Opinion
November 4, 1940.
PRESENT: Flynn, C.J., Moss, Capotosto, Baker and Condon, JJ.
(1) Appeal and Error § 1177 (1). Necessity of New Trial. Where interpretation which might be placed on decision of a trial justice would warrant the entry of judgment for the defendant, but decision could be given other meanings, and basis of the decision was open to argument and not entirely clear, and case was before supreme court on defendant's exceptions, case would be remitted for new trial as to such defendant.
ASSUMPSIT on note secured by conditional sales contract. To review a decision of trial justice, both defendants brought exceptions, and plaintiff was given an opportunity to show cause why case should not be remitted to superior court with direction to enter judgment for the named defendant. Case remitted for new trial as to the named defendant, and for entry of judgment on the decision as to the other defendant.
Charles M. Robinson, Edmund Wexler, for plaintiff.
Knauer Fowler, Philip S. Knauer, Jr., Vincent P. Marcaccio, Jr., for defendants.
In accordance with leave granted in our opinion filed July 24, 1940, ( 65 R.I. 344) counsel for the plaintiff appeared and set forth in argument his reasons why judgment should not be ordered entered for the defendant Sirago.
We have given careful consideration to the reasons so advanced. If the interpretation which we placed in our opinion upon the decision of the trial justice is the correct one, then it appears to us that no cause has been shown why such judgment for the defendant Sirago should not be entered. However, plaintiff's counsel has pointed out other possible meanings which conceivably might, in view of the evidence in the case, be given to the language employed by the trial justice in his decision. Thus the exact basis of his decision becomes open to argument and is not entirely clear.
The present disposition of the case, as to the defendant Sirago, depends largely upon the meaning to be given to the language of the trial justice as determining the basis of his decision. If the plaintiff's interpretation of such language is sound, then possibly a different termination of the case from that arrived at in our opinion might be reached.
In view of this situation, we are of the opinion that it is in the interest of justice that the case be remitted to the superior court for a new trial as to the defendant Sirago, and for the entry of judgment on the decision as to the defendant Viselli.