the growth of the crop, the selection of seed, | A chemical analysis is the most satisfactory and whether it had been properly stored, the test. The statute provides that he may presence or absence of insect pests, the have an official analysis made under the dimeans taken to destroy them, the physical rection of the commissioner of agriculture. structure of the land, the suitableness of the R. S. 1916, c. 36, § 16. And it provides, fursoil, the previous rotation of crops, the ther, in section 18 that "if the actual analysis weather, and the fertilizer. The plaintiff shall differ materially from the guaranteed says that until all other factors have been analysis," the analysis fee shall be returned determined, a crop failure cannot properly to him. Such an analysis the defendant be attributed to a deficiency in the guar- caused to be made, and it was introduced anteed percentages of the ingredients of the in evidence in this case, as already stated. fertilizer, and that it is not evidence from which percentages can be determined. And it has been held that such evidence is inadmissible when the fertilizer was sold on a guaranteed analysis basis only. Walker v. Pue, 57 Md. 155; Germofert Mfg. Co. v. Cathcart, 104 S. C. 125, 88 S. E. 535. With this view we agree. Had there been a guaranty of suitableness, or of results, the evidence would undoubtedly be admissible to be considered with the other factors. But how could a jury say, or how can we say, or what basis is there for saying, that because there was a poor crop, it is proof that there was less than 4.11 per cent. of nitrogen, or 5 per cent. of ammonia? And so of the other ingredients. It might, under some conditions, demonstrate that the fertilizer was not fit for that land, but it does not prove or disprove percentages. We might as reasonably say that it is proof that 4.11 per cent. nitrogen was not enough for the defendant's land. In reality it is proof of neither. It is not proof. It is a guess. It is an assumption based upon a hypothesis. The hypothesis is that fertilizer containing the guaranteed percentages would have produced a good crop. The assumption is that, because the crop was poor, therefore the percentages were under those guaranteed. See Scott & Co. v. McDonald, 83 Ga. 28, 9 S. E. 770. [3] The second class of evidence, the poor crops of the plaintiff's neighbors, must fall with the first, and for the same reason. And if this were not enough, it is objectionable for the reason that it leads to too many collateral issues. Not only would all the factors of plant growth in each instance become subjects of inquiry, but the plaintiff would have the right to show instances where good crops had resulted, and then all their factors would become subjects of like inquiries. There might be as many issues as there are factors in all of the instances. And they would be issues, too, of which the other party had no notice, and could not be prepared to rebut. 1 Greenl. on Ev. § 52; Moulton v. Scruton, 39 Me. 288; Parker v. Portland Pub. Co., 69 Me. 173, 31 Am. Rep. 262; Branch v. Libbey, 78 Me. 321, 5 Atl. 71, 57 Am. Rep. 810; Lincoln v. Taunton Copper Mfg. Co., 9 Allen (Mass.) 181. [4] The purchaser of fertilizer, however, is not without the means of testing and proving satisfactorily the percentages of the es On the other hand, the plaintiff showed the process of the manufacture of the barge load from which the fertilizer in question was taken. It appears that in the process certain materials were used, like dried blood, sulphate of ammonia, packing house tankage, phosphate residue, manure salts, muriate of ammonia, and others. These materials supplied the nitrogen, phosphoric acid, and potash. They were mixed according to formulas. And the formulas called for sufficient materials of the various classes to produce the guaranteed percentages, and sand enough was put in to make the required weight. The fertilizer was mixed, a ton at a time. After the mixing, means were taken to get a fair average sample of the mass. And this was analyzed. The evidence of the plaintiff tends to show theoretically that the fertllizer when shipped was up to the guaranty. But we do not place entire reliance upon this species of proof. There were opportunities for error. It was admitted that in some instances the plaintiff made no analysis of the raw material on its own account, but assumed that the analysis made by the party selling to it was correct. Besides, there was opportunity for mistakes, or worse, by some of the many men that were employed in the process. If they were faithful, and if the purchase analysis was correct, the product should have corresponded with the formula; otherwise it might not. The plaintiff, however, relies confidently upon six analyses made by the chemist of the Maine Agricultural Experiment Station of samples which came out of the same barge load as the defendant's did. They were all taken by official inspectors. The first is an analysis of a sample taken from ten barrels in the storehouse at Houlton in March, 1914, which was about the time the defendant bought his fertilizer; the second, of a sample taken in the spring of 1915, from Mr. Carr's barrel, one of the five which made up the defendant's sample already referred to; the third, of a sample taken May 1, 1915, from one barrel in Amity (Estabrook); the fourth, of a sample taken May 18, 1915, from five barrels in Ft. Fairfield (Hopkins); the fifth, of a sample taken May, 1915, from five barrels in Hodgdon (Varney); and the sixth, of a sample taken May, 1915, from two barrels in Ludlow (Dobbins). In all of these analyses, except the first, the moisture content is stated. The moisture content is important the normal moisture content of this fertilizer | potash. We think this allowance should be is about 9 per cent. If the percentage of moisture is increased, necessarily the percentages of the other ingredients in a ton's weight will be lessened proportionally. 