THE HAINES CORPORATION vs. WINTHROP SQUARE CAFE, INC.

WILKINS, C.J. This is a petition to establish a draft report which the trial judge disallowed "as not conformable to the facts." G. L. (Ter. Ed.) c. 231, Section 108, as amended. In the action, which was in contract for failure to furnish

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reasonable heat under a written lease, there was a finding for the plaintiff (respondent) against the defendant (petitioner). There was a hearing before a justice in the Appellate Division. Rule 32 of the Rules of the Municipal Court of the City of Boston for Civil Actions (1952). From an order denying the petition, the petitioner appealed.

The trial judge in his disallowance of the draft report stated that the report was not in conformity with the evidence; contained statements of evidence which were inaccurate or were not part of the evidence; failed to state all the material evidence; and dealt with matters not pertinent or proper in a report of the questions sought to be reported. There was annexed to the disallowance a report in a form proposed by the trial judge which the defendant (petitioner) had refused to accept.

The justice who heard the petition in the Appellate Division filed an opinion which contained the following: At the close of the evidence the trial judge acted upon requests for rulings made by each party, made findings of fact, and found generally for the plaintiff. The defendant filed both a claim of report (not the draft report on the motion for a new trial now before us) and a motion for a new trial. That claim of report read, "Now comes the defendant and being aggrieved by the court's finding and rulings claims a report to the Appellate Division." It failed to meet the requirements of Rule 30 of the Rules of the Municipal Court of the City of Boston for Civil Actions (1952), as it did not contain "a clear and concise statement of the ruling upon which a rehearing is requested, sufficiently full and accurate for identification." It could properly have been disallowed "on the ground that the defendant had not shown itself to be entitled to a report." Stafford v. Commonwealth Co. 263 Mass. 240, 242. Nevertheless the trial judge fixed a date for the filing of a draft report, but the date passed with no report filed. Wholly apart from the inadequate request for report, the failure to preserve whatever questions of law the defendant may have had determined its rights. Wilson v. Checker Taxi Co. 263 Mass. 425. At the

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subsequent hearing on the motion for a new trial, the defendant again filed requests for rulings. The motion was denied, and the requests for rulings were refused on the ground that the questions raised at the trial had not been preserved. In this there was no error. Questions of law which might have been raised at the trial on the merits, or which were raised and then abandoned and not preserved, cannot be raised as of right on a motion for a new trial. Energy Electric Co., petitioner, 262 Mass. 534.

The justice in the Appellate Division concluded that there was no error either in the denial of the motion for a new trial, which was a matter resting in sound judicial discretion, or in the denial of the requests for rulings, as the trial judge did not elect to deal with them on their merits; and that "There is nothing to merit the establishment of the defendant's draft report."

The opinion of the justice in the Appellate Division was in substance a holding that, contrary to the allegation of the petition, the draft report was not "conformable to the truth," or in the language of G. L. (Ter. Ed.) c. 231, Section 108, as amended, it was "not conformable to the facts." There also was in substance a holding that the petitioner did not have a meritorious case.

The petitioner contends that the requests for rulings made at the hearing of the motion for new trial related to questions which could not have been raised at the trial on the merits. Stated briefly and in general terms, the petitioner's contention is that in the course of the trial it raised an issue as to the authority of its president to execute the lease; that when the trial judge made his findings he surprised the defendant (petitioner) by ruling that there was no authority and by finding a ratification; and that there was an inconsistency between the rulings and the findings.

The truth or falsity of facts set forth in a petition to establish a report is to be determined finally by the Appellate Division, although doubtful questions of law fairly raised at the hearing on the petition may be brought to this court on appeal from the final decision of the Appellate Division.

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Patterson v. Ciborowski, 277 Mass. 260, 266, and cases cited. Squires v. Toye, 291 Mass. 342. Burick v. Boston Elevated Railway, 293 Mass. 431, 434-435.

An inspection of the draft report presented by the petitioner (defendant) shows that with permission of the trial judge it presented a supplemental request for a ruling "That there has been no ratification by the defendant of the lease declared upon." The judge took no action on this request. Such failure to act was in effect a denial of the request. Georgeopoulos v. Georgeopoulos, 303 Mass. 231, 234. The petitioner (defendant) could have requested a report on this refusal to rule that there was no ratification. In any event, the record does not sustain its argument in this court that it "had no grounds on the evidence to anticipate a finding and ruling of law that `ratification by the conduct of the parties' gave validity to an unauthorized lease," or that "This concept occurred after trial, not in the course of the trial." It is obvious that the petitioner (defendant) anticipated the possibility of an adverse ruling on the issue of ratification. The exact basis for that anticipation is not important. Enough appears to demonstrate that the issue could not be revived as of right by a motion for new trial. We are likewise of opinion that there was no inconsistency between the rulings and the findings.

Order denying petition affirmed.