Home DAVID C. FRITSCH vs. GLENN A. KOROSTYNSKI & another.

4 Mass. App. Ct. 868

December 29, 1976

1. As the defendants admit in their brief the Hart testimony was sufficient to warrant the judge's ultimate finding that the lot in question was not suitable for residential construction when the contract and the deed were executed. The judge's preference for that testimony over the testimony of Wilson is explained by the judge's subsidiary finding (amply warranted by the evidence) that Wilson "did not . . . make any of the other determinations as to soil conditions which would be necessary for the design of a satisfactory sewage disposal system on the lot." 2. Such lacunae as existed in the formal proof on the questions of (a) the cost and effect of fill and (b) the necessity for and effect of stripping trees and brush could be and were filled by the judge's exercise of his common sense. 3. So far as the law is concerned, the case was properly decided on the ground and for the reasons stated in the judge's findings, rulings and order for judgment. The judgment is to be modified so as to contain an actual order for rescission and, as so modified, is affirmed.

So ordered.

Home MICHAEL HOWARD vs. G. H. DUNN INSURANCE AGENCY, INC. & others.

4 Mass. App. Ct. 868

December 29, 1976

Under the allegations of the complaint the plaintiff might prove that one of the defendants breached a contractual obligation to obtain, or procure the issuance of, a policy of fire insurance on the plaintiff's building, and that the building was destroyed by fire after

Page 869

that defendant should have obtained the coverage. The liability of the defendant in that event would be analogous to the liability of an insurer on a contract to issue a policy of insurance. Sanford v. Orient Ins. Co. 174 Mass. 416 (1899), as distinguished from the liability of an insurer on an oral contract of insurance or binder, as in Shumway v. Home Fire & Marine Ins. Co. 301 Mass. 391 (1938). As to a possible additional ground of liability of the individual defendant, see Mendelsohn v. Holton, 253 Mass. 362 (1925). The complaint is short on detail, particularly on the terms of the contract, but under the Massachusetts Rules of Civil Procedure it is no longer necessary that a complaint "`state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action'; it is now enough for the complaint to `contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief' (Rule 8[a] [1], 365 Mass. 749 [1974])." Charbonnier v. Amico, 367 Mass. 146 , 152-153 (1975). Under this test a complaint is sufficient unless it shows beyond doubt that there is no set of facts which the plaintiff could prove in support of his claim which would entitle him to relief. Curran v. Boston Police Patrolmen's Assn. Inc. ante, 40, 43 (1976). Romano v. Sacknoff, ante, 862 (1976). None of the three counts of the complaint in this case so shows; consequently, the defendants' motion for dismissal under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), should not have been allowed.

Judgment reversed.