says he did not lean against the rail, but I duty to invitees, it is clear that she owed that his hand was upon the defective rail. no duty to a mere licensee, as the plaintiff At any rate, the rotten end of the rail gave was. The nonsuit was properly ordered. way, and the plaintiff was precipitated to Exceptions overruled. the ground or landing below, and was injured. This suit is brought to recover for this injury.

The plaintiff did not go to the barber shop

to be barbered, or to do any business with the barber. He went purely for his own convenience and to gratify his own whim or inclination. That being the case, he was a mere licensee, and the defendant as landlord owed him no duty, except the negative one of not wantonly to injure him. He was not invited.

The distinction between licensees and invitees is stated in Stanwood v. Clancey, 106 Me. 72, 75 Atl. 293. In that case the court said that:

"While it is the duty of the owner of a building, having it in charge, to be careful in keeping it safe for all those who come there by his invitation, express or implied, he owes no such duty to those who come there for their own convenience. * Toward a licensee the owner owes no duty, except that he shall not wantonly injure him. Dixon v. Swift, 98 Me. 207 [56 Atl. 761]; Russell v. M. C. R. R. Co., 100 Me. 408 [61 Atl. 899]; Parker v. Portland Publishing Co., 69 Me. 173 [31 Am. Rep. 262]. It is well settled that when the owner of a building fits it up for business uses, he impliedly invites all persons to come there whose coming is naturally incident to the business carried on there. And if he leases the building, or parts of it, to tenants, he impliedly invites all persons to come there in connection with the business carried on by the tenants. At the same time, if the building is open, and there is notning to indicate that strangers are not wanted, he impliedly permits and licenses persons to come there for their own convenience, or to gratify their curiosity. To those invited, he owes the duty of exercising care *** but to those merely licensed he owes no such dutv. Plummer v. Dill, 156 Mass. 426 [31 N. E. 128, 32 Am. St. Rep. 463]."

(112 Me. 560)

CUOZZO v. MAINE CENT. R. CO.

1914.)

(Supreme Judicial Court of Maine. Oct. 21, 1. CARRIERS (§ 258*) TRANSPORTATION OF

PASSENGERS-SPECIAL CONTRACTS - INDEFI-
NITE AGREEMENTS.

Where plaintiff telephoned the railroad statransportation and make arrangements to transtion agent at B. and asked if he could issue port a number of men who were coming to B., and was told that the agent would see what he could do, and the agent later telephoned plaintiff, saying that it was all right and asking how many men were coming, which plaintiff did not know, and there was no statement anywhere as to what kind of transportation was to be provided, whether regular fare, mileage books, or passes, the arrangement was too indefinite to constitute a contract.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1035, 1036; Dec. Dig. § 258.*] 2. CARRIERS (§ 251*) TRANSPORTATION OF PASSENGERS-SPECIAL CONTRACTS-AUTHORITY TO MAKE.

A railroad station agent had no authority to bind the company by a contract for the transportation of a party of men to his station without receiving for the benefit of the company the full consideration for the transportation or arranging for its payment upon call for the tickets.

[Ed. Note.-For other cases, Cent. Dig. §§ 1014, 1026; Dec. Dig. § 251.*] see Carriers, 3. CARRIERS (§ 277*) TRANSPORTATION OF PASSENGERS-BREACH OF CONTRACT-DAM

AGES.

ular or mileage fare and the special rate contracted for, and in the absence of any evidence as to any special rate there could be no recovery.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.*]

Where a railroad company broke a contract for the transportation of laborers, whereby their services were lost to plaintiff and he was obliged to secure other laborers to take their place, but it appeared that all the expenditure necessary to engage the laborers and bring them to the point where such transportation was to commence had been made prior to It will be noticed that the duty of a land- the making of the contract, the only damages lord to exercise care to have the leased prem-recoverable were the difference between the regises safe even for invitees arises, in the foregoing discussion, when he has the building in charge. In this case the defendant contends that the case does not show that she was in charge, or had any control of the premises, or was under any legal obligation to make repairs. She says that in fact the case falls into the ordinary class where in the absence of express, valid agreement, the landlord is not bound to make repairs, but the tenant takes them as he finds them, and a visitor has no greater rights than the tenant. McKenzie v. Cheetham, 83 Me. 543, 22 Atl. 469; Whitmore v. Orono Pulp & Paper Co., 91 Me. 297, 39 Atl. 1032, 40 L. R. A. 377, 64 Am. St. Rep. 229; Bennett v. Sullivan, 100 Me. 118, 60 Atl. 886; Hill v. Foss, 108 Me. 467, 81 Atl. 581, Ann. Cas. 1913C, 971.

