Brooks v. Libby

Emery, J. The first question is, whether exceptions lie to an order of nonsuit at the close of the plaintiff’s evidence in a case tried by the presiding justice of a court without a jury subject to exceptions in matter of law. In making such an order the justice does not determine any disputed questions of fact, nor does he pass [153] upon, the credibility of the witnesses, nor upon the weight of the evidence. He rules that there is no evidence to support the action. This is a ruling upon a question of law. Whether the evidence is sufficient is a question of fact. Whether there is any evidence is a question of law. Emerson v. McNamara, 41 Maine, 565; York v. Jones, 68 Maine, 343. The second question is, whether in this case there is any evidence tending to. show in the plaintiff title or right of possession in the blocks replevied. The plaintiff introduced a bill of sale of the blocks to himself from the maker of the blocks. This bill of sale was given prior to the action, and purported to transfer to the plaintiff the title to and possession of the blocks. This was certainly prima facia evidence of title or right of possession. The plaintiff, however, further testified that he “sold” the blocks before the date of his writ to the City of Augusta. He also said: “I made the arrangement to sell them to the city. I sold them to the city, but did not get my pay for them.” But it does not necessarily follow from this statement of the plaintiff that he had parted with both title and right of possession before suit. Property is often “sold” conditionally, the title or possession or both to remain with the vendor until the performance of the condition. Property is often said in popular language to be “sold” when it is only bargained. The testimony of the plaintiff taken in the whole is easily susceptible of this construction, — that he had bargained the blocks, — that he had arranged to sell them but had not yet transferred the title and right of possession. If the justice shall find as matter of fact that the plaintiff had parted with his title and possession before suit, that finding cannot be reversed on exceptions; but by ordering a nonsuit he has ruled, as matter of law, that there is no evidence to sustain the plaintiff’s claim. We think there is some evidence, and hence remit the case for the justice to pass upon its sufficiency. Exceptions sustained.