Home RITA L. REYNOLDS vs. CONGRESS TAXI COMPANY.

339 Mass. 778

October 30, 1959

Exceptions overruled. This is an action of tort for personal injuries sustained by the plaintiff when the taxi in which she was a passenger was backed into a parked truck at a speed of twenty-five to thirty miles an hour by the operator, the defendant's employee. The plaintiff, who was two months pregnant at the time, suffered injuries to her abdomen, back, neck and right knee. Within three days she suffered a spontaneous abortion. There was testimony in considerable detail as to her pain and ailments. At the close of the plaintiff's evidence, counsel for the defendant, in his opening, admitted liability. There was a jury verdict in favor of the plaintiff in the sum of $9,350. The defendant's motion for a new trial on the ground that the damages awarded were excessive was denied and an exception saved. This was the only exception saved by the defendant. There was no abuse of discretion by the trial judge in the denial of the defendant's motion. Kinnear v. General Mills, Inc. 308 Mass. 344 , 348-349. Bartley v. Phillips, 317 Mass. 35 . Giblin v. Lincoln Park Amusement Co. 318 Mass. 781 . Mitchell v. Silverstein, 323 Mass. 239 , 240-242. Statkus v. Metropolitan Transit Authy. 335 Mass. 172 .

Home H. E. FLETCHER CO. vs. JOSEPH A. ROSSETTI & others.

339 Mass. 778

October 30, 1959

Decree affirmed. The plaintiff furnished curbstones to the principal contractor, the defendant Rossetti, who was engaged in the repair and reconstruction of a public highway under a written contract with the city of Revere. The city took a bond furnished by the defendant casualty company to Rossetti in accordance with G. L. c. 149, Section 29, as amended, as security for the payment of labor performed for, and materials supplied or furnished to, Rossetti in the performance of his contract. A representative of the plaintiff seasonably went to the office of the city clerk of Revere for the purpose of filing there the plaintiff's claim, but he was directed to the office of the city treasurer where he filed the claim and received a receipt therefor. It is undisputed that no claim was ever filed in the city clerk's office. The plaintiff appealed from a final decree establishing the indebtedness of the contractor to it but dismissing the bill against the surety company and the city. There was no error. The filing of the claim with the city clerk was a condition precedent to the establishment of the plaintiff's claim. Tower v. Miller, 211 Mass. 113 , 114. Powers Regulator Co. v. Taylor, 225 Mass. 292 , 298. T. Shea, Inc. v. Springfield, 252 Mass. 571 .

Home DOMESTIC RAG COMPANY vs. NATHAN CUTLER.

339 Mass. 778

November 3, 1959

Order dismissing report affirmed. This is an action of contract by the payee against the maker of a promissory note. The payee had sold and delivered merchandise to a corporation in which the defendant was the principal stockholder and treasurer and which was indebted to the plaintiff when the buyer corporation

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ceased to do business in June, 1955. The defendant thereafter established his own business. When on April 20, 1956, he was met by a representative of the plaintiff who requested him to give him his personal note for the amount of indebtedness owed by the old corporation, promising if he did so to forbear any action against the corporation or the defendant, the defendant did so. A receiver of the corporation was appointed in October, 1956. The present action is on that note. The trial judge declined to find that there was no consideration for the defendant's note. He could find that the note was given on account of the pre‰xisting indebtedness of the old corporation and that the plaintiff, in obtaining the defendant's note and promising to forbear suit, was acting in good faith. Silver v. Graves, 210 Mass. 26 , 30. Codman v. Dumaine, 249 Mass. 451 , 457-458. Melotte v. Tucci, 319 Mass. 490 . It was a question of fact whether in the circumstances the defendant was benefited by the plaintiff's forbearance to sue. The judge's finding that the note was not lacking in consideration, like any other finding of fact, must stand.