Lembo v. Nappi

• Decision Date: 26 February 1959
• Docket Number: No. 9684,9684
• Citation: 148 A.2d 520,88 R.I. 355
• Parties: Michael LEMBO v. Anthony NAPPI. Ex.
• Court: Rhode Island Supreme Court

Page 520

148 A.2d 520

88 R.I. 355

Michael LEMBO v. Anthony NAPPI.

Ex. No. 9684.

Supreme Court of Rhode Island.

Feb. 26, 1959.

J. Joseph Nugent, Jr., Francis D. Fox, Providence, for plaintiff.

Charles A. Curran, Providence, for defendant.

ROBERTS, Justice.

This action in assumpsit was brought to recover an unpaid balance on a promissory note. The case was heard by a justice of the superior court sitting without a jury and result in a decision for the plaintiff in the amount of $1,000 with interest. The case is before us on the defendant's exception to that decision.

It is not disputed that on July 28, 1950 defendant, a contractor, borrowed $3,000 from plaintiff and on that date executed a promissory note in the amount of $3,000 payable to plaintiff four months from the date thereof. Neither is it disputed that late in January 1951 the parties formed a partnership for the purpose of building a dwelling house for speculation. It is conceded that under that agreement plaintiff was to furnish the land and capital while defendant was to furnish the labor.

The defendant contends that the note in question has been paid in full. In support of that contention he has adduced evidence tending to show that he made payments to plaintiff on account of the note as follows: $1,050 by check on September 13, 1950; $1,050 by check on October 20, 1950; $500 by check on June 8, 1951; and $500 by check on October 4, 1952. It was not disputed that $100 of these payments was in lieu of interest.

According to the plaintiff's testimony, he had received the amounts of money to which defendant testified and he concedes that the two payments of $1,050 each were on account of the note upon which suit was brought. He denies, however, that the two payments of $500 each were made on account of the note, but argues that they were in fact made by defendant to him on account of transactions which arose out of the partnership agreement.

The trial justice considered this contention and found as a fact that the two payments of $500 each were made by defendant to plaintiff in the course of partnership dealings and that such payments were not intended by defendant to be applied to the debt secured by the note in question. He then rendered a decision for plaintiff in the sum of $1,000 with interest, and defendant took an exception thereto.

The defendant first contends that the trial justice misunderstood or misconceived the evidence and erroneously decided in favor of plaintiff. The controlling issue in the instant dispute is whether certain payments made by defendant to plaintiff were on account of the note upon which suit was brought or were made in the course of dealings flowing from their partnership agreement. The trial justice found that two payments of $1,000 each were made on account of the note in question while the two payments of $500 each were made in the course of the partnership dealings.

It is the well-settled law of this jurisdiction that he who alleges payment of a debt has the burden of proving by a fair preponderance of the evidence that the payment was in fact made. Head v. Quigley, R.I., 138 A.2d 322; Duckworth v. Hague, 51 R.I. 208, 153 A. 306. On this issue the testimony was in sharp conflict and in a substantial degree the question turned upon the credibility of the witnesses. The trial justice found that, notwithstanding defendant's testimony to the contrary, the $500 payments were not made on account of the note. He saw and heard the witnesses testify, an advantage which we do not have.

It is our well-recognized rule that where a trial justice sitting without a jury reaches a decision based upon...