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80 B0 requested. Also, under the money counts in his writ, the plaintiff made the following specifications: “The plaintiff will prove the defendant accepted 100 on July 13th, 1903, for use of the plaintiff; and that he agreed to repay on (or) account for said sum at the end of one year, but has neglected so to do upon request, and that said money was accepted by the defendant to invest." We can discover no substantial difference between the special count and the specifieation under the money counts. Although other promises are set out in the special count, 89 the amount of the verdict for the plaintiff, considered in the light of the evidence, makes it eertain that the jury based their verdict upon the allegations which we have already stated. The plaintiff's testimony, or at least some portions of it, tended to support these allegations.
The defendant, on the other hand, denied making the alleged promise, but claimed that the plaintiff let him have the money to be sent to a concern in Boston, known as the Financial Indicator Company, to be used by that company in buying on the plaintiff's account stock in the American Sugar Refining Company on margins. He also claimed that the sole responsibility assumed by him was the forwarding of the money to the Boston concern, and that he forwarded the money as agreed. Either one of the defendant's claims, if sustained by proof, would constitute a defense. The defendant, therefore, as a part of his defense, had a right to show that he forwarded the money to the Financial Indicator Company.
It seems to be undisputed that when the plaintiff paid his money to the defendant, the latter gave him a receipt of the following tenor:
Portland, July 13, 1903. "Received of Charles E. Lancaster one hundred dollars to be invested in the Financial Indicator Co., 31 State St., Boston, Mass. This receipt to be void when he receives receipt from said Co."
The defendant testified, without objection, that he sent a check for the money to the Financial Indicator Company by mail, the night of the 13th of July; that the check came back to him in the ordinary course of banking as paid, and bearing the indorsement of W. H. Gilman, the treasurer and manager of the Indicator Company; and that on the 15th of July he received the letter which he offered, as a reply to his remittance of the plaintiff's money. This letter bore date "Boston, July 14, 1903.” Upon it was printed what ap
peared to be the letter-head of the Financial Indicator Company at 31 State St., Boston, together with the names of the president, and of W. H. Gilman as treasurer. The whole body of the letter, including the name of the one purporting to be the writer, was typewritten. There was no written signature.
90 The defendant further testified that he had before that time received letters from Gilman or the Indicator Company, having a letter-head like the one in question, that usually they had been signed on the typewriter only, that he had replied to Gilman, taking up matters presented in such letters, and had received replies back from him covering the same subjects.
The letter was addressed to the defendant, and omitting the letter-head and immaterial matters, was as follows:
"Dear Sir: Your letter of yesterday's date enclosing checks for $150. received, .... I have an appointment with some prominent parties at 3.30, and I trust you will excuse the delay about sending receipts until tomorrow.
“I shall send one direct to Dr. Charles E. Lancaster, Brunswick, Me. and the other directly to you for Elizabeth, W. V
"W. H. GILMAN." This letter when offcred was excluded by the court, and exceptions were taken by the defendant, the verdict being against him. The correctness of this ruling we have now to consider.
The letter was excluded, not because a genuine acknowledg. ment of the defendant's remittance to Gilman or the Indicator Company would not have been admissible, as indeed it would be, but solely because, being wholly typewritten, it was not “authenticated in the usual way," and because “the letter itself, in the judgment of the court did not seem to possess sufficient internal evidence of its authenticity to allow it to go to the jury."
It is true, as a general rule, that documentary evidence, to be admissible, must be authenticated, and in case of a letter this is ordinarily done by proof of the genuineness of the sig. nature of the writer. When the signature is typewritten, this method of authentication may be difficult, if not impossible. At any rate, it was not tried in this case. But there is a relaxation of this rule in the case of what are called reply letters. The rule does not apply to a letter which is received by due course of mail, purporting to come in answer from the person to whom a prior letter has been duly ad
dressed 91 and mailed. Proof of these facts is sufficient evidence of the genuineness of the reply to go to the jury, without specific proof of the genuineness of the signature. The genuineness is assumed, at least, until the contrary is shown: Connecticut v. Bradish, 14 Mass. 296; 3 Wigmore on Evidence, sec. 2153. The rule is recognized in Abbott v. McAloon, 70 Me. 98. This is true when the signature is in the handwriting of some person. Logically, it must be equally true when the signature is typewritten.
We think the letter before us bears internal evidence of being an answer to a prior one written by the defendant to Gilman, the treasurer of the Indicator Company. The succession of dates, the reference to checks received and to receipts to be sent to the plaintiff and one other person, taken in connection with the testimony respecting the letter writ. ten by the defendant to the Indicator Company, leave no real doubt that the letter over the name Gilman was an answer to one written the day before by the defendant in which he says he inclosed the plaintiff's money. That is certainly the purport of it. Accordingly, we think that the letter should have been admitted. The defendant's exceptions must be sustained.
