when new. From that testimony he contends that the court was justified in submitting the case to the jury. It is true, as claimed by the plaintiff, that in considering exceptions of this kind the evidence must be viewed in the light most favorable to the plaintiff, as on a motion for a verdict; but in neither case does it follow that the court is bound to give credit to the testimony of a witness, when the undisputed facts contradicting that testimony are before it. Whether the jack was out of repair to the extent claimed by the witness was a matter plainly to be seen by any one who inspected it. The testimony of the witness could add nothing beyond what the court and jury could see. The evidence was undisputed that the jack was in the same condition at the trial as at the time of the accident, and no claim is made but that it is in the same condition now as on the trial below. Upon examination we are satisfied that the jack is not out of repair to the extent claimed by the plaintiff. The dog and cogs do not show sufficient wear to impair the efficiency of the jack, and, when on examination, the dog was inserted between the cogs or teeth of the standard, it was perfectly obvious that it was impossible to make the dog slip by properly throwing the weight of a man's body upon the lever. The evidence in this regard, considered in the light most favorable to the plaintiff, had no tendency to show negligence on the part of the defendant, but rather on the part of the plaintiff, notwithstanding that the plaintiff and one of his witnesses testified that the jack was unsafe in the respect claimed by the plaintiff; for that testimony was unavailing and without probative force to establish the fact to which it related, being opposed and contradicted by the fact itself. Harrington v. Rutland R. R. Co., 89 Vt. 112, 94 Atl. 431; Carter v. C. V. Ry. Co., 72 Vt. 190, 47 Atl. 797; Labelle v. C. V. Ry. Co., 87 Vt. 87, 88 Atl. 517. The court erred in submitting the case to the jury. [3] The plaintiff also claims that the jack was not reasonably safe, because there was sand or gravel between the cogs or teeth that prevented putting the dog into or between the cogs or teeth, and that that was the cause of the dogs slipping. But there was no evidence in the case supporting such claim. There was evidence tending to show that the jack had at times in the past been thrown into the gravel occasionally, but no definite time was stated when this was done. There was also evidence tending to show that gravel sometimes got in between the cogs or teeth; but there was no evidence that this was the condition at the time of the accident. The very extreme to which the evidence went was nothing more than to show an opportunity for gravel to get between the cogs or teeth of the upright standard. This was not enough to establish the alleged defect in the jack. It was a presumption upon a presumption, and therefore lacked the quality of evidence. The rule is well settled that one presumption cannot be based upon another. Poronto v. Sinnott, 89 Vt. 479, 95 Atl. 647, and cases cited. [4] The defendant made no motion for a directed verdict in its favor, but excepted to the charge of the court for submitting the case to the jury on the ground that there was no evidence in the case tending to show negligence on the part of the defendant proximately contributing to the injury of the plaintiff. Under the practice of this court, as it existed at the time French v. Grand Trunk R. R. Co., 76 Vt. 441, 58 Atl. 722, was decided, an exception of this kind was not always treated exactly like an exception to the overruling of a motion for a verdict. In the latter case, if the exception was sustained, this court rendered such judgment as the trial court should have rendered, unless a jury trial becomes necessary, or the decision of this court places the case in such a state that either party has a right to a trial by jury. Bass v. Rublee, 76 Vt. 395, 57 Atl. 965; Woodsville Guaranty Savings Bank v. Rogers et al., 82 Vt. 468, 74 Atl. 85. See, also, Wentworth v. Waterbury, 90 Vt. 60, 96 Atl. 334; Harrington v. Rutland R. R. Co., 89 Vt. 112, 94 Atl. 431. In the former case when the exception was sustained the judgment was usually reversed and the cause remanded, as in the French case; but under our present practice, when it is clearly apparent that the result on a second trial must be the same as on the first, following the holding in Rice & Co. v. Kennedy, 76 Vt. 380, 57 Atl. 971, we render such judgment as the trial court should have rendered, thereby saving to the parties the needless trouble and expense of a second trial. See Barrows v. Dugan's Estate, 88 Vt. 441, 444, 92 Atl. 927. Judgment reversed, and judgment for defendant to recover its costs. PER CURIAM. This is an action to recover commissions for negotiating a sale of certain real estate owned by the defendants. The active parties are one Guy W. Davis, who does business under the style of Benja APPEAL AND ERROR 1123-REPORT-DIS- min Shaw & Co., and Frank C. Moody, acting CHARGE. Where, on report, a majority of the court do not concur in ordering judgment for either party, the report must be discharged. Report from Supreme Judicial Court, Pe nobscot County, at Law. Real actions by Emma A. Burr against Laura A. Merrill, Alanson J. Merrill, and others. Before the court on report. Report discharged. