
    John F. Boylan vs. Joseph Parkhurst
    No. 84459.
    December 7, 1931.
    For plaintiff: Peter W. McKiernan.
    For defendant: Fergus J. McOsker.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff in sum of $63.45.

This was a suit to recover for goods sold, for rent of garage and for money loaned. There was a plea of infancy to which plaintiff pleaded that his bill was one for necessaries.

Defendant did not attempt to establish his age except by his own testimony. In the course of his examination, he testified that he was born on November 4, 1907, and a little later that he was born on November 4, 1906. As the defendant’s dealings with the plaintiff were all prior to November 4, 1927, the defendant, whether born in 1906 or 1907, would have been an infant at the time of the dealings referred to, with the plaintiff. It was possible, however, for the jury to conclude from the evidence either that the defendant did not know when he was born or that, knowing the date, he did not at any time state the true date of his birth. There was testimony that he looked to be over twenty-one when some of the alleged dealings were had.

The question of defendant’s infancy was a fact for the jury to determine and the Court cannot say that the jury did not find that defendant was no longer an infant when the goods were purchased and, if the jury did so find, that they were not warranted in so doing.

There was, howfever, one item, that for bread to the amount of $3.20, that the Court thinks should not have been charged to the defendant. He was living at home and testified that bread was purchased for his father, while plaintiff in cross-examination said that he knew it was for the father. The principal being known, the Court thinks he, if anyone, should have been sued.

Defendant’s motion for new trial is granted unless plaintiff file his remit-titur within five days, remitting all of the verdict in excess of $60.01. If such remittitur be filed, defendant’s motion for new trial is denied; otherwise it is granted.  