Home ALVIN J. SLATER, trustee, vs. BURNHAM CORPORATION.

4 Mass. App. Ct. 791

March 11, 1976

The direct and redirect testimony of the plaintiff (the truth of which is not for us to determine) to the effect that he had purchased the defective low-water cutoff directly from the defendant rather than from its agent or distributor was sufficient to warrant a finding of the privity of contract between the parties which was required prior to the amendment of G. L. c. 106, Section 2-318, which was effected by St. 1971, c. 670, Section 1. See and contrast Haley v. Allied Chem. Corp. 353 Mass. 325 , 331 (1967); Necktas v. General Motors Corp. 357 Mass. 546 , 549 (1970). 2. The evidence was sufficient to warrant a finding that it was Hess with whom the plaintiff had his telephone conversation on the day the defect was discovered. Massachusetts Northeastern St. Ry. v. Plum Island Beach Co. 255 Mass. 104 , 114 (1926). Rich v. Weeks, 279 Mass. 452 , 453-456 (1932). Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488 , 490-491 (1959). Contrast Virta v. Mackey, 343 Mass. 286 , 291 (1961). It is unclear whether the conversation was offered for the purpose of proving Hess' authority to act in the defendant's behalf (as to which see Gordon v. O'Brien, 320 Mass. 739 , 742-743 [1947]) or for the non-hearsay purpose of proving that the plaintiff had given his seller prompt notice of a breach of warranty. In either event, the statement of Hess now complained of was cumulative of other evidence of his authority which was admitted without objection, and the admission of the conversation does not require a new trial. 3. Neither the writ nor the motion for a directed verdict (as to which see Soares v. Lakeville Baseball Camp, Inc. 369 Mass. 974 , 975 [1976]) has been reproduced in the appendix, and leave has not been granted the defendant to refer to either paper in its brief. See Mass.R.A.P. 18(a), 365 Mass. 864 (1974). Nothing found in the two concluding paragraphs of the defendant's brief can fairly be characterized as "argument" within the meaning of Mass.R.A.P. 16(a) (4), as amended effective February 24, 1975, 367 Mass. 921 (compare Lolos v. Berlin, 338 Mass. 10 , 13-14 [1958]), and we see no occasion to send for the original papers in order to discover whether there is any merit to the defendant's contentions.

Judgment affirmed.

Home MOLLIE AVERBUCK & another, executors, vs. BETTY STOLLER.

4 Mass. App. Ct. 791

March 11, 1976

On November 27, 1972, a judgment of nonsuit was entered against the original plaintiff, Samuel Averbuck, for failure to answer the defendant's interrogatories in an action of tort for personal injuries.

Page 792

On October 18, 1973, new counsel for the plaintiff filed a petition to vacate judgment in accordance with G. L. c. 250, Section 15, as amended by St. 1972, c. 434. On October 31, 1973, the return day of the petition, the original plaintiff died. After a hearing, following notice, his executors were substituted as parties plaintiff. The sheriff was unable to make service on a new order of notice. After various intermediate proceedings, which need not be recited, on June 27, 1974, service was made on the defendant on a new order of notice. On November 22, 1974, after a hearing, a Superior Court judge, treating the petition as a motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), vacated judgment in the tort action. The defendant appeals contending that the original plaintiff failed to meet the requirements of G. L. c. 250, Section 15, in his lifetime and that the petition did not survive to the plaintiff's executors. The language of both Section 15 and Rule 60(b) is clear. Contrary to the defendant's contention, neither required the petition or motion to vacate judgment to be heard or allowed within a year of the entry of judgment. The statute required only that the petition be "filed" within a year, and the rule requires only that the motion be "made" within a reasonable time and not more than a year after judgment. The original plaintiff filed his petition within the year as required by the statute, and it was pending when he died. The transitional rule, Mass.R.Civ.P. 1A, subparagraph 3, requires that all procedure after July 1, 1974, with respect to a pending matter in which a procedural step was taken before July 1, is to be governed by the new rules. See also Mass.R.Civ.P. 1A, subparagraph 1. Since the petition was presented to the judge following the effective date of the new rules, he was correct, by virtue of the transitional rule, in treating the petition to vacate as a motion for relief from judgment under Mass.R.Civ.P. 60(b), which specifically abolished petitions to vacate judgment and substituted therefore motions for relief from judgment. (Statute 1973, c. 1114, Section 296, effective July 1, 1972, amended G. L. c. 250, Section 15, to conform to the new rules of civil procedure.) On the question of the survival of the petition. Rule 60(b) states, "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment" (emphasis supplied). The words "legal representative" naturally connote his executors. Commissioner of Corps. & Taxn. v. Second Natl. Bank, 308 Mass. 1 , 8 (1941). Rule 60(b) tracks identical language in Fed.R.Civ.P. 60(b), which lends support to this construction. See Security Ins. Co. v. White, 236 F.2d 215, 219-220 (10th Cir. 1956). Compare Mobay Chem. Co. v. Hudson Foam Plastic Corp. 277 F. Supp. 413, 416-417 (S.D.N.Y. 1967). See also, Ingerton v. First Natl. Bank & Trust Co. 291 F.2d 662 (1960). We conclude that the original plaintiff's right of action survived to his executors. Therefore, the order vacating judgment for the defendant is affirmed.

So ordered.