
    H. J. Brown, Inc. vs. Frank Castellucci
    No. 80515.
    July 14, 1931.
    For plaintiff: William H. McSoley.
    For defendant: Louis V. Jackvony, Harry Goldshine.
   ERO ST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff in the sum of $196.

This is a suit brought to recover a balance of $200 with interest on an alleged contract price of $275, for work and labor performed in the erection of a derrick at defendant’s quarry. Plaintiff admitted a credit of $75 on the contract price.

Henry J. Brown testified for the plaintiff that Castellucci called him on ihe telephone on May 9, 1929, saying that he was ready to have the derrick erected: that he gave him a price of $275, which was accepted. The next day a foreman and crew, taking the necessary ropes, winch truck, &e., went to the quarry and spent approximately two and one-half days in erecting the derrick. On completion of the work, Castellucci paid the foreman $75, which was accepted, as he said, on account. The defendant claimed this to be payment in full, since he had agreed to pay not $275 but only $75.

It is possible that since the agreement was made over the telephone there was an honest misunderstanding in respect to .the amount to be paid. If this was so, there was no meeting of the minds of the parties and consequently no agreement. The amount of the verdict is some indication that this was the view held by the jury However, this is not important since the declaration as drawn would permit of a recovery on the reasonable worth of the service performed. There was testimony from which the jury might conclude that the value of the work done was equal to the amount awarded. It was a case well suited for determination by a jury. The jury saw and heard the witnesses and the verdict rendered, in the opinion of the Court, does substantial justice between the parties.

After a hearing had been had on defendant’s motion, defendant filed an affidavit of a juror to the effect that there was a mistake and that the jury intended to return a verdict seventy-five dollars less in amount than the verdict actually returned. There is no ground in defendant’s motion to support the affidavit but were there one the Court thinks that an affidavit tending, as this one does, to impeach the • verdict can not be considered.

Phillips vs. The Rhode Island Company, 32 R. I. 16.

Defendant’s motion for new trial is denied.  