were not wet. He says that he did not see the freight cars until he was within 200 feet of them, too near to avoid a collision, and his excuse for not seeing them before is the existence of the pile of wood. The evidence is overwhelming, however, that he could have seen the cars from a point much farther up the track if he had been attentive. One of his witnesses testified that the freight cars were in plain sight for a distance of at least 1,500 feet up the track. The plaintiff admits that he was driving his car at 24 miles an hour, although he knew the rule of the road required that a car should not be driven over a switch at a greater speed than 4 miles an hour. which the horse had contracted before the alleged warranty. [1] As to the motion: The evidence was conflicting upon the principal issue, which was determined under proper instruction in favor of the plaintiff. The burden then changed, and it becomes the duty of the defendant to make it clearly appear that the jury erred. We have examined the record with great care in connection with the briefs of counsel, and we are unable to say that the verdict is clearly wrong. [2] The exceptions: The evidence introduced under objection related to "extra expenses, caused by the sickness of the horse," and under the ruling admitting the same, As was said by this court when this case many questions were asked eliciting in detail was before it the first time: "Had the plaintiff exercised that degree of attention, watchfulness, and caution which the law requires, he could not have escaped seasonably seeing, and therefore avoiding, the obstruc tion." Exceptions overruled. (113 Me. 154) STERNS v. HUDSON et al. (Supreme Judicial Court of Maine. March 3, 1915.) 1. NEW TRIAL 71-SUFFICIENCY OF EVIDENCE-REVIEW. the plaintiff's expenses due to such sickness, the amount of which as found in the special verdict was $50. The defendants have not referred to the exceptions in their brief, but, being part of the record, we deem the subject of sufficient importance to pass upon the questions raised. The action is for damages claimed to be due to a breach of warranty. We think that evidence offered tending to show loss and damage flowing directly from a breach of warranty is clearly admissible, and testimony as to the expense incurred by the plaintiff in caring for the horse, for medicine for medical attendance, and like expensWhere, on conflicting evidence, the jury found under proper instructions for plaintiff, de-es, is admissible, and that courts universally fendant on general motion has the burden of so hold. Sedgwick on Damages (9th Ed.) making it clearly appear that the jury erred, vol. 2, § 772; Peak v. Frost, 162 Mass. 298, or the verdict will not be disturbed. 38 N. E. 518; Heenan v. Redmen, 101 Ill. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 144, 145; Dec. Dig. ~71.] 2. SALES 442 BREACH OF WARRANTY DAMAGES. A buyer suing for damages for breach of warranty in the sale of a horse may show loss resulting directly from the breach, and may show the expense incurred by him in caring for the horse when sick, for medicine, medical attendance, and like expenses. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. 442.] On Motion and Exceptions from Supreme Judicial Court, Penobscot County, at Law. Action by Sam Sterns against Henry Hudson and others. There was a verdict for plaintiff, and defendants file a general motion and exceptions. Motion and exceptions overruled. Argued before SPEAR, CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ. Terence B. Towle, of Bangor, for plaintiff. Hudson & Hudson, of Guilford, for defendants. HANSON, J. This is an action to recover damages for breach of warranty of a horse. The jury returned a verdict for the plaintiff in the sum of $300, and the case is before the court on general motion, and exceptions to the ruling of the presiding justice admitting against objection evidence of expenses incurred by the plaintiff on account of a disease App. 603; Cummins v. Ennis, 4 Pennewill (Del.) 424, 56 Atl. 377. The entry will be: Motion and exceptions overruled. A bill of exceptions, stating that plaintiff seasonably objected to the admission of certain testimony and when it was admitted noted his which the presiding justice excluded, and duly exceptions, that he offered certain testimony excepted, and that he requested the presiding justice to give certain instructions which were refused, and duly excepted, with no other statement of what the admitted or excluded evidence was and nothing to show the relevancy, materiality, or competency thereof or the appropriateness of the instructions, did not present separately each issue of law in the clear, distinct, summary manner required by Rev. St. c. 79, 55, which provides that a party aggrieved by any of the opinions, directions, or judgments of tions in a summary manner, which if found true the presiding justice may present written excepshall be allowed and signed by the justice, though the record of the evidence was made a part of the bill of exceptions, since, while this is not improper, the reference to the evidence or the incorporation of the evidence as a part of the bill cannot take the place of a succinct and A packer of corn wrote a broker of cornpacking products offering “10,000 cases fancy," at $1 per dozen cases. The broker procured a purchaser subject to approval of a sample case, but upon receipt of the sample case the purchaser wired the broker that it was not of fancy quality and could not be used. The broker wrote the packer stating the substance of the telegram. Held that, in an action by the broker for commissions, the letter and telegram were improperly excluded, since letters and telegrams by one party to a suit to the other sent in the general course of business and not specifically to manufacture evidence, and which by the character of their contents are naturally calculated to elicit replies and denials, are admissible in evidence, though self-serving and not answered, not as themselves affording proof that the statements therein are true, but on the ground that silence when such statements are made may itself be an admission. CORN." [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 771-785; Dec. Dig. 220.] 