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, MORRILL, WILSON, and VEASY, JJ. Ryder & Simpson, of Bangor, for plaintiff. Fellows & Fellows and John B. Merrill, all of Bangor, for defendants. PER CURIAM. These are real actions involving the same question, and are before the court on report. The decision in each case depends upon the construction of the last will and testament of William P. Burr. After mature deliberation and consideration, as a majority of the court do not concur in ordering judgment either for the plaintiff or defendant, the entry in each case must be: Report discharged. (118 Me. 489) BENJAMIN SHAW & CO. v. MOODY et al. (Supreme Judicial Court of Maine. July 1 1919.) for himself and other owners. The employment of the plaintiff as a real estate broker is denied by defendants, and by the terms of the agreed statement the question of emFrank C. Moody is to be determined by the ployment of the plaintiff by the defendant correspondence and telegrams in the record. The case is submitted to the law court upon an agreed statement of facts in which is included copies of certain correspondence. As to certain letters and telegrams between the defendant Frank C. Moody, M. C. Rich & Co., and G. V. Morris, so included in the case, the following stipulation is made: "The question of admissibility of this correspondence is reserved for the court." The case does not show by which party the correspondence referred to was offered, nor the objection raised. The case being submitted on an agreed statement of facts, this stipulation must be held to mean that the facts stated in said correspondence are true and are to be considered as far as deemed by the court to be material. A careful consideration of the correspondence printed in the record in the light of the admitted facts fails to show any contract of employment of plaintiff by the defendant Frank C. Moody. The case shows clearly that Moody employed F. S. & E. G. Vaill, who seem to be also known in the transaction as Maurice C. Rich & Co., to sell the property, and gave them the exclusive sale. He in terms so stated to the plaintiff, expressing his intention to live up to his agreements and not render himself liable to pay two commisSions. The plaintiff knew that the Vaills had the property for sale and obtained their consent to negotiate directly with Moody, and had an agreement with them to receive half the commission if his customer took the prop TRIAL 368-AGREED CASE-CONSTRUCTION. Plaintiff endeavored to negotiate a binding contract for sale with defendants, but the defendant Frank C. Moody did not execute the sale contracts forwarded to him tiff. Strout & Strout, of Portland, for defendants. Judgment for defendants. (118 Me. 233) STATE v. CHADWICK. (Supreme Judicial Court of Maine. July 7, FISH 1919.) 15-LOBSTERS-LAWFUL LENGTH. A complaint charging that defendant had in his possession lobsters which were less than 44 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes inches long, and that none of the lobsters were liberated alive at the risk or cost of those taking them or at the cost of defendant, states a violation of Rev. St. c. 45, § 35, though it did not state whether the lobsters were cooked or alive, that section, unlike previous statutes, not making the gravamen of the offense the failure to liberate such lobsters, but making it an offense for one to have them in his possession. the prescribed length that were not liberated as required by law. It was the failure to liberate them alive that rendered them contraband and illegal to buy, sell, or possess, and hence it could well be said that, if there was a difference in measurement between a lobster alive and a lobster cooked, it was only those that were shorter than the required length when caught or alive that it Exceptions from Supreme Judicial Court, was illegal to hold. Knox County, at Law. Hiram W. Chadwick was charged with violating Rev. St. c. 45, § 35, by having in possession lobsters of less than lawful length, and, his demurrer to the complaint having been overruled, he excepted. Exceptions overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, WILSON, and DEASY, JJ. Henry L. Withee, Co. Atty., of Rockland, for the State. Rodney I. Thompson, of Rockland, for respondent. WILSON, J. In a complaint under section 35, c. 45, R. S., charging the respondent with having in possession 109 lobsters of less than lawful length, the language of the complaint is: "Unlawfully did have in his possession 109 lobsters, each of said lobsters being then and there less than 44 inches in length measured in manner as follows: * And none of said lobsters were liberated alive at the risk and cost of the parties taking them or at the risk and cost of Hiram W. Chadwick." It will be noted that the complaint does not set forth whether the lobsters when found in the possession of the respondent were alive or dead, or whether the measurement was taken "when caught," or while alive, or after they were dead. The respondent has demurred on the ground that, since the lobsters may have been dead and cooked, under the decisions of this court in Thompson v. Smith, 79 Me. 160, 8 Atl. 687, and State v. Brewer, 102 Me. 293, 66 Atl. 642, it is necessary to allege either that the lobsters were alive or that the measurements were taken when caught. When Thompson v. Smith was decided, it was, no doubt, a correct interpretation of the statute as it then stood. Numerous revisions and amendments have been made to this statute since the decision in 1887, the most radical one being made in 1901 (chapter 284), which, we think, indicated an intent on the part of the Legislature to change the entire effect of the statute so far as the grounds for imposing penalties are concerned, Prior to 1901 the penalty was imposed for catching, buying, selling, or exposing for sale The statute as it has since been amended now declares it unlawful to buy, sell, give away, expose for sale, or have in possession, lobsters, either dead or alive, cooked or uncooked, less than 44 inches in length measured according to the statute, and imposes a penalty for each lobster "so bought, sold, given