Pettis v. Travers, 9334

Decision Date28 January 1954
Docket NumberNo. 9334,9334
Citation102 A.2d 451,81 R.I. 268
PartiesPETTIS et al. v. TRAVERS et ux. Ex.
CourtRhode Island Supreme Court

Monti & Monti, Michael A. Monti, Francis A. Monti, Providence for plaintiffs.

Goldberg & Goldberg, Philip B. Goldberg, Leo M. Goldberg, Joseph Palmieri, Providence, for defendants.

CONDON, Justice.

This is an action of assumpsit to recover a broker's commission for services rendered in procuring a purchaser for defendants' real estate. The case was tried before a justice of the superior court sitting without a jury and he rendered a decision for the plaintiffs in the sum of $500 and costs. The defendants excepted to that decision and also to a ruling denying their motion to dismiss the action, which they made at the conclusion of plaintiffs' evidence. The case is here on defendants' bill of exceptions containing only those two exceptions.

The defendants have briefed and argued their exceptions on the assumption that both exceptions are entitled to consideration here and rest upon the same grounds. They are in error in assuming that they are entitled to an exception to the denial of their motion to dismiss. Such a motion made at the conclusion of plaintiffs' evidence in a jury-waived trial, if proper at all, must be deemed akin to a motion for a directed verdict made at the same stage in a jury trial and be treated as addressed to the discretion of the trial justice. Unless defendants in such circumstances close their case no exception lies to the trial justice's denial of their motion. Solomon v. Shepard Co., 61 R.I. 332, 200 A. 993. Since defendants here did not close their case, they take nothing by their first exception.

The second exception is to the decision of the trial justice and is based on the ground that plaintiffs' proof did not conform to the pleadings in that the writ and declaration alleged liability of defendants under the common counts, whereas at the trial they relied on the theory of a special contract. The defendants contend that in such a case, where the proof does not conform to the pleadings, a decision for the plaintiffs is erroneous, and in support of such contention they cite D'Onofrio v. First National Stores, Inc., 68 R.I. 144, 26 A.2d 758; Pontes v. United Electric Rys., 54 R.I. 139, 170 A. 674; Sarcione v. Outlet Co., 53 R.I. 76, 163 A. 741, and McGinn v. United States Finishing Co., 27 R.I. 58, 60 A. 677.

Those cases do not help defendants since in our opinion the proposition for which they are cited is not involved here. On the contrary we agree with the plaintiffs' contention that where, as in the case at bar, an express contract has been fully performed and nothing remains to be done under it but the payment of money by defendants, plaintiffs may elect to sue specially on the contract or generally under the common counts.

If plaintiffs pursue the second course they may offer the contract in evidence to prove that the thing done was that which was agreed to be done thereunder and also to prove the value of what was done. This practice was approved many years ago by this court in McDermott v. St. Wilhelmina Benevolent Aid Society, 24 R.I. 527, 54 A. 58. There the court expressly held in 24 R.I. at page 537, 54 A. at page 62: 'When a contract has been fully executed, and...

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