5 Mass. App. Ct. 771

January 28, 1977

The plaintiff appeals from a judgment awarding him $213.04, claiming that the award should have been $17,654.16, the amount of commissions allegedly earned and accrued under his contract of employment with the defendant. There was no error. It is agreed that the contract was properly terminated. The intent of the parties entering into the contract must be gathered from construing the contract as a whole and not by placing special emphasis on any one part. Ucello v. Cosentino, 354 Mass. 48 , 51 (1968). The trial judge correctly interpreted the agreement as a personal services contract which provided for minimum compensation of $600 a month plus certain amounts to be paid to the plaintiff based on policies written but without any vested interest in, or accrued commission on, any policy delivered to a policyholder through his efforts. See Miller v. Allstate Ins. Co. 186 So. 2d 344, 347 (La. App. 1966). "The parties are bound by the plain terms of their contract. . . . Where as here its terms are openly and fairly arrived at enforcement will not be denied because of hardship to one of the parties." Hiller v. Submarine Signal Co. 325 Mass. 546 , 550 (1950). The plaintiff's right to compensation ended with the termination of the contract. See Miller v. Allstate Ins. Co. 186 So. 2d at 348; State Farm Mut. Auto. Ins. Co. v. West, 181 F. Supp. 779, 782 (W.D. Ark. 1960).

Judgment affirmed.


5 Mass. App. Ct. 771

January 31, 1977

The plaintiff has appealed from a judgment dismissing his complaint which sought to set aside a mortgage foreclosure sale held by the defendant as mortgagee of real property owned by the plaintiff. The plaintiff's brief on appeal raises two issues: (1) whether the refusal of the judge to set aside the sale was error; and (2) whether the defendant exercised good faith and reasonable diligence in conducting the sale. The plaintiff's argument in support of the first ground was that the trial judge was clearly wrong because he chose to disregard testimony introduced by the plaintiff which contradicted testimony of the defendant. Such an argument avails the plaintiff nothing. The credibility of witnesses is for the trial judge to determine and any such determination will not be set aside unless clearly erroneous. Matsushita Elec. Corp. of America v. Sonus Corp. 362 Mass. 246 , 254 (1972). Albano v. Jordan Marsh Co. 2 Mass. App. Ct. 304 , 311 (1974). Sher v. Malden Taxi, Inc. 4 Mass. App. Ct. 404 , 407-408 (1976). Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Such was not the case here. All of the contentions

Page 772

raised by the plaintiff in support of his argument that the defendant failed to exercise good faith and diligence were effectively disposed of by the findings of the trial judge, all of which were warranted on the basis of the evidence before him. See Krasner v. Krasner, 362 Mass. 186 , 187-188 (1972).

Judgment affirmed with double costs.