away, or exposed for sale or in possession"-that is, for each lobster unlawfully bought, sold, etc., or in possession. The unlawfulness for buying, selling, exposing for sale, or having in possession does not under the present statute arise from the fact that they were not liberated alive, but entirely from the fact that they were of less than lawful length, whether dead or alive, cooked or uncooked. The statute still requires that any lobster less than the prescribed length when caught shall be immediately liberated alive by the party taking it and at his risk and cost. There appears to have been a changed attitude in the intent of the Legislature as to the manner by which it proposed to accomplish the purpose of protecting young lobsters from destruction. In the early statute (chapter 138, Laws of 1883) and until the revision of the laws applying to sea and shore fisheries in 1901, the method by which the Legislature proposed to secure this result was to require all young lobsters less than a prescribed length to be liberated alive, and impose a penalty for buying, selling, or having in possession any lobsters that were "not so liberated." The failure to liberate alive was the essence of the offense. If, therefore, they were of lawful length when alive, it mattered not what their condition was after being cooked. The purpose of the statute was secured by requiring their liberation, if of unlawful length when caught, and by making it unlawful to deal in them, whatever their condition might be, if they were not so liberated. Under the present statute, instead of making the failure to liberate the basis of the offense, it is now unlawful and an offense to have lobsters of less than lawful length in possession or to deal in them in any way, without regard to whether they should have been liberated or not; hence it now matters not what their measurement may have been when alive or when caught, if there is any change by cooking under the present method of measurement, except when the charge (107 A.) It will be noted that it is not now unlaw-| be made by the judge presiding at that term, ful to catch "short lobsters," but the statute and his authority to audit such accounts is a does enjoin upon every person catching them case "otherwise specially provided for," within the immediate liberation of them alive, and G. L. 580, authorizing state auditor to act in Imposes a penalty for every lobster "so and auditor has no authority to revise the audit cases not "otherwise specially provided for," caught"; that is, caught and not immediate- of the presiding judge. ly liberated. We are therefore of the opinion that under the present statute, in the case of a charge of buying, selling, giving away, or exposing for sale, it is sufficient to allege simply that the lobsters were of less than the prescribed length, measured according to the statute, without alleging they were not immediate ly liberated alive, or whether they were alive or dead. That they were not immediately liberated alive is not an essential element of the offense, and in any event follows by necessary intendment in case of a charge of buying, selling, or exposing for sale. In the case of a charge of catching or having in possession, however, we think it is still necessary to set forth that they were not immediately liberated alive at the risk and cost of the party taking them. In the case of catching it is a necessary element of the offense. By the terms of the statute the penalty is imposed when they are "so caught"; that is, caught and not liberated. In case of a charge of having in possession it is also necessary to allege that they were not immediately liberated alive at the risk and cost of the party taking them, in order to negative the lawful possession that is incident to catching by the present methods prior to liberation in accordance with the statute. As the complaint in this case meets these requirements, we must overrule the exception. We have considered carefully the decision in State v. Brewer, supra, cited by the respondent, and, while this case was decided since the change in the statute in 1901, the views therein expressed, following the doctrine laid down in Thompson v. Smith, supra, are not wholly in accord with what seems to us the clear intent of the Legislature under the present statute, and to that extent it must be regarded as modified. Entry will be: Exceptions overruled. (93 Vt. 288) MIMMS v. GATES. (Supreme Court of Vermont. May 8, 1919.) (No. 143.) 1. COURTS 57(2)-CoUNTY COURT-AuditING STENOGRAPHER'S BILL "OTHERWISE SPECIALLY PROVIDED FOR." Under G. L. 1629, allowance of stenographer's bill for services at a term of the county court which he was appointed to report is to [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Otherwise.] 2. APPEAL AND ERROR 843(2)—REVIEW— MATTERS NOT NECESSARY TO DISPOSITION OF Since holding that state auditor had no authority to revise county judge's audit of stenographer's bill disposes of the case, it is unnecessary to pass upon question whether allowance of bill by judge was according to rule 47, § 2, of the County Court Rules. Petition for a writ of mandamus by John H. Mimms against Benjamin Gates. Granted. