
    William A. Cottrell vs. Arend Brandt
    No. 3953
    October 11, 1928.
    For plaintiff: Moore & Curry.
    For defendant: Mortimer H. 'Sullivan.
   BLODGETT, J.

Heard upon motion for a new trial filed by defendant after verdict of a jury for plaintiff for $1750.

Action to recover the contract price of a monument sold to defendant by plaintiff. The contract price was $1750 and the contract was in writing and signed by defendant. The contract included in this price the cost of setting the monument upon the lot of defendant in Newport.

Plaintiff contracted with the Providence Monumental Company of Providence to build the monument for $1275 complete and set up. Plaintiff further testified that the expense of the foundation was to 'be met by himself and that such expense would be $18.

The defendant testified that on April 22, 1927, the time when the order was signed by him, it was agreed that the monument would be set up complete on the Memorial Day following, viz.: May 30, 1927, and that when he found this had not been done, he cancelled the contract and brought another monument for $1000 from one Frederic W. Lawson of Fall River, and that this monument was set up in his lot in the summer of 1927.

The testimony in regard to the agreement that the monument would be set up complete by Memorial Day was flatly denied by Elmer L. Cottrell, son of the plaintiff, who persuaded defendant to sign the order, and also by one Frances M. D. Castro, a nurse who was in attendance upon defendant at the time the order was signed, and present at the execution thereof. There was other testimony that failed to corroborate the testimony of defendant.

The monument was completed by the su'b-contractor save for the inscription upon the same, and the cost of setting same upon its foundation and the cartage of same from Providence to Newport. The monument still remains in Providence.

From the testimony the 'Court is of the opinion that the plaintiff is entitled to recover from defendant $1750 less $18, viz.: $1732.

Motion for new trial granted unless within four days after notice plaintiff remits all of said verdict in excess of $1732.  