Home LONGO ELECTRICAL COMPANY, INC. vs. ALARIC J. DUMAIS.

1 Mass. App. Ct. 830

June 13, 1973

This is an action of contract brought in a District Court upon an account annexed to recover the unpaid balance of the plaintiff's claim for work and labor performed in installing wiring and electrical heating in the defendant's cottage. The answer contained a general denial, a claim of payment and an allegation of an accord and satisfaction. The trial judge found for the plaintiff, and the Appellate Division dismissed a report; the defendant's appeal to the Supreme Judicial Court was transferred to this court (G. L. c. 211A, Sections 10 and 12). There was evidence that the plaintiff, at the defendant's request, undertook to do the work in question on a stock and time basis; that following completion of the work the plaintiff issued the defendant a bill therefor in the total amount of $1,248.70; that, although the defendant told the plaintiff he thought the bill was too much and wanted the plaintiff to take less, there was no dispute as to the actual amount of the bill; that the defendant thereafter sent the plaintiff a check in the amount of $846.70 "marked payment in full," together with a bill from the defendant to the plaintiff in the amount of $402 for work which the defendant claimed he had done for the plaintiff (but for which the trial judge specifically found the plaintiff was not liable); and that the plaintiff cashed and received the proceeds of the defendant's check. On this evidence the judge was warranted in finding, as he did, that the plaintiff's claim was not unliquidated or disputed. Nor was there error in his general finding for the plaintiff for an unpaid balance due it in the amount of $402, or in his denial of the defendant's requests for rulings to the general effect that the plaintiff was barred from recovery by reason of its having accepted and cashed the defendant's check. See Whittaker Chain Tread Co. v. Standard Auto Supply Co. 216 Mass. 204 , 208, 209; Moss v. Goldstein, 254 Mass. 334 , 336-337; MacDonald v. Kavanaugh, 259 Mass. 439 , 444-445; Puritan Wool Co. v. Winsted Hosiery Co. 263 Mass. 467 , 471; Russell v. Bond & Goodwin Inc. 276 Mass. 458 , 462. See also Shumaker v. Lucerne-in-Maine Community Assoc. 275 Mass. 201 , 205; Champlin v. Jackson, 313 Mass. 487 , 489-491.

Order dismissing report affirmed.

Home PIONEER HOME SPONSORS, INC. vs. BOARD OF APPEALS OF NORTHAMPTON & others.

1 Mass. App. Ct. 830

June 13, 1973

The interveners have appealed from a final decree of the Superior Court annulling the "decision" (G. L. c. 40A, Section 21) of the board of appeals of Northampton (the board) and ordering it to issue to the applicant a permit under Section 12(f) of the zoning ordinance for the use of the locus for a development of "multi-dwellings." Section 12(f) on its face permits such a use subject to certain conditions, including one that "[a] permit shall be obtained from the [b]oard of [a]ppeals after a public hearing." The applicant, the city solicitor, two

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members of the board and the trial judge have all proceeded on the basis that Section 12(f) stands alone and that the board's only function under that section is to determine whether the application meets certain specific requirements with respect to building heights and spacing, numbers of rooms for dwelling units, floor and lot areas, and off-street parking spaces. The interveners, the chairman of the board and we disagree with any such interpretation. Although there may be obscurities in certain other provisions of the ordinance (see Rose v. Commissioner of Public Health, 361 Mass. 625 , 629-632), Section 3 thereof is explicit on the point that exceptions granted by the board under Section 12(f) "shall be in harmony with the general purpose and intent of the ordinance," and it specifically tracks the language of G. L. c. 40A, Section 4, in providing that the board "may in appropriate cases and subject to appropriate conditions and safeguards, grant to an applicant a special permit to make use of his land or to erect and maintain buildings or other structures thereon, in accordance with such an exception" (emphasis supplied). In acting on applications for permits under G. L. c. 40A, Section 4, and said Section 12(f) the board's power is discretionary (Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 294, and cases cited); no one has an absolute right to such a permit (Humble Oil & Refining Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 605, and cases cited); the "board . . . [has] the power to deny the permit as long as its decision . . . [is]not `based on a legally untenable ground, or . . . [is not] unreasonable, whimsical, capricious or arbitrary'" (Golden v. Selectmen of Falmouth, 358 Mass. 519 , 523, and cases cited); and the board, in the proper exercise of its discretion, is free to deny a special permit even if the facts show that such a permit could be lawfully granted (Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278; Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 484). The decree of the Superior Court is reversed, and the case is remanded to the board for reconsideration and for further proceedings in the light of this opinion (which may include a further public hearing. MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690 , 692; S.C. 356 Mass. 635 , 636, 642).

So ordered.