Home COMMONWEALTH vs. GORDON C. RAMOS.

6 Mass. App. Ct. 955

December 20, 1978

The defendant was found guilty of assault with force and violence and with intent to rob, under G. L. c. 265, Section 20, at a jury waived trial in the Superior Court. The sole issue on appeal (pursuant to G. L. c. 278, Sections 33A-33G) is whether the evidence was sufficient to prove an essential element of the offence; namely, an assault "with force and violence." The evidence was as follows. At a supermarket checkout counter, the defendant grabbed at $100 in bills which a cashier was holding in her hand. The cashier held onto the money and tugged back. The corners of the bills tore off in the defendant's hands as a result of the tug-of-war. The defendant ran from the store, and the cashier screamed for someone to stop him. The defendant's actions in grabbing at the money while the victim resisted by tugging back constituted an assault (see Commonwealth v. Slaney, 345 Mass. 135 , 138, 140 [1962]; Commonwealth v. Shaffer, 2 Mass. App. Ct. 658 , 662-663 [1974], S.C., 367 Mass. 508 , 515 [1975]; cf. Commonwealth v. Ordway, 12 Cush. 270 [1853]) with sufficient "force and violence" (see Commonwealth v. Jones, 362 Mass. 83 , 89 [1972]; Commonwealth v. Brown, 2 Mass. App. Ct. 883 [1974]) to support the judge's finding of guilty as to the elements of the offence required to be proved under G. L. c. 265, Section 20. The defendant's motion for a directed finding of not guilty was properly denied.

Judgment affirmed.

Home JAMES W. SANTRY, JR. & another vs. MILTON RICHMAN.

6 Mass. App. Ct. 955

December 20, 1978

A Superior Court jury returned a verdict for the plaintiffs in their action to recover the principal amount of and interest and a "reasonable attorney's fee" on a ninety-day promissory note in the

Page 956

principal amount of $6,396.38. 1. The defendant was barred by the parol evidence rule from introducing, in defense of the action, evidence of an alleged contemporaneous oral agreement between the parties to renew the note indefinitely until such time as the defendant could sell or refinance certain land. Such evidence would contradict the terms of the note, which was an unconditional promise to pay. See Commonwealth Trust Co. v. Coveney, 200 Mass. 379 , 381 (1909); Buckley v. Hacking, 258 Mass. 525 , 526 (1927); Sherman v. Koufman, 349 Mass. 606 , 610 (1965); Trustees of Tufts College v. Parlane Sportswear Co., 4 Mass. App. Ct. 783 , 783-784 (1976). The judge was correct in excluding the offered testimony. 2. There was sufficient evidence to support the jury's award to the plaintiffs of $1,200 as a reasonable attorney's fee. Expert opinion testimony regarding a reasonable fee was given by one of the plaintiffs, an attorney, and by the plaintiffs' trial attorney. The former based his opinion on forty-eight years of experience at the bar, and the latter, on the Massachusetts Bar Association's then existing guide to legal fees in retail collections. The jury were free to give the experts' testimony such weight as they deemed appropriate and, on all the evidence, to determine a reasonable fee. See Arena v. John P. Squire Co., 321 Mass. 423 , 425-426 (1947); Perkins v. Blake, 3 Mass. App. Ct. 415 , 418-419 (1975); Annot., 57 A.L.R. 3d 475, 489-540, 502 n.71 (1974). Recovery was not limited to the amount sought by the plaintiffs in their declaration (complaint). See Goldstein v. Gontarz, 364 Mass. 800 , 815-816, & n.15 (1974).

Judgment affirmed.