This is an action of assumpsit on a check for $200. dated January 17, 1916, drawn by the defendant and made payable to the order of the plaintiff. Payment upon the check was seasonably stopped. The vital point at issue was one of fact, namely, whether as the plaintiff claimed, the check was given in payment of merchandise purchased and of other agreed items; or, as the defendant contended, was given without consideration, and as a personal loan to one Alpren, one of the parties interested in the plaintiff corporation. The jury found in favor of the defendant.
■ Upon plaintiff’s motion for a new trial it is sufficient to say that" a careful study of the evidence does not warrant the setting aside of the verdict. There are sharp contradictions on many points, and while the witnesses for the plaintiff outnumber those for the defendant, we are unable to say, that in the light of all the circumstances the true weight of the evidence was so manifestly on the side of the plaintiff as to compel the rejection of the verdict.
Nor can the plaintiff’s exceptions to a portion of the charge of the presiding Justice be sustained. No error in law is claimed. The court was simply summarizing, as was his duty, the contentions of the parties. If, in so doing, any misstatement was made as to the defendant’s claims, attention should have been called to the specific fact so that the error could be corrected before the jury retired. If the court failed to fully state the claims of the plaintiff, additional instructions should have been requested. Neither was done! Any statement as to the nationality of the parties was harmless, as the parties and witnesses on both sides were of the same nationality as abundantly appears. Motion and exceptions overruled. Benjamin L. Berman, and Jacob H. Berman, for plaintiff. Robert M. Pennell, for defendant.