Hill v. Packard

Walton, J. This is an action of assumpsit upon an account annexed to the writ. The only controverted item in the plaintiff’s bill of particulars is the charge of $179.75 for hauling hemlock logs. The defendant claimed, at the trial, that this labor was performed under a special contract that the plaintiff should be paid by having half the logs at the mill. But the plaintiff being dead, and the administrator knowing nothing of the facts, and not offering himself as a witness, the defendant could not testify; and the evidence of such a special contract was very shadowy. The defendant’s counsel then contended, and the jury were instructed by the court, that the plaintiff could not recover for this item, unless he had satisfied them that the labor was performed at the defendant’s request; and, there being no direct evidence of such a request, the defendant moves to have the verdict (which was for the plaintiff for this item as well as the others) set aside and a new trial granted, upon the ground that the verdict is clearly against the weight of evidence ; and the only question is whether the motion ought to be sustained. We think not. The law does not require direct evidence of a request. It may be proved (as many other facts in the trial of causes may be proved) by circumstantial evidence. The relations of the parties, the kind and amount of labor performed, and whether with or without the defendant’s knowledge, will ordinarily furnish satisfactory proof upon this point. We suppose the jury could not believe that a laboring man would voluntarily and unsolicited haul fifty thousand feet of lumber from the woods to a mill, a distance of three or four miles, or that the owner of the logs would allow him to do so, unless there was some contract or agreement between them that would be tantamount to a request; and we are not prepared to say that their finding upon this point — 160 — was not correct. Certainly the verdict is not so clearly against the weight of evidence as to require us to set it aside. Motion overruled. Judgment on the verdict. Appleton, C. J., Barrows, Yirgin and Libbey, JJ., concurred.