But it is unnecessary to consider this last contention. Assuming that the defendant was in charge of the premises, and owed a

Report from Supreme Judicial Court, Penobscot County, at Law.

Action by George Cuozzo against the Maine Central Railroad Company. On report. Judgment for defendant.

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

George E. Thompson and James D. Rice, both of Bangor, for plaintiff. Fellows & Fellows, of Bangor, for defendant.

PER CURIAM. The declaration in this case sets up a contract on the part of the defendant company through its authorized agent to furnish transportation from Portland to Bangor for 17 men alleged to have been en

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

gaged by the plaintiff to enter his employ on [ Bangor and for me to make transportation for some contract work in the city of Bangor, them." and alleges a breach of the contract by a refusal and failure of the defendant to transport the men, as agreed; by reason of which the men did not come to Bangor, whereby their services were lost to the plaintiff and he was obliged to secure other laborers to take their place to his damage in the sum of $500. The plaintiff alleges that, in consideration of his agreement with the station agent in Bangor, he paid the money to him for the transportation of the men.

"I telephoned to the Maine Central agent at COLBATH v. EVERETT D. CLARK SEED Bangor, Mr. Benson, asking him if he could issue transportation, make arrangements to transport these men. He asked me what train they would come on, and I said they would come on the night train from Portland to Bangor; that they were in Portland now getting their meals. He says, 'I will see what I can do.' Then I got another telephone message from Mr. Benson, the Maine Central agent, saying it was all right. He asked me how many men, and didn't know how many exactly there were, and I telephoned back to Portland to my foreman who was there."

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

by the defendant, or whether the defendant!
merely made an oral promise to answer for
the debt of another which could not be en-
forced under the provisions of R. S. c. 113, §
1, par. 2.

It appears that the defendant had a contract with one Klippel whereby the latter was to furnish a large quantity of potatoes to the defendant. The defendant claimed that it had advanced money on the contract, or, as the defendant claimed, it had paid in advance for nearly all the potatoes which Klippel might purchase and deliver to the defendant. It was not claimed by either party that Klippel was the agent of the defendant.

In the early part of April, 1912, the plaintiff telephoned Fred M. Clark, secretary and treasurer of defendant company, who was then at Ft. Fairfield, and this telephone message was the only method employed in making the contract on which plaintiff now relies. The testimony given by the plaintiff on direct as to the conversation over the telephone is as follows:

"I told Mr. Clark that I had been informed that Klippel was no good financially, and I could not ship any potatoes on his order, and I could not ship them unless he agreed to pay for them. He told me he could not pay for them because he had already paid Mr. Klippel. I says: 'You have not paid for my potatoes and I am not going to ship them unless you will pay for them.' He says: 'I have got to have the potatoes and I will pay for them if Klippel don't.' I says: 'I have been informed that Klippel is no good, and I will not ship them unless you agree to pay for them.' And he says: 'All right; I will pay for the potatoes if Klippel don't; let the potatoes go forward.' I hung up the receiver and shipped the potatoes and sent him the bill of lading."

On cross-examination the plaintiff stated the substance of the telephone interview in terms somewhat more favorable to his con

tention, and said that he charged the potatoes to the defendant and sold them on the credit of the defendant, but the following questions and answers appear in the cross-examination of the plaintiff:

"Q. Didn't you ship these potatoes because you understood Mr. Clark to agree to pay if Klippel didn't?

"A. That is just what I did; yes, sir.
"Q. And that was his agreement?
"A. Yes, sir."

