
    Wilfred Pelletier vs. Marcial Masse, et al.
    No. 61433
    December 30, 1927
   CARPENTER, J.

This is an action in assumpsit to recover a certain sum of money claimed to be due -by the plaintiff from the defendant for the building of a dwelling house located in Woonsocket. The case was tried in Woonsocket at the May, 1927, term of the Superior Court, commencing on the 10th ■day of May and concluding on the 17th day of May.

For plaintiff: Demers & Lambert.

For defendants: James H. Rickard.

The jury returned a verdict for the plaintiff against the defendant Mar-cial Masse for the sum of $3480.00', and by direction of the Court the jury returned a verdict for the defendant Marie Masse. Thereupon, within the time prescribed by law, the defendant Marcial Masse filed a motion for a new trial, alleging the following grounds:

1. The verdict is against the evidence and the weight thereof.

2. The verdict is against the law.

3. The damages awarded by the jury are excessive.

It appeared from the evidence that the plaintiff and the defendant Mar-cial Masse entered into a written contract whereby the plaintiff agreed to build a dwelling house according to said contract for the defendant; that the amount that the defendant agreed to pay the plaintiff for the building of said house according to said contract was $11,700.00, said amount to be paid in three payments, the first payment to be $4,190.00', which was to -be made after certain work as set forth in said contract was done. The second payment was to be $3,800.00, which was to be made at a certain time set forth in said contract as the work progressed, and the final payment of $3,800.00 was to be paid when the contract was fully performed and completed.

At the time the first payment was due, $3,941.52 was paid in two payments, one on June 21, 1924, for $3,041.52, and one on June 27, 1924, for $900.00. When the second payment 'became due, the defendant refused to make said payment, and claimed as an excuse for so refusing that the work had not been performed according to the contract. Thereupon, after some argument, the plaintiff ceased work upon the house, and the defendant called in other contractors and workmen and finished the house.

Considerable evidence was submitted to the jury on all phases of the matter. Evidence was introduced to show the actual cost of the work that the plaintiff had done for which he had not been paid, and there was also considerable evidence introduced by the defendant to show the actual cost, of the work performed and materials used in completing the house. Many witnesses, expert and lay, testified in the case, and many items were considered by the witnesses and necessarily considered by the jury before they could arrive at a verdict. As'to just how the verdict was arrived at, the Court has no knowledge. In this case, as in all other cases of a similar nature, the Court has no way of ascertaining what items were allowed or disallowed by the jury, and has no way of ascertaining whether the whole or only a part of a certain item was allowed. The only thing a trial court can do is look at the whole ease as it appeared to the jury and then consider the amount of their verdict as a whole, and in doing this, this Court feels that substantial justice has been done and that the verdict should be affirmed.

Motion for a new trial denied.  