
    Simon Sarkas vs. Phillip Berman
    No. 76920.
    September 20, 1934.
    For plaintiff: Fergus J. McOsker.
    For defendant: Isadore 'S. I-Ioren-stein.
   O’CONNELL J.

This is a civil action, charging embezzlement of a large sum of money and demanding double damages under Section 16 of Chapter 338 of the General Laws of 1923. The plaintiff’s testimony showed that the amount involved was $3814.72 and the jury returned a verdict in double that amount, viz: the sum of $7629.44.

In addition to the general verdict, the jury returned special findings as follows:

1. Did plaintiff lend the money to the defendant, etc? No.
2. Was the agreement to keep money separate and intact? Yes. The evidence clearly showed that

the defendant commingled the money of the plaintiff with his own.

The evidence is clear that the plaintiff advanced to the defendant the amount of money that he claimed and for a particular and specific purpose and although demand was made upon the defendant, he has never returned to the plaintiff either the balance in his hands or its equivalent in the merchandise with which he contracted to supply him.

The Court had the opportunity of seeing and hearing the witnesses and of appraising the value of their testimony and feels that the plaintiff has established his claim by a fair preponderance of the credible testimony.

The special findings of the jury were wholly consistent with the general verdict, which the Court sees no reason to disturb.

The defendant’s motion for a new trial is therefore denied.  