Folsom v. Mussey

10 Me. 297

• Court: Supreme Judicial Court of Maine
• Decided: June 15, 1833
• Status: Published

Opinion

The opinion of the Court was delivered by

Weston J.

jury have found that the defendant, in relation to the business confided to him, had been guilty of no negligence to the prejudice of the plaintiff, or by which he had suffered loss. To omit to do that, which if done would have been fruitless and unavailing, can in no proper sense be denominated negligence. The jury were upon this point properly instructed ; and it was their province to pass upon the facts. Although the defendant had done his duty to the plaintiff, as the jury have found, yet he might have assumed to himself the Jloudletie debt, and the Judge was requested to rule at the trial, that this was the inference necessarily to be drawn from the facts. The defendant w'as endeavouring to secure his principals. His proceedings from time to time were directed to that object. The security from Lilly was not divided precisely as it ought to have been ; but it all turned out to be of no value. We perceive nothing in the facts conclusively proving that the defendant made, or intended to make, the Houdlette debt his own. He was not bound to take that hazard upon himself. He was required only to be faithful to his trust; and the jury have settled all the facts in favour of the defendant.

Judgment on the verdict,