
    Ernest Moses vs. Frank J. O’Neil
    No. 85808.
    April 19, 1932.
    For plaintiff: John J. Mee.
    For defendant: Fred Israel.
   FROST, J.

This is an action of the case for deceit.

Plaintiff claims that defendant agreed to sell him a certain automobile for an agreed price; that upon payment of a certain amount of money possession was to be given to defendant ; that after he had paid in $50 and was ready to pay the additional amount to secure possession of the machine, he learned that defendant had already sold the automobile to another person.

Defendant contends that plaintiff, after picking out a particular car, changed his mind and wanted one of a different type, thereby releasing the first car.

There was evidence from which the jury might reasonably find that defendant had deceived plaintiff and the Court thinks that the jury’s finding as to liability is not against the weight of the evidence.

On the question of damages the Court is of the opinion that the verdict is excessive. In addition to the amount of $50 paid in by the plaintiff, there was some testimony, rather vague on the whole, tending to show certain losses sustained by plaintiff in going to Providence in connection with the purchase of the machine.

As the Court charged in this case only compensatory damages, presumably the jury gave only compensatory damages since it must be assumed that the jury followed the instructions of the Court.

The Court thinks the evidence is not sufficiently clear and exact on the question of plaintiff’s losses beyond the payment of $50 to justify more than $35.

The motion of defendant for a new trial is therefore granted unless within five days the plaintiff remit all of the verdict in excess of $85. In the event that such remittitur be filed, the motion is denied.  