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able contract. It did not become enforceable against the plaintiff by his signing a deed, so long as that deed remained in his possession or under his control, and it was equally under his control while it was in the possession of his attorney. That Mr. Small, throughout the transaction, was and acted as the attorney for the plaintiff, and that the deed was not simply sent to him to be held in escrow until the performance of some condition, is clearly apparent from the evidence in the case. See Day v. Lacasse, 85 Me. 242, 27 Atl. 124. So that the possession of the deed by the plaintiff's attorney was the possession of the plaintiff, and the deed was as fully subject to his control as if in his manual possession.

Nor do these facts-the signing of the deed by the plaintiff, and its being sent by him to his attorney-constitute a sufficient memorandum in writing to take the contract out of the statute of frauds. It was still an unexecuted deed, because undelivered, and still in the possession and under the control of the grantor. Day v. Lacasse, supra.

When, on March 6th, the defendant visited the plaintiff, and they concluded a new contract for the sale of the property, there was no duty imposed upon the plaintiff to inform the defendant that he had previously concluded to sell for a less price, nor that he had already signed a deed for a smaller consideration, so long as that deed remained in his possession or subject to his control. Although he had determined to sell the property at a certain price, he had the right, until he did sell, or make a valid contract of sale, to get a larger price, if a purchaser was willing to pay it. An owner of property may have determined to sell that property at a certain price, but he is under no obligation to communicate that fact to a prospective purchaser. So that, as there was no duty upon the plaintiff to disclose these facts above referred to, it was not a fraudulent concealment to withhold this information. These were not material facts which he was bound to disclose to a person who was desirous of purchasing the property.

Moreover, the defendant, after being in full possession of all of these facts, completed the transaction, to the extent of paying the remainder of the purchase price, and by taking a deed of the property. If he had had sufficient cause to rescind the contract by reason of fraud upon the part of the plaintiff, he should have done so in whole, by refusing to take the deed, so that the plaintiff would have retained the title to his property. The law does not allow a partial rescission, whereby the party claiming the right to rescind can retain the beneficial part of a contract, and refuse performance of his part.

Judgment for plaintiff for $189, and interest from March 10, 1902, the date of the presentation of the check and refusal of payment, and for protest fees.

STATE v. MCINTOSH.

(98 Me. 397)

(Supreme Judicial Court of Maine. Dec. 31, 1903.)

INTOXICATING LIQUORS-COMMON NUISANCEWHEN NOT-EVIDENCE.

1. One or more unlawful sales of intoxicating liquors in a place do not necessarily, and as a matter of law, make that place a common nuisance; the place must be habitually, commonly used for the purpose before it becomes a common nuisance.

(Official.)

Exceptions from Supreme Judicial Court, Androscoggin County.

Irving L. McIntosh was convicted of keeping a liquor nuisance, and brings exceptions. Exceptions sustained.

This was an indictment under Rev. St. 1883, c. 17, § 1, wherein the defendant was charged with keeping and maintaining a liquor nuisance in the town of Lisbon between October 1, 1902, and the date of the indictment. The intoxicating liquors in question consisted of six dozen bottles of Jamaica ginger found on the defendant's premises. The defendant, during the time covered by the indictment, was the proprietor of a store in the village of Lisbon Falls, connected with which was a billiard and pool room. His stock of goods consisted of tobacco, cigars, confectionery, fruit, nuts, soda beers, canned goods, patent medicines of various kinds, and three brands of Jamaica ginger, viz., Sanford's, Gilt Edge, and Anchor Mills, the last named being the particular brand seized by the officers, and carried in materially larger quantities than the others.

The analysis of this brand was found to be as follows: Total solids, 11.70 per cent.; resin, .02 per cent.; fixed oil, trace; volatile oil, .066 per cent.; residue, caramel and sugar extractive; alcohol, 44.90 per cent.; water sufficient to make 100 per cent.

The evidence tended to show that the compound contained the full medicinal strength of the ginger.

There was evidence tending to show that this brand of Jamaica ginger contained only a trace of resin, while the brands generally sold and used for medicinal purposes contained a considerable proportion of resin, which made it practically impossible to use them as a beverage, the resin being the irritant which exists in the usual brands. The evidence of the defense, however, tended to show that all of the various brands on the market could be used as a beverage.

