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tract may be exercised. Hotchkiss v. Bon Air Coal Co., 108 Me. 34, 78 Atl. 1108; Getchell v. Kirkby, 113 Me. 91, 94, 92 Atl. 1007; Dutch v. Gamage, 120 Me. 305, 309, 113 Atl. 785. The finding of facts by the chairman on this branch of the case is therefore conclusive, but his ruling of law thereon is subject to review. In this case his conclusion of law should also be upheld.

once to bed. On Tuesday morning, February | within which the right of rescission of a con22d, Dr. Bartlett, the family physician, was called. Pneumonia soon developed, and on the following Sunday, February 27th, Mr. Wardwell became delirious. His illness progressed, and after a consultation of physicians he was taken on March 2d to Dr. Silsby's hospital. The next day he was examined by Dr. Crockett, who was called by Dr. Bartlett in consultation. He was still suffering from pneumonia, had a high fever, rapid [3] The Legislature inserted this provision pulse, was spitting blood, and was uncon- as to excuse for failure to comply with the scious. In addition Dr. Crockett found that strict 30-day limit with a definite purpose, and his left knee was infected, and a large abscess that purpose was the protection of the legal was forming. Two days later the abscess was rights of the parties in meritorious cases lanced by Dr. Silsby, and not less than 10 when the facts should warrant it. It emounces of pus removed. His convalescence ployed comprehensive and elastic terms to was slow, and he was not removed from the accomplish that purpose, and to enable the hospital to his home until April 4th. Three court to grant relief from hardship or misdays later, on April 7th, the claimant's wife fortune; "accident, mistake, or unforeseen notified the manager of the employer corpo- cause," which are confidently invoked here ration by telephone of the injury to her hus-by the claimant. An unforeseen cause in this band's knee, and on April 8th gave him writ- connection may be defined in general as one ten notice of the same, accompanied by state- which could not have been reasonably forements of Dr. Bartlett, the attending physi- seen as likely to arise or occur, and yet is of cian, and of Dr. Silsby, in whose hospital he such a nature as to have substantially interhad been treated. At the time of the hearing fered with the giving of the notice. That defbefore the chairman of the Industrial Com- inition fits here. The claimant's injury at mission on July 21st he was still incapaci- first seemed to him comparatively insignifitated from labor. cant. He did not even speak to his fellow

[1] From the foregoing evidence the chair-workmen about it. He continued his work man very properly found that the claimant received a personal injury by accident arising out of and in the course of his employment, and no objection to this is now taken by the defendants. He further found on the question of notice as follows:

"In view of the physical condition of Mr. Wardwell following the attack of pneumonia, and continued by reason of the serious condition of the abscess from March 1st for many days, it is found that seasonable knowledge of the injury was properly communicated to the employer."

This evidently refers to the last sentence in section 20 of the Workmen's Compensation Act, and in effect the decision holds that the failure to give the written notice within 30 days was due to accident, mistake, or unforeseen cause. In that sense the chairman held that notice was seasonably filed.

for two or three days. Then unexpected complications arose. Pneumonia at first set in, and later an ugly abscess developed, with the consequent suffering, weakness, and natural inability inability or disinclination to give thought to business matters, all of which certainly bring the situation within the purview of the term "unforeseen cause." In his petition the claimant alleges that he gave notice as soon as he was able to do so-that is as soon as he was reasonably able to do so. Other things were upon his mind. The 30 days expired on March 19th, right in the midst of his stay in the hospital. Was the door then shut against him? If not, when was it afterward closed, as he did not leave the hospital until April 4th, and within four days thereafter sent the written notice? The relief clause was enacted to meet just such a case as this. It is a remedial provision, and [2] In case of controverted facts which it is the duty of the court to apply it in a would tend to excuse a failure to notify with- broad and reasonable way to the facts of in 30 days, it is the province of the chair-each case that may call for its consideration. man to determine those facts like any other issue of fact before him, and his finding is final provided there is some competent evidence to support it. Westman's Case, 118 Me. 133, 106 Atl. 532; Mailman's Case, 118 Me. 172, 106 Atl. 606. But, upon facts undisputed, or upon facts found by the chairman in compliance with this rule, the question whether the written notice has been given to the employer within the time allowed by the Legislature is one of law. It is

No more definite rule can be laid down. The decision must be left to the sound judgment and wise discretion of the court in each instance.

