Pepin v. Keough ( 1918 )

SWEENEY, J.

. Heard on plaintiff’s motion for a new trial.

This is an action of assumpsit brought to recover the sum of $500 due to the plaintiff on account of a trade between the plaintiff and the defendant by which the plaintiff gave the defendant a Republic truck in consideration of receiving a Ford automobile from the defendant and the defendant’s promise to pay to the plaintiff the agreed difference in the values between the trucks of $500.

The automobiles were exchanged on, to wit: the 22nd day of October, 1917, and the defendant expressly and positively promised the plaintiff that he would pay him the sum of $500 not later than the 10th of November, 1917. The defendant did not pay the plaintiff any of this money, but about the 10th of November, 1917, he met a man named Burke in Providence, who claimed to be a partner of the plaintiff, and the defendant and Burke had a conference at which Burke claimed to be the partner of Ptepin and allowed the defendant $95 for repairs of the truck and also allowed the defendant $30 for cash advanced to Pepin and then the defendant paid Burke the balance of $375.

The jury returned a verdict for the defendant and the plaintiff duly filed a motion for a new trial, claiming that the verdict is against the | law and the evidence and the weight thereof.

The Court has carefully considered the evidence in this case and in its judgment the fair preponderance of the evidence shows that the plaintiff was the sole owner of the truck and that Burke had no interest in it and was not authorized by the plaintiff, either as partner or ag'ent, to collect any of the $500 from the defendant, and that the settlement made between the defendant and Burke was without the knowledge or consent of the plaintiff, and that the plaintiff has not received any money from either the defendant or from Burke on account of this transaction.

The plaintiff’s motion for a new trial is granted.