
    SUPERIOR COURT
    Thomas W. Wood et al. vs. Mary E. Dempsey
    No.60622
    RESCRIPT.
    April 23, 1925.
   BLODGETT, J.

Heard upon defendant's motion for a new trial after verdict of a jury for plaintiff for $238. This action arose over the rescission of a contract for building twb bungalows, the contract price for the same being $2070, and one of the questions at issue for the determination of the jury was whether plaintiffs abandoned the work on the contract and, if so, whether plaintiffs by reason of the acts of the defendant were justified in. abandoning the same.

The assumption is, no special verdict being asked for, that the jury found that plaintiffs were so justified, providing the contract was abandoned by them, and there was evidence submitted upon which such verdict might be based, and the Court does not feel the preponderance of the evidence was not considered by the jury.

One question that arose in the trial was as to the meaning of the termn “under roof,” as used in the contract, and expert testimony was presented as to the meaning of that term in the construction of buildings, and the matter of payments due at a certain' period hung upon the definition accepted by the jury.

For Plaintiff: Frank H. Beilin.

For Defendant: C. J. Brennan.

The matter of the amount due was left to the jury under certain instructions, the matter of liability haying been first determined.

Defendant strenuously claims that the amount received by plaintiffs, viz. $635, amply compensated them for their labor, and there is no doubt from the testimony that before the two houses were completed the defendant had expended upon the same far more than the original amount of the contract, but defendant loses sight ol' the fact that if the jury found, under the instructions of the Court, that the defendant wrongly rescinded the contract that then plaintiffs would be entitled to recover what would have been their profit if they had been permitted to finish the same.

Motion denied.  