3. BROKERS 64-RIGHT TO COMPENSATION FAILURE OF NEGOTIATIONS "FANCY A packer of corn wrote a broker of cornpacking products offering "10,000 cases fancy," at $1 per dozen cases. The broker procured a purchaser subject to approval of a sample case, but upon receipt of the sample case it refused to accept the corn as not being of fancy quality. The evidence showed that "fancy" corn was of a higher grade than standard corn and consisted of the very best part of a good pack, packed from tender creamy corn with good consistency, and was sweet, tender, of extra flavor, not hard nor wet, and taken when the corn was "right in the milk," and that the corn in question was not fancy corn as regarded in the trade. Held, that the broker, having produced a customer ready and willing to buy on the packer's terms and able to buy, had earned his commissions. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. 64.] Exceptions from Superior Court, Cumberland County, at Law. Action by Henry Dennis against the Waterford Packing Company. Verdict for defendant, and plaintiff brings exceptions and moves for a new trial. Exceptions and motion sustained. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ. Hinckley & Hinckley, of Portland, for plaintiff. Eben Winthrop Freeman, of Portland, for defendant. SAVAGE, C. J. Action by a broker to recover commissions. The verdict was for the defendant, and the case comes before this court on the plaintiff's exceptions and motion for a new trial. "During the trial, the plaintiff seasonably objected to the admission of certain testimony, and when the same was admitted noted his exceptions. "During the trial the plaintiff offered certain testimony which the presiding justice excluded, and the defendant (plaintiff?) duly excepted. "At the close of the evidence the plaintiff duly requested the presiding justice to give certain instructions to the jury, which the presiding justice refused to give, and the defendant (plaintiff?) duly excepted." There is in the bill no other or particular statement of what the evidence was which was thus admitted or excluded. Nor is there anything in the bill to show that the evidence admitted was irrelevant, immaterial, or incompetent; nor that the evidence excluded was relevant, material, and competent; nor is there anything to show that the requested instructions were appropriate. There is nothing to show that the rulings and refusals to rule were erroneous or prejudicial. This statement brings this bill of exceptions precisely within the teeth of McKown v. Powers, 86 Me. 291, 29 Atl. 1079. It does not present separately each issue of law in that clear, distinct, summary manner required by the statute. R. S. c. 79, § 55; Salter v. Greenwood, 112 Me. 548, 92 Atl. 786. It is needless to cite the long line of cases in this state which hold that the excepting party must on the face of the bill show that he has been aggrieved, and this rule requires that the bill should state the evidence concerning the admission or exclusion of which complaint is made, and enough of the contentions or issues in the case to show that it was relevant or irrelevant, material or immaterial, competent or incompetent, as the case may be. In the case of McKown v. Powers, which was but a restatement of the existing rule, the court declared in substance that it would not feel bound to consider exceptions so irregularly presented, and that it would not do so, unless in exceptional cases. This warning was repeated in Wilson v. Simmons, 89 Me. 242, 36 Atl. 380, in which the court used this language: repeatedly reaffirmed in order to secure greater "An imperative rule has been established and regularity and certainty in the administration of justice, and no material relaxation of the rule will be countenanced, unless for special and peculiar reasons in the furtherance of justice." The doctrine of McKown v. Powers has been many times reaffirmed since that case was decided, the latest instance being in the very recent case of Salter v. Greenwood, 112 Me. 548, 92 Atl. 786. It is true in this case, as it was in McKown v. Powers, that the record of the evidence is made a part of the bill of exceptions; but that does not help the matter. It is not a "summary" bill, as contemplated by statute. It is not an infrequent practice in framing a [1] The defendant moves that the excep- bill of exceptions to refer to the evidence and tions be dismissed on the ground that they make it a part of the bill. This is not impropare not sufficiently definite, specific, and sum-er. The evidence may help to illuminate the mary. The bill of exceptions states that: exceptions. But neither the statute, nor ap but that silence when such statements are made may itself be an admission. We think the evidence offered and excluded