The evidence further tended to show that Jamaica ginger is a common article of commerce, and is sold by nearly all druggists and grocers as a medicine, it being a common household remedy; that the standard test Jamaica ginger, as provided by the United States pharmacopoeia formula, contains 94 per cent, of alcohol, and that the brands and

¶ 1. See Intoxicating Liquors, vol. 29, Cent. Dig. §§ 152, 311, 340.

qualities ordinarily sold by druggists and grocers contain from 40 per cent. to 60 per cent. of alcohol.

There was evidence tending to show that this compound was kept and sold by the defendant, but there was no direct evidence that it was sold or kept to be sold as a beverage, the defendant claiming that what was sold was sold in the ordinary course of business as a medicine. There was evidence, however, tending to show that empty bottles, in considerable numbers, similar in shape and in markings to those containing the Jamaica ginger seized by the officers, were found some rods from the defendant's store; but the evidence also tended to show that the place where these empty bottles were found was no nearer to the defendant's store than to other stores, in one of which similar ginger had been sold.

There was evidence tending to show that all of the various brands of Jamaica ginger on the market were intoxicating if drank in sufficient quantities.

The presiding justice, among other things, instructed the jury as follows: "You will inquire whether, from all the facts and circumstances in this case, you are satisfied beyond a reasonable doubt that he [the defendant] has sold any of that ginger between the first day of October and the date of this indictment. If so, then I instruct you that he is guilty of keeping a nuisance under the indictment."

The defendant's counsel requested the presiding justice to instruct the jury as follows, which he declined to do:

"If the Jamaica ginger in question was sold or kept to be sold, given away, drank, or dispensed by the defendant as a beverage, the jury should convict; but if it was kept or sold only as a medicine, they should acquit, although the compound might be intoxicating."

To this instruction and refusal to instruct the defendant excepted. The entire charge was made a part of the exceptions.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

W. B. Skelton, Co. Atty., for the State. R. W. Crockett and R. F. Springer, for defendant.

WISWELL, C. J. The respondent was tried upon an indictment charging him with maintaining a common nuisance under Rev. St. 1883, c. 17, § 1.

In the course of his charge the presiding justice instructed the jury, in substance, that, if they were satisfied beyond a reasonable doubt that the respondent had sold any intoxicating liquor during the period covered by the indictment, he would be guilty of maintaining a nuisance under the indictment, to which instruction an exception was seasonably taken. The respondent, having been

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We have examined the whole charge, which is made a part of the exceptions, to see if this instruction was not so limited and explained in other parts of the charge as to prevent any danger of a misconception upon the part of the jury as to what constituted the offense charged by the indictment. But while the offense was clearly and properly explained in other portions of the charge, we think that this instruction was given as a separate and independent proposition to such an extent that the jury would be warranted in believing that a single unlawful sale of intoxicating liquors by the defendant in his shop would make that shop a common nuisance under the statute, and the respondent guilty of maintaining such nuisance.

As this disposes of the case, it is unnecessary to consider the questions raised by the other exceptions.

Exceptions sustained.

(98 Me. 384)

SHEPHERD v. PIPER. (Supreme Judicial Court of Maine. Dec. 26, 1903.)

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LIBEL AND SLANDER WORDS ACTIONABLE AND NONACTIONABLE-COMMISSION OF NO OFFENSE CHARGED-DOUBLE VOTING-DEMURRER SUSTAINED.

1. Slanderous words which impute the commission of some crime by the plaintiff involving moral turpitude, or which would subject the offender to an infamous punishment, are actionable per se; and this is true whether such crime is one at common law or has been made so by statute.

2. Double voting upon a question merely calling for an expression of opinion, and where those voting have no power to determine the question voted upon, is not an offense either at common law or by statute.

3. In the declaration in an action of slander the cause of action set out was language charging the plaintiff with being guilty of counseling and procuring another to cast more than one ballot, and thereby being accessory thereto, at a meeting of the inhabitants of a town, duly called and held, upon the question of the passage of a resolution declaring that the use of soft coal in the lime kilns in that town constituted a nuisance, and should be abated. The declaration contained no averment of special damage. Held, that the declaration was demurrable, as the language declared upon did not impute the commission of any crime, either at common law or by statute.

(Official.)

Exceptions from Supreme Judicial Court, Knox County.

Action by Joseph Shepherd against Albert F. Piper for slander.

The defendant filed a general demurrer to the declaration, which having been sustained, the plaintiff took exceptions. Exceptions overruled.

