Home JOSEPH NEIPRIS & another vs. GRAPHIC LABORATORIES, INC.

4 Mass. App. Ct. 767

January 6, 1976

In these cross actions for breach of the parties' agreement to enter into a lease of premises we need not decide whether the lease prepared at the direction of the owners of the premises and delivered to Graphic Laboratories, Inc. (Graphic), was consistent in all respects with the terms of the agreement sued upon, for the trial judge was warranted in finding on the conflicting evidence before him that Graphic made no timely objection to the form of the lease, was unwilling to enter into a lease in any form and therefore waived strict compliance by the owners with the terms of the agreement. Sargent v. Adams, 3 Gray 72 , 81-82 (1854). Freeland v. Ritz, 154 Mass. 257 , 261 (1891), and cases cited. The evidence concerning Graphic's negotiations for the purchase of other premises, tending as it did to show the existence of a motive on Graphic's part for repudiating the agreement to lease the subject premises, was properly admitted. Compare Bock v. Wall, 207 Mass. 506 , 507 (1911); Kurland v. Massachusetts Amusement Corp. 307 Mass. 131 , 140 (1940). Judgments are to be entered on the findings of the trial judge.

So ordered.

Home FORREST RHODES vs. BOARD OF STATE EXAMINERS OF PLUMBERS.

4 Mass. App. Ct. 767

January 9, 1976

The plaintiff, a licensed plumber, was the subject of two complaints filed with the Board of State Examiners of Plumbers (the board) which charged him with installing a gas-fired hot water heater without a gas permit (prohibited by Section 2.1 of the Massachusetts Code for Installation of Gas Appliances and Gas Piping) and "using deceit and malpractice" in removing an inspection approval tag from an approved gas installation and placing it on a gas-fired hot water tank which had not been tested or inspected (prohibited by G. L. c. 112, Section 61). At the hearing before the board, conducted pursuant to G. L. c. 142, Sections 3 and 6, there was conflicting evidence whether the plaintiff was the person responsible for the alleged offenses. Thereafter, the board duly notified the plaintiff that his master license and his journey-man license were being suspended indefinitely, but did not specify the reasons for its decision. On a petition for review, brought pursuant to

Page 768

G. L. c. 30A, Section 14, the Superior Court affirmed the decision of the board and dismissed the plaintiff's action ruling, inter alia, that although the board did not explicitly state the reasons for its decision, it made "subsidiary findings" which sufficiently apprised the reviewing court of its reasons. Our review of the record has revealed no subsidiary findings, nor indeed any findings, made by the board pursuant to G. L. c. 30A. Section 11(8), which would give "a sufficient `guide to its reasons so that this court may exercise . . . [its] function of appellate review.'" Andrade v. Contributory Retirement Appeal Bd. 350 Mass. 447 , 449 (1966). Hamilton v. Department of Pub. Util. 346 Mass. 130 , 137 (1963). Since we therefore have "no way of knowing what facts . . . [were] found to exist and whether, in reaching its general conclusion . . . [the board] applied correct principles of law to the facts found by it" (School Comm. of Chicopee v. Massachusetts Comm. Against Discrimination, 361 Mass. 352 , 355 [1972], citing New York Cent. R.R. v. Department of Pub. Util. 347 Mass. 586 , 593 [1964]), the judgment is reversed and an order is to be entered remanding the case to the board for the purpose of complying with the requirements of Section 11(8) and for such other proceedings as may be appropriate and consistent with this opinion. The Superior Court is to retain jurisdiction over the further proceedings of the board.

So ordered.