Harrington v. Law

• Decision Date: 05 June 1914
• Docket Number: No. 4744.,4744.
• Citation: 90 A. 660
• Parties: HARRINGTON v. LAW.
• Court: Rhode Island Supreme Court

90 A. 660

HARRINGTON

v. LAW.

No. 4744.

Supreme Court of Rhode Island.

June 5, 1914.

Vincent, J., dissenting.

Case Certified from Superior Court, Kent County.

Action by R. A. Harrington against Ruth B. Law. Case certified by the superior court to the Supreme Court on an agreed statement of facts. Judgment directed for defendant.

Wilson, Gardner & Churchhill, of Providence, for plaintiff. Bassett & Raymond, of Providence (Russell W. Raymond, of Providence, of counsel), and Hammill & Bradford, of Providence (Edward W. Bradford, of Providence, of counsel), for defendant.

PER CURIAM. This is an action of assumpsit brought by the plaintiff to recover the sum of $300 paid by the plaintiff to the defendant under a certain contract hereinafter set forth. The action was brought in the district court of the Fourth judicial district. There was a decision for the plaintiff, and thereupon the defendant claimed an appeal to the superior court for the county of Kent, and subsequently the case was transferred to the superior court for the county of Providence, which certified the case to this court on an agreed statement of facts in accordance with the provisions of section 4 of chapter 298 of the General Laws. The agreed statement of facts is: "(1) That on April 26, 1913, the parties hereto, said Randall A. Harrington and Ruth B. Law, made and entered into a contract, in terms as follows: 'Providence, R. I., April 26, 1913. This contract by and between R. A. Harrington, of Providence, Rhode Island, party of the first part, and Ruth Bancroft Law, of New York City, party of the second part. The party of the second part agrees to fly for the party of the first part at Rocky Point, town of Warwick, state of Rhode Island, on May 30, 31, and June 1, 1913. The party of the second part agrees to make two flights on each of these days and agrees to fly for a period of 30 minutes on each day in a series of one or more flights at the time the contracting party may desire. The party of the first part agrees to furnish a suitable place for the flights to be made, space not less than 500 feet long and 250 feet wide, level, clear and unobstructed, The party of the first part also agrees to furnish proper police to keep the entire grounds clear during and after said flight. The party of the first part agrees to pay to the party of the second part the sum of twelve hundred dollars ($1,200) for the three days' exhibition, payments to be made as follows: $300 to be paid upon arrival of machine at Rocky Point and $300 to be paid after each day's exhibition. It is hereby agreed by the party of the second part that if no flights are made, that the sum of $300 advanced by the party of the first part, shall be returned. It is also agreed that if bad weather conditions, or any accident happens to the party of the second part while trying to get off the ground, preventing any flights to be made, that no proceedings to attach the party of the second part shall be taken. [Signed] Ruth Bancroft Law. [Signed] R. A. Harrington. Witness: Edith A. Booth.'

"(2) That at the time of making said contract the plaintiff operated an amusement park at Rocky Point, and the defendant, Ruth B. Law, was engaged in the business of giving exhibits in an aeroplane.

"(3) That the plaintiff paid the defendant the sum of $300 when the aeroplane arrived at Rocky Point, in accordance with the terms of the contract.

"(4) That on the 30th day of May, 1913, the defendant, Ruth B. Law, made an ascent in her aeroplane, and operated said aeroplane for a period of time, to wit, three minutes, in the air, and while descending said aeroplane was hurled by a strong gust of wind against an automobile, whereby said aeroplane was injured and came to the ground.

"(5) That no other ascents were made by the defendant or any one in her behalf at any other time for the said Randall A. Harrington.

"(6) That the plaintiff requested the defendant to make the flights according to contract, and that the plaintiff also requested the return of the $300 paid by him to the defendant, which said request was refused.

"(7) That suit was brought by said plaintiff against the defendant to recover said sum of $300 paid to the defendant by the plaintiff, and the defendant sets up the defense that under the terms of the contract she is entitled to retain said $300 for her own use, and is not liable to return the same to the plaintiff.

"Wherefore the parties hereto respectfully inquire if, on the foregoing statement of facts, said Ruth B. Law is liable to the plaintiff for the sum of $300 paid by him to the defendant in accordance with the contract between the parties, and which he is seeking to recover in this action."

The defendant agreed to fly at plaintiff's place of exhibition on May 30 and 31 and June 1, 1913; to make two flights on each of these days, and to fly for a period of 30 minutes on each day in a series of one or more flights at the time desired by plaintiff. Defendant was to receive $1,200 for the three days' exhibition, to be paid $300 upon arrival of machine, and $300 after each day's exhibition. Defendant also agreed that, "if no flights are made," the sum of $300 advanced by the plaintiff should be returned. Defendant on May 30th made an ascent in her aeroplane and operated the same for three minutes in the air, and the aeroplane was injured in descending. The extent of injury to the machine is not stated. No other ascents were made or attempted, although requested by the plaintiff according to the contract. The plaintiff's...