Simeone v. Prato

• Decision Date: 21 February 1955
• Docket Number: No. 9450,9450
• Citation: 111 A.2d 708,82 R.I. 496
• Parties: Antonio SIMEONE et al. v. Dan PRATO et al. Ex.
• Court: Rhode Island Supreme Court

Page 708

111 A.2d 708

82 R.I. 496

Antonio SIMEONE et al. v. Dan PRATO et al.

Ex. No. 9450.

Supreme Court of Rhode Island.

Feb. 21, 1955.

Isidore Kirshenbaum, Providence, for plaintiffs.

Anthony A. Giannini, Providence, for defendants.

CONDON, Justice.

This is an action of trespass on the case for deceit. The case is here on the plaintiffs' exception to the ruling of the trial justice granting the defendants' motion for a directed verdict.

This action was brought by Antonio and Sadie Simeone, husband and wife, against Dan and Anna Prato, husband and wife, as a result of a disagreement between the parties over the construction of a house for plaintiffs and the method by which defendant Dan Prato had obtained from plaintiffs the sum of $3,000 to proceed with such construction. Incidentally the negotiations out of which the controversy arose do not appear to involve either Antonio Simeone or Anna Prato. Neither testified at the trial nor signed the written contract which is the primary basis of the action.

It appears from the undisputed evidence that on November 28, 1949 the parties entered into a written contract under which Dan Prato was to build a house for plaintiffs at 43 Naples avenue, Providence, for $9,500. The contract was written by Sadie Simeone and signed by the parties. At the time it was signed plaintiffs paid Prato $3,000 on account. Thereafter Prato started construction. Three weeks later the foundation was in and the framework was up. While the work was in progress Dan Prato came to Mrs. Simeone's house and told her to tear up the contract and write a new one. He assured her that he had talked about the matter to her husband, who said it would be all right. She accordingly tore up the contract and wrote a new one in precisely the same terms except that the construction was to be done by Benson Construction Co., Inc. under Dan Prato its general manager. This new contract was dated December 12, 1949 and signed only by Dan Prato for Benson Construction Co., Inc. and by Sadie Simeone. The plaintiffs did not pay Prato any more money at this time. It is this second contract under which plaintiffs allege Dan Prato practiced fraud and deceit upon them and obtained a second sum of $3,000.

After December 12, 1949 further work was done on the house but in the last week in January 1950 Prato told Mrs. Simeone he needed a second payment of $3,000 or at least $200 to pay his workers. He further told her at that time that he was going to finish the house and turn over the key to her upon receiving the final payment of $3,500. Following this conversation she gave him a check for $200 and on February 3, 1950 another check for $2,800. She testified that on that date the rough work was in, that is, the rough pipes below the floor and the rough plaster, and also that the roof was on and shingled. It further appeared from her testimony that she had agreed orally with Prato that the second payment of $3,000 would be due when the roof was on and all rough plastering was done.

After February 3, 1950 the work was not progressing to Mrs. Simeone's satisfaction. She also claims that liens for materials were placed upon the property which she had to pay; that Prato stopped work on the job and that she had to have the house finished at a cost to plaintiffs of $7,000 in addition to what she had paid Prato. It is for this reason she claims that in obtaining the second $3,000 Prato falsely represented that he would finish the house, well knowing he was unable to do so, and thus he defrauded plaintiffs of said sum.

All of the above summary is from Mrs. Simeone's own testimony. Some of it is contradicted by Prato, who was called by plaintiffs as a witness under the statute, but in considering defendants' motion for a directed verdict we take her testimony for plaintiffs as true. It will be noted from such testimony that the second $3,000 was paid only after the construction had proceeded to the point which had been orally agreed upon, namely, when the roof was on and the rough plastering was finished. It will be further noted that the payment of such sum was not conditioned upon the completion of the house. Upon the performance of such condition the final payment of $3,500 was to become due. This action for deceit is based solely upon the alleged fraud and deceit Prato practiced upon plaintiffs to obtain the second payment of $3,000.

On that evidence the trial justice directed a verdict for defendants. Under plaintiffs' exception thereto they raise the following questions. First, was the evidence sufficient to make out a case for the consideration of the jury? Secondly, was the trial justice, after denying defendants' motion for a nonsuit, justified in granting their motion for a directed verdict on the ground which he gave, namely, that there was only one reasonable inference to be drawn from the evidence and such inference was unfavorable to plaintiffs? In our opinion those questions are merely facets of a single question that may be stated as follows: On any reasonable view of the evidence and the inferences therefrom most favorable to plaintiffs, could they recover?

At the trial in the superior court plaintiffs presented their case and rested. Thereupon, without closing their case, defendants moved for a nonsuit and the trial justice denied the motion. The defendants then...