It satisfactorily appears, also, that the legacy to Mr. Simmons conformed to the wish of Madam Nordica. The same witness testified: "Q. Did she read it? A. I can't say she read it through. "Q. What do you mean when you say she read it? A. She looked at it. "Q. She glanced at it? A. Yes. "Q. Was any time consumed in the time she glanced at it and the time she answered yes? A. No, just a short time. "Q. Just a second, just an instant? A. I couldn't say how long, but a very short time. "Q. What do you mean by a very short time, expressed in minutes or seconds? A. Well I should have thought about half a minute." [4] We have no hesitation in giving full credit and effect to that testimony. It was given by a woman of intelligence and experience, trained to close and accurate observa"Q. Now does that exhaust your recollection tion. She was wholly disinterested, and was as to what occurred? A. I remember that, uncontradicted. Now when we consider that when I first went into the room with Mr. Le-the document that Madam Nordica was calloryce, Mr. Simmons was there, and that Mr. Simmons asked Madam to have his name takened upon to examine consisted of but two out of the will." It further apears that immediately thereafter Mr. Simmons left the room, and the will was executed in his absence. It further appears that after the will was executed it was left with Madam Nordica in her room. As a makeweight, the appellant contends that the will was unnatural and unjust. But we cannot say that it is so. We cannot say that the bequest to the testator's private secretary and accompanist was an unnatural one. He had served her for 16 years. Neither can we say that the reduction of the legacy to her husband was unjust, in view of her statement in the will that she thought it fair considering the large cash advances she had made to him. [3] But, however this may be, no court has power to refuse probate to a will merely because the disposition the testator has made of her property by it appears to the court to be unnatural, unreasonable, or unjust. It is as much the duty of the court to uphold the right of the owner of property to dispose of it by will as she pleases, as it is to see that she is not imposed upon in the exercise of that right. As showing that Madam Nordica was not imposed upon and that she understood the provisions of her will, the following testimony of Miss MacDonald on cross-examination is significant: "Q. And the paper was folded, was it not, when he (Mr. Lebryce) handed it to her; it was folded? A. When he handed it to her it was "Q. She examined the paper? A. Yes, she typewritten sheets; when we consider that, though slightly ill, she was a woman of education and lively intelligence, in full possession of her mental faculties, and intent upon the business in hand; when we consider that the will had been previously submitted to her after having been drawn by her order-we conclude that, during the "half a minute" in which she "read or looked at" the will, she at least scanned it, sufficiently to truthfully say, as she did say, that she had read it and understood it. [5] Lastly, the appellant contends that the orphans' court had no jurisdiction to admit the will to probate. We think there is no merit in this conten tion. The mere fact that the proceeding was begun by a petition filed by George W. Young, the husband, for the probate of the will of 1910, is immaterial. The petition alleged, among other things, that- "A dispute has arisen respecting the existence of an alleged will of Lillian Nordica Young, purporting to be dated January 10, 1914, the existence or validity of which is denied by the said George W. Young, a copy of which said alleged instrument is annexed hereto." The matter being then certified into the orphans' court, all beneficiaries, next of kin, and parties in interest, not only under the will of 1910, but under the will of 1914, were cited to appear "in the matter of the application of George W. Young for an order admitting to probate a paper or papers purporting to be the last will and testament of Lillian Nordica Young, deceased, and to abide the judgment and decree of said court in the premises." The beneficiaries under the will of 1914 answered alleging revocation of the will of 1910 by the due execution of the will of 1914, and subsequently, before the hearing was closed, two of the executors of the will of 1914 presented a petition for the probate thereof, and, with the consent of (106 A.) nunc pro tunc, together with the appropriate exception to the overruling of the motion in answer of Mr. Young. The matter thereupon arrest of judgment is without merit. No deproceeded to a decree without any objection fect appears upon the face of the papers. in that court to the jurisdiction of that court to probate the will of 1914. We conclude, therefore, that there is no merit in this objection made for the first time on appeal. The decree under review will be affirmed, with costs. (118 Me. 164) STATE v. BROWN. The motion for a directed verdict is in the nature of a demurrer to the evidence, and brings the case up on the evidence. This exception may be considered with the appeal. The appeal brings the case up on its merits, with the verdict of the jury to overcome. [2] The question of the right of appeal from the superior court is raised by the state. An analysis of the statutes hereto appended shows that an appeal lies. We therefore come directly to a consideration (Supreme Judicial Court of Maine. April 30, of the merits of the case, under the appeal, 1919.) where a concurrence of a majority of the 1. CRIMINAL LAW 753(1)-TRIAL-MOTION justices shall be sufficient to grant a new FOR DIRECTED VERDICT. trial. A motion for a directed verdict is in the nature of a demurrer to the evidence, and brings the case up on the evidence. The offense charged in the indictment is most revolting. Yet the jury, after a patient and exhaustive trial, with opportunity to see, hear, and judge the parties and witnesses, found the defendant guilty. 