The material part of the declaration is as follows:

"That ballot box was stuffed (meaning that many votes had been placed by one party in the ballot box by the solicitation and procurement of the plaintiff at the time of taking the vote hereinafter referred to), and a good reliable man from out of town told me that he saw a man throw a handful of 'no' votes (meaning votes opposed to a motion made by one C. Fred Knight, hereinafter referred to, and advocated by the defendant) into the ballot box; and he heard Joe Shepherd (meaning the plaintiff) tell him to put them in, and he would back him up". (meaning that the plaintiff requested said man to put in illegal votes on said motion, and to vote numerous times thereon, and he [the plaintiff] would protect him from the punishment and penalties provided by law for illegal voting).

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

A. S. Littlefield, for plaintiff. D. N. Mortland, for defendant.

WISWELL, C. J. The defendant filed a general demurrer to the plaintiff's declaration in an action of slander. The demurrer was sustained, and the case comes here upon the plaintiff's exception to this ruling.

As the declaration contains no averment of special damage, and as the words were not spoken of the plaintiff with reference to his trade, profession, or calling, the question is whether the words alleged to have been used of and concerning the plaintiff were actionable per se. They are if they impute the commission of some crime involving moral turpitude, or which would subject the -offender to an infamous punishment, and this is equally true whether the crime imputed by the words used is one at common law or has been made so by statute.

The slander relied upon and set out in the declaration is language charging the plaintiff with being guilty of counseling and procuring another to cast more than one ballot, and thereby being accessory thereto, at a meeting of the legally qualified voters of the town of Rockport, duly called and held at the time and place named upon the question of the passage of this resolution: "That the smoke and gas from the kilns where soft .coal is used for fuel has become such a nuisance to Rockport village, and should be abated."

It is not claimed that this charges the -commission of a statutory offense. Does it one at common law? Illegal voting at the election of a town or school district officer has been decided by this court to be an of

fense at common law. State v. Philbrick, 84 Me. 562, 24 Atl. 955, citing Commonwealth v. Silsbee, 9 Mass. 417. And we may go further, and assume, for the purpose of this case, that it is equally an offense at common law for a person to willfully cast more than one vote at the same balloting upon any question that is submitted by authority of law to the determination by ballot of the qualified voters of a town or any other political division.

But that is by no means this case. The question as to whether or not the use of soft coal in lime kilns constituted a nuisance was not one submitted by authority of law to the determination of the qualified voters of Rockport. The result of the ballot upon this resolution decided nothing. The voters of that town had no authority whatever to determine that question. They did have the right, guarantied by the state Constitution, to assemble at all times for consultation and expression of opinion upon all questions concerning the public good. This must have been the sole purpose of this meeting, and the resolution voted upon was simply submitted for the purpose of obtaining an expression of opinion upon this subject-matter.

Double voting upon a question merely calling for an expression of opinion, and where those voting have no power to determine the question voted upon, has never been considered an offense at common law in any authorities called to our attention, or that we are aware of. It cannot be an offense against the law to cast more than one ballot upon a question as to which the law does not recognize the right of any one to vote at all. The demurrer was rightfully sustained.

Exceptions overruled.

(98 Me. 353) TWOMBLY v. CONSOLIDATED ELECTRIC LIGHT CO. (Supreme Judicial Court of Maine. Dec. 21, 1903.)

MASTER AND SERVANT-SAFE

APPLIANCESREPAIRS-NEGLIGENCE-DEFECTIVE LADDER -FELLOW SERVANT AND FOREMAN.

1. It is the duty of the master to exercise reasonable care in providing suitable appliances for his servants to use, and in inspecting them afterwards, so as to ascertain their condition, and, when necessary, to put them into a proper state of repair. And, while there are some duties respecting the repair of appliances which the master may so delegate to a servant as to escape responsibility for the negligence of the servant in performing them, there are others which the master may not thus delegate.

2. A 40-foot extension ladder, used in the business of an electric light company, is held not to be a common tool or appliance within the meaning of the rules that there is no duty resting on a master to inspect, during their use, those common tools and appliances with which every one is conversant, and that, if they wear

1. See Master and Servant, vol. 34, Cent. Dig. § 235, 252, 406.

out, and become defective, the employer may rely upon the presumption that the servant using them will first detect the defect, and that the master is not to be held for negligence when the tool is a common one, of the fitness of which the servant is as competent to judge as the master.

