O'Brien v. Moskol
| Decision Date | 27 February 1924 |
| Docket Number | No. 5777.,5777. |
| Parties | O'BRIEN v. MOSKOL. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge.
Action by Christopher W. O'Brien against Samuel H. Moskol. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted for judgment on verdict.
Comstock & Canning and Andrew P. Quinn, all of Providence, for plaintiff.
McGovern & Slattery and Fred B. Perkins, all of Providence, for defendant.
This is a case commenced by writ of arrest in which the form of action is stated to be in trespass.
The case was tried before a justice of the superior court sitting with a jury, and resulted in a verdict for the plaintiff. The case is here upon the defendant's bill of exceptions. He now relies upon his exceptions to the refusal of said justice to direct a verdict for the defendant, the refusal of said justice to direct the plaintiff to elect upon which of the eight counts of the declaration he would go to the jury, and upon his exception to the action of another justice of the superior court in overruling the defendant's demurrer to the first four counts of the declaration.
It appears from the transcript of evidence that the plaintiff conducts a gold and silver refining business in Providence, that an employee of the plaintiff, one Doherty, stole silver dust and silver from the plaintiff and sold it to the defendant, who afterwards sold it to others and received money therefor. The last four counts of the declaration allege that the defendant received this material, knowing the same to be the property of the plaintiff and to have been stolen from the plaintiff, by reason whereof the defendant was guilty of larceny, and under the statute the plaintiff was entitled to recover of the defendant twice the value of the property so received by him.
To the first four counts the defendant demurred on the ground that they were improperly joined in this action ex delicto, because they are counts sounding in assumpsit. This demurrer was overruled, and the defendant excepted. The first four counts are anomalous; in form and substance they more nearly resemble counts in assumpsit for money had and received than counts in trover. They might be regarded as alleging the essentials of a declaration in trover; i. e., the conversion by the defendant of property belonging to the plaintiff and to which the plaintiff was entitled to possession. The action of the justice in allowing them to stand in the declaration is explainable on that ground. He evidently treated as surplusage, to be disregarded the other allegations contained in these counts setting out that the defendant had sold the material, and, though requested by the plaintiff, had not paid to the plaintiff the money received therefor or any part thereof. We think, in the interests of formal and orderly pleading, at least, the justice should have sustained the demurrer and required the plaintiff to reform these counts.
The action of the justice upon the demurrer is without an accompanying rescript, or other explanatory matter appearing upon the record, and we cannot be informed as to his reason therefor. But we must assume that he sustained the counts as properly stating a cause of action in trover. The defendant so understood the ruling of the justice, for to each count he pleaded the general issue of not guilty. Thereafter these four counts stood in the case as counts in trover, to each of which the defendant had pleaded not guilty, and the parties went to trial upon those issues. We regard the ruling upon the demurrer as questionable if not erroneous; but, if it should be held to be erroneous, the defendant takes nothing by his exception. The statute provides (section 24, c. 298, Gen. Laws 1909, now section 24, c. 348, Gen. Laws 1923) as follows:
Although question on that point, at the hearing before us, counsel for the defendant was unable to suggest any particular as to which the ruling on demurrer had affected the verdict, or whereby he had been prejudiced at the trial by reason of the ruling on demurrer. None appears to the court. The defendant was enabled to meet the case of the plaintiff and to develop his defense as fully as he might have done if the counts had been unexceptionable as allegations of trover. After the pleas of the defendant, these counts to all intents...
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State v. St. Pierre
...of the defendant and strictly against the state. State v. Patriarca, 71 R.I. 151, 162-63, 43 A.2d 54, 59 (1945). In O'Brien v. Moskol, 45 R.I. 486, 123 A. 568 (1924), the plaintiff sued the defendant under a civil statute providing '* * * whenever any person shall be guilty of larceny, he s......
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Senn v. Kogut
...trial because it found that such rulings and decisions did not erroneously affect the final decision on the merits. In O'Brien v. Moskol, 45 R.I. 486, 489, 123 A. 568, 569, this court again applied the statute where a demurrer to the declaration on the ground of misjoinder of counts had in ......
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Costa v. Rose.
...a serious question as to the construction of said § 1, which question has not heretofore been determined by this court. In O'Brien v. Moskol, 45 R.I. 486, 123 A. 568, upon which the plaintiff relies in meeting this contention, the point here involved was not passed upon. General Laws 1896, ......
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Brady v. Norwich Union Fire Ins. Soc., Ltd.
...life." Many of the ancient technicalities of the law of larceny have been abolished in this state by the Legislature. In O'Brien v. Moskol, 45 R. I. 486, 123 A. 568, it was held that under the provisions of General Laws 1923, c. 397, § 13, which provides that the fraudulent receiver of stol......