falls within this rule, and that it should have been admitted. These observations will apply also to other instances of exclusion of oral statements made by the plaintiff to the representative officers of the defendant. The exceptions must be sustained. proved practice, contemplates that a refer-, proof that the statements in them are true, ence in the bill to the body of the evidence, or the incorporation of the evidence as a part of the bill, is to take the place of succinct and summary statement of the specific grounds of exception in the body of the bill itself. In view of the statute and the rule, we do not think it is the duty of the court to hunt through a mass of undigested, and sometimes indigestible, testimony, to find the points of exception, and determine their value. The motion of the defendant might well be granted, if that would end the case. But, as an examination of the record under the motion for a new trial has led us to the conclusion that the case must be sent back for a new trial, we deem it to be for the interest of both parties to consider now one or two questions concerning which exceptions were taken. And this necessitates a brief statement at this point of the issue between the parties. [2] The defendant corporation is a packer of corn. The plaintiff is a broker of corn packing products. On October 12, 1912, the defendant wrote to the plaintiff as follows: "Having finished packing corn we are now in the market with about ten thousand cases fancy, which we offer at $1.00 net per dozen cases, f. o. b. Harrison, Maine, with the customary label allowance." Thereupon the plaintiff offered the corn to Austin-Nichols Company of New York, upon the terms named in the letter. October 14th, Austin-Nichols Company accepted the offer subject to approval of case of "fancy" representing average quality. The plaintiff notified the defendant of the acceptance, and requested it to send sample case to AustinNichols Company for their approval. A sample case was accordingly sent. October 19th, Austin-Nichols Company wired the plaintiff: "Sample' case Waterford corn received. Not fancy quality. Cannot use." The telegram was offered in evidence, and excluded on the ground that it was merely hearsay evidence, as to the quality of the corn. The plaintiff testified that upon receipt of the telegram he wrote a letter to the defendant in which he communicated the information received in the telegram, or, as we understand it, the substance of the telegram. Then he offered to show the contents of that letter. The evidence of the contents of the letter was excluded on the ground that they were selfserving statements. We have recently held that letters and telegrams sent in the general course of business, by one party to a suit to the other, and not specifically to manufacture evidence, which by the character of their contents are naturally calculated to elicit replies and denials, are admissible in evidence, although they are self-serving, and are not answered. Ross v. Reynolds, 112 Me. 223, 91 Atl. 952; Keeling-Easter Co. v. Dunning Co., 113 Me. 34, 92 Atl. 929. The ground of admissibility [3] The motion can be disposed of briefly. If the plaintiff produced a customer ready and willing to buy on the defendant's terms, and able to pay, he earned his commissions. That the plaintiff produced a customer ready and able to buy "fancy" corn, and that it was "fancy" corn which the defendant in its letter to the plaintiff proposed to sell, the testimony leaves no real doubt. It is undisputed. Neither can there be any real doubt that the customer refused to accept the corn on the claimed ground that it was not "fancy" corn. This leaves only two questions for consideration: (1) Was the customer willing to buy the corn if it was "fancy corn"? and (2) Was it fancy corn? We find nothing in the testimony which tends to show that the customer was not willing to buy, if the corn proved to be as represented, "fancy" corn. Even after it wired the plaintiff that the sample sent was not "fancy quality," it sent its agent and buyer from New York to Waterford to inspect the corn, and to see if in And he fact the bulk of it was "fancy." after examination refused to accept it for the reason that it was not "fancy." Every consideration of the evidence tends to the conclusion that the customer was willing to There is no warrant for buy "fancy" corn. a contrary conclusion. Lastly, was the corn "fancy" corn? The evidence is undisputed that there are known to the trade two principal grades of packed corn; one is called "Standard" and the other "Fancy." "Fancy" corn is the higher grade. It is not the best part of the pack in any particular year. It is the very best part of a good pack. It is corn that is packed from tender, creamy corn, and with good consistency.. It is sweet, tender, of extra flavor, not hard nor wet, and got when the corn is "right in the milk," as it is called. There is direct evidence in the case that the corn in question was not "fancy" corn, as that corn is regarded in trade. And a most significant piece of evidence on this issue is the low price at which the defendant was afterwards willing to sell the bulk of it, compared with the then going price for "fancy" corn. Aside from some evidence, which is disputed, that the plaintiff said after examination that the corn was all right, the defendant offered no evidence whatever that the corn was in fact "fancy." The highest praise given to the corn by the defendant's witnesses, in our judgment, falls very considerably short of in the brief submitted makes no claim that | Demurrer to information overruled, and dethe corn was "fancy." 