Opinion
February 11, 1955.
PRESENT: Flynn, C.J., Capotosto, Baker, Condon and O'Connell, JJ.
1. GIFTS. Conflicting Evidence. Motion for New Trial. Defendant claimed that check for $1,500 received from plaintiff was an outright gift and not a loan as claimed by plaintiff. After verdict for plaintiff and on motion for new trial, Held, where trial justice exercised his independent judgment in passing upon motion and expressed positive approval of the verdict that supreme court could not say from an examination of the transcript that the decision on the motion was clearly wrong.
2. TRIAL. Instructions to Jury. Failure to Ask Instructions. Effect on Appeal. On appeal defendant argued that plaintiff had no receipt showing defendant owed him money and there remained nothing but his word and a check to support his testimony, and defendant contended that if there was any presumption it was to the effect that a check is usually given in payment of a debt and that if the verdict of the jury was in anywise based upon the check as evidence in support of the plaintiff's contention of a loan the verdict was not founded on law and should be set aside. Held, that whatever merits such contention might have had as a sound proposition of law it could avail defendant nothing under his motion for a new trial unless such law was given to the jury in the trial justice's charge.
ASSUMPSIT tried in the superior court to a jury resulting in a verdict for the plaintiff. Defendant excepted to the denial of his motion for a new trial. Exception overruled, and case remitted to superior court for further proceedings.
Matthew J. Faerber, Thomas H. Levesque, for plaintiff.
John C. Burke, for defendant.
This is an action of assumpsit which was tried in the superior court to a jury and resulted in a verdict for the plaintiff. The defendant duly filed a motion for a new trial which was denied by the trial justice. The case is here solely on the defendant's exception to such denial.
The plaintiff is the defendant's uncle. On May 2, 1944 he gave defendant a check for $1,500, which he claims was a loan to defendant. The latter admits that he received the check from plaintiff but he claims it was an "outright" gift. The parties were the only witnesses at the trial. Obviously the only controversy between them which the jury had to resolve was whether plaintiff had advanced the money as a loan or had made an outright gift to defendant. The testimony on this issue was sharply conflicting. Apparently the jury resolved it in favor of plaintiff and the trial justice approved their action.
The defendant contends that the verdict was against the law and the evidence and that the trial justice was clearly wrong in approving it. The plaintiff testified that he loaned defendant the money to enable him to purchase certain real estate in Tiverton. The defendant testified that, in accordance with an agreement between him and plaintiff, he received the check after he had signed off to his stepmother his interest in his deceased father's estate.
It is clear from the trial justice's rescript denying the motion for a new trial that he exercised his independent judgment in passing upon such motion. He expressed the view that the evidence was such that reasonable men might come to different conclusions; that in his opinion the verdict responded to the merits of the controversy and did substantial justice between the parties; and that had he been the trier of the facts it was not unlikely that he would have reached the same conclusion as the jury. This is positive approval of the verdict and from our examination of the transcript we cannot say it is clearly wrong.
However, defendant claims that the verdict is contrary to law. In advancing such claim he states in his brief: "He [plaintiff] had no receipt that the Defendant owed him any money, nothing but his word and the check to support his testimony. Defendant contends that if there is a presumption, the presumption is that a check is usually given in payment of a debt and that if the verdict of the jury was in anywise based upon the check as evidence in support of Plaintiff's contention of a loan, that the verdict of the jury was not founded on law and should be set aside." Whatever merit such contention may have as a sound proposition of law it can avail defendant nothing under his motion for a new trial unless such law was given to the jury in the trial justice's charge. We find no instruction to that effect in the transcript.
The defendant's exception is overruled, and the case is remitted to the superior court for further proceedings.