[4] The Industrial Accident Commission, as we have had occasion to remark before, is a creature of the statute. No jurisdiction is conferred except as the statute confers it. Maguire's Case, 120 Me., 398, 115 Atl. 176; Conner's Case, 121 Me. 37, 115 Atl. 520. Explicit limitations must be observed. Leme

(116 A.)

er, in the absence of a request therefor by purchaser made at or before the time the coal is sold and delivered; the failure seasonably to make such request constituting a waiver of the right to have the coal so weighed.

however, the granted powers are discretion- | buyer was not given certificate of sworn weighary within reasonable limits, as in the section under consideration, then the provision of section 37 that in interpreting the act a of section 37 that in interpreting the act a liberal construction shall be given with a view to carrying out its general purpose, applies with full force.

Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

The Workmen's Compensation Act of Rhode Island (Laws 1912, c. 831) employs precisely the same language as to justifiable excuse for delay in giving notice, "accident, mistake or unforeseen cause." The Supreme and defendant excepts.

Court of that state has had occasion to in-
terpret and apply the words "unforeseen
cause" in a recent case involving facts quite
similar to these at bar. If a precedent were
needed the exhaustive opinion in that case
furnishes an admirable one. Donahue v.
Sherman's Sons Co., 39 R. I. 373, 98 Atl. 109,
L. R. A. 1917A, 76.

Appeal dismissed, with costs.
Decree of sitting Justice affirmed.

(121 Me. 221)

MacHATTON v. DUFRESNE.

Action by George A. MacHatton against Alexes Dufresne. Judgment for plaintiff, Exceptions over

ruled.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

J. H. Rousseau, of Brunswick, for plaintiff.

Clarence E. Sawyer, of Portland, and Walter S. Glidden, of Bath, for defendant.

PHILBROOK, J. This is an action of assumpsit upon an account annexed to recover the price of coal sold and delivered by the plaintiff to the defendant. After hearing the evidence and the legal contentions of the parties, the presiding justice ordered judgment to be entered for the plaintiff for the

(Supreme Judicial Court of Maine. March 27, amount sued for, with costs of court.

1922.)

1. Contracts 107-Made in contravention of statute imposing a penalty for noncompliance therewith void.

Where a statute imposes a penalty for failure to comply with its provisions, it shall be construed as prohibitive, and contracts made in direct contravention of its requirements are void.

2. Weights and measures 5-Statutes imposing restraints on sale of coal to be strictly construed.

Rev. St. c. 46, § 11, as amended by Pub. Laws 1919, c. 74, § 3, and section 12, imposing restraints on the sale of coal by provisions as to the weighing of the coal, are in derogation of common law, and are therefore to be strictly construed.

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To

this ruling the defendant filed exceptions, which were duly allowed, and the case is before us upon those exceptions.

It is conceded that coal was sold and delivered as above stated. The parties do not agree upon the exact weight of the coal. It appears that the plaintiff weighed the coal, but that he was not a sworn weigher. The defendant admitted that no weighbill was demanded when the coal was delivered, but testified that subsequent to the delivery of the last of the coal he requested a weighbill, which was not furnished by the plaintiff. This request was denied by the plaintiff. According to the defendant's own testimony the last coal was bought on the 11th of February, and a weighbill was not demanded until some time in March, at which time the coal had been consumed. The plaintiff's brief

law strictly construed. Statutes in derogation of the common law says: are to be strictly construed.

4. Weights and measures 5-Seller may recover for coal sold notwithstanding failure to deliver sworn certificate of weight in absence of request therefor.

Under Rev. St. c. 46, § 11, as amended by Pub. Laws 1919, c. 74, § 3, providing for the appointment of weighers of coal, requiring such weighers to give weighbill to purchaser of coal, and making failure so to do a misdemeanor, and section 12, providing that on request of buyer, seller shall cause coal to be weighed by sworn weigher, and shall deliver certificate showing weight to buyer before commencing suit against him for the price of the coal, the seller may collect his bill for the price of coal shown to have been sold and delivered, though

"The difficulty between the parties arises from the fact that the coal, although sold by

weight and having been weighed by the plaintiff, he, the plaintiff, was not then a sworn weigher, and no certificate of weight was delivered to the defendant."

The defendant's brief says:

"The real issue is one of statutory construction."

