Gunn v. McCabe
| Decision Date | 12 January 1928 |
| Docket Number | No. 6410.,6410. |
| Citation | 139 A. 916 |
| Parties | GUNN v. McCABE. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.
Action by James Gunn against Patrick H. McCabe. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted for entry of judgment on the verdict.
James J. McCabe, of Providence, and Gertrude Friedman, of Pawtucket, for plaintiff.
Francis B. Condon, of Pawtucket, for defendant.
BARROWS, J. Defendant is here on five exceptions to action of the superior court in or following a jury trial which resulted in a verdict for plaintiff for $2,326.37.
The case was assumpsit for money had and received. The defense was payment. The first exception related to the admission of certain evidence by plaintiff denying an indebtedness of $500 at the time of the first of six assignments of wages. Five hundred dollars was the amount of debt stated in the assignment. Defendant asserts in his brief that the evidence was not material to the issue in addition to being an attempt to dispute his own written assignment. The trial court considered the evidence admissible to show that the assignment was never in fact a valid one, if the jury should find that no debt existed and plaintiff was deceived. We find no error in the ruling.
The third and fourth exceptions relate to refusals to charge as requested. The subject-matter of the requests was adequately covered in the charge given. The fifth exception is to the refusal to grant defendant's motion for a new trial on the ground that the verdict was against the evidence. If the case was properly submitted to the jury, the verdict was warranted by the evidence. The only exception therefore requiring detailed examination is the second, which is directed to the trial court's refusal to direct a verdict for defendant.
The facts were unusual. Plaintiff, a simple-minded man, now about 36 years old, could not read or write. He worked for the Union Wadding Company from 1918 to 1926, living at the defendant's boarding house in a very simple manner and voluntarily assisting about the house. During all this time defendant Collected his wages under the several assignments above referred to. The total amount collected by defendant was $7,245.66, as shown by the books of the Union Wadding Company. Out of this he took a weekly charge for board ranging from $7 to $12, gave plaintiff a small amount for spending money, bought for plaintiff an occasional suit of clothes, pair of shoes, shirts, and underclothes, and kept the balance. Plaintiff said defendant told him that the money was being put in the bank for him. Defendant kept a very fragmentary record of the money which he spent for the plaintiff, and no record at all of the money which he collected. The only way, therefore, by which plaintiff could establish the amount of money collected by the defendant was from the records of the Union Wadding Company.
In cross-examination of plaintiff he was shown a black book, Defendant's Exhibit A, and asked if he had not made his mark therein on 14 receipts. None of these receipts showed any amounts paid. They purported to be for all money due Gunn and to express his satisfaction. They were not in chronological order. Gunn denied ever having placed his mark in that or any other book. In meeting plaintiff's case defendant put in evidence this book. The receipts are so scattered through the book, and so lacking in sequence, as to be open to...
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