Home C. & D. BUILDERS, INC. vs. JOSEPH PALLADINO & others (and a companion case).

4 Mass. App. Ct. 852

November 18, 1976

C. & D. Builders, Inc. (C & D), appeals from judgments entered in April, 1974, in two cases consolidated for trial before a Superior Court judge. The first action was brought by C & D seeking payment for construction work against five individuals: Joseph Palladino, Anthony Lentini, and three trustees of a realty trust (Lombardos). In the second action the Lombardos sought, inter alia, to restrain C & D from prosecuting the first action. They also sought declaratory and injunctive relief and damages against Lentini and Palladino. The evidence is reported and we have before us the findings of the judge which we conclude are not plainly wrong and are, therefore, not to be reversed. Coulombre v. Registrars of Voters of Worcester, 3 Mass. App. Ct. 206 , 207 (1975), and cases cited. The findings support his conclusion that the agreement, which formed the basis for C & D's claim in the first action, was not made with Lentini or Palladino individually, or with them and the Lombardos as joint venturers, but rather with a corporation, Len-Pal Enterprises, Inc. The judgment entered, incongruously, in the second action in favor of C & D against that corporation, which was not a party to the action, did not vitiate the judge's findings in favor of the individual defendants.

Judgments affirmed.

Home THOMAS F. J. DILLON & another vs. SIDNEY CLAMAN & another (and a companion case).

4 Mass. App. Ct. 852

November 23, 1976

It is clear from the master's subsidiary findings (see particularly par. 15) and the exhibits attached to his report (see particularly exhibit C) that the broker was the agent of the plaintiffs and not of the defendants. See Gil-Bern Constr. Corp. v. Medford, 357 Mass. 620 , 622-623 (1970), and cases cited therein. Nothing contained in the record disputes the defendants' contention that there was no writing (see particularly general finding number 4:

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"plaintiffs have failed to produce a writing . . .") sufficient to satisfy the Statute of Frauds (G. L. c. 259, Section 1).

Judgments affirmed with double costs.