Home NORMAN P. MAMBER vs. MASSACHUSETTS BANK AND TRUST COMPANY.

3 Mass. App. Ct. 714

February 28, 1975

The plaintiff appeals from a decree by a single justice of this court denying his petition (presumably under G. L. c. 214, Section 22, as in effect prior to St. 1973, c. 1114, Section 62) for revocation or modification of an interlocutory decree of the Superior Court which permitted the defendant (who is the defendant in `the case pending in the Superior Court) to amend his answer so as to state a counterclaim against the plaintiff (who is the plaintiff in the Superior Court). A refusal to exercise the discretionary power conferred on the single justice by Section 22 is "not subject to review by . . . [the full] court save in instances where an error has been committed so gross in its nature as to amount to an abuse and to be an arbitrary exercise of power, or where equitable considerations in view of all the circumstances condemn . . . [the refusal]." Massachusetts Bonding & Ins. Co. v. Peloquin, 225 Mass. 30 , 30-31 (1916), and cases cited. Even if the scanty record before us in this appeal (consisting only of the petition and the decree denying it) fully supported the facts which the plaintiff's brief recites and which he contends show error by the Superior Court, there is nothing in that recital which would have required the single justice to conclude that relief by appeal in the ordinary course would not be fully effectual. MacNeil Bros. Co. v. State Realty Co. of Boston, Inc. 341 Mass. 725 (1960).

Decree affirmed.

Home ANTHONY D. RICCIARDI & others vs. EDWARD A. LATIF & another.

3 Mass. App. Ct. 714

February 28, 1975

On the ground that the words published were not reasonably capable of defamatory meaning, the court below sustained a demurrer to this libel declaration, which alleged that the plaintiffs, who are in the business of road paving and asphalt manufacturing, discussed with the defendants, who are retailers of cheese, the sending of gift packages to the plaintiffs' customers as Christmas presents; that notwithstanding the absence of any agreement to that effect (or alternatively notwithstanding its lawful cancellation) the defendants sent such gift packages to sixty-five such customers; and that thereafter the defendants sent the same customers letters informing them that the plaintiffs refused to pay for the gifts and suggesting, among other things, that they ask the plaintiffs to do so. Words are libellous "which would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community. Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31 (1939)." Stone v. Essex County Newspapers, Inc. 365 Mass. 246 , 250 (1974). An imputation of a person's failure to meet his financial obligations may discredit him in the estimation of the community. See Goss v. Needham Co-operative Bank, 312 Mass. 309 , 310 (1942). Words

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which cast aspersions upon a businessman's or business corporation's honesty, credit or business character may be actionable. Prosser, Torts, 745 (4th ed. 1971). Harper & James, Torts, Section 5.2, pp. 357-358 (1956). The same is true of any unreasonably promiscuous publication of one's refusal to pay a debt. Ibid.

Order sustaining demurrer reversed.