Holt v. Rotelli , 8 R.I. Dec. 297 ( 1932 )

CAPOTOSTO, J.

Suit for two insurance premiums amounting to $1,803.28. Counter-claim for $41.72. The jury returned a verdict for the defendant on his counter claim in the sum of $41.72. The plaintiff asks for a new trial on the usual grounds.

The plaintiff and defendant had done considerable business with each other for quite a number, of years both before and after the matter in issue. The defendant had always paid his bills promptly and without question. In this particular instance the defendant, a contractor and builder, refused to pay the -two premiums in suit because, as he maintained, it was expressly understood and agreed to by the plaintiff that these two premiums for contract bonds were to be charged to and paid for by the owner. The counter-claim of $41.72 was for over-payment on other insurance.

The plaintiff’s claim is based principally upon the oral testimony of Mr. Harold Holt and the entries on cards, loose leaf ledger sheets and some correspondence.

The defendant, in support of his claim, produced testimony of Mr. Ro-telli, of Mr. Billings, architect in charge for the owner on the particular jobs in question, of Mr. Parker, the manager of the plaintiff’s bond department at the time of these transactions, and considerable correspondence between the plaintiff and the owner or his agents. The issue, therefore, was squarely one of fact for a jury to decide.

After a careful review of all the; testimony, the Court is of the opinion that any other verdict than the one returned by the jury would have been unjust. It is quite apparent that the defendant was right in refusing to pay the plaintiff’s claim. The bookkeeping for the plaintiff leaves plenty of opportunity for reflection. His letters, in certain instances not necessary to detail here, are in the nature of self-serving statements to support an attempted shift of liability. It is a rather dangerous proposition to change horses in the middle of a stream. This is what the plaintiff tried to do.

Motion for new trial denied.