Faille, Fountain & Bookbinder v. McDonald

5 R.I. Dec. 3

• Court: Superior Court of Rhode Island
• Decided: June 25, 1928
• Docket: No. 71569
• Status: Published

Opinion

HAHN, J.

Heard on plaintiff’s motion for a new trial after verdict for defendant.

Tbis action was brought for tbe sum of $120', commission on tbe sale of a lodging bouse on Broadway in Providence, tbe property of tbe defendant. Tbe plaintiff’s petition for a new trial is based on tbe ground that tbe verdict is against tbe evidence and tbe weight thereof.

Tbe testimony of tbe defendant was in tbe first instance that she did not sign tbe contract authorizing tbe plaintiffs to sell tbe lodging bouse in question. Tbe contract is marked Plaintiffs’ Exhibit 1, and while on tbe witness stand tbe defendant was asked to write her signature, which she did —Plaintiffs’ Exbibt 3. Tbis signature is practically identical with tbe signature upon tbe card. ‘She testified that while tbe original authority was to sell tbe place for $2,000, that she reduced tbe price to $1,500, which amount plaintiffs were unable to obtain for her.

Tbe plaintiffs’ testimony is in effect that her original price was $2,000 but that thereafterwards it was reduced and that when they obtained a customer for tbe sum of $1,200, they notified tbe defendant who accepted same, and with tbe customer took an inventory of all of the property on tbe premises. Tbis inventory is Exhibit 2, and there is tbe further testimony of Albert Orobona, the owner of the premises in which tbe lodging bouse was located, in which he said that defendant told ihim over tbe telephone that she was getting $1,100 at the time tbe prospective purchaser was negotiating with him for a lease. Tbis testimony of tbe landlord was not contradicted by tbe defendant.

In view of all of the above circumstances, it is tbe opinion of tbe Court that tbe verdict for tbe defendant is against tbe weight of tbe evidence.

Motion for a new trial granted.