Lovasz v. Fowler ( 1924 )

Judgment and order reversed on the law and the facts, and a new trial granted, without costs. The testimony of the plaintiff is so incoherent that it is difficult to draw inferences from it. On a new trial he should be allowed to testify through an interpreter. The learned trial justice, when the plaintiff rested, and without any motion being made, said, “ Judgment for defendant.” In spite of the fact of its being an apparent dismissal of the complaint at the close of plaintiff’s case, proposed findings of fact and conclusions of law were submitted by both sides. The record is not sufficiently clear as to which of plaintiff’s proposed findings of fact were found. We are of opinion, on this imperfect record, that plaintiff’s alleged repudiation of the contract was not the absolute, unequivocal repudiation that is required by law to warrant the defendant in treating the contract as at an end, and in rescinding it. A new trial may develop the facts with greater clearness.

Kelly, P. J., Rich, Manning, Kelby and Kapper, JJ., concur.