Home C. A. WYCHE & others vs. DOROTHY V. UEBELHOER.

223 Mass. 353

January 20, 1916 - March 4, 1916

Suffolk County


Practice, Civil, Appeal. Evidence, Presumptions and burden of proof. Municipal Court of the City of Boston.

A judge of the Municipal Court of the City of Boston, at the trial before him of an action of contract, rightly may refuse to make a ruling that "Upon all the evidence the finding should be for the defendant," if there is evidence on which he can and does find for the plaintiff.

CARROLL, J. This is an action of contract for rent. There was evidence that the defendant occupied a tenement of the plaintiff's from May 1, 1913, to August 15, 1914; that she was notified on

Page 354

or before January 1, 1914, of the purchase of the property, by the plaintiffs, and paid rent to their agent to April 1, 1914. There was also evidence, on behalf of the defendant, that she was under twenty-one years of age, that she never knew the plaintiffs were the owners of the property, "and that the apartment was not suitably heated in the winter of 1913-1914, of which she complained to the plaintiffs."

The defendant requested the judge to rule, "Upon all the evidence the finding should be for the defendant." The judge refused so to rule and found for the plaintiffs [Note p354] for rent for the months from April to August, 1914. Whether we consider this as a request for a finding of fact, or a ruling of law, we cannot say that the judge was wrong. There is no statement by the judge that all the evidence is reported, and there is nothing before us in the record on which we can say he was obliged to find for the defendant. Finding the facts as he did, he could not give the ruling requested as matter of law. Cohen v. Berkowitz, 215 Mass. 68. Bailey v. Marden, 193 Mass. 277.

Order dismissing the report affirmed.

The case was submitted on briefs.

W. H. Thorpe, for the defendant.

S. Bamber, for the plaintiffs.


[Note p354] The action was brought in the Municipal Court of the City of Boston. A report by the judge of his findings to the Appellate Division was dismissed; and the defendant appealed.