9 Mass. App. Ct. 906

April 23, 1980

After partial summary judgment was entered for the plaintiff on the issue of liability only, an evidentiary hearing was held to determine the amount of damages owing to the plaintiff. Judgment was entered against the defendants in the amount of $12,199.68 plus interest and costs.

The defendants challenge on appeal the correctness of the trial judge's orders granting partial summary judgment to the plaintiff and denying their motion for summary judgment. The defendants also allege error in the judge's assessment of damages.

1. Based on the relevant pleadings and the application of settled principles (see John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 , 722 [1976]), we conclude that partial summary judgment was properly entered for the plaintiff.

It was not mandatory for the plaintiff to file an affidavit. See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974); Community Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976). Here, "[t]he complaint was verified and is therefore treated as an affidavit in so far as it contains specific facts that the signer knows to be true." Pupecki v. James Madison Corp., 376 Mass. 212 , 217 (1978).

By way of deposition the defendants admitted selling their business without making provisions with respect to the vending and game machines as required by the contract. Moreover, the defendants' affidavit in opposition to the plaintiff's motion in no way contradicts the facts asserted in the plaintiff's verified complaint. New England Merchants Natl. Bank v. Kneeland, 8 Mass. App. Ct. 946 (1979). See Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). Accordingly, the plaintiff has shown "that there is no genuine issue as to any material fact" and is therefore "entitled to a judgment as a matter of law" on the issue of liability. Mass.R.Civ.P. 56(c). John B. Deary, Inc. v. Crane, supra at 724.

2. We do not reach the issue whether the judge erred in denying the defendant's motion for summary judgment, as the defendant has made no argument in this court with respect to that branch of the case. See Mass. R.A.P. 16(a) (4), as amended, 367 Mass. 921 (1975). Likewise, all the other issues raised in the defendants' brief are not open for review here because they suffer from the dual defects of not having been argued within the meaning of Mass.R.A.P. 16(a) (4) and of being raised now for the first time. See John B. Deary, Inc. v. Crane, supra.

3. We agree with the result and the reasoning of the trial judge as to the assessment of damages because "[w]here actual damages are difficult to ascertain and where the sum agreed upon by the parties at the time of the execution of the contract represents a reasonable estimate of the actual damages, such a contract will be enforced." A-Z Servicenter, Inc. v. Segall, 334 Mass. 672 , 675 (1956). In short, the judge's findings are supported by the evidence and we are, thus, unable to say that they are clearly erroneous.

Page 907

Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). See also New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671 , 675 (1977).

Judgment affirmed.