2. CRIMINAL LAW 1023(13)-RIGHT OF AP. PEAL-MOTION FOR NEW TRIAL-FELONIES. In view of Rev. St. 1916, c. 136, § 28, and in [3] The defense argues the improbability view of the history of the legislation as to of the story upon which the verdict is foundright of appeal in criminal cases, an appeal may ed. It is legitimate argument. Yet, if the be taken from denial by superior court of mo- acts charged were improbable, the manufaction for a new trial in all felony cases, notwith-ture of the prosecution was well-nigh imposstanding chapter 82, § 100, providing that motion for a new trial in criminal cases tried in either of the superior courts shall be finally de termined by justice thereof. 3. CRIMINAL LAW 720(1)—TRIAL-ARGUMENT OF COUNSEL-IMPROBABILITY OF TESTIMONY. In prosecution for having committed a revolting offense, the improbability of the story upon which prosecution is based is legitimate argument of defense. Exceptions from Superior Court, Cumberland County, at Law. Walter S. Brown was convicted of a crime, and he excepts and appeals. Exceptions overruled. Appeal denied. and Argued before CORNISH, C. J., SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ. Carroll L. Beedy and Clement F. Robinson, both of Portland, for the State. sible. There is no judicial ground upon Analysis of the Statutes. In this case a motion for a new trial was presented to the justice who heard the cause, and denied. An appeal under Rev. St. 1916, c. 136, § 28, was taken from this decision. The first clause of this section provides, without limitation as to the court in which the cause may be pending, that a motion to the sitting justice for a new trial in any case involving imprisonment for life is a subject of appeal. Hence there is no doubt that an appeal involving life imprisonment lies from an adverse decision of a justice of the superior court. The last clause then proceeds to read that "in all other cases amounting to a felony, W. C. Whelden and Arthur Chapman, both where a like motion is filed an appeal may of Portland, for defendant. SPEAR, J. This case comes up on exceptions to the admission of testimony; to the refusal of the presiding justice to order a verdict after the evidence was all in; to overruling a motion in arrest of judgment; and on appeal from the decision of the presiding justice denying a motion to set aside the verdict. [1] The exceptions to the admission of testimony are not in such form as to admit of consideration. Dennis v. Packing Co., 113 Me. 159, 93 Atl. 58, Ann. Cas. 1917D, 788. The be taken to the law court." Rev. St. c. 82, § 100, provides that "motions for a new trial in criminal cases tried in elther of the superior courts, shall be heard and finally determined, by the justice thereof." This provision must be construed in pari materia, as, in the history of the legislation touching the right of appeal, capital cases evidently do not fall within the limitation of section 100, c. 82, as appears from the following comparison: Chapter 151. Public Laws of 1868, established a superior court in Cumberland county, and chapter 216 (1868) gave it full crimi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes nal jurisdiction. At that time no statute provided for an appeal in any class of criminal cases. Chapter 216 expressly provided that the decision of the justice should be final. This was no more than a declaration of the common law right of the justice. State v. Hill, 48 Me. 241; Brown v. Moore, 79 Me. 216, 9 Atl. 355; State v. Perry 115 Me. 204, 98 Atl. 634. By chapter 207, Public Laws of 1880, the following statute was enacted: "The Supreme Judicial Court, or any superior court, before which any person has been convicted for an offense, capital, or formerly capital, or may be convicted for an offense formerly capital, may either in term time or vacation grant a new trial, for any cause for which a new trial may or should be granted." This statute did not provide for appeal from the decision of the presiding justice in either court. By Public Laws of 1883, c. 205, § 8, the respondent was granted the right of appeal | from an adverse decision upon his motion to the next law term, and the concurrence of but three justices was necessary to grant such motion. This chapter restored the death penalty, and section 8 applied to both the Supreme and superior courts. That section appears in Rev. St. 1883, c. 134, as section 27. By Public Laws 1889, c. 152, section 27 of chapter 134 was made to apply to "murder or any offense for which the punishment may be imprisonment for life" instead of to a "capital case." This change in phraseology was required by the repeal of the death penalty which abolished "a capital case." The appeal, however, remained precisely the same as in Rev. St. 1883, c. 134, § 27, and applied to both the Supreme and superior courts. Rev. St. 1883, c. 134, § 27, as amended, became chapter 135, § 27, in the revision of 1903. Consequently an appeal for any life offense under the latter section could be taken from both courts. Public Laws 1909, c. 184, amended section 27, c. 135, Rev. St. 1903, by adding the following: "But in all other criminal cases amounting to a felony, where like motion is filed and appeal taken to the law court the concurrence of a majority of the justices shall be necessary to grant such motion and sentence shall be imposed upon conviction, either by verdict or demurrer." This addition, it will be seen, does not in any way differentiate between the Supreme and superior courts, with reference to the right to pass upon "such motion," or upon the right of appeal. The only change is that it requires a concurrence of the majority of the