The statutes which the parties desire to have interpreted, so far as they affect this case are R. S. c. 46, §§ 11 and 12, and P. L. 1919, c. 74, § 3.

R. S. c. 46, § 11, as it appears in the Revision of 1916, reads:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
116 A.-29

P. L. 1919, c. 74, § 3, amended said section 11 by striking out all of said section and inserting in place thereof the following:

"The municipal officers of towns shall annual- | shall make a certificate of the weight, and ly appoint weighers of such coal, who shall re- the seller must deliver this certificate to the ceive such fees as said officers may establish, purchaser before commencing suit for the to be paid by the buyer." price of the coal. As we have already said, section 11 of R. S. c. 46, as amended, does not deny the right to sell coal by weight unless weighed by a sworn surveyor, nor does section 12 deny that right. Indeed, by plain "The municipal officers shall annually ap-implication such sales may be made, because point weighers of coal. Weighers must give it is only "on request of the purchaser” that slips either in writing or printing to every pur- the services of a sworn weigher are required. chaser of coal when not in bags or packages showing the gross, tare and net weight for each When the purchaser of coal has confidence and every load so delivered. For each violation in the integrity of the seller, and buys withof this act there shall be a fine of not less out calling for the services of a sworn surthan ten nor more than twenty dollars." veyor, we cannot see how such sale is illegal any more than the purchase of sugar or tea would be. On the other hand, when the purchaser of coal, for any reason, desires that the coal which he is buying shall be weighed by a sworn weigher, he has only the necessity of demanding such weight, and by so doing he has all necessary protection, and the seller, should he refuse or neglect to comply with his customer's demand, brings down upon his own head the disability to collect

Plainly the only effect of the amendment upon section 11 was to relieve the buyer from paying the weigher's fees, and making the failure on the part of the sworn weigher to give the buyer a weighbill, when coal was thus weighed, a misdemeanor punishable by a small fine. The seller is not penalized by this amendment, nor is he forbidden thereby to sell coal unless weighed by a sworn weigher.

[1-3] Section 12 of R. S. c. 46, read before the amendment of section 11, and still reads,

thus:

"Unless coal is sold by the cargo, the seller shall, on request of the purchaser, cause it to be weighed by a sworn weigher, who shall make a certificate of the weight; and he shall deliver such certificate to the buyer, before commencing a suit against him for the price of

such coal."

his coal bill. But reason and common sense

would compel the purchaser to request the sworn weight before, or at the time, the coal is purchased. To buy and consume the coal, and then demand sworn weight, would be little less than an absurdity. To purchase the coal without seasonably requesting sworn weight would be the voluntary relinquishment of a known right, benefit, or advantage, and which, except for such waiver the party otherwise would have enjoyed. In other words, The defendant claims that, since sections waiting until the coal is consumed before 11 and 12 of R. S. c. 46, relate to the same asking for sworn weight would be a waiver subject-matter, an amendment to one section of the right to have such weight. The dein terms must carry an implied amendment fendant says there can be no waiver in such to the other. In other words, he claims, case because the amendment of 1919 has pesince failure on the part of the sworn sur-nalized a sworn surveyor for not giving the veyor to furnish a weighbill to the buyer is purchaser of coal a certificate of weight. made a misdemeanor, that it must follow But the purchaser is not waiving the duty in every case, except sales by cargo, that of the delivery of a weigh bill by a sworn any sale of coal by weight is forbidden un- weigher; he is waiving the right to have a less weighed by a sworn weigher, under the sworn weigher weigh the coal when it is doctrine that, where a statute imposes a bought. The two things are entirely differpenalty for a failure to comply with its pro-ent.

visions, it shall be construed as prohibitive, We should not overlook defendant's reliand that contracts made in direct contraven-ance upon Smith v. Campbell, 68 Me. 268, a tion of its requirements are unlawful and per curiam opinion, which holds that R. S. c. void. We agree with the principle contained 41, § 13, providing that the seller of coal shan in the doctrine, but cannot concede that the not maintain a suit for the price thereof doctrine applies to the case at bar. These statutory restraints upon the sale of coal are in derogation of the common law, and it is too well settled to need the citation of authorities that such statutes are to be strictly construed.

[4] We cannot discover anything in the act of 1919 which amends, alters, or repeals section 12 of R. S. c. 46. That section, designed to protect the public, affords ample protection by declaring that, "on request of the purchaser," the seller of coal shall cause

unless he has caused the same to be weighed
by a sworn weigher and a certificate of the
weight delivered to the buyer is not complied
with when the weigher is either the owner of
the coal or sells it on commission.
opinion was announced in 1878, when the
statute provided:

That

coal is sold by the cargo, the seller shall cause "Unless the parties otherwise agree, or the the same to be weighed by a sworn weigher, who shall make a certificate of the weight thereof; and the seller shall not maintain a suit for

(116 À.)

such certificate to the buyer before its com- | 3. Husband and wife 19(13)-Wife presummencement." ed to purchase necessaries on husband's credit.

Under the same statute was decided the case of James v. Josselyn, 65 Me. 138, in 1876, where it did not appear in evidence that the parties did "otherwise agree," and the court

said:

The common-law presumption still exists, notwithstanding Rev. St. c. 66, § 4, that in a purchase on credit of "necessaries" by the wife she is acting as her husband's agent, and that the purchase is on the husband's credit, even though they be charged to the wife alone; but of her intent to purchase on her own credit. 4. Husband and wife 19(13)-Finding of purchase of goods on husband's credit not sustained.

"We cannot be expected to aid in thus nulli- the presumption may be overcome by a showing fying a statute of this state."

But immediately after the decision was announced in Smith v. Campbell, supra, the Legislature amended the statute by enacting P. L. 1879, c. 142, which provided:

"Unless the coal is sold by the cargo, the seller shall, on request of the purchaser, cause the same to be weighed by a sworn weigher, who shall make a certificate of the weight thereof; and the seller shall not maintain a suit for the price of such coal unless he had delivered such certificate to the buyer before its commencement."

With slight verbal changes only, the act of 1879 still prevails, and has become section 12 of chapter 46 of the Revision of R. S. 1916. This amendment of 1879 made such a radical change in the then existing statute that Smith v. Campbell, supra, and James v. Josselyn, supra, have no application to the present statute.

We hold: (1) That, in the absence of a request by the purchaser for coal to be weighed by a sworn weigher, the seller may collect his bill for the price of coal shown to be sold and delivered; (2) that such request must be made at or before the time the coal is sold and delivered; (3) that failure to so seasonably make request for sworn weight is a waiver by the buyer of his right to have his coal so weighed.

Exceptions overruled.

(121 Me. 226)

BROWN v. DUREPO.

In action against husband for wearing apparel sold his wife in his absence, evidence held not to sustain a finding that the goods were purchased by her as his agent or on his credit.

On Motion for New Trial from Supreme Judicial Court, Aroostook County, at Law.

Action by Roy N. L. Brown against Levi G. Durepo. Verdict for plaintiff, and defendant moves for a new trial. Motion sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and WILSON, JJ.

O. L. Keyes, of Caribou, for plaintiff. Powers & Guild, of Ft. Fairfield, for defendant.

WILSON, J. An action of assumpsit to recover for certain merchandise consisting of wearing apparel and material therefor delivered by the plaintiff to the defendant's wife. The jury found for the plaintiff, and the case comes before this court on the defendant's motion for a new trial on the usual grounds.

The defendant was married in July, 1918, and two weeks thereafter went with his wife to live with his aunt with whom he and his orphaned brother and sister had made their home prior to his marriage.

The defendant became of draft age and subject to the draft of 1918, and by arrangement with the proper officials he enlisted and was transferred to the Students' Army Train

(Supreme Judicial Court of Maine. March 29, ing Corps at Tufts College. He left home

1922.)

1. Husband and wife 19(5)-No recovery for wearing apparel furnished wife, who has left home provided for her.

A wife, left by husband with his aunt when he entered the army, did not take with her the right to pledge her husband's credit for clothing or other necessaries, when she left the home of the aunt in his absence, unless she was warranted in leaving.

2. Husband and wife19(7)-Wife must purchase goods on husband's credit to bind

him.

to take up this work September 13, 1918, leaving his wife at his aunt's, with the understanding that she was to remain there and have a home, and receive for assisting in the housework her board, clothing, and the sum of $5 per week. Later she received from the government the regular allotment from her husband's pay, viz. $15 per month.

At the end of a week after his departure, dissatisfied as she says, with her treatment, but without notifying her husband, she left the aunt's and went to her sister's home in

A husband was not liable for wearing ap-another town to live. The first of the goods parel sold his wife in his absence, unless she sued for in this action were purchased by her purchased the goods on his credit and not on within a few days after leaving the home her own, under Rev. St. c. 66, § 4. her husband had provided.

For other cases, see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the husband, the presumption still is in the case of the purchase on credit of "necessaries," unless it be shown that the husband has otherwise made reasonable provisions for her support; that she has pledged the husband's credit and not her own; and, even though the goods be charged to her, unless by her express direction, still the husband would be liable and she not. Beaudette v. Martin, 113 Me. 310, 93 Atl. 758.

[1] The jury under instructions of the 1834, 23 Am. St. Rep. 764. And even where court to which no exceptions were taken they are living apart through some fault of must have found that the defendant's wife was warranted in leaving the home he had provided for her during his absence. Otherwise she would not take with her the right to pledge his credit even for necessaries. Stein feld v. Girrard, 103 Me. 151, 68 Atl. 630. The jury must also have found that it was her intent when she purchased the goods to obtain them on his credit, and not on her own. We have grave doubts as to whether there is sufficient evidence in favor of the plaintiff on the first point on which the verdict may rest. The period during which this liability was incurred was one requiring great personal sacrifices, not only by the husbands who were called to service, but by the wives who were left at home. The defendant's wife when she married knew his financial condition and his family relations, and that his country might at any time demand his services, in which case the amount she would receive from his pay would be small. The arrangements for her support made by the husband when he left appear to have been suitable and adequate.

There must, however, be the intent on her part at the time of the purchase to pledge the husband's credit. If arising merely from the presumption by reason of their marital relations, it, of course, may be overcomė. The statutes of this state long since have permitted her to contract and purchase upon her own credit, and whenever it appears she has done so, she, and not the husband, it liable. Williston on Contracts, vol. 1, § 270, p. 520; Hirshfield v. Waldron, 83 Mich. 116, 47 N. W. 239; In re De Spelder's Est., 181 Mich. 153, 147 N. W. 589; Hill v. Goodrich, 46 N. H. 41; Caldwell v. Blanchard, 191 Mass. 489, 77 N. E. 1036.

[4] In the case at bar the plaintiff not only charged the goods to the wife on his books, though this may not be controlling (Beaudette v. Martin, supra), but he frankly admits he gave the credit to her. The wife on her part does not pretend that at the time of purchase she disclosed or had any intention of pledging her husband's credit; on the contrary, she admits that she directed them to be charged to herself, and at the time paid a sum on account thereof. There is not the slightest evidence that she then considered herself the agent of her husband, and was purchasing "necessaries" on his account, but, on the contrary, the evidence clearly establishes, we think, that she purchased on her

[2] The seemingly slight differences between her and the aunt, and the slurs and insults, which may have been more imagined than real, and born of a desire on her part to be free of the restraint she felt in the new home and under the new responsibilities, were, even if her testimony be taken at its full value, insufficient we think to justify her leaving the home the husband had provided without notifying him. But even if a verdict founded upon the testimony on this branch of the case were not so manifestly wrong as to justify this court in interfering, and she must be held to have taken with her the right to pledge her husband's credit, it is clear from her testimony and that of the plaintiff that she did not undertake to ex-own credit. ercise that right when she purchased the Why she afterward instructed the plaingoods sued for, but purchased them on her own credit, which under the statutes of this state she had a right to do. Yates v. Lurvey, 65 Me. 221; R. S. c. 66, § 4.

[3] It is true that at common law the wife, while living with the husband, in purchasing of tradesmen in the ordinary course for family use, is presumed to be acting as the agent of her husband, and even, though the tradesman charged the goods so purchased to her, it would not render her liable, or relieve her husband of liability. Emmet v. Norton, 8 Car. & P. 506; Furlong v. Hysom, 35 Me. 332; Baker v. Carter, 83 Me. 132, 21 Atl.

tiff to look to her husband does not clearly appear, though from the evidence it, perhaps, may be fairly inferred that in the meantime some friction had arisen over her leaving the aunt's and going to live with her sister, due in part at least to alleged attentions paid to her by a brother of her sister's husband.

We think the jury clearly erred in finding upon the evidence that the goods sued for were purchased on the credit of the husband. The motion must therefore be sustained. Entry will be:

Motion sustained.

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