Home FLORENCE B. QUIMBY vs. JAMES E. MCHUGH.

3 Mass. App. Ct. 797

December 23, 1975

We find no such conflict between the provisions of the fourth and fifth paragraphs of the purchase and sale agreement dated October 19, 1973, as that which appears to have troubled the trial judge. Reading the printed provisions of the fifth paragraph together with the typed provisions of both paragraphs (see King Features Syndicate, Inc. v. Cape Cod Bdcst. Co. 317 Mass. 652 , 654 [1945]), and giving preference to a construction which will render the agreement valid and enforceable (Berger v. Siegel, 329 Mass. 74 , 77-78 [1952]), the plaintiff's promise was not to convey the premises in question but to convey by a quit-claim deed (see G. L. c. 183, Sections 11, 17 and app. form [2 (as appearing in St. 1971, c. 423, Section 1)]; Silverblatt v. Livadas, 340 Mass. 474 , 476-478 [1960]) all her right, title and interest (if any) in and to the premises (see Blanchard v. Brooks, 12 Pick, 47, 66-67 [1831]; Baker v. Davie, 211 Mass. 429 , 439 [1912]; United Sugar Co. v. Guaranty Trust Co. 254 Mass. 292 , 293-294 [1926]). See also Hoxie v. Finney, 16 Gray 332 , 333 (1860). The final decree is reversed; the case is to be retried (compare Olszewski v. Sardynski, 316 Mass. 715 , 718 [1944]) on the basis that the agreement is not unenforceable by reason of anything found in the findings, rulings and order dated June 18, 1974.

So ordered.

Home MARY L. MALAGUTI & another [Note 1] vs. PLANNING BOARD OF WELLESLEY.

3 Mass. App. Ct. 797

December 31, 1975

The plaintiffs submitted a plan to the defendant for the division of a parcel of land into six building lots for single family residences, requesting endorsement pursuant to G. L. c. 41, Section 81P, that the plan did not require approval under the Subdivision Control Law. The defendant declined to grant the endorsement because the proposed lots did not have frontage on an "adequate way." The Superior Court ordered judgment dismissing a bill in equity brought by the plaintiffs, from which action the plaintiffs have appealed. The record indicates that the trial judge did not err in finding that not every lot had frontage on a public way, that the way in question was inadequate for vehicular traffic (see Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 481 [1955]; Stoneham v. Savelo, 341 Mass. 456 , 458 [1960]), or in ruling that the plan submitted is a plan of a "subdivision" within G. L. c. 41, Section 81L. The court, therefore, correctly ruled that the defendant neither exceeded its authority nor acted in bad faith in refusing to endorse the plan (see G. L. c. 41, Sections 81M and 81R), because, as a plan showing a "subdivision," the plan required the

Page 798

defendant's approval under G. L. c. 41, Sections 81O and 81U. See G. L. c. 41, Section 81P. Absent a showing that the trial judge's findings were lacking in evidential support or plainly wrong, the decision of the lower court will not be disturbed. See Caruso v. Planning Bd. of Revere, 354 Mass. 569 , 571 (1968), and United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621 , 624 (1971). The plaintiff's allegation that the defendant failed to provide detailed notice of the reasons for the refusal of the endorsement pursuant to G. L. c. 41, Section 81U is without merit since that section does not apply where, as here, the plaintiffs attempted to obtain an endorsement that such approval was not required. G. L. c. 41, Section 81P.

Judgment affirmed.


FOOTNOTES

[Note 1] Louise A. Slamin.