Garrettson, Ellis Lumber Co. v. Roger Laudati, Inc. ( 1931 )

CHURCHILL, J."

Heard on motion fot a new trial after verdict for the plaintiff for $256.76.

This was an action to recover the sum of $271, the price of lumber sold the defendant. The jury returned a verdict for '$256.76, being the full amount claimed, less $14.24 freight charges deducted by consent of both parties.

The case went to the jury on two issues; was the lumber reasonably up ¡to the standard of the sample, and, did the defendant notify the plaintiff within a reasonable time of its claim that the lumber did not conform to the samples?

The case has been tried before and the verdict for the plaintiff was sot aside as against the weight of, the evidence on both issues and on substantially the same evidence.

The Court is of the opinion that the verdict in the instant trial is against the evidence on both issues.

The chief witness for the plaintiff was Hugh Cairns, who was a selling agent for the plaintiff and who, on the testimony, was clothed with apparent general authority to act for the plaintiff in respect to lumber sold by him. His testimony was given by way of deposition.

After a careful reading, it does not impress the Court as overcoming the testimony of three witnesses who testified for the defendant as to the condition of the lumber. From the testimony given on behalf of the defendant and from the admissions by Cairns, it is abundantly clear that notice was given immediately by the defendant that it would not accept the lumber. The effort made by Cairns, which he admitted, to sell the lumber for the account of the plaintiff to other firms in and around Providence, is entirely incompatible with acceptance by the defendant and goes far to show notice of rescission.

The verdict does not do justice between the parties and the motion for a new trial is hereby granted.