6.57% 11.94% 6.09% 16.30% Defendant's 3.41% made by us for experimental error. Making this allowance, all of the analyses except the defendant's are up to the guaranty with the exception of the phosphoric acid in No. 6. And the same would be true if the percentages were computed on the basis of 10 per cent. moisture. It is impossible to disregard the probative effect of these analyses. They were official. The samples were collected by the department of agriculture. They all came from the same barge load. When taken by the inspector they were scattered over a large section of territory. We cannot avoid the conclusion that they fairly represent the mass from which they came. What, then, was the matter with the defendant's sample? Why did it differ so much The evidence leaves no doubt that the from the others? We do not know, and it fertilizer absorbed moisture after it was is idle to speculate. Shortly after this sambrought into the state. And the analysis of ple was analyzed, the commissioner of agrithe fertilizer in the storehouse in April, 1914, culture sent an inspector to obtain samples indicates that most, if not all, of the in- from each of the five barrels from which the crease in the moisture content occurred aft- defendant's sample was taken, namely, two of er that time. As the fertilizer was then in his own, two, belonging to Mr. Moore, and barrels and was sold by weight in the condi- one, to Mr. Carr. The defendant refused to tion it then was, the subsequent increase in permit a sample to be taken from his own moisture did not affect in any way the quali- barrels, and Mr. Moore's fertilizer had been ties of the other ingredients, and should not mixed with ashes. The inspector took a be considered as affecting other percentages. sample from the remaining barrel, Mr. In other words, the computations of actual Carr's, which is No. 2 in the tabulation. We percentages must be made with reference to do not say that the defendant acted in bad the moisture content when this particular faith. But we say that his action, unforfertilizer was sold. The storehouse analy-tunately perhaps for him, made it impossible sis, No. 1, indicates that the moisture per- to find out what was the matter with his centage was then normal. We think it fertilizer as to percentages. should be regarded as 9 per cent. Computing the various analyses upon a 9 per cent. moisture basis, we have the following results: We conclude that the plaintiff is entitled to recover on the note. Judgment for the plaintiff. (Supreme Judicial Court of Maine. Feb. 3, 1917.) 1. PLEADING 248(1) - AMENDMENT - NEW CAUSE OF ACTION. While the greatest liberality in the matter of amendments is allowed in the furtherance of justice, no new cause of action can be introduced against the defendant's objection. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 686, 689-692; Dec. Dig. - New counts are not to be regarded as for a new cause of action, when plaintiff in all the counts asserts rights and attempts to enforce claims growing out of the same transaction, however great the difference in form of liabil The figures in these tabulations are gath-248(1).] ered from the testimony of Dr. Bartlett, 2. PLEADING 248(2) - AMENDMENT - NEW chemist at the Maine Agricultural Experi- CAUSE OF ACTION. ment Station, who made all the analyses, and who was called as a witness for the defendant. But Dr. Bartlett says that a margin must be allowed for experimental error, that no laboratory can be sure of get-ity. ting a correct result within two-tenths of 1 per cent., and that his analyses should come within one-tenth for nitrogen, three-tenths 3. PLEADING 248(4) - AMENDMENT - NEW [Ed. Note. For other cases, see Pleading, Cent. Dig. § 687; Dec. Dig. 248(2).] CAUSE OF ACTION. for available phosphoric acid, two-tenths for Where a note was given by a corporation total phosphoric acid, and two-tenths for and signed by its officers payable to plaintiff and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes indorsed on the back, "for value received I guaranty payment of the within note," and sign: ed by one officer and two other individuals, and the payee sued all of them as on the note, it could not later be allowed to amend to recover on the guaranty, which introduced a new cause of action. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 701-706, 7082; Dec. Dig. 248(4).] Report from Supreme Judicial Court, York County, at Law. Three actions by the Limerick National Bank against Benjamin M. Jenness, against Harry Heaton, and against Firth Marshall. Case reported. Judgment for defendants. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and MADIGAN, JJ. J. Merrill Lord, of Limerick, and Emery & Waterhouse, of Biddeford, for plaintiff. Allen & Willard, of Sanford, for defendants. SAVAGE, C. J. These several suits are brought to enforce payment of a note described as follows: "$3,000. Limerick, Me., July 6, 1909. "On demand, after date I promise to pay to the order of the Limerick National Bank, at the Limerick National Bank, Limerick, Maine, three thousand dollars. Value received, with interest. Due on demand. “Springvale Spinning Co., "By Geo. W. Hanson, Pres. 410; Anderson v. Wetter, 103 Me. 257, 69 Atl. 105, 15 L. R. A. (N. S.) 1003. The clause in rule 5 that "no new count nor amendment of a declaration will be allowed, unless it be consistent with the original declaration and for the same cause of action," is only a restatement of the common-law rule. And an amendment which sets up a cause of action growing out of a transaction other than that upon which the original