Opinion
Opinion October 3, 1923.
In a case that has been fully and fairly tried without surprise to the defendant, an amendment may be considered as made, and the verdict allowed to stand.
In the instant case the issue was fairly tried under instructions to the jury to which no exception was taken. The record fails to show where the jury erred in calculating amounts, or were influenced by bias or prejudice.
The error was unnoticed at the time of the trial. The writ could have been amended on motion, and no doubt would have been if the plaintiff had asked to amend.
Under the circumstances an amendment may be considered as made.
On motion for new trial. An action of assumpsit on an account annexed to recover a balance due for seam face granite furnished in the construction of the United Baptist Church at Lewiston. A verdict of $1,748.53 was rendered for plaintiff which was $88.66 more than the amount sued for in the writ and defendant filed a general motion for a new trial. Motion overruled.
The case is stated in the opinion.
James E. Philoon, for plaintiff.
Frank A. Morey, for defendant.
SITTING: CORNISH, C. J., HANSON, PHILBROOK, MORRILL, WILSON, JJ.
Action of assumpsit on an account annexed to the writ, to recover a balance due for seam face granite furnished in the construction of the United Baptist Church at Lewiston, at the agreed price of "62 cents per square face foot" in accordance with the terms of a written contract between the parties. The jury returned a verdict for the plaintiff for $1,748.53. The case is before us on general motion by the defendant.
The principal contention in the case was over the method of ascertaining the square face feet involved in the contract. An auditor was appointed and his report was read in evidence. The verdict was apparently based on the report of the auditor, who found "that the balance due from the defendant to the plaintiff would be $88.60 more than the plaintiff has declared for, by reason of the fact that the scale bills furnished me indicate the plaintiff had furnished 143 square feet more granite than the amount sued for." An error of the auditor or printer is apparent in the amount stated, which under the testimony should be $88.66.
The issue was fairly tried under instructions to the jury to which no exception was taken. The record fails to show where the jury erred in calculating amounts, or were influenced by bias or prejudice. We cannot therefore say that the verdict is manifestly wrong.
That the verdict is larger by eighty-six dollars and sixty-six cents than the amount sued for in the writ, presents no serious difficulty in the case, nor does defendant's counsel in his brief consider it as a vital objection.
The error was unnoticed at the time of the trial. The writ could have been amended on motion, and no doubt would have been if the plaintiff had asked to amend.
In view of the circumstances, we think that an amendment may be considered as made. Clapp v. Power and Light Co., 121 Maine, 356.
The entry will be
Motion overruled.