Opinion
January, 1904.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event upon questions of fact, unless the plaintiff stipulates that the judgment may be modified by striking therefrom, as of the date of the rendition of the same, the sum of $129.75, with interest thereon from May 30, 1902, in which case the judgment as so modified and the order are affirmed, without costs of this appeal to either party. Held, that the trial justice having charged, in effect, that the plaintiff could not recover the value of the plum trees if they were affected with "black heart," as claimed by defendant, the verdict of the jury necessarily involving the finding that they were not so affected, was against the weight of the evidence. All concurred.