declaration was bas ed, or depending upon a contract separate and distinct from the one originally declared on, is not allowable. On the other hand, new counts are not to be regarded as for a new cause of action, when the plaintiff in all the counts attempts to assert rights and enforce claims growing out of the same transaction, act, agreement, or contract, however great may be the difference in the form of liability, as contained in the new counts, from that stated in the original counts. Smith v. Palmer, 6 Cush. (Mass.) 513. In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the suit is founded, an amendment is not objectionable as introducing a new cause of action, where it merely alters the grounds of recovery on that instrument or contract, or the modes in which the defendant has violated it; or where it merely enlarges and states more fully and accurate At the time of making the note, the follow-ly the facts with reference to the instrument ing guaranty was written on its back, and or contract set forth in the original pleadsigned by the several defendants and others: ing; or changes the time and manner of performance; or corrects errors in the writ, "For value received, I guarantee payment of the within note and waive demand and protest like misdescriptions. So long as the matter on same, when due." for which the action was truly and substantially brought is not forsaken, but is adhered to and relied on for recovery, the introduction by way of amendment of a different contract in form is not regarded as introducing a new cause of action. But it is uniformly held that an amendment introducing as a ground of action an instrument or contract other than that set forth in the original declaration is objectionable as introducing a new and distinct cause of action. See cases cited, 31 Cyc. 414. The note was discounted by the plaintiff bank and has never been paid, but for six years the interest was paid by the maker semiannually in advance. These suits were commenced just before the expiration of six years from the date of the note. In the original declarations the defendants were declared against as makers of the note. When the cases came on for trial, the plaintiff asked leave to amend in each case by adding a new count declaring on the written guaranty on the back of the note. The amendment was allowed, against the objection of the defendants, who noted exceptions. The cases come before this court on report, with the stipulation that: "All exceptions taken and noted at the trial shall be considered by the court as fully as though a particular bill of exceptions was filed and allowed." The defendants claim several defenses on the merits. But we need to consider only their contention that the amendment was not allowable for the reason that it introduced a new cause of action. [1, 2] While the greatest liberality in the matter of amendments is allowed, in furtherance of justice, it is well-settled law that no new cause of action can be introduced against the objection of the defendant. Flanders v. Tested by these rules, we think the amendment in this case was not allowable. Here were two contracts, two transactions. The guaranty was a separate and independent contract, involving duties and imposing responsibilities very different from those created by the contract set forth in the original declaration. The fact that the guaranty was written on the back of the note does not af fect their separate nature. 12 Ruling Case Law, 1054. This court has always been liberal in the allowance of amendments, but no case has gone so far as we are asked to go now. The cases cited by the plaintiff's counsel, and chiefly relied upon, do not sustain their contention. In McVicker v. Beedy, 31 Me. 314, 50 Am. Dec. 666, suit was brought upon a Judgment for the defendant. against a defendant of whose person that recover introduced a new cause of action. court had no jurisdiction. It was held that The amendment, therefore, was allowed erthe judgment was invalid as against the de- roneously. fendant personally, and that an action could Since the defendants are not liable under not be maintained upon it in this state. The the original declaration, the certificate in plaintiff was permitted to amend by introduc- each case will be: ing counts on the original cause of action. The original action was for the recovery of payment for work and labor done. The court said that the action upon the judgment was to recover for the same, though in a different form. That case bears no relation to the one at bar. In Wilson v. Widenham, 51 Me. 566, which was an action for breach of covenant in a deed, the plaintiff alleged at first a breach of the covenant of seisin only. He was allowed to amend by introducing a count for the breach of the covenant of warranty. This was merely an enlargement or alteration of the grounds of recovery upon the same in strument, and such an alteration is, as we have said, permissible. Rand v. Webber, 64 Me, 191, is cited as illustrative of the extent to which the court has gone in allowing amendments changing the form and nature of actions, in that case, as is claimed, converting an action of assumpsit into one for deceit. But in Flanders v. Cobb, supra, in an opinion concurred in by the writer of the opinion in Rand v. Webber, supra, the court said: ARCHIBALD v. QUEEN INS. CO. (Supreme Judicial Court of Maine. Feb. 5, 1917.) 1. APPEAL AND ERROR 928(2)-SCOPE OF REVIEW PRESERVATION OF EXCEPTIONS PRESUMPTIONS. In the absence of exceptions, it is assumed that the sole important issue in the case was stated to the jury with proper instruction. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3750; Dec. Dig. 928(2).] 