
    Peter A. Correa vs. Joseph S. Marshall, Jr.
    No.63741
    October 8, 1925
   SUMNER, J.

Plaintiff has brought suit to recover a balance due on an account for groceries claimed to have been purchased by the defendant. The jury returned a verdict for the plaintiff in the sum of $437.73 and defendant has filed his motion for a new trial.

The plaintiff testified that he got the orders most of the time for the •groceries; that they were given by the defendant’s wife; that payments were made on account from time to-time, and that the balance of $437.73 is still unpaid. He produced two store books which apparently show an account running from November 7, 1922, to November 22, 1924, with the balance as above.

One Joseph Perry testified that he filled the orders obtained by Mr. Marshall and charged the account on these 2 books; that he kept a book for each customer. The books ran along chronologically; the entries seem to have been regularly made in due course and there are notations of payments, usually once a month,- although there is no payment for the last month.

The defendant’s wife, who- gave the orders for her husband and made the payments, claimed that about the 1st of May, 1923, she made a definite agreement with the plaintiff by which she was to remit $10 a week which she was charging him for his room and board and $8 a month which she was charging him for the garage, and in turn he was to' deliver all the groceries that the family needed and not charge her for them; that this arrangement continued until February, 1924; that before and after the period, during- which this agreement was in force, she paid for the groceries week by week, but has destroyed the slip®.

The defendant presents witnesses whose testimony tends to corroborate that of Mrs. Marshall, and a vulgar letter was introduced in evidence by the defendant, purporting to be signed by plaintiff, in which reference is made to this claim. This letter though tending to prejudice the plaintiff by reason of its vulgarity, fixes the amount of the claim as above. The plaintiff denies that he authorized the writing of the letter and says that it is in the handwriting of his wife, and the defendant’s wife, Mrs. Marshall, also expressed the same opinion.

The testimony is very contradictory and the court, after a careful examination of the evidence, is not prepared to say that the jury erred in their' decision.

For Plaintiff: C. S. Slocum.

For Defendant: Hogan & Hogan.

Defendant's motion for a new trial is denied.  