Miller v. Healey

Decision Date15 June 1916
Docket NumberNo. 4942.,4942.
Citation39 R.I. 339,97 A. 796
PartiesMILLER v. HEALEY et al.
CourtRhode Island Supreme Court

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Action by Hattie Miller against John S. Healey and others. To the direction of a verdict for the defendants, and refusal to direct a verdict for plaintiff, plaintiff excepts. Exceptions sustained in part and denied in part.

Charles H. McKenna, of Providence, for plaintiff. Cooney & Cahill, of Providence (John J. A. Cooney, of Providence, of counsel), for defendants.

VINCENT, J. This is an action of assumpsit brought in the district court of the Fifth judicial district to recover the sum of $72.50, which the plaintiff alleges is a balance due to her from the defendants; she having paid that amount to the defendants upon an oral agreement for the sale of a certain lot of land situated in Warren, R. I. The plaintiff claimed a jury trial on the entry day of the writ in the district court. At the trial in the superior court a verdict was directed for the defendants, and the case is now before us on the plaintiff's exceptions. These exceptions are to the direction of a verdict for the defendants, and the refusal to direct a verdict for the plaintiff for $72.50.

It appears from the testimony that one Calvin B. Miller, now the husband of the plaintiff, entered into an oral agreement with the defendants whereby the latter became obligated to sell to Miller two lots of land for the sum of $150, payable in weekly installments of $25, the title to remain in the defendants until the entire sum should be paid, when a deed of one lot should be executed and delivered to one Frank Staff, and a deed of the other lot to Hattie Collins, now Hattie Miller, the plaintiff, they being the nominees of the said Calvin Miller. Later Calvin Miller sent $75 to the defendants through Staff, which seems to have been understood by the parties as payment for one of the lots, and subsequently one lot was accordingly conveyed to Staff by the defendants. The plaintiff also sent to the defendants the sum of $25 as a payment upon the second lot, and was given a receipt therefor. This receipt was the only one produced at the trial, although there was testimony that Calvin B. Miller sent to the defendants $47.50 more. The whole amount thus received by the defendants on account of both lots was $147.50, leaving a balance due of $2.50 to complete the whole transaction.

On the 18th of August, 1913, Calvin B. Miller brought suit against these defendants to recover the sum of $147.50, alleging that the defendants had broken their contract with him regarding the sale of these lots, and therefore he was entitled to recover back all the money advanced to the defendants, including $75 paid by Staff, $25 paid by the Plaintiff, and $47.50 paid by himself. Upon a trial of this suit of Calvin B. Miller in the superior court the jury returned a verdict for the plaintiff in the sum of $47.50, that being the amount which he had advanced toward the purchase price of the lots, and the only amount for which he produced a receipt. There was no motion for a new trial, and no hill of exceptions; the judgment became final, and execution was issued and returned fully satisfied. All questions between Calvin B. Miller and these defendants, so far as they concern the recovery of money advanced by him on account of these lots, appear to have been disposed of and are res adjudicata. It now remains, however, for us to consider whether or not the plaintiff in the case at bar is entitled to recover the sum of $25 which she paid personally and for which she holds a receipt.

The defendants claim that the plaintiff cannot recover, because her suit...

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