Home CHARLES P. PIEPER, trustee, vs. TOWN OF FRAMINGHAM.

346 Mass. 777

December 6, 1963

Exceptions overruled. The respondent comes here on exceptions taken during the trial of a petition brought on May 13, 1959, for damages for land taken from the petitioner, Pieper, on May 27, 1958. On November 3, 1960, First Federal Savings and Loan Association of Boston (Federal), mortgagee of the land taken, having received notice under G. L. c. 79, Section 32, answered. Neither Pieper nor his attorney was present when the petition was reached for trial, and counsel for Federal proceeded to try the case after agreement by the court and the parties present that Federal's answer might be treated as a joinder of Federal as a petitioner. After the opening on behalf of Federal, the respondent moved to nonsuit Pieper and complains here upon the denial of the motion. The denial lay within the sound discretion of the judge. See Priest v. Wheeler, 101 Mass. 479 . General Laws c. 79, Section 36, is designed to expedite the disposition of a petition such as this when all parties interested are before the court, and it specifically provides that "any party thereto may prosecute the same." Federal had unquestionably qualified to go forward. That its answer was treated as a joinder upon the consent given in open court by the respondent in no way prejudiced the respondent. The respondent's request that the judge charge the jury that no provision of law requires that the vote of a town authorizing a taking be recorded was rightly refused in the face of his charge which was sufficiently comprehensive relative to the recording of the order of taking. In the state of the evidence there was no error in his refusal to grant the respondent's requests for instructions with regard to revenue and excise stamps affixed to a deed of land adjacent to that taken.

Home MUTUAL COAT CORP. vs. DORSYL REALTY