3 Mass. App. Ct. 757

May 30, 1975

The plaintiff brought this bill in equity seeking specific performance of a purchase option in a lease of real estate which, by its terms, was to be exercised "at any time during the term of this lease." The term of the lease was for one year "and continuing in full force and effect after the above term from year to year until . . . [terminated by either party on or before the first day of January in any year]." On December 27, 1972, the lessor gave notice that the lease would terminate on January 31, 1973. The plaintiff-lessee exercised the option on January 12. 1. The trial judge correctly ruled that the option could be exercised at any time while the lease was in effect and not just during the first year of the lease, as contended by the defendant. We decline to follow the case of Estfan v. Hawkes, 166 Kan. 712 (1949) (option in lease extinguished by notice of termination), principally relied on by the defendant. 2. The judge found that: the plaintiff gave written notice to the defendant of the exercise of the option; the defendant said she would not sell at the option price and demanded a greater amount; the plaintiff gave written notice that he would be at a named bank at 10:00 A.M. on January 31, 1973, prepared to purchase the property; the plaintiff was at the appointed place at the designated time and was ready, able, and willing to buy the property; the defendant was not there. Those findings were supported by the evidence. The judge's ruling that there was a valid exercise of the option was correct. See Hurd v. Cormier, 358 Mass. 736, 738-739 (1971). 3. The contention on the remaining issue raised by the defendant amounts to nothing more than an unsupported assertion that it would be "highly inequitable to insist that a house be sold in 1973 at a price the parties adopted as fair in 1967," and cannot be considered to be argument within the meaning of Lolos v. Berlin, 338 Mass. 10, 13-14 (1958) and Hathaway v. Hathaway, ante, 727 (1975).

Judgment affirmed.

Home STRUCTURAL SYSTEMS, INC. vs. DAVID SIEGEL (and a companion case).

3 Mass. App. Ct. 757

June 3, 1975

These cross actions arose from a contract between Structural Systems, Inc. (Structural) and David Siegel (Siegel) in which Structural agreed to deliver steel joists and decking to Siegel for $54,000. Structural claimed that Siegel owed it money for steel delivered, while Siegel claimed that certain deliveries were never made, that nothing was owed to Structural until delivery was complete, and that damages were due from Structural because of its delay and failure to deliver all of the steel. An auditor heard Structural's, but not Siegel's, claim and his report was submitted to the jury before whom both actions were tried. Structural was awarded $21,554 in its own action and a verdict was returned in its favor in the action brought by Siegel. The case are before us on Siegel's bill of exceptions. We review those questions of law presented and argued. Flint v. Codman, 247 Mass. 463, 468 (1924). Brockton Sav. Bank v. Shapiro, 324 Mass. 678, 684 (1949). Siegel contends that the trial judge erred in admitting in evidence invoices of Structural charging him for steel because there was no foundation for their admission, no evidence that they were records of goods sold and delivered, no evidence of delivery, and no notice

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to produce or request made for the originals. Siegel also asserts that the testimony of Structural's president about certain deliveries of steel should have been excluded because of the president's lack of personal knowledge about the deliveries. Since nothing to the contrary appears in the bill of exceptions, the admission of the invoices implies the finding, warranted by the evidence, of facts prerequisite to their admission. G. L. c. 233, Section 78. Taylor v. Harrington, 243 Mass. 210, 213 (1922). Chadwick & Carr Co. v. Smith, 293 Mass. 293, 294, 295 (1936). See Milham v. Mitrano, Inc. ante, 73, 75 (1975). Siegel also contends that the judge erred in ruling that the terms and conditions on the reverse side of the contract were incorporated therein by specific reference on the face of the contract. This contention falls short of argument. Chronopoulos v. Gil Wyner Co. Inc. 334 Mass. 593, 598 (1956). In any event, the judge's ruling was correct. There was no ambiguity in the contract and no inconsistency between the printed and the typed terms. These terms were properly construed together. Malden Knitting Mills v. U.S. Rubber Co. 301 Mass. 229, 232 (1938). Siegel's first two requests for instructions were properly refused for to grant them would have left the construction of the contract for the jury. O'Brien v. Boston & Maine R.R. 325 Mass. 451, 454-455 (1950). Corbett v. Salusti, 330 Mass. 273, 276 (1953). Industrial Engr. & Metal Fabricators, Inc. v. Fontaine Bros. 2 Mass. App. Ct. 695, 697 (1974), and cases cited. His third request is not properly argued and brings nothing before us. His ninth request dealing with the evidentiary limitation of the auditor's report was properly refused. Siegel's remaining contentions, all of which deal with the law of damages in his action against Structural, are based upon the judge's denial of requested instructions numbered 4, 5, 7, 8, 10 and 11, and his giving of others which Siegel claims were erroneous. We need not consider them because they relate exclusively to issues rendered immaterial by the jury's verdicts in favor of Structural. Cunningham v. Parks, 97 Mass. 172, 175 (1867). Gentile v. Boston Elevated Ry. 217 Mass. 113, 115 (1914).

Exceptions overruled.