4 Mass. App. Ct. 800

April 16, 1976

We assume, without deciding, that the plaintiff, having filed on December 19, 1974, a notice of appeal from an order of December 9 denying her second motion under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), for relief from a judgment of September 23 dismissing her action (but not having appealed from the judgment or from an order of November 22 denying her first, identical motion for such relief), is entitled to some form of appellate review. See Mass.R.A.P. 4, 365 Mass. 846 (1974). Compare Burnside v. Eastern Airlines, Inc. 519 F.2d 1127, 1128 (5th Cir. 1975). It is clear, however, that no question of the propriety of the judgment itself falls within the scope of that review. Horace v. St. Louis Southwestern R.R. 489 F.2d 632, 633 (8th Cir. 1974). Burnside v. Eastern Airlines, Inc., supra. It is also clear that the denial of a motion under Rule 60(b) (1) will not be disturbed except upon a clear showing of abuse of discretion. Schulz v. Black, 369 Mass. 958 (1975). Trustees of Stigmatine Fathers, Inc. v. Secretary of Adm. & Fin. 369 Mass. 562, 565-566 (1976). Farmers Co-op. Elevator Assn. Non-Stock of Big Springs, Neb. v. Strand, 382 F.2d 224, 232 (8th Cir.), cert. den. 389 U.S. 1014 (1967). The record on appeal does not disclose what transpired at the hearing on either of the motions, and the plaintiff, though her brief is replete with unsupported statements of "fact," appears not to have repaired those omissions by availing herself of the remedy afforded by Mass.R.A.P. 8(c), 365 Mass. 850 (1974), or by any other permissible means. Compare Corman Realty, Inc. v. Rothstein, ante, 777 (1976). It follows that no abuse of discretion is shown.

Order affirmed.


4 Mass. App. Ct. 800

April 21, 1976

The defendant's bill of exceptions having been seasonably presented but not allowed prior to July 1, 1974, is treated as a timely notice of appeal. Mass.R.Civ.P. 1A(7), 365 Mass. 732 (1974). Our disposition of the first of two questions for review makes it unnecessary for us to deal with the second, whether the jury's award of damages to the plaintiff was excessive. We conclude that the denial of the defendant's motion for a directed verdict, made at the close of all the evidence, was error. The evidence, viewed in its light most favorable to the plaintiff (see Wilborg v. Denzell, 359 Mass. 279, 282 [1971]) was insufficient to show that the defendant's employees who talked with the plaintiff had express, implied or apparent authority to offer him permanent employment with the corporation (accompanied by pension benefits at age 65) or to show ratification of such a contract by the corporation. The plaintiff failed to sustain his burden of showing that either the personnel director or the assistant head of the engineering department had any such authority (Porshin v. Snider, 349 Mass. 653, 654 [1965]; see H.P. Hood & Sons, Inc. v. Ford Motor Co. 370 Mass. 69, 77 [1976]) or that there was ratification of the agreement by the corporation with full knowledge of its provisions. Connelly v. S. Slater & Sons, Inc. 265 Mass. 155, 157 (1928). Lucey v. Hero Intl. Corp. 361 Mass. 569, 572 (1972). Officials of the corporation who might have had authority to bind the corporation to such an agreement remained unidentified, and there was no showing that any such official had knowledge of the terms of the agreement as described by the plaintiff. Nor

Page 801

was this a situation in which knowledge of the agreement could be imputed to the corporation by constructive notice. Contrast Beacon Trust Co. v. Souther, 183 Mass. 413, 416-417 (1903); Juergens v. Venture Capital Corp. 1 Mass. App. Ct. 274, 278 (1973). The verdict of the jury is set aside and judgment is to be entered for the defendant dismissing the action.

So ordered.