
    Manuel Mello Taveris vs. Jeremiah J. Sullivan
    No. 3958
    March 12, 1928.
    For plaintiff: Frank F. Nolan.
    For defendant: Jeremiah J. 'Sullivan.
   CAPOTOSTO, J.

The plaintiff recovered a verdict of $811.07 for the use by the defendant of the plaintiff’s 3 ton Brockway truck for 86 working days. The case involved the fixing of a fair rental value per day of the truck in question, together with the allowance or disallowance of certain credits which the defendant claims. The defendant moves for a new trial upon the usual grounds, but lays particular stress upon his claim that the fair rental value of the truck was apparently fixed at too high a rate by the jury.

In April 1927 the defendant agreed to take the plaintiff’s truck and to give the plaintiff in return his Hudson sedan and $150 as soon as a Packard car which he had purchased was delivered. Delivery of the Packard car being delayed, the parties in May by mutual agreement rescinded this contract. The defendant retained possession of and continued thereafter to use the truck in his work of road construction under an agreement, according to the defendant himself, whereby he was to pay the plaintiff at the rate of $5 a day for all the time that the defendant had the truck in his possession, this arrangement to date back to the time when the truck first came into the defendant’s possession under the original agreement of sale. The plaintiff denied that there was any specific understanding as to the rate per day which he was to receive for the use of his truck.

The defendant’s claim of a distinct understanding that he pay the plaintiff at the rate of $5 a day was apparently and properly rejected by the jury. His testimony and especially his books upon this point not only failed to carry conviction but justified suspicion, if nothing more.

As usual a sharp conflict materialized in the testimony of experts as to the fair rental value of the particular truck wthout driver, oil or gas. The plaintiff’s testimony ranged from $14 to $18 a day; that on behalf of the defendant from $5 to possibly $10 a day. With these figures before them, the jury apparently fixed the fair rental value of the plaintiff’s truck at the rate of about $15 a day. This conclusion is reached by this Court after a careful consideration of all the claims of charges and countercharges indulged in by the respective parties. The jury was justified by the evidence in reaching the conclusion which it did.

Motion for new trial denied.  