
    SUPERIOR COURT
    Samuel Bomes vs. Samuel P. Harris
    No. 39176
    RESCRIPT
    July 18, 1925.
   CAPOTOSTO, J.

This- is an action of contract brought by 'the plaintiff to recover a balance of $800 which he claims due him under an agreement whereby the plaintiff agreed to repair a certain sea wall and to build the foundations for two houses on the defendant’s land immediately ’ adjoining the Pawtuxet river in the village of Pawtuxet. The suit was commenced by writ, dated August 31, 1916, The jury returned a verdict for the plaintiff in the sum of $1162.80, which, upon analysis proves to be an allowance to the plaintiff of $765 plus' the accrued interest.

For Plaintiff: McGovern & Slattery, Philip C. Joslin, Francis I. MeCanna and Ira Marcus.

For Defendant: Morgan & Morgan and Joseph W. Grimes.

The plaintiff claimed that he faithfully performed his contract up to the point where further performance was impossible owing to the defendant failing to do certain work which under. the terms of the agreement he was hound to do. The entire contract price was $1480. The defendant paid $500 on account, which the plaintiff acknowledged. The plaintiff testified that he was entitled to the balance of $980' less $180, which was the reasonable cost of the work which he should have done but was prevented from doing through the defendant’s delay in performing his part of the agreement. His net claim, therefore, was $800.

The defendant maintained that the work was defectively done, that he had complied with all the requirements of the agreement himself, and that it had cost him as much if not more to repair the defective work of the plaintiff.

The case presents a sharp contrast of testimony which is impossible to reconcile. Either the version of the plaintiff or that of the defendant is correct. The jury saw fit to believe the plaintiff and his witnesses. The only claim of the defendant which it allowed was an item of $85. This sum, according to Thomas J. Fahey, a witness for the defendant, represents the reasonable cost to rebuild three brick piers which the defendant had built. The jury, therefore, on allowing this credit against the plaintiff’s claim of $800' returned a verdict in the plaintiff’s favor of $765 as the actual balance due from the defendant to the plaintiff.

The jury’s verdict is consistent and reasonable.

Motion for new trial denied.  