
    
      Northern District
    
    No. 4485A
    WOOD v. SPEDONI
    (September 4, 1951)
   ENO, J.

This is an action of contract by which the plaintiff seeks to recover the sum of $231.95 by a declaration with an account annexed.

Paul C. Hanna, attorney for plaintiff.

William H. Healey, attorney for defendant.

The answer is a general denial, with a plea of payment and a further allegation of non-performance of a special contract.

This action was tried with a cross action between the same parties, (see A. D. #4485) hereinafter referred to as the cross action.

At the trial the defendant Spedoni admitted ordering and receiving some of the items in the declaration totalling $193.95, and at the hearing before this division the plaintiff waived the other items.

The Court allowed plaintiff’s first request:

“The evidence is sufficient to warrant the Court in, finding for the plaintiff.”

but denied the following:

“There is no evidence of payment for the items sued on in the plaintiff’s Declaration and the plaintiff is entitled to recover.”

The Court made a finding of facts (see A. D. #4485)' covering both actions, found for the defendant Spedoni in this action, and against defendant Wood in the cross action, in which he credited the said sum of $193.95 admittedly due in this one by the defendant Spedoni.

Had this case been tried alone, there is no question! but that the ^plaintiff would have been entitled as a matter of law to a finding of $193.95. It was error, in a sense, to deny the plaintiff’s second request, since actually there was no payment made by the defendant, unless the Court found that the defendant having overpaid the plaintiff, this sum was already paid.

However, since both actions were tried together and the trial judge gave the plaintiff credit for that sum in the cross action, we think this was an harmless error and the report should be dismissed.  