280 Mass. 234 | Mass. | 1932
The question presented by this bill of exceptions is whether there was error in refusing to direct a verdict for the defendant. The plaintiff sued the defendant, keeper of a public warehouse, for rugs delivered to it and not redelivered on demand. The defendant denied that it ever received the rugs.
There was evidence that the plaintiff had goods in storage with the defendant from May, 1924; and, in January, 1926, decided to break up housekeeping and to store other articles with it. She testified that she employed one McCabe, a truckman, to take these articles and deliver them to the defendant; and that on January 2, 1926, McCabe came to her apartment and took away a barrel of china, a wardrobe suitcase, a screen and the rugs, describing them as a “bundle of rugs.” The rugs, five in number in sizes varying from eight feet by seven to about four feet by three, had been wrapped by her about a rug pole some eight feet long and then done up in paper. No receipt or writing was received by the plaintiff at this time from the defendant.
The defendant introduced evidence that it had a record of receipt from McCabe on January 2, 1926, for the plaintiff’s account, of “1 barrel, two trunks, 1 carton, 1 bundle, 1 screen.” The witness testified that “the bundle was not a bundle of rugs because it would have been described
The trial judge was right in refusing to direct a verdict on the ground that there was no evidence of delivery of the rugs to the defendant. It was not for him to determine what the witness McCabe had intended to testify, and the amount of credit to be given to the various portions of the evidence. The plaintiff’s testimony that McCabe took a bundle of rugs from her apartment, McCabe’s testimony that he took all the goods that she set aside and delivered them to the defendant, the defendant’s record of receipt of articles so nearly, though not identically, the same as the plaintiff’s and McCabe’s testimony of what McCabe
Exceptions overruled.