
    Antonio Melucci vs. Arduino A. DeCubellis
    No. 93354.
    February 20, 1935.
    For plaintiff: James Di Prete, William H. MeSoley.
    For defendant: Frank H. Wildes.
   O’CONNELL, P. J.

Heard on defendant’s motion for new trial after verdict for plaintiff for twenty-six hundred and forty dollars ($2640).

The plaintiff sues to recover a loan of $2000, made to the defendant, according to the plaintiff’s declaration, on October 1, 192S, together with the unpaid interest thereon. The declaration also sets forth an account stated, and contains also the usual common counts.

The plaintiff contended that he drew from the Columbus Exchange Bank, on October 1, 1933, the sum of $1920 and loaned this amount, together with $80 which he had in his pocket, to the defendant and received his note therefor; that he held this note for three years and then, “as a friend”, he gave it back to him, without receiving payment thereof.

The defendant admitted receiving the $2000 in question, but not as a loan. The defendant was in the real estate business and his claim was that he invested the money for the plaintiff in second mortgages, carrying a rate of interest at 8% and that the plaintiff fully understood how the money was to be used, that owing to the slump in the real estate market and because of non-payment in accordance with the terms of the mortgage, the Old Colony Oo-operative Bank, holder of the first mortgage, foreclosed its mortgage, wiping out the second mortgage, which the defendant held in his name for the benefit of the plaintiff. 'Some documentary evidence was produced to support the defendant’s claim.

The suit was based upon a loan and not upon an agreement to save harmless from loss. While the plaintiff denied that he even knew what a mortgage was, the travel of his dealings with the defendant would indicate that he was not as ignorant of business affairs as he would have the Court and jury believe and the Court was not strongly impressed by his testimony.

In the opinion of the Court he did not prove his case by a fair preponderance of the credible testimony. On the contrary, the Court believes that the weight of the testimony was in favor of the defendant and that the verdict of the jury does not do substantial justice between the parties.

The defendant’s motion for a new trial, for the reasons heretofore assigned, is hereby granted.  