2. APPEAL AND ERROR 1001(1)-DISPOSITION OF CAuse. Where there was evidence to justify a finding for plaintiff if the jury believed his testimony, and there were no exceptions, a verdict for plaintiff will not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. 1001(1).] On motion from Supreme Judicial Court, Androscoggin County, at Law. Action by Ernest U. Archibald against the Queen Insurance Company. Verdict for plaintiff, and defendant moves for new trial. Motion overruled. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MAD IGAN, JJ. "The case of Rand v. Webber, 64 Me. 191, was never intended to authorize amendments to the extent of allowing the form or nature of the action to be changed. Upon examination of the facts in that case, it will be found that the amendment there was but the correction of an error in the writ, the correction of an amendment (improperly made) to the original declaration, so as to restore the declaration as originally framed and prevent a change in the nature of the action from what seemed to be its form as originally drawn, and to escape the statute of limitations that might be pleaded to another suit. The original count was more in the nature PER CURIAM. Action to recover insur of deceit than assumpsit, and the last amendment was but a restoration to its former self-ance on an automobile which was destroyed the spirit taking on form 'in the furtherance of by fire December 23, 1915. justice.' McGillicuddy & Morey, of Lewiston, for plaintiff. W. R. Pattangall, of Augusta, fer defendant. The plaintiff recovered a verdict for $1,And it was held that a change from as- 507.94, and the case comes up on the defendsumpsit to deceit is not allowable. Counsel for plaintiff cites Tenney v. Prince, 4 Pick (Mass.) 385, 16 Am. Dec. 347, 385, and Bickford v. Gibbs, 8 Cush. (Mass.) 154. But in each of these cases there was only one contract. In the first, the plaintiff declared as on an original promise, when it was in fact collateral. In the second, the plaintiff declared on the money counts, when he should have declared specially on a contract of guaranty. These mistakes in pleading were properly allowed to be cured by amendment. Smith v. Palmer, 6 Cush. (Mass.) 513, is a similar case. [3] In the case before us there were two contracts. The plaintiff declared upon one on which the defendants were never liable. It seeks now to recover upon the other contract. It is clear that the amendment which was allowed and which would permit it so to ant's general motion for a new trial. The case discloses that the principal, if not the only, fact involved was upon the question of waiver on the part of the defendant of its rights under the stipulation in the policy that: the interest of the insured in the policy be other "This entire policy shall be void • if than unconditional and sole ownership, or if the subject of this insurance be or become incumbered by any lien or mortgage." [1] In the absence of exceptions it is assumed that the issue was stated to the jury with proper instruction. [2] There was evidence to justify the jury in finding for the plaintiff, if in weighing the evidence the plaintiff's testimony impressed them as being true, as it apparently did. In such circumstances we think the verdict should stand. Motion overruled. CORNISH, J. Indictment for maintaining a liquor nuisance at Rumford in the county of Oxford. The respondent was tried at the May term, 1916, and convicted. After verdict he filed a motion in arrest of judgment, which was overruled by the presiding justice. The case is before this court on exceptions to that ruling. [1] The typewritten caption of the indictment alleges that it was found at a term of the Supreme Judicial Court "begun and holden at Paris within and for the county of Oxford on the second Tuesday of October in the year of our Lord one thousand nine hundred and fieteen." It is contended by the respondent that, although it was undoubtedly the intention of the scrivener to typewrite the word "fifteen," he did not do so, and we must take the indictment as we find it, that the word "fieteen" is meaningless and must be rejected as surplusage, and that the caption must therefore be held by this court to allege the time of finding as "on the second Tuesday of October one thousand and nine hundred." If this is so, then the indictment is fatally defective because it alleges the offense to have been committed on the fifteenth day of August in the year of our Lord 1915 and on divers other days and times between that day and the finding of the indictment. So construed, the indictment appears to have been found 16 years before the continuing offense was committed. But neither reason nor authority compels such a conclusion, and it would be a reproach to the law if they did. The major premise in the argument is fallacious. The word "fieteen" taken in connection with the context, is not meaningless, and should not be rejected as surplusage. To the ordinary reader it means "fifteen," because it is at once apparent that a typographical error has converted "fifteen" into "fieteen," the letter "e" on the typewriter having been struck by chance instead of "f." The nature of the error is as palpable as the error itself, and the intendment of the word is clear from the context. [2] The object of an indictment is to apprise the accused of the definite offense with which he is charged, set forth with such necessary allegations as to time and place Exceptions from Supreme Judicial Court, that he may be enabled to properly prepare Oxford County, at Law. and present his defense. It must be drawn Mose Laflamme was convicted of main- that in case any other proceedings should taining a liquor nuisance. From order over- be brought against him for the same offense, ruling his motion in arrest of judgment, he he could plead the former acquittal or con |