Home STATE REALTY COMPANY OF BOSTON, INC. vs. DELMONT CORPORATION & others (and two companion cases).

1 Mass. App. Ct. 833

June 21, 1973

These three cases are here on the appeals of Delmont Corporation (Delmont), Concord Corporation (Concord) and Angus M. MacNeil (MacNeil) from a decision of the Land Court that State Realty Company of Boston, Inc. (State) is entitled to registration of its title to three separate parcels of land in Somerville, and on a consolidated outline bill of exceptions brought by Delmont, Concord and MacNeil with respect to various rulings made by that court during the course of trial. If the several and collective rights of MacNeil Bros. Company (MacNeil Bros.) and its successors (Delmont, Concord and MacNeil) further to litigate a possible redemption of the parcels from State's mortgage (under which an entry was made in 1954) were not cut off (a) by failure to prosecute an appeal from the final decree entered on February 27, 1958, in the case numbered 18671 in the Superior Court following the rescript in State Realty Co. of Boston, Inc. v. MacNeil Bros. Co. 334 Mass. 294 , (b) by the sustaining of State's exceptions in MacNeil Bros. Co. v. State Realty Co. of Boston, Inc. 350 Mass. 772 , to the actions of the Superior Court in allowing Delmont, Concord and MacNeil to intervene in said case numbered 18671 a year after the entry of the aforementioned decree after rescript, or (c) by the Supreme Judicial Court's dismissal on November 10, 1967, of the appeal (in the case numbered 7009 on the docket of the full court) from a final decree of the Superior Court dismissing the petition of MacNeil Bros. (purportedly brought in behalf of MacNeil Bros., Delmont, Concord and MacNeil) for leave to file a bill of review in said case numbered 18671, such rights were most assuredly extinguished with finality (d) by the decision in State Realty Co. of Boston, Inc. v. MacNeil Bros. Co. 358 Mass. 374 , that "[s]uch redemption has not occurred" (358 Mass. at 380) and (e) by the orders specifically directed to be entered in that decision (358 Mass. at 380-381). Accordingly, there was no error in the Land Court's subsequently ordering registrations free of any claims of Delmont, Concord or MacNeil.

Exceptions overruled.

Decision affirmed.

Home FAIRFIELD'S MOTORS, INC. vs. FITZ-INN AUTO PARK, INC.

1 Mass. App. Ct. 833

June 21, 1973

The plaintiff leased a motor vehicle owned by it to one Brown. Brown

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drove his family to lunch at a Boston restaurant and while there parked the vehicle in the defendant's parking garage. The car was stolen from the garage. The plaintiff brought this action of contract or tort for damages in a District Court, and it was removed to the Superior Court. At the trial in the Superior Court the jury found for the defendant on the count for negligence. The defendant's motion for a directed verdict on the contract count was allowed. The plaintiff's exception to that allowance is the only matter presented by its bill of exceptions. Nothing in the record would warrant a finding that Brown was the agent of the plaintiff. The plaintiff was not a party to the contract of bailment between Brown and the defendant. "The general rule that a person who is not a party to a contract and from whom no consideration moves may not sue upon it is well established in this Commonwealth." Central Supply Co. v. United States Fid. & Guar. Co. 273 Mass. 139 , 143-144, and cases cited therein.

Exceptions overruled.