Mr. Clark's testimony as to the telephone interview varied materially from that of the plaintiff. He states as follows:

"Some one on the phone in Mr. Klippel's office said: 'My name is Colbath; and I have just sold a car of potatoes to Mr. Klippel, and I want the shipping instructions.' And I turned to Mr. Klippel, and he says: 'Yes; that is the car that is to go to Milford.' And I says: The shipping instructions, Mr. Klippel says, ford, Conn.' And he took it down; that is, he is to the Everett D. Clark Seed Company, Miltook the time to take it down, apparently. And he then said: 'Now, Mr. Clark, who is going to pay for these potatoes?' And I said: 'Our have paid for these potatoes, and we are dealing dealings are entirely with Mr. Klippel; we only with Mr. Klippel.' And I said, further: Mr. Klippel is good for a car of potatoes, isn't he? And Mr. Colbath replied: Yes; I guess he is all right, and so are you good for a car of potatoes, aren't you?' And I replied: Yes; I guess we are all right.' Colbath says: "That is all I want to know.' And I requested that the bill of lading be gotten to me, so I could get it on the morning train the day following. He also said he was going that afternoon away, and he would arrange to have it left with the station agent; and as I came through, I got remember it." the bill of lading at the Fairmont station as I

The defendant also introduced two letters written by the plaintiff less than a month after the telephone conversation transpired which are as follows:

"Easton, Me., 4/30, 1912. "Everett B. Clark Seed Co., or Mr. Clark. "Dear Sirs: I have not received pay from Mr. Klippel for that car seed ship you which you guaranteed payment. I have not been home since I went South the day I sold the car potatoes. Wish you would look after it. I need the money. I am at Bristol, Ct.. 74 S. Elm St. "Yours truly, G. M. Colbath."

"Easton, Me., May 4, 1912. "The Everett B. Clark Seed Co., Milford, Ct. "Dear Sirs: Yours at hand, I am surprised at the stand you take in regard to car potatoes, had over the phone when you were at Fort Fairyou surely have not forget the conversation we field.

"Mr. Klippel called me wanted car seed. I made him price he said would see his man and let me know. I called up C. E. Spencer and asked him if Klippel was all right he said he would not sell him without the cash, but you was going to have the potatoes what ever you said was all right. I did not have time to arrange to get pay of Mr. Klippel before the potatoes went forward because he wanted them to go

The plaintiff also gave these answers in his that night and I was going on 4 p. m. train that cross-examination:

night so I called you and told you could not let potatoes go with being paid for for. You said

"Q. But you say Mr. Clark did tell you that you had already advanced the money for the if Klippel didn't pay he would?

"A. Yes, sir.

"Q. And you accepted that agreement? "A. Yes, sir."

In a letter from the plaintiff to the defendant dated May 4, 1912, he tells the defendant: "I had my man on the phone on same line so I have witness to conversation we had over the phone."

This important witness was not produced at the trial, nor was his absence accounted for, and although plaintiff testified that he charged the potatoes to the defendant, his books showing such charge were not produced nor their absence accounted for.

potatoes but if Mr. Klippel did not pay for them you would so I let the potatoes go and billed them straight to you and left the bill of laden and invoice with the station agent at Easton for you. Now Mr. Klippel may pay but if he don't I shall expect you to, just as you for these potatoes all right when I get home agreed to over the phone. I had my man on the phone on same line so I have witness to conversation we had over the phone. Will be home last of next week.

"Yours truly,

G. M. Colbath."

We have endeavored to fairly state the substance of the evidence relating to the contract adduced by each party to this suit. Upon this evidence the defendant says that it

has not made any promise which can be en- [ 2. ARREST (§ 63*)-AUTHORITY TO ARREST forced against it; that such promise as it did WITHOUT WARRANT. make was not original, but collateral and within the statute of frauds. The plaintiff says otherwise.

(Supreme Judicial Court of Maine. Oct. 22, PHILBROOK, JJ. 1914.)

1. ASSAULT AND BATTERY (§ 35*)-SUFFICIENCY OF EVIDENCE-EXCESSIVE FORCE.

In an action for assault and battery against a deputy sheriff, who sought to justify his conduct on the ground that he was making a legal arrest, evidence held to show that excessive force was used.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 51; Dec. Dig. § 35.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-64

defendant presents exceptions and the cus-even an officer may not arrest for a misdetomary motion to have the verdict set aside meanor without a warrant, on information and new trial ordered.

or suspicion, unless the misdemeanor was [1] The plaintiff is an Italian, who had actually committed in his presence. Palmer been in this country four or five years, em- v. Maine Central Railroad Co., 92 Me. 399, ployed as a laborer, and had acquired only 42 Atl. 800, 44 L. R. A. 673, 69 Am. St. Rep.

