Home FRED W. STODDARD, petitioner to establish the truth of exceptions.

321 Mass. 751

June 2, 1947

Petition dismissed. It is ordered further that said clerk send a copy of this rescript to the clerk of the Superior Court for the county of Middlesex to be filed in the case of Ralph H. Harding vs. Fred W. Stoddard. This is a petition by the defendant Fred W. Stoddard in the case of Ralph H. Harding vs. Fred W. Stoddard to establish the truth of the defendant's exceptions. The petition must be dismissed. Even if the truth of the exceptions were established, the bill of exceptions would present "no question of law of such gravity as properly to call for consideration of the court." Commonwealth v. Vallarelli, 273 Mass. 240, 247. Graustein, petitioner, 305 Mass. 571. Stern, petitioner, 317 Mass. 767.


321 Mass. 751

June 10, 1947

Appeal waived. This is a bill in equity for authority to foreclose a mortgage, brought because of the soldiers' and sailors' civil relief act of 1940. See St. 1943, c. 57; St. 1945, c. 120. The case was argued with the companion case of Paul A. Tamburello, trustee in bankruptcy, vs. Michael L. Monahan and others, in which this court has held this day [ante, 445] that a former purported foreclosure sale under the same mortgage was void. At the argument, counsel for Tamburello announced in open court that Tamburello waived the appeal which appears in the record as having been taken by him. We therefore treat the appeal as waived without considering whether Tamburello as trustee in bankruptcy ever became a party to this suit, or whether the mortgage which the plaintiff seeks to foreclose has been assigned by the conveyance of the property by the plaintiff to the defendant Fleming. See Holmes v. Turner's Falls Co. 142 Mass. 590, 591; Harlow Realty Co. v. Cotter, 284 Mass. 68, 72-73.


321 Mass. 751

October 14, 1947

Decree affirmed. From a decree of the Probate Court dismissing his libel for divorce brought on the ground of cruel and abusive treatment, the libellant appeals. The libel was uncontested. The judge made no findings of fact but there is a report of the evidence. The evidence need not be recited. We assume that the libellant's testimony, although uncorroborated, was sufficient to warrant a decree in his favor. See Goren v. Goren, 310 Mass. 284. But such a decree was not required. The judge was not obliged to believe the testimony of the libellant even though it was uncontradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323. Reardon Importing Co. v. Security Trust Co. 318 Mass. 304, 307, and cases cited. The record reveals no error of law or fact.


321 Mass. 751

October 30, 1947

Exceptions overruled. The plaintiff, upon the purchase by her from the defendant of a fur coat for future delivery, signed a contract in writing which contained a provision that she would not institute any court proceedings against the defendant under the

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contract until ten days after she had delivered to the defendant a signed statement in writing of the details of her claim. She brought this action for breach of the contract in refusing to deliver the coat, claiming that the defendant had attempted to deliver a coat other than the one she had bought. There was no evidence that before bringing this action she had delivered to the defendant the signed statement required by the contract. The judge rightly entered a verdict for the defendant on leave reserved. The action was prematurely brought. The case is fully governed by MacLeod v. I. J. Fox, Inc. 306 Mass. 15. See O'Flaherty v. Cunard Steamship Co. Ltd. 281 Mass. 447. Compare Sandler v. Commonwealth Station Co. 307 Mass. 470, 472.