and made a part thereof, which is 16 feet deep, 12 feet 6 inches in width, and one story in height, and annexed to the southeasterly corner of the main building, is a nuisance to said plaintiff, and said defendants are hereby enjoined and commanded forthwith to remove the same, and that said plaintiff recover issue therefor."

Appeal from Supreme Judicial Court, An- its costs against said defendant; execution to droscoggin County, at Law.

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From this decree the defendants seasonably appealed, their appeal being based upon the following contentions:

I. That the repairs which they made were not a substantial violation of the ordinance; that the alterations in the building were slight; that the increase in the size of the building, if any, was trivial.

II. That the ordinance is void because it is unreasonable and unconstitutional, as not being justified under the exercise of the police power of the state.

III. That the city is estopped from prosecuting this bill, because the repairs and additions to the building made in this case were so constructed under the direction and by the permission of the building inspector of the plaintiff city.

IV. That the decree of the sitting justice

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