Webber v. Inhabitants of School District No. 9 , 45 Me. 299 ( 1858 )

The opinion of the Court was drawn up by

Tenney, C. J.

It is a settled rule of this Court, in practice, that after the plaintiff in the trial of a cause has introduced evidence in its support, and the other party in defence has offered to the jury evidence in his behalf, a nonsuit cannot be directed by the Court without consent of the parties.

This rule was not violated in this case. No evidence was presented to the jury by the defendants. They attempted to show that a written contract was made between the parties, but failed in that attempt. Again, for the same purpose, they introduced evidence for the purpose of proving that a certain book was the record book of the defendants, and contained the records of their transactions, but the witness offered for this object was objected to, as not having the requisite knowledge of the matter to render him competent; whereupon the plaintiff withdrew his offer of the book. At this stage of the proceedings, the only evidence adduced by the defendants was to the Court, and this pertained wholly to that which was not shown to be admissible before the jury. The Court, thereupon, directed a nonsuit. Lyon v. Libbey, 32 Maine, 576; Emerson v. Jay, 34 Maine, 347; Bragdon & ux. v. Ins. Co., 42 Maine, 259; Frye v. Gragg, 35 Maine, 29.

The action was for the recovery of certain work alleged to have been done upon the defendants’ school-house, for which he attempted to recover the value of the labor and materials expended. But it having appeared distinctly, from the evidence introduced by him, that there was a written contract between the parties, under which he was to do certain work upon the house for a gross sum, a nonsuit was directed by the Court, the contract not having been introduced, and the non-production thereof in no way accounted for.

Exceptions overruled.

Hathaway, May, Goodenow, and Davis, J. J., concurred.