On 513. Under the circumstances of this case
the arrest was not justifiable, even if exces-
sive force had not been used, and it seems
plain that such force was used.
The pre-
siding judge was correct in ordering a ver
dict for the plaintiff.

[3] Testimony was offered by defendant, and excluded, relative to trouble which the enforcement officers had been having with those who violated the law by illegally transporting liquor in suit cases and hand bags; but as there was no attempt to connect such acts with this plaintiff there was no error in the ruling. The same was true relative to offered evidence that the officers had made previous seizures of liquor illegally transported in the way just referred to.

a limited knowledge of our language. the 16th of August, 1913, he took an electric car at Old Orchard about 8:45 in the evening and came to Portland, bringing in his hand a dress suit case containing his wearing apparel. He arrived in Portland about quarter past 10, and, according to his testimony, soon after leaving the car he was accosted by the defendant, who, although a deputy sheriff, was not in uniform, and who seized the plaintiff's suit case, attempting to take it from him. The plaintiff testified that he thought it was an attempt to steal his suit case and refused to give it up. After some struggle he says the defendant struck him on the hand four or five times with an instrument which proved to be a black jack. He says that he was then seized by the defendant and another person and that they started with him for the police station. Thereupon an officer in uniform appeared and told the plaintiff that the persons who had seized him wanted to see what he had "1. If you believe from all the evidence that in his suit case, and then, the plaintiff says, the circumstances were such as would have he dropped his suit case, and when the de- caused an ordinarily prudent officer in the exercise of his official duties to believe that the fendant could not open it, the plaintiff open-plaintiff had in his dress suit case intoxicating ed it and allowed it to be searched, nothing contraband being found. The plaintiff was then permitted to go his way and carry the

suit case with him.

[4, 5] The defendant presented three requests for instructions, all of which the presiding judge refused to give, except as they were given in the charge. They were as follows:

liquor for unlawful purposes, then the officer would be justified in making a search of the dress suit case and using whatever force would be reasonably necessary to accomplish this purpose.'

99

"2. If you are satisfied that was not a malice on the part of the defendant, who, if he committed the acts, believing he was doing his duty, damages, but could recover only the actual damthen the plaintiff could not recover punitive ages to himself.

"3. If the plaintiff, for the purpose of misleading the defendant, deliberately created circumstances to arouse the suspicion of the defendant, who was an officer of the law, having in mind at the time and intending thereby to get the officer into trouble, and the officer by these acts was misled and became suspicious had been committed by the plaintiff, and under that a crime or offense was being committed or these circumstances committed the acts alleged, then the plaintiff could not recover, because he himself would be to blame."

[2] The defendant says that he was a deputy sheriff especially charged with the duty of enforcing the law prohibiting the illegal manufacture, transportation, and sale of intoxicating liquor. He says that the officers had been having trouble with offenders who brought liquors to Portland in suit cases and hand bags, and, on the evening in question, was with his superior officer, the sheriff of the county, on Federal street when the plaintiff left the car. He says that either he or the sheriff remarked "that fellow looks as if he had quite a heavy case," and that presently the sheriff said to the defendant, "Go get him." He says he stepped up to the plaintiff and asked permission to look at the suit case, which was refused. He further says that the plaintiff struck at him with an umbrella, and that he then said, "Don't do that, because I am an officer; all I want to see is what you have got in that dress suit case,” at the same time throwing back his coat and displaying his official badge. Neither the defendant nor the sheriff had any warrant authorizing the arrest of the plain- Finally, as to damages. Correct instructiff, or any precept authorizing any search tions were given both as to actual and exof the person of the plaintiff. Although the emplary damages, and from the evidence defendant seeks to justify his conduct on and the instructions we think the verdict of the ground that he was an officer making a | the jury was not so manifestly wrong as to legal arrest and using no more force than require us to interfere.

As to the first request, it is only necessary to call attention to the fact that the statute authorizes an officer to "seize" intoxicating liquors illegally kept, without a warrant, but not to "search" without such precept.

As to the second, the entire point was covered in the charge; and as to the third, it is only necessary to say that it does not contain a correct statement of law.

was necessary, the law is well settled that Motion and exceptions overruled.