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. John H. Mimms, of Burlington, pro se. Herbert G. Barber, Atty. Gen., for petitionee. PER CURIAM. The petitioner was the duly appointed and sworn official stenographic reporter of the county court for the county of Chittenden at its March term, 1918. After having served in that capacity for 17 days, he was summoned to Boston by United States government officials in connection with the flotation of the Third Liberty Bond issue, and during his absence of one day his place was supplied by a special stenographer, who was allowed for that day's service $10. On the petitioner's return he resumed his duties in court and continued in that service to the end of the term, serving thereafter in that capacity 13 days. He was allowed by the presiding judge of the county court, for his services for the first 17 days before being summoned to Boston and for 1 day after his return, the sum of $180, being at the rate of $10 per day, and for the last 12 days $95, being at the rate of $8 per day. The defendant, as state auditor, disallowed this allowance of the county court in the sum of $2, on the theory that the petitioner was entitled to receive under the rules of the county court but $8 per day after his return from Boston, 18 days of the term then having expired, and it is to compel the allowance of the $2 disallowed on the per diem of the first day after the petitioner's return that this petition is preferred. [1] The authority of the state auditor to allow or disallow claims against the state is derived from the statute, and looking at that we find no authority given to him by which he could disallow any part of the petitioner's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes bill which had been allowed by the presiding judge of the county court. G. L. 580, only authorizes the auditor to act in cases not otherwise specially provided for, and G. L. 1629, makes presiding judges of the county court auditors of stenographic reporter's accounts for service rendered at a term of court to which they are appointed to serve, and provides that the county clerk shall pay the bill. While the statute authorizes the auditor to audit the clerk's account and credit him with moneys properly disbursed by him, it does not authorize him to revise the audit of the presiding judge of the county court, where that court, by law, is made the auditor; nor has he authority enabling him to disallow to the clerk of the county court for money paid by him on an allowance by the presiding judge of that court, in a matter where such judge has the exclusive authority to make the allowance. From the statute it is clear that the allowance of the stenographer's bill for services at a term of court to which he is appointed to report is to be made by the judge presiding at that term, and his authority to audit such accounts is a case "otherwise specially provided for," mentioned in the statute. [2] As this holding disposes of the case, it is unnecessary to pass upon the question of whether the allowance was according to the provisions of rule 47, § 2, of the County Court Rules, upon which the auditor relies. Judgment that a mandamus issue, directed to the said Benjamin Gates, commanding him to allow the petitioner's account as the same was allowed by the presiding judge of the county court for the county of Chittenden, and to issue his order upon the state treasurer for the sum of $2, payable to the said petitioner, and deliver the same to the said petitioner on demand. (93 Vt. 353) TUDOR v. TUDOR'S ESTATE. (No. 150.) Zed S. Stanton, Judge. Claim by George Tudor against John Tudor's estate. From report of the commissioners disallowing the claim, plaintiff appealed, and, after judgment for defendant on the referee's report, excepts. Judgment affirmed. ERS, TAYLOR, MILES, and SLACK, JJ. Robert E. Healy, of Bennington, Frank C. MILES, J. This is an appeal from the disallowance of plaintiff's claim by the commissioners on John Tudor's estate. The case was referred by the court below to a referee, upon whose report the court rendered judgment for the defendant. The case comes here upon the plaintiff's exception to that judgment. The only question presented to this court relates to the matter of interest on the accounts between the parties. The plaintiff claimed before the referee, and he also claims here that interest should be allowed on the balance of the accounts from Tudor's death, but not before, while the defendant insisted that it should be computed on the balance by annual rests. The referee ruled that this was a question of law and submitted it to the court without more. The court held that interest should be computed on annual balances and rendered judgment accordingly. The plaintiff and John Tudor were brothers, and from July 20, 1889, to the time of John's death, February 23, 1909, had quite extensive business transactions, with a running account between them, in which the balance was sometimes in favor of one and RUNNING ACCOUNTS ON sometimes in favor of the other; but at no (Supreme Court of Vermont. Bennington. June 24, 1919.) 1. INTEREST 58 BOOK-ANNUAL RESTS. In case of ordinary running accounts on book, not controlled by special contract, express or implied, and unaffected by special circumstances, interest is to be computed by making annual rests, and allowing interest thereafter on the balance in favor of the party to whom it may be due. time during the life of John was the account settled. The account was kept by John in his own books upon which both parties relied upon the trial below. During the running of the account John, along from time to time, balanced the account, and if the balance was in his favor, he would bring it down as a debit item in the new account, and if it was in favor of the plaintiff, he would bring it Where the party of two having mutual deal- down as a credit item. Such balances were ings who kept an ordinary running account be- struck in the course of their deal something tween them on book struck balances from time like 25 times. In no instance did the balance to time, and brought down credit or debit bal- contain any interest on the preceding acances against one or the other without including count. No claim was made by either party 2. INTEREST 7-IMPLIED CONTRACT-RUN NING ACCOUNT on Book. |