47-PLEADINGS-RULES The pleadings in quo warranto are governed in general by the rules applicable in ordinary civil actions, and the complaint must aver the acts or omissions constituting the misuser complained of, and the facts relied on must be set forth positively and with certainty, so that the court may determine whether a wrong has been done to the public. fendant brings exceptions. Sustained. Argued before SPEAR, CORNISH, KING, HANSON, and PHILBROOK, JJ. Howard Davies and E. H. Wilson, both of Portland, for plaintiff. Bradley & Linnell, of Portland, for defendant. HANSON, J. This is an information in the nature of quo warranto. The defendant demurred, and the case is before us upon exceptions to the order overruling the demur rer. By chapter 213 of the Private and Special Laws of Maine for the year 1891, the York Light & Heat Company was authorized to supply heat and power by the manufacture of gas and electricity in the cities of Biddeford and Saco, and town of Old Orchard. By chapter 4 of Private and Special Laws of Maine for the year 1903, the defendant company was authorized to purchase, own, and enjoy the franchises, property, shares of stock, rights, easements, privileges, and immunities of Old Orchard Electric Light Company. And the information sets out: has long since, to wit, on the 1st day of May, [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 48; Dec. Dig. 47.] 3. QUO WARRANTO 16-REMEDY-FORFEITURE OF CORPORATE FRANCHISE-GRounds. Quo warranto is the appropriate remedy against a corporation for abuse of power, misuse of privilege, malfeasance, or nonfeasance. [Ed. Note. For other cases, see Quo War-light and power to individuals and corporations ranto, Cent. Dig. § 17; Dec. Dig. 16.] 4. QUO WARRANTO 48-FORFEITURE OF CORPORATE FRANCHISE-COMPLAINT SUFFICIENCY. An information in the nature of quo warranto for the forfeiture of the franchise of a corporation authorized to supply gas and electricity to the inhabitants of a town, which alleges that it was the duty of the corporation to faithfully and impartially perform its duties, and that it has abused its power and misused its privilege by charging excessive rates, and discriminating between patrons, is demurrable, because failing to state facts from which the court may determine whether there has been a misuse or overcharge, or unreasonable discrimination in which the public are interested, or whether the alleged misuser worked a substantial injury to the public or only to one or more individuals, in which the public are not interested, or whether there is another remedy. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. §§ 49-52, 59, 60; Dec. Dig. 48.] 5. QUO WARRANTO 60 - COMPLAINT PRAYER-RELIEF. The relief to be granted in quo warranto does not depend on the prayer for relief, but on the complaint and evidence. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 71; Dec. Dig. 60.] Exceptions from Supreme Judicial Court, York County, at Law. Quo warranto by the State, by information of Scott Wilson, Attorney General, against the York Light & Heat Company, for the forfeiture of a franchise of the company. "First. Because he says that by the acceptance of the aforesaid charter and acts amendatory thereto, and of the franchises therein created, the said York Light & Heat Company became charged with the duty of disposing of the electric light and power to individuals and corporations therein, faithfully and impartially, and at reasonable and equal rates, and of thereby serving the public. "Second. Because the York Light & Heat Company since the 1st day of May, 1913, has willfully, intentionally, and unlawfully refused to faithfully and impartially perform its aforesaid duties, but has abused its power and misused its privilege, in that, it has charged excessive and exorbitant rates, and has discriminated between its patrons, at said Old Orchard. "Third. Because the aforesaid franchise became the property of the state of Maine on the 1st day of May, 1913, when so forfeited, as aforesaid, but the said York Light & Heat Company so illegally and wrongfully withheld the same from the state since the said 1st day of May as aforesaid down to the present day, has franchise as its own, and is illegally and unlawclaimed and is still claiming to hold the said fully preventing the occupation of the streets in said Old Orchard, or any other corporation that might otherwise be legally authorized to occupy the same, to the great detriment of the ter, and in willful perversion of the objects, public and in violation of the trusts of its charduties, and public obligations thereof. And the said Attorney General further gives the court to understand and be informed that the foregoing & Heat Company done and performed, and the illegal acts and doings by the said York Light forfeiture of all charter rights as aforesaid for said town, has during all the time since the said 1st day of May, 1913, now last past, usurp ed and doth usurp from said state the liberties, privileges, and franchises following, to wit: Powers, privileges, and immunities incident by law to a corporation aggregate to furnish electric lights for lighting streets in the town of Old Orchard, and to dispose of electric light and power to individuals and corporations therein, all which liberties, privileges, and franchises the said company during said time hath usurped and doth usurp, from