1 Mass. App. Ct. 845

September 25, 1973

The appeal to this court is from a final decree of the Superior Court which, in effect, sustained the decision of the board of appeals of the town of Webster (G. L. c. 40A, Section 21, as amended through St. 1970, c. 80) denying an application to the board for a special permit (G. L. c. 40A, Section 4, as most recently amended by St. 1966, c. 199) to use certain land in the "Agricultural-Single Family Residential" zoning district for a "mobile home park" (see Selectmen of Hatfield v. Garvey, 362 Mass. 821, 824-828 [1973], and cases cited; G. L. c. 140, Sections 32F and 32L, as most recently amended by St. 1964, c. 592, Sections 9 and 14, respectively). The provision of the zoning by-law relied on by the applicant authorizes the board, under stated conditions, to grant a special permit for the use of land in such a district for a "Hotel or Tourist Court" (Section 6, 2[e]). The proposed use disclosed by the evidence is not comprehended within either of the uses stated in the quoted portion of the by-law. It is not enough that a use for which a special permit is sought be "consistent" or "compatible" with a specific use for which the by-law states such a permit may be granted. General laws c. 40A, Section 4, requires such a use to be "of a character set forth in . . . [the] by-law" (emphasis supplied). See Lawrence v. Board of Appeals of Lynn, 336 Mass. 87, 90 (1957); Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410, 412-414, 415-419 (1966); Gallagher v. Selectmen of Falmouth, 352 Mass. 307 (1967). See also Clark v. Board of Appeals of Newbury, 348 Mass. 407, 408-409 (1965).

Final decree of the Superior Court affirmed.

Home BETTY ALIFERIS, administratrix, [Note 1] vs. DANIEL J. BOUDREAU.

1 Mass. App. Ct. 845

October 2, 1973

This is a bill seeking equitable relief and damages for the

Page 846

defendant's breach and repudiation of his contract to operate and manage the plaintiff's beauty shop for two years and (as we interpret the contract upon the facts found by the master) to purchase the shop and its contents at the end of that period for an amount determined by the plaintiff's capital costs in establishing the shop. The defendant appeals from a final decree awarding damages in an amount equal to the cost to the plaintiff of renovating and equipping the shop, less the fair resale value of the equipment at the time of the breach. The defendant's arguments that the contract was vague with regard to the plaintiff's obligation to renovate and equip the shop and the defendant's obligation to purchase it, and that the contract is therefore unenforceable, are without merit. The same is true of his argument that the latter obligation was unsupported by consideration. The contention that the plaintiff committed an antecedent willful and material breach of the contract is unsupported by the master's findings. The interlocutory decree confirming the master's report was not appealed from, and it cannot be said that his findings as to the plaintiff's conduct are mutually inconsistent or plainly wrong. See Rose v. Homsey, 347 Mass. 259, 260 (1964). There was no error in measuring the plaintiff's damages by the amount of his net expenditures in renovating and equipping the shop. Lynch v. Culhane, 237 Mass. 172, 174 (1921). Air Technology Corp. v. General Electric Co. 347 Mass. 613, 629 (1964). Restatement: Contracts, Sections 329, 333. Nor is there any basis for the defendant's final contention that the plaintiff failed to mitigate his damages, as the master found that the plaintiff unsuccessfully tried to sell the shop after the defendant's breach. We consider this appeal to be a frivolous one. The final decree is affirmed, with double costs and interest at the rate of twelve percent from the date of the appeal to the Supreme Judicial Court. G. L. c. 211A, Section 15.

So ordered.


[Note 1] After the entry of the final decree and the appeal therefrom the administratrix of the estate of the original plaintiff, William Aliferis, was substituted as plaintiff. The intestate is referred to in the opinion as the plaintiff.