justices instead of three to grant the motion. In the language of the section "where like motion is filed and appeal taken to the law court" the word "like" would indicate that both the motion and the appeal should be based upon the same jurisdiction as the motion and appeal in case of punishment or imprisonment for life. It would therefore follow that an appeal in case of a felony upon the denial of a motion for a new trial by the presiding justice could be taken from either court. By chapter 18, Public Laws of 1913, Rev. St. c. 135, § 27, as above amended, was again amended, so that, to sustain an appeal in offenses punishable by imprisonment for life, it required a majority of the justices instead of three. No other amendment was made. This did not affect the right of appeal from either court. Neither Rev. St. 1883, c. 77, § 82, nor Rev. St. 1916, c. 82, § 100, identically the same, inhibit an appeal in a murder case in the superior courts although the language is broad enough to deny an appeal in all criminal cases. In view of the history of these statutes, and of the fact that the superior court of Cumberland county has always had jurisdiction of murder cases, a class of criminal cases which certainly does not fall within the purview of chapter 82, § 100, and that an appeal in case of felonies has been coupled with, and is an amendment of, the section of the statute which has always applied to capital or murder offenses, we think that felonies, the penalty for which in some cases may be very severe, were intended, so far as the right of motion for new trial and appeal is concerned, to be placed in the category of offenses which were formerly capital or for which the punishment might be imprisonment for life. (118 Me. 148) (106 A.) VILES V. KENNEBEC LUMBER CO. (Supreme Judicial Court of Maine. April 30, 1919.) 1. WORK AND LABOR 29(1)—VALUE OF SERVICES-EXPRESS OR IMPLIED CONTRACT. In case of a quantum meruit upon an implied contract, there is no fixed standard to which value of services may be referred for determination, while in case of quantum meruit upon a special contract the contract price is the standard by which damages are to be estimated. 2. SALES 355(2) GENERAL ISSUE DEFENSE AVAILABLE "QUANTUM MERUIT." The logs for which plaintiff sought recovery upon a "quantum meruit," meaning "what he merits," having been furnished under a special contract, defendant under plea of general issue could claim and show damages due to breach of contract; such damages being in issue, not by the plea, but by the nature of plaintiff's action. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Quantum Meruit.] cation that the plaintiff would offer in proof of the latter count the items and charges enumerated in the account annexed. The plea was the general issue. The de fense offered was a special contract, and alleged breach thereof, and a deduction in damages therefor. The case was tried upon the theory: (1) That no claim for a deduction in damages could be made, under the general issue; (2) that the plaintiff could recover, regardless of any breach of contract, what the logs delivered were reasonably worth; (3) that the contract was fully performed. [1] It should be noted that a quantum meruit upon an implied contract and a quantum meruit upon a special contract originate and proceed to a judicial termination upon quite different grounds. A quantum meruit upon an implied contract is not founded upon a breach, but upon conditions and circumstances which the law says implies a promise on the part of the beneficiary to pay what in equity and conscience the services are reasonably worth. There is no fixed standard to which the value of the services may be referred for determination. On the other 3. SALES 88, 89-QUESTIONS OF LAW AND hand, a quantum meruit, upon a special conFACT. The interpretation of the contract of sale in question was a question of law; whether modified, a question of fact. 4. SALES 62-DIVISIBLE CONTRACT. Contract to deliver about four million feet fir logs to be cut during winter of 1914-1915, about five million feet to be cut during winter of 1915-1916, and about five million feet to be cut during winter of 1916-1917, was divisible, and each season's cut was as distinct as though there had been a separate contract for each. 5. SALES 89-MODIFICATION OF CONTRACTBURDEN OF PROOF. In action to recover under a quantum meruit for quantity of logs delivered under special contract, plaintiff had the burden of showing that the contract was modified as claimed by him. tract, is founded upon the plaintiff's breach, and the contract price is the "standard by which the damages are to be estimated." Jewett v. Weston, 11 Me. 348. We must accordingly bear in mind, throughout this whole discussion, that we are dealing with a special contract. A special finding was submitted upon the question of performance, and the jury found in favor of the plaintiff. This finding took care of the question of damages, provided the finding, upon the law and evidence, can be sustained; and of course settles the whole case. The essential part of the contract was as follows: "Memorandum of agreement, between Boyd & Harvey Company and Blaine S. Viles, Augusta, Maine, parties of the first part, and the Kennebec Lumber Company, of Augusta, Maine, party Exceptions from Supreme Judicial Court, of the second party, for an amount of fir logs Kennebec County, at Law. Action by Blaine S. Viles against the Kennebec Lumber Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ. W. R. Pattangall, of Waterville, and H. E. Locke, of Augusta, for plaintiff. to be cut during the winters 1914, 1915, 1916, 1917. Said Boyd & Harvey Company and Blaine S. Viles agree to sell to the Kennebec Lumber Company about four million (4,000,000) feet to be cut during the winter of 1914-1915, about five million (5,000,000) feet to be cut during the winter of 1915-1916, and about five million (5,000,000) feet to be cut during the winter of 1916-1917." The plaintiff's action is not based upon this contract. His declaration does not mention it. In his action he relied solely upon reWilliamson, Burleigh & McLean, of Au- covering for the quantity of logs proved to gusta, for defendant. have been actually delivered. SPEAR, J. This case is in the form of an action in assumpsit, upon an account annexed, and a quantum meruit, with a specifi [2] The plaintiff offered the contract. The defense then proceeded upon the theory that, while the plaintiff may have delivered the quantity of logs alleged, he did so by virtue of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a contract with the defendant, by which he agreed to deliver a much larger quantity than was actually furnished, and that in consequence of such shortage of delivery the plaintiff was guilty of a breach of his contract, and the defendant was thereby subjected to damages. The first inquiry is: If there was a breach of contract, was the defendant entitled to show it, and claim the damages resulting therefrom under the plea of the general issue? Because if the defendant could not do this, under that plea, the only issue was the quantity of logs delivered, and their value. Furthermore, if damages could not be shown under the plea, it is evident that the contract and evidence of performance or nonperformance were admissible only upon the issue of good faith. But this issue was eliminated by the verdict, and we shall have no occasion to further allude to it. The theory upon which the case was finally submitted to the jury is shown by the following extract from the judge's charge: * * recoupment as a matter of pleading at all. The course of proceeding to have been pursued in the framing of the issues in the trial of this case is clearly mapped out in Jewett v. Weston, 11 Me. 346. The parties had entered into a special contract for the performance of certain work. The plaintiff brought an action upon quantum meruit. The court say: "Having proved the performance of the labor, they might rest until this proof should be avoided by the defense." How "should it be avoided by the defense?" This is the crucial inquiry, as it vitally concerns the matter of pleading. Was it by special plea, or brief statement under the general issue, which only was pleaded? Not at all. The court states how: "It came out in evidence that the labor was performed under a special contract." This is all that appeared. Nothing further was done or required by way of pleading. Yet the court say: "The defendant has stated to the court during the trial, and he has urged it to you, that in arriving at that figure of what the plaintiff rea- "As soon as it came out in the evidence that sonably deserves to have, if you come to that, the labor was performed under a special agreehe is entitled to have you deduct the damages ment, the defendant might securely rest, until which the defendant has sustained by reason of the plaintiff had removed this obstacle [the spethe nonperformance of the contract. * *Icial contract] in one or the other of the modes cannot give you that rule. But the above suggested." question for you to decide, if you come to that, would be how much the logs furnished by Mr. Viles this last season were reasonably worth, considering that the remainder, if any, were not furnished, and considering that some saw logs, if you find such to be the fact, were taken out? To put it another way, were the logs that he actually received worth any less because some were not furnished? Were they worth any less because some large trees were taken out, provided that the logs that were left came up to the specification? Not, you see, whether the defendant was left short of logs for his mill. That is not the question; but the question is, did, or does, the plaintiff deserve to recover under that quantum meruit clause, if you come to that, for the logs which he did furnish in good faith under the circumstances disclosed in this case?" By the use of the above language the defendant was denied any consideration for the shortage of logs for his mill on account of the breach of contract, and the plaintiff was permitted to recover what the logs which he delivered "were reasonably worth" without any regard to the breach. The shortage, in such a contract, might be very important. As this case finally shaped up, it is therefore obvious that but two issues are before this court: (1) Was the defendant under its plea entitled to show a breach of contract and claim a reduction of the plaintiff's verdict by reason of damage, if any, it might have sustained on account of the breach? (2) Was the jury justified, under the law and evidence, in finding a special verdict of performance? The first issue presents a question of law. We think it should be resolved in The modes suggested were by proof of performance or of "deviation" by consent. Yet These three moves follow in logical sequence under the general issue. No recoupmentioned in any of the pleadings. As above ment was pleaded. The contract was not stated, "it came out in the evidence." the contract was admitted for the purpose (1) of "showing what the agreement was," (2) "as a standard by which the damages were to be estimated." Under the plea of the general issue, the court say in regard to the defendant's right to offset his damages, or recoup his damages, or deduct his damages (what you may call the method is immaterial), that "The contract price would be the rule in case the contract had been performed. But that not having been done, so much was to be deducted as the defendant suffered by reason of its nonperformance"-and cites Hayward v. Leonard (Mass.) 7 Pick. 181, 19 Am. Dec. 268, to which allusion will be further made. |