We think that the motion for a new trial should be sustained.
The plaintiff denies that he knew that the money was to be sent to the Boston concern for investment, or that he understood it was to be used for stock gambling either in Boston or by the defendant at Portland. The effect of the receipt taken by him and of some of his admissions render it extremely improbable that his present version relating to the defendant's position in the matter is the true one. But assuming that it was as he now claims, and that he thought he was dealing with the defendant alone as a principal, we think, after a careful consideration of all the evidence, that the plaintiff, notwithstanding his denials, intended that his money should be used in stock gambling.' To say in the light of the evidence that he did not understand that the money was to be used in buying “sugar” stock on margins is not creditable to the intelligence of an educated professional man such as he is. We are convinced that he so understood, and that he intended the money to be so used. If so, the whole transaction was illegal: Rumsey v. 92 Berry, 65 Me. 570; O'Brien v. Luques, 81 Me. 46, 16 Atl
. 304. The defendant's promise to repay or to be accountable for the money, if he made such a
Am. St. Rep., Vol. 125-19
promise, was a part of the illegal transaction, which the court will not enforce: Tyler v. Carlisle, 79 Me. 210, 1 Am. St. Rep. 301, 9 Atl. 356. We think the verdict was clearly wrong, and that it should be set aside.
Motion and exceptions sustained.
The Admissibility in Evidence of typewritten letters is discussed in State v. Freshwater, 30 Utah, 442, 116 Am. St. Rep. 853; and the admissibility of carbon or letter-press copies of instruments are discussed in Irternational Harvester Co. of America v. Elfstrom, 101 Minn. 263, 118 Am. St. Rep. 626, and Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469. As to the effect of a printed or stenciled signature to an instrument, see Loughren v. Bonniwell, 125 Iowa, 518, 106 Am. St. Rep. 319; Herrick v. Morrill, 37 Minn. 250, 5 Am. St. Rep. 841; Hamilton v. State, 103 Ind. 96, 53 Am. Rep. 491.
CARL V. YOUNG.
(103 Me. 100, 68 Atl. 593.) NEGLIGENCE–Injury by Article Falling from Building.–The tenant of a building is not liable for injuries suffered by a passer-by from anything thrown from a window of the building, when neither the tenant nor any of his servants is in fault. (pp. 290, 291.)
The plaintiff, while rightfully passing along the street, in the rear of the store and place of business of the defendants, which they occupied as tenants, was struck by a spittoon filled with blazing benzine and other filth thrown from a window of such premises by some person unknown to plaintiff, causing him great fright and damage to his person and clothing. A general demurrer to the complaint was sustained and plaintiff excepted thereto.
G. C. Wing and G. C. Wing, Jr., for the plaintiff.
100 EMERY, C. J. It is evident that the declaration in this case can be sustained only upon the assumption that the tenant of a building 101 is liable for injuries suffered by a passer-by from anything thrown by any person from a window of the building, though neither such tenant nor any of his servants were in fault. There is no allegation in the declaration that the article inflicting the injury was thrown by either of the defendants or any of their servants, nor is it stated wherein they were in fault in not preventing the injury.
We think the assumption is without foundation, and that in this state such tenant is not bound at his peril to prevent such injuries, but only to exercise due care to prevent them. The decisions in the cases cited by the plaintiff were based upon the negligence of the defendant duly alleged and proved. In this case no negligence is even alleged, and hence the declaration must be adjudged insufficient.
The Liability of the Owner or Occupant of a Building for articles falling therefrom to the injury of people below through the negligence of third persons is discussed in the note to Weitzmann v. Barber Asphalt Co., 123 Am. St. Rep. 567. The liability of a property owner for a nuisance which he has not created is the subject of a note to Leahan v. Cochran, 86 Am. St. Rep. 508; and the liability to third persons of lessors of property is the subject of a note to Griffin v. Jackson Ligbt etc. Co., 92 Am. St. Rep. 499.
(103 Me. 214, 68 Atl. 821.] WILLS—Right of Adopted Child to Inherit.-A testator who by will makes provision for his own "child or children” by that designation includes thereby an adopted child. (p. 292.)
WILLS—Right of Adopted Child to Inherit.-If a will makes provision for a "child or children” of some other person than the testator, the adopted child of such person is not included, unless other language of the will makes it clear that it was so intended. (p. 293.)
W. P. Thompson, for the plaintiff.
216 EMERY, C. J. Ann F. Johnson, in February, 1890, made her will, which contained, among others, the following provision, viz. :
"3d. Upon the decease of my said daughter Mary without a child or children, I give and devise the balance of my estate then remaining unto my following named three children, Arbella Hersey, Horatio H. Johnson and Charles E. Johnson equally, and in case of either of my said three children shall die before said Mary, leaving a child or children, then it is my will and desire and I do hereby devise and bequeath that the child or children of said deceased child shall receive the same share as its or their parent would have received if living."