
    William Misischia vs. Carlo Delfino
    No. 91001.
    March 25, 1935.
    For plaintiff: Arthur W. Votolato.
    For defendant: Luigi DePasquale & Nathan Perlman.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff in the sum of $148.75.

On January 2, 1931, Carlo Delfino, the present defendant, and Thomas R. Volatile were in partnership for the sale of automobiles. On that day Volatile agreed with William Misischia, the plaintiff in this case, to allow him $250 for his 1927 Chevrolet sedan in the event that he purchase a new Graham-Paige, the purchaser to take delivery on or about April 1, 1931. Under this agreement Misischia delivered his Chevrolet car to Volatile. A few days later Volatile, as he expressed it, speaking of the partnership, walked out, leaving assets and liabilities.

Delfino continued to do business at the same place in Johnston previously occupied by the partnership. He testified that he agreed to allow Misischia $250 on his Chevrolet car if he 'bought a Graham-Paige selling for- $1050 or more. Misischia later bought a Graham-Paige elsewhere for $991.40. In the meantime Delfino had sold the Chevrolet for junk, obtaining therefor $25.

Suit was brought, not against Del-fino and Volatile as partners,' responsible for the agreement made, but against Delfino individually, on the theory, apparently, that he had assumed the contract. He denied that he had done that but testified to a new and different agreement that he had made, the terms of which he contended that he had kept.

After a careful review of the evidence, the Court is not convinced that the plaintiff has proved his contention by a fair preponderance of the testimony. The plaintiff is, however, entitled upon the common counts to recover the market value of his Chevrolet car. The only evidence of its value is the amount for which it was sold as junk. In the absence of other evidence, the -plaintiff is entitled to recover only this amount with interest.

If the plaintiff within five days remit all of the verdict in excess of $28, defendant’s motion is denied. If such re-mittitur be not filed, defendant’s motion is granted.  