Home GORDON S. MIRKIN & another, trustees, vs. ROSE SWARTZ & others.

2 Mass. App. Ct. 851

June 18, 1974

This action of contract or tort was brought by property owners for injury caused by the flow of water from the defendants' property onto the plaintiffs' land and for expenses incurred in correcting that situation. The judge sitting without a jury found for the plaintiffs on two counts of their declaration and awarded damages. The case is before this court on the defendants' bill of exceptions by which they seek to raise the correctness of the judge's denial of certain requests for rulings of law and his denial of the defendants' motion for a new trial. The bill of exceptions fails to show that exceptions were taken to the judge's denial of the requests for rulings, and the correctness of his denial is therefore not before us. Stowell v. H. P. Hood & Sons, Inc. 288 Mass. 555 , 556 (1934). See also Dorr v. Schenck, 187 Mass. 542 , 543 (1905); Commonwealth v. Dow, 217 Mass. 473 , 482-483 (1914); Commissioner of Banks v. Tremont Trust Co. 267 Mass. 331 (1929). The reference to a claim of exceptions in the docket entries does not cure the defect. See Marshall v. Babson Institute, 356 Mass. 737 (1970). After oral argument counsel for the defendants by letter requested leave to amend the record to include the defendants' written claim of exceptions. Treating that letter as a motion, we deny it. The defendants' exception to the denial of their motion for a new trial cannot be sustained as they have failed to show any abuse of the judge's discretion. Herrick v. Wait, 224 Mass. 415 , 418 (1916). Moran v. Pierone, Inc. 326 Mass. 516 , 517 (1950). Raunela v. Hertz Corp. 361 Mass. 341 , 345 (1972).

Exceptions overruled.

Home JOSEPH KRINSKY vs. PAUL T. SMITH.

2 Mass. App. Ct. 851

June 18, 1974

This is an action of contract brought by an attorney to recover part of an attorney's fee received by the defendant for the trial of a criminal case. The plaintiff's outline bill of exceptions brings before us the correctness of the judge's allowance of the defendant's motion for a directed verdict. In his declaration the plaintiff alleged that he "engaged the defendant . . . to assist . . . and associate with him in the preparation for trial and in the trial of a criminal complaint," and that the defendant rendered such services but failed to pay the plaintiff his share of the fee received by the defendant directly from the client. The evidence in its aspect most favorable to the plaintiff (Gelinas v. New England Power Co. 359 Mass. 119 , 120 [1971]; Lawler v. General Elec. Co. 1 Mass. App. Ct. 220 [1973])

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tends to show an oral agreement between the parties under which the plaintiff would refer the case to the defendant in consideration of one half of the fee charged by the defendant, but it fails to reveal that the plaintiff prepared for or participated in the trial. Cf. Doherty v. Ginsburg, 346 Mass. 421 (1963). The verdict was therefore rightly directed for the defendant because of the substantial variance between the declaration and the proof. Glynn v. Blomerth, 312 Mass. 299 , 301-302 (1942). Manning v. Loew, 313 Mass. 252 , 254 (1943). O'Connor v. National Metals Co. 317 Mass. 303 , 306 (1944).

Exceptions overruled.