
    Dominion Properties, Inc. vs. John F. Harlow, Jr.
    No. 82182.
    April 25, 1931.
    For plaintiff: A. S. & A. P. Johnson, Jonas Sallet.
    For defendant: Harlow & Boudreau, Walter J. -Hennessey.
   -CAPOTO STO, J.

Action in assump-sit.

The basis of the. claim is a promissory note and contract for the purchase of land in Florida. The jury returned a verdict for the defendant. The plaintiff moves for a new trial upon the usual grounds and of newly discovered evidence.

The case. presents an interesting question of fact. The direct testimony is conflicting, but the surrounding circumstances cast considerable light upon the actual transaction. The credible evidence has to be established more by what is inferred than by what is actually said in words. The transcript, of course, fails to reproduce the hesitation, reluctance and evasion which permeated a great deal of the testimony given from the witness stand. It takes a reading of the transcript plus a mind acquainted with the person testifying to reconstruct in a mild way the actual atmosphere at the trial. The testimony has to be taken and construed as a whole to appreciate its full significance. Consequently, the quoting of any particular portion of the evidence can only tend to distort the actual picture.

All things considered, including the retracings in whole or in part of the signatures in question, lead this Court to the conclusion that the defendant did in fact incur the obligation which he now repudiates. It savors strongly of a business transaction rashly entered into when profits were seen through the high powered magnifying glass of speculative hysteria, and later crudely abandoned when normal vision reduced the profits to actual loss.

The so-called newly discovered evidence, while permitted to be filed, has had no weight upon the judgment of the Court. An analysis of the testimony at the trial with its reasonable inferences, drawn from both statements and demeanor, has been the sole basis of our decision that the plaintiff is entitled to a new trial.

Motion for new trial granted.  