4 Mass. App. Ct. 805

April 28, 1976

The defendant appeals from his conviction for illegal distribution of a Class B controlled substance. His substitute bill of exceptions reveals no error in the denial of his motion to dismiss the indictment for failure of the Commonwealth to respond to an order to disclose the identity of "an informant" where the trial judge, at a pretrial hearing, found as a fact that the Commonwealth did not know the informant's identity. Contrast Commonwealth v. Ennis, 1 Mass. App. Ct. 499, 502-503 (1973); Roviaro v. United States, 353 U.S. 53, 56-58 (1957).

Exceptions overruled.

Home JOSEPH L. QUINN & others, trustees, vs. ARAXIE HINTLIAN & another.

4 Mass. App. Ct. 805

April 28, 1976

There is nothing in the decision which casts doubt on the validity of the judge's findings (1) that the attorney in question saw (and even made a tracing of) the registered plan which disclosed the existence, location and width of the easement running across Lot 172, and (2) that the attorney permitted the respondent to accept a deed which twice referred to the easement "in a conspicuous manner." As is now agreed, the attorney's knowledge was properly imputed to the respondent. Flynn v. Wallace, 359 Mass. 711, 717 (1971). Accordingly, there was no error in the further (implicit) finding that the respondent had actual notice (see Mister Donut of America, Inc. v. Kemp, 368 Mass. 220, 222-223 [1975], and cases cited) of the easement or in the ruling that the respondent was not a purchaser "in good faith" within the meaning of G. L. c. 185, Section 46. Killam v. March, 316 Mass. 646, 648-651 (1944). Anderson v. DeVries, 326 Mass. 127, 132 (1950). Butler v. Haley Greystone Corp. 347 Mass. 478, 485-486 (1964). The question of laches has not been argued.

Decision affirmed.


4 Mass. App. Ct. 805

April 30, 1976

The defendant's motion for summary judgment (Mass.R.Civ.P. 56[b], 365 Mass. 824 [1974]) was granted in the plaintiff's action for damages brought on the defendant's alleged breach of a lease between the plaintiff as lessee and the defendant as lessor. On appeal the plaintiff's sole contention is that there remains a "genuine issue as to a . . . material

Page 806

fact" (Mass.R.Civ.P. 56[c], 365 Mass. 824 [1974]), namely, whether the defendant's notice to terminate, given June 10, 1970, pursuant to the "redevelopment rider" to the lease, was given without a good faith intent to "redevelop" the premises and was, therefore, a fraud practiced upon the plaintiff sufficient to invalidate the notice. But even if this question of fraud could be made a "genuine issue" after entry of a final decree on September 30, 1970 (on the plaintiff's bill for declaratory judgment brought August 4, 1970, against the same defendant), which declared that the notice was "a valid exercise" of the defendant's power to terminate under the rider (see Ratner v. Rockwood Sprinkler Co. 340 Mass. 773, 775-776 [1960]; Fassas v. First Bank & Trust Co. 353 Mass. 628, 629-630 [1968]; Wright Mach. Corp. v. Seaman-Andwall Corp. 364 Mass. 683, 688-689 [1974]), and after the plaintiff's admission in his affidavit in opposition to the summary judgment motion that "any fraud . . . practiced upon the plaintiff prior to . . . the actual trial" in the previous suit was one of the "issues . . . in controversy" in the trial of that suit (Mass.R.Civ.P. 56[c]; Moore, Federal Practice, par. 56.11 [1.-5], [6]; Wright & Miller, Federal Practice and Procedure Section 2723; see Aerostatic Engr. Corp. v. Szczawinski, 1 Mass. App. Ct. 141, 144 [1973]), the fact remains that the issue now argued was not raised in the pleadings in this case or otherwise presented to the trial judge and will not be considered for the first time on appeal. Henchey v. Cox, 348 Mass. 742, 747 (1965). Aerostatic Engr. Corp. v. Szczawinski, supra, at 143. The issues raised by the plaintiff in the court below related exclusively to the defendant's alleged failure to "redevelop" the premises after the lease was terminated. But that issue has been eliminated from the case because the plaintiff concedes in his brief that "it was not necessary that Mobil in fact redevelop the premises, only that at the time of its exercise it had the good faith intention to do so. Gunsenhiser v. Binder, 206 Mass. 434 [437] (1910)." See also Hodgkins v. Price, 137 Mass. 13, 19-21 (1884); Hanna v. Safeway Stores, 223 F. 2d 858, 862 (9th Cir. 1955); anno. 27 A.L.R. 845 (1923).

Judgment affirmed.