Home COMMONWEALTH vs. ELMER T. KNIGHTS (and three companion cases).

325 Mass. 758

December 7, 1949

Exceptions overruled. The defendant's exceptions are to the denial of his motions to continue for trial indictments charging him, in three with sodomy and in one with gross lewdness. The granting of the continuance rested entirely in the sound discretion of the trial judge. Commonwealth v. Brothers, 158 Mass. 200 , 205. Commonwealth v. Friedman, 256 Mass. 214 , 216. Commonwealth v. Millen, 289 Mass. 441 , 463. There is nothing to indicate an abuse of such discretion. Ample opportunity was given the defendant to produce the witnesses he wished to call in his defence. They appeared and testified.

Home EDWARD KRAUTHAMER vs. FREDA KRAUTHAMER GORFINKLE.

325 Mass. 758

December 29, 1949

Decree affirmed. The plaintiff seeks to establish against his former wife a resulting trust in her interest in a piece of residential property which was purchased during the marriage. It is contended that the plaintiff furnished the entire consideration for the purchase. The title, however, was taken in the names of both parties as tenants by the entirety. The judge found that the title was so taken at the request of the husband "freely and deliberately to protect the property, as he thought, from being reached by future creditors and for the protection of his family; in that event and in the event of his death." He was engaged in a business out of which claims against him might arise. In order to establish a resulting trust he had to prove that "it was not intended at the time of the conveyance that the wife should take a beneficial interest in the property by way of gift, settlement or advancement." Pollock v. Pollock, 223 Mass. 382 , 384. Daniels v. Daniels, 240 Mass. 380 , 385. Dwyer v. Dwyer, 275 Mass. 490 , 494. Moat v. Moat, 301 Mass. 469 , 471. Thompson v. Thompson, 312 Mass. 245 , 247. Russell v. Myers, 316 Mass. 669 , 673. There is nothing in the specific findings of the judge or in the evidence, which is reported, that requires or should lead to a conclusion that at the time of the conveyance it was not intended that the wife should actually take for her own benefit the interest in the property which the form of the transaction would normally give to her.

Home RALPH E. WHITTEMORE vs. PEPSI-COLA BOTTLING COMPANY OF ATTLEBORO.

325 Mass. 758

December 29, 1949

Order dismissing report affirmed. This action of contract was brought in a District Court to recover compensation for injuries alleged to have been sustained by the plaintiff by reason of the explosion of a bottle of pepsi-cola which the plaintiff had purchased from the defendant. The action is based upon a breach of an implied warranty of merchantability under G. L. (Ter. Ed.) c. 106, Section 17 (2). The report states that there was evidence which would "justify a finding that there was a breach of implied warranty of merchantability under the statute," and that

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"notice of the accident" was given by the plaintiff to the defendant within a reasonable time. The judge granted the defendant's fourth request, which asked for a ruling that the plaintiff could not recover because of his failure to give a proper notice under G. L. (Ter. Ed.) c. 106, Section 38. There was a finding for the defendant. A report to the Appellate Division was dismissed, and the plaintiff appealed. There was no error. The notice here is not essentially different from that held to be insufficient in the recent case of Howard v. Lowell Coca-Cola Bottling Co. 322 Mass. 456 , 460-461, and that case rather than Morin v. Stromberg, 309 Mass. 146 , cited by the plaintiff, is controlling.