There was no error in the allowance of the defendant's motion for judgment or in the entry of judgment. The record clearly shows that the plaintiff (1) was not the same party listed on documents filed pursuant to G. L. c. 254, Section 10, to establish a subcontractor's lien and (2) failed, despite ample opportunity, to seek to amend its complaint once the defendant's answer signalled the discrepancy. Inasmuch as the plaintiff had more than six months between the time of the defendant's answer and the entry of judgment to seek leave to amend its complaint, we see no reason to reward its dilatory conduct by permitting it to amend now. The judgment is affirmed with double costs.
As the defendant's counsel conceded at argument, this case is governed by the rulings made in Commonwealth v. Genest, 371 Mass. 834 , 836-838 (1977), which was not decided until after counsel had filed his brief in this case.
The contention of the defendant (Thomas) that the recovery by the plaintiff, MacAlister (the builder), in his action for breach of a construction contract should be offset by the value of various elements of damage to Thomas, evidence of which the trial judge excluded (or in the alternative that Thomas should be given a new trial at which the value of those elements could be introduced), was vitiated by the jury's verdicts on the builder's claims and on Thomas' counterclaim for breach of the same contract. (See Mass.R.Civ.P. 13, 365 Mass. 758 .) The jury found for the builder on his claim for breach of contract (as well as on a quantum meruit); similarly, the jury found for the builder on Thomas' counterclaim (rather than for Thomas in a nominal amount; see White Spot Constr. Corp. v. Jet Spray Cooler, Inc. 344 Mass. 632 , 636 ; Three-Seventy Leasing Corp. v. Ampex Corp. 528 F. 2d 993, 998 [5th Cir. 1976]). Thus, the jury having found that there was no breach of contract by the builder, Thomas was not entitled to damages in any amount; and the exclusion of the offered testimony became immaterial.
Following our earlier rescript in this case (see 1 Mass. App. Ct. 22 ), the defendant Storrie (formerly Stoddard) disclaimed any interest in lots 76, 77 and 78 and filed a written waiver to that effect. The judge then (February 28, 1974) entered decrees dismissing the suit as to her and ordering specific performance for the plaintiff upon the terms outlined in the rescript. The plaintiff again
appeals. Given the facts that the encroaching porch no longer exists and that Storrie disclaimed any rights in the subject lots, dismissal as to her was a proper method of disposing of that aspect of the case. Johnson v. Rayner, 6 Gray 107 , 108 (1856). Tappan v. Boston Water Power Co. 157 Mass. 24 , 31-32 (1892). A recital in the decree that Storrie had no right or interest in the parcels would have been proper but was not necessary. Curley v. Curley, 311 Mass. 61 , 67 (1942). The plaintiff is not entitled to damages from Storrie's now terminated trespass (if such it was), which caused no injury to his equitable interest. See Restatement (Second) of Torts Sections 157, 158 (1965); Harper & James, Torts Section 12 (1956). It was within the discretion of the judge to decline to award court costs to the plaintiff (see G. L. c. 261, Section 13, as in effect prior to St. 1973, c. 1114, Section 345). The plaintiff was not entitled to be awarded as damages against MacAlister the cost of litigation necessary to settle the question of the alleged encumbrance by Storrie. An award of the costs of appeal to the plaintiff would have been erroneous where the rescript was silent as to such costs. Carchidi v. Kalayjian, 264 Mass. 230 , 232 (1928). Contrast Mass.R.A.P. 26(a), 365 Mass. 873 (1974), which provides that "if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered." The decree for the defendant Storrie is affirmed, with costs of appeal to her. The decree against the defendant MacAlister is to be designated a judgment and is to be modified so as to give the plaintiff fourteen days from entry thereof to tender the $3,900.00 due. The defendant MacAlister is to have costs of this appeal.