
    The Rhode Island News Co. vs. Irving R. Hewett, App’t.
    No. 90761.
    November 21, 1933.
    For plaintiff: Francis J. O’Brien, Corrigan & Boyle.
    For defendant: Grim & Littlefield.
   POULIOT, J.

After a jury had returned a verdict for the defendant, the plaintiff moves for a new trial.

This controversy is a dispute as to the manner in which the defendant was to be paid while in the employ of the plaintiff:

The plaintiff contends that the defendant was in its employ on a commission basis, with a weekly drawing account ranging from $35 to $50' per week; that periodically accountings would be had, commissions would be set off against moneys drawn, and the balance would then be paid to the party in whose favor the balance stood; that when the defendant left the employ of the plaintiff, he owed it a considerable amount of money.

The plaintiff’s claim of $370.36 is not disputed with reference to the correctness of the amount.

The defendant’s claim is that on July 4, 1931, at his store at Oakland Beach, he informed the manager of the plaintiff that he was not making a living wage out of the commissions he earned, and that it was then and there agreed that from then on the defendant would receive $50 per week straight pay.

The Court cannot conscientiously say that the plaintiff did not make out its case by a fair preponderance of the evidence. Aside from the conflicting testimony as to the agreement of July 4th, every inference that can reasonably be drawn militates against the defendant’s contention.

The conduct of the parties, the entries in the books, the working hours of the defendant, and his freedom to report or not report to the store before starting his day’s work, all remain unchanged. No reasonable explanation was given as to why the plaintiff should put the defendant on a straight pay basis when he was not earning that amount on commission.

The plaintiff is entitled to a new trial and its motion for same is granted.  