Prefontaine v. Roberg
| Decision Date | 14 March 1898 |
| Citation | 39 A. 892,20 R.I. 418 |
| Parties | PREFONTAINE v. ROBERG. |
| Court | Rhode Island Supreme Court |
Exceptions from court of common pleas, Providence county.
Action by Hermengilde Prefontaine against Oscar J. Roberg. Judgment for plaintiff, and defendant brings exceptions. Sustained.
This was an action brought by Prefontaine, as tenant in common with Roberg, the defendant, against him for an account as bailiff. The first count in the declaration stated that the defendant had failed to render an account of the rents and profits derived from the real estate belonging to the plaintiff and defendant equally as tenants in common, the defendant being in charge and receiving the rents and profits for the two, although he had been often requested to render such an account. The second count, repeating the allegations of tenancy in common, and that defendant collected the rents and profits as bailiff, also alleged that the defendant had received various specified sums from the People's Savings Bank and the City Lumber Company for the purpose of erecting a building on said land, and had erected it for the common benefit of the plaintiff and the defendant, and had also received the rents and profits therefrom, yet, though requested, he had refused to render an account thereof, etc. To this the defendant pleaded: (1) He never was bailiff to the plaintiff, nor ever received said rents and profits. (2) He never received more than his just share of said rents and profits. (3) He has fully accounted to the plaintiff. (4) He never had the care, etc., of said premises to collect said rents and profits, etc. (5) He never received any moneys for the use of the plaintiff. After issues joined and a hearing before the court (jury trial being waived), the case was sent to an auditor, who heard the parties and their testimony, etc., and made his report. The defendant excepted to the auditor's report: (1) Because the auditor found that the plaintiff, during the erection of the house in the case mentioned, advanced $309.75, the testimony substantiating this not being admissible under the pleadings, and should have been excluded. (2) Because the auditor found that the plaintiff and the defendant had each paid one-half of $250 paid on account of a certain mortgage on said premises.
T. W. Gilchrist, for plaintiff.
Archambault & Gaulin, for defendant.
We think that the defendant's exceptions relating to the allowance by the auditor of moneys paid by the plaintiff on...
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R.I. Hosp. Trust Co. v. Sherman
...where no injustice would be done; and this has been held proper by this court. Spicers & Peckham v. Harvey, 9 R.I. 582; Prefontaine v. Roberge, 20 R.I. 418, 39 A. 892; Cleasby v. Reynolds, 26 R.I. 236, 58 A. 786. Under a permissive statutory provision similar to the Rhode Island one above q......
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Shepard Land Co. v. Banigan
...where amendment of a declaration after verdict or final decision was permitted, see Spicers v. Harvey, 9 R. I. 582; Prefontaine v. Roberge, 20 R. I. 418, 39 Atl. 892; Cleasby v. Reynolds, 26 R. I. 236, 58 Atl. Section 3 of chapter 285 of the General Laws provides, among other things, that n......
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Cleasby v. Reynolds
...The fact being undisputed, the count may be amended to conform to it, as was done in Spicers v. Harvey, 9 R. I. 582; Prefontaine v. Roberge, 20 R. I. 418, 39 Atl. 892; Stearns v. Drake, 24 R. I. 272, 52 Atl. 1082. When this is done, the record will conform to the facts, and can be relied on......