
    Luigi Geremia vs. Luigi Carnesciale et ux.
    No. 81194.
    March 26, 1932.
   POULIOT, J.

This is an action brought by the plaintiff to recover a certain sum alleged to be due from the defendants for merchandise sold and delivered, and is now before this Court on plaintiff’s motion for a new trial after a jury returned a verdict for tbe defendants.

It appears that tbe defendant Luigi Carnesciale bad purchased furniture from tbe plaintiff on a lease and made some payments on account of tbe purchase price; that subsequently tbe business conducted by this particular defendant got into such a poor condition that this defendant went into bankruptcy. Tbe plaintiff claims that thereupon, when be went to repossess himself of tbe furniture, tbe defendant Julia Carnesciale made an agreement that she would pay tbe balance due if tbe merchandise were not taken away.

Tbe defendant Luigi Carnesciale does not deny that he bought tbe furniture nor that be owed a balance of tbe purchase price. He claims, however, that at tbe time of the bankruptcy be and tbe plaintiff bad claims against each other and that tbe plaintiff agreed to “call it square” if tbe defendant did not include plaintiff’s claim in tbe bankruptcy schedule as be, the plaintiff, would have to pay in full to tbe trustee in bankruptcy and would only receive a small return by way of a dividend from tbe bankrupt estate.

This claim is somewhat corroborated by tbe fact that plaintiff’s name was not mentioned in tbe bankruptcy schedule, either as a debtor or as a creditor. It further appears that tbe name of Julia does not appear anywhere in plaintiff’s records.

This Court is satisfied that the plaintiff has not proven bis case by a fair preponderance of tbe evidence, not only from the testimony but also by his mannerisms on the stand, which failed to convince one that he told a straight story.

For plaintiff: Charles Z. Alexander, Benjamin Winnicour.

For defendant: Robinson & Robinson.

Motion denied.  