3. Nor is the replacing of a dozy or rotten round in such a ladder to be held as such "ordinary repairs" as a workman is usually expected to make, in the absence of proof that the defective condition of the round was known to the servant.

4. While the master may delegate to a servant such ordinary repairs as arise incidently from the use of properly constructed appliances, and such as they must naturally require from time to time by reason of their use, and be relieved from responsibility therefor, held, that the replacing of a rotten round in the ladder in this case was not such an ordinary repair.

5. A master using ladders in his business cannot escape the consequences of the breaking of a rotten round in a ladder by merely showing that he had a foreman, and that that foreman had the general oversight of all appliances, with the general duty, among others, of seeing that repairs were made when necessary. The negligence of such a foreman in the matter of inspecting or repairing such a ladder is the negligence of the master, and not the negligence of a fellow servant of the one injured by its breaking.

6. The court is unable to say that the verdict was clearly wrong either as to liability or amount of damages.

(Official.)

On Motion from Supreme Judicial Court, Cumberland County.

Action by Harry N. Twombly against the Consolidated Electric Light Company. Verdict for plaintiff. Motion for new trial. Overruled..

Case for personal injuries sustained by the plaintiff January 1, 1902, while in the defendant's employ at work upon an extension ladder at a house on Congress street in the city of Portland.

From the testimony it appeared that the defendant corporation was engaged on the 1st day of January, 1902, and had been for a long time previous thereto, in generating and transmitting electricity for lighting houses and other buildings in Portland, and for various other purposes, and had lines of poles or posts erected upon and along the public streets and highways of Portland for the purpose of transmitting electricity thereon; and the plaintiff was a "lineman" in its employ, and had been from August, 1901, to the day of the accident.

For the purpose of attaching brackets and wires to buildings at points high up from the ground, the defendant corporation used a 40-foot extension ladder; that is, the part of the ladder that stood upon the ground was 20 feet long and the extension part was also 20 feet long.

At about 2 o'clock in the afternoon of the day of the accident, the plaintiff, George Moody and John F. Foster-two other men then in the employ of the defendant-were sent to this house by Mr. Phillips, foreman of outside construction, to connect it with wires for the purpose of lighting, Moody be

ing put in charge and control of the work and of the other men.

As it was necessary to put two corner brackets into the corner of the house at a point 30 feet from the ground, the extension ladder was placed on the sidewalk in front of the house and extended, and the top end allowed to lean against the side of the house, and near to its northwesterly corner. Plaintiff was sent by Moody up this ladder to put in the corner brackets and attach the wires thereto. This he did.

Foster was sent up a pole standing in the street in front of the house, and from which the wires were taken to insert into the house. The plaintiff put in the brackets, and the wires which were thrown to him by Foster from the pole by means of a handline he fastened to the brackets; the handline, in the meantime, lying on the top of a railing, which was on the roof of a bay window in the second story of the house, the top of which railing was 25 feet and 9 inches high.

When plaintiff had completed all the work up there that he was directed by Moody to do, he prepared to descend to the ground, and took hold with his right hand of the top round in the ladder, and placed his left foot over onto the roof of the bay window to enable him to reach for the handline. He got hold of the line in his left hand, and made an effort to pull himself back in an upright position on the ladder by his right hand, when the round that he had hold of suddenly broke at one side of the ladder and pulled out from the other side, and thus threw him over backwards down onto the sidewalk, one of his feet striking the glass in the upper bay window, breaking two lights.

On the way down he caught hold of the top part of the lower section of the ladder with his right hand, changing the position of his body so that his feet were lower than his head, and fell the rest of the distance of 20 feet, striking the sidewalk in a sitting position, but leaning backwards, receiving injuries to his back, right foot, and left arm and hand, from which he has ever since suffered, and still suffers, and has not been able to do, and has not done, any labor, to speak of, since that time.

The jury returned a verdict of $3,000 for the plaintiff.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

Wm. Lyons, for plaintiff. Geo. E. Bird and Wm. H. Bradley, for defendant.

SAVAGE, J. Case by servant against master to recover damages for personal injuries.

The plaintiff was employed upon a ladder about 25 feet from the ground, and in reaching for a rope with one hand nearly his whole weight was suspended from a round in the ladder which he held with the other hand. The round broke, and he fell to the ground,

sustaining injuries. No complaint is made that the plaintiff himself was not in the exercise of due care. But after a verdict for the plaintiff the defendant now contends,.upon a motion for a new trial, that the case shows no want of due care on its own part.

The ladder in question was a 40-foot extension ladder, and was extended at the time of the accident to the plaintiff. There was evidence that an examination of the round after the accident showed it to be dozy or the outside and rotten. The ladder had been in use somewhat more than three years. It seems that the defendant company had no regular rules governing the inspection of appliances. Such inspection and repairs consequent upon it were usually reserved for rainy weather, when the men could not work out of doors. The foreman of construction had general oversight over the appliances, and was under the duty of keeping them in repair. A man was especially delegated to make general repairs, but it does not appear that it was his duty to make inspections. It is true that the testimony of the defendant tended to show that the rounds of the ladder were of white ash, and sound; that an examination of the round after the accident showed it to be well seasoned and sound; that it broke off at both ends by the sides of the ladder, showing fresh breaks, and leaving slivers or "burrs" on the edges of the holes through which the ends of the round had passed; and the defendant's evidence tended further to show that the ladder had been inspected only a few days before it broke, and was found to be all right. And in respect to this testimony we may add that, if it be reliable, it is utterly incomprehensible how the accident could have happened. jury certainly were warranted in finding, as they undoubtedly did, that this testimony was not reliable, and that the round was not sound and reasonably safe. And we think it was fairly open to the jury to find that the defective condition of the round might have been discovered had it been suitably inspected; not perhaps by such an inspection as would naturally be given to it by the workman upon it, whose duty it was to work, not to inspect, and who might lawfully rely up on the presumption that the master had performed its duty, but by such an inspection on the part of the master as reasonably would be necessary to make sure that an appliance upon which the servant was to risk his life or limb every time he used it was reasonably safe.

The

The plaintiff testified that the round looked all right as he worked upon the ladder. But even that fact does not show that it was all right, or that the unsafe condition might not have been discovered by suitable inspection, such as was incumbent upon the master, unless in some way relieved from the duty.

But it is contended as a matter of law that the defendant is not liable upon the evidence. It is urged that there is no duty resting on

the master to inspect, during their use, those common tools and appliances with which every one is conversant; that, if they wear out and become defective, the employer may rely upon the presumption that those using them will first detect the defect; and that the employer is not to be held for negligence when the tool is a common one, of the fitness of which the servant is as competent to judge as the master. And the defendant cites authorities in support of these propositions. But it seems to us that a 40-foot extension ladder is not a common tool or appliance within the meaning of these rules. A defect in a ladder, arising from age or decay, might not be discoverable by such inspection as a workman is expected to make, and might be upon more careful inspection. To replace a dozy round of a ladder is not, we think, such "ordinary repairs" as a workman using it is usually expected to make, and certainly not unless the defect is brought to the knowledge of the servant. Of course, a master may furnish suitable materials for such renovations, and the circumstances in a given case may show that the workman is expected to make his own repairs. And in such case the master is not responsible for the neglect of the workman. But that is not this case. This plaintiff was under no special duty to inspect or repair this ladder, except as rainyday work in common with his fellow laborers, when he might be directed specially to do so.

But the defendant further says that it provided proper persons to see that the ladder was kept in proper condition and to make ordinary repairs and renewals, and that such persons were fellow servants of the plaintiff; and from this the defendant contends that if, by the negligence of any of these persons, the ladder was not suitably inspected and properly repaired, it was the negligence of the plaintiff's fellow servants, for which the defendant is not responsible.

While it is generally the duty of the master to use reasonable care in seeing that appliances furnished are reasonably safe, and by repairs are kept reasonably safe, doubtless there are some duties respecting the repair of appliances which the master may so delegate to a servant as to escape responsibility for the negligence of the servant in performing them, and doubtless there are some duties which the master may not thus delegate. The line between these classes of duties must necessarily be shadowy, and any rule stating them must be indefinite. Rogers v. Ludlow Manufacturing Co., 144 Mass. 198, 11 N. E. 77, 59 Am. Rep. 68. As was said in Rice v. King Philip Mills, 144 Mass. 229, 235, 11 N. E. 101, 104, 59 Am. Rep. 80: "It is the duty of the master to exercise due care in employing competent servants, in providing suitable machines, and in keeping them in proper repair, and the master cannot wholly escape responsibility by delegating these duties to a servant. If this could be done, a master might escape all responsibility by

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