Home PETER J. HATHAWAY vs. RICHARD D. HATHAWAY.

3 Mass. App. Ct. 727

March 27, 1975

We refuse to consider the contestant's appeal because his brief of two and one half pages is as devoid of argument concerning anything found in a 128 page transcript as was the brief described in J. L. Vaughan Heating & Engr. Co. Inc. v. Cantor, ante, 709 (1975). The brief is struck from the files. The decree allowing the will is affirmed, with double costs to the estate from January 16, 1974.

So ordered.

Home WILLIAM H. ROCKWELL vs. HERTZ TRUCK RENTAL CORP.

3 Mass. App. Ct. 727

March 28, 1975

This is an action of tort for personal injuries alleged to have resulted when the plaintiff's foot broke through rotted floor boards in the body of a truck in which he was working. We consider separately the three issues raised by this appeal. 1. There was no error in any action taken by the court concerning the attendance of the "keeper of the records" of the defendant corporation because no evidence of service of a subpoena duces tecum was presented to the court. The court had granted the plaintiff all of the time he had requested to enable him to obtain such evidence, and no indication was given the court of any other action desired. The plaintiff's argument, unsupported by any authority, that the court erred in this regard is totally unpersuasive. 2. There was no error in the exclusion of two purported business records, no evidence having been presented that would satisfy the requirements of G. L. c. 233, Section 78. See Omansky v. Shain, 313 Mass. 129 , 132 (1943). 3. There was no error in directing a verdict for the defendant. The evidence was insufficient to warrant a finding that the defendant was the owner of the truck involved. See Jacobs v. Hertz Corp. 358 Mass. 541 , 544 (1970), and cases cited. Judgment is to be entered for the defendant.

So ordered.

Home MARTIN PERETZ & another vs. ALDREN A. WATSON & another.

3 Mass. App. Ct. 727

March 28, 1975

In this action to recover the deposit made by the plaintiffs when they offered to lease premises from the defendants, the defendants contend that the trial judge erred (1) in granting the plaintiffs' motion to strike various findings of the auditor to whom the case was originally referred and (2) in instructing the jury to which the case was subsequently tried (and which returned a verdict for the plaintiffs) as to the legal effect of a counteroffer claimed to have been made by the defendants. 1. Paragraphs 2 and 3 of the auditor's report were properly struck because the former was confined to matters irrelevant to the issues in the case and the latter was nothing more than a ruling

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of law. Badoloto v. New York, N. H. & H. R.R. 338 Mass. 421 , 428 (1959). Paragraphs 1 and 4, to the extent that they contained other than conclusions of law (ibid.) or conclusions of fact unsupported by adequate subsidiary findings (Milch v. Boston Consol. Gas Co. 341 Mass. 230 , 233 [1960]; Metevia v. Athol, 348 Mass. 274 , 282-283 [1964]; Lurensky v. Marvel Heat Corp. 1 Mass. App. Ct. 855 [1973]), were a mere recitation of facts conceded at the jury trial (and, in the case of paragraph 4, of what was alleged in the plaintiffs' declaration), and their deletion from the auditor's report could not have prejudiced the defendants in any way. 2. The judge was correct in instructing the jury that a purported acceptance which varies from the terms of the offer in any material respect is in effect a rejection (Moss v. Old Colony Trust Co. 246 Mass. 139 , 148 [1923], and cases cited), and that an offer once rejected cannot thereafter be revived by an attempted acceptance thereof (Restatement, Contracts Section 35, illustration 1. [1932]; compare Daddario v. Milford, 296 Mass. 92 , 95-96 [1936]). It follows that judgment must be entered on the verdict returned by the jury.

So ordered.