Opinion
Opinion, July 10, 1948.
L. Orlo Williams, for plaintiff.
Joseph E. Harvey, for defendant.
SITTING: STURGIS, C. J., THAXTER, MURCHIE, TOMPKINS, FELLOWS, MERRILL, JJ.
On exceptions. Plaintiff and defendant having rested, the Presiding Justice, on motion by the defendant, directed a verdict for the defendant, and the plaintiff excepted. The case is brought here on plaintiff's exception.
The action is assumpsit upon an account annexed and the common counts. The account annexed specifies alleged shortages in the quantities of lumber sawed for, and of sawed lumber sold to the plaintiff by the defendant at agreed unit prices. It also specifies alleged overpayments by the plaintiff to the defendant for sawing and for the lumber purchased because of said shortages. The account annexed also contains two charges for equipment ordered by the defendant.
No evidence was offered with respect to the two charges for equipment. There was evidence that the plaintiff paid the defendant at the agreed unit prices for sawing and for lumber purchased. Payments were made in accord with bills rendered by the defendant to the plaintiff. While the account annexed sets forth in board feet of lumber the claimed shortages and the amounts of the claimed overpayments because of said shortages, the record is devoid of any evidence that the amount of lumber sawed or sold was less than that billed and paid for or that there was any overpayment. There was no evidence to sustain the common counts or any of them.
The burden was upon the plaintiff to establish his claim. Upon the evidence a jury would not be justified in finding a verdict for the plaintiff. Had the case been submitted to the jury and a verdict rendered for the plaintiff, it could not be allowed to stand if motion were made to set it aside. Under such circumstances, both parties having rested their case, and motion therefor having been made, it was the duty of the Presiding Justice to direct a verdict for the defendant. There was no error in directing such verdict.
Exceptions overruled.