the said state to its great damage and injury. "Wherefore the said Attorney General prays the advice of the court in this behalf in the premises, that due process of law may be awarded against the said York Light & Heat Company, in this behalf to answer to this court by what warrant it claims to use and exercise the powers, privileges, and franchises aforesaid." The demurrer follows: And now comes the said defendant and says that said information is insufficient in law, and for the following reasons, to wit: (1) Because neither quo warranto nor information in the nature of quo warranto is the appropriate remedy upon the facts alleged in said information. (2) Because it does not appear from said information that the plaintiff therein has exhausted all other proper remedies. (3) Because the facts alleged in said information are not alleged with certainty. (4) Because the matters alleged in said information are insufficient in law to enable the plaintiff therein to maintain his action. The causes of complaint are: (1) That the defendant has charged excessive and exorbitant rates. (2) That it has discriminated between its patrons at Old Orchard. (3) That it has withheld the franchise illegally and wrongfully since May 1, 1913. The complainant attacks the corporation, and asks for a surrender of its chartered rights upon a general statement of misuser of its franchise, without specifying acts constituting misuser, or stating any definite time when such misuser occurred, or whether single acts or continuous misuser of its franchises constituted the ground of complaint. It does not appear how much was charged for service, or the excess above the amount claimed to be just and fair, or required by the terms of the charter. Neither the time, manner, nor character of the discrimination complained of, nor the name of any person or persons affected in any manner by the alleged charges and discriminations, are set out in the complaint. The objections raised by the demurrer necessary to be considered here relate to plead ing, and are for the first time raised in this state, but are by no means new to other jurisdictions. [1] The evolution of quo warranto from its original purpose as the king's writ for the king's personal use and profit to its more general, but no less important, use in its present form by the people collectively and individually developed a difference in procedure and practice in the matter of certain ty in the allegations of the complaint. In a few jurisdictions under statute provision the trusion or usurpation may be of the most general character, and statutes provide that no issue of fact need be tendered. Pleading and Practice, vol. 17, 457; State v. Pennsylvania Canal Co., 23 Ohio St. 121; People v. De Mill, 15 Mich. 164; State v. McDiarmid, 27 Ark. 179. The rule invoked by the complainant under the authority of the above citations "that it is only necessary to set forth in general terms the rights and privileges alleged to be usurped, and the wrongful act or omission complained of may likewise be stated generally by alleging the ultimate fact," cannot be taken as authority in the case at bar. The cases cited were limited and regulated by statute in the first instance, and in the last and most important particular the rule insisted on by the relator and upon which he relies is stated in these words: "If the complaint, besides making general allegations, which, standing alone, would be sufficient, specifies the particular facts claimed to do not amount to a cause of action, the entire show usurpation or other illegality, and these pleading is bad." Then follow two citations from New York and California Reports, under section 1448, 32 Cyc. In this connection it may be profitable to note the conclusion of the court in People v. Kingston & Middleton Turnpike Road Co., in 23 Wend. (N. Y.) 193, 35 Am. Dec. 551, that: "In a proceeding by information in nature of a quo warranto, facts necessary to be alleged to show a neglect of duty must be set out with all the exactness of pleading required in an action for a penalty." See, also, Harris v. Mississippi Valley & S. I. R. Co., 51 Miss. 602; Atty. Gen. v. Petersburg R. R. Co., 28 N. C. 456; State v. Greene, 87 Vt. 94, 88 Atl. 515; State ex rel. Union Electric Light & P. Co. v. Grimm, 220 Mo. 483, 119 S. W. 626; People v. San Francisco Stock Exchange, 4 Cal. Unrep. 85, 33 Pac. 785. It may be useful also to repeat the text relating to this subject in 2 Spelling, § 1850, which would seem to remove all doubt as to what is the proper pleading in all such cases. That author says: "An information to have a charter of a corporation declared forfeited must set forth a subUnder the earlier stantial cause of forfeiture. practice, and before quo warranto was placed on a footing with civil remedies, the prosecutor might in a proceeding to forfeit corporate franchises either disclose in his information the specific ground of forfeiture relied upon, or he might in general terms charge the respondent with exercising certain franchises without authority, and call upon it to show by what warrant such powers were claimed. The plea might then deny the facts charged in general terms, or set forth the authority relied upon, as the case might be, and the replication might then allege the acts upon which the prosecution relied as working a forfeiture. These again might be substantially the same course as in ordinary denied, or a demurrer might be filed following common-law pleadings. But under the system |