There is no dispute that the defendant had a right to trial by jury on the question of its alleged indebtedness to the plaintiff (Todd v. Pearce, 291 Mass. 455 , 456 ; Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. 246 , 252 ) and that the defendant's jury claim (which was limited to the plaintiff's action and did not extend to the defendant's counterclaim) was timely filed under Rule 44 of the Superior Court (1954). There is no occasion to consider whether the defendant could waive its jury claim (see Vaught Constr. Corp. v. Bertonazzi Buick Co., 371 Mass. 553 , 557-558 ), because the facts found by the judge do not support his ruling that the defendant did waive its right to a jury on the question of the indebtedness. Stockbridge v. Mixer, 215 Mass. 415 , 416, 418-419 (1913). Farnham v. Lenox Motor Car Co., 229 Mass. 478 , 484 (1918). Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347 , 350 (1940). Contrast Freeland v. Wright, 154 Mass. 492 , 493-494 (1891), in which there was no right or timely claim of trial by jury. If the defendant shall, within fourteen days from the date of this opinion, file in the Superior Court a writing in which it shall specify the particular issues raised by the complaint and the defendant's answer thereto which the defendant still insists be tried to a jury, then the judge's ruling on the defendant's fourth objection to the master's report and the first paragraph of the judgment are to be vacated, and the case is to be tried to a jury on the issues so specified and in accordance with Mass.R.Civ.P. 53(e)(3), 365 Mass. 820 (1974); if no such writing is filed within fourteen days, the judgment is to stand in its entirety.
The question on appeal is whether the trial judge erred in denying the defendant's motion (which had been assented to by the prosecutor) for a continuance. In ruling on such a motion a judge must balance the movant's need for additional time against the prejudice to the Commonwealth, Commonwealth v. Gilchrest, 364 Mass. 272 , 274, 276 (1973). Commonwealth v. Cavanaugh, 371 Mass. 46 , 51 (1976). There is no "mechanical test" for deciding when denial of a continuance is so arbitrary as to violate a defendant's right to due process. Each case stands on its own footing. Id. at 51, and cases cited. There was a showing in the instant case that Silva was prejudiced by the unavailability of two witnesses whose testimony would have contradicted that of the only witness, a State police officer, who had connected Silva to the crime. That officer testified that he had recognized Silva as the driver of a stolen truck which had collided with his police cruiser during a high speed, nighttime chase. The officer further testified that he had not arrested any other person as the driver of the truck and that he had not mistaken any other person for Silva. But, according to Silva's affidavits, one of the unavailable witnesses would have testified that the officer had
arrested him at gunpoint moments after the chase had ended and accused him of being the driver of the truck. Silva's affidavits indicate that several days following the incident the second unavailable witness (who worked with Silva) was mistaken for Silva by the same officer. Testimony at trial indicated that neither of the unavailable witnesses bore a resemblance to Silva. The Commonwealth would not have been prejudiced by the continuance to which it had assented. Applying the balancing test articulated above to the facts, we conclude that the judge abused his discretion. This is not a case where the motion for a continuance arose from lack of preparation or as a delaying tactic. Prior to the denial of his motion, Silva had been in court with his witnesses ready for trial on three occasions when the case had been scheduled but was not called. See Commonwealth v. Cavanaugh, supra at 52-53. Compare Commonwealth v. Howard, 4 Mass. App. Ct. 476 , 483 (1976). Finally, we disagree with the Commonwealth's contention that the anticipated testimony of the two unavailable witnesses would be merely cumulative. That testimony would have differed significantly from the testimony given by other witnesses at trial.
Verdicts set aside.