Ferla v. Rotella
| Decision Date | 26 April 1961 |
| Docket Number | No. 10197,10197 |
| Citation | 169 A.2d 906,92 R.I. 460 |
| Parties | Vincent FERLA v. Ernest ROTELLA. Ex. |
| Court | Rhode Island Supreme Court |
Zietz & Sonkin, James Radin, Providence, for plaintiff.
Grande & Grande, Aram K. Berberian, Providence, for defendant.
This action of assumpsit was heard by a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff for the full amount claimed by him. The defendant excepted to such decision on the grounds that there was a fatal variance between the plaintiff's proof and the pleadings. The case is before this court only on that exception.
It may be well to point out at this time that the record before us includes only a partial transcript of the hearing in the superior court. The transcript consists of the direct examination of plaintiff and the decision of the trial justice. The defendant was given permission by this court to file the partial record presented with the understanding that he would be restricted thereto in briefing and arguing his exception.
The plaintiff's declaration is in the common counts and alleges that defendant is indebted to plaintiff for goods, chattels and effects bargained, sold and delivered by plaintiff to defendant; for work and services and materials furnished by plaintiff to defendant; for money loaned by plaintiff to defendant; for money paid and expended by plaintiff for defendant; for money received by defendant for the use of the plaintiff; for interest; and under an account stated between plaintiff and defendant. The defendant entered his appearance and filed a plea of the general issue and a motion for a bill of particulars.
The plaintiff subsequently filed a bill of particulars stating: 'In answer to the Defendant's motion for a Bill of Particulars, the Plaintiff says that the Defendant was a leasee [sic] of Building 5-A, located between the Crystal Maze and Tomato Pie Building at Rocky Point Park, for the period from June 7, 1951 to October 1, 1951, upon which is owed the balance of rental due in the sum of ($600.00) Six Hundred Dollars, plus interest.'
At the trial the plaintiff, without objection by defendant, testified that in 1951 he was president and treasurer of Rocky Point Park, Inc.; that said corporation at that time leased to defendant a certain building at Rocky Point Park upon which there was a balance due of $498.74 for the year 1951; that the corporation also paid the 1951 real estate tax and the 1951 liability and fire insurance premiums which defendant was obligated to pay under the lease; and that in 1953, it being indebted to the plaintiff, assigned to him all of its assets including its claim against defendant.
The plaintiff also testified, without objection, that whenever he spoke to defendant about sums due under the lease he said he intended to pay him. In addition to the foregoing testimony, plaintiff, again without objection by defendant, offered in evidence as exhibits the lease and the assignment above...
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Cofone v. Narragansett Racing Ass'n
...trial could be fatal, even though evidence clearly irrelevant to the case as pleaded had been admitted without objection. Ferla v. Rotella, 92 R.I. 460, 169 A.2d 906, 170 A.2d 622. That principle, however, no longer controls. It has been negated by rule 15(b) of the new rules which, in pert......
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Mello v. Coy Real Estate Co.
...at trial could be fatal to the pleader-even when the issue was raised for the first time on appeal to us. We so ruled in Ferla v. Rotella, 92 R.I. 460, 463, 169 A.2d 906, 170 A.2d 622. There appear, however, in the instant record, certain facts which bring this case outside the scope of our......
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Universal C.I.T. Credit Corp. v. Skog
...contract and both were brought in assumpsit. Recovery under the original action would bar recovery under the amended count. In Ferla v. Rotella, R.I., 169 A.2d 906, the court found a variance between the declaration on the common counts and the proof of rent owed, stating at page 907: 'The ......
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Ferla v. Rotella
...& Grande, Aram K. Berberian, Providence, for defendant. PER CURIAM. In the above-entitled case, pursuant to our opinion heretofore filed, 169 A.2d 906, the plaintiff through his attorney appeared to show cause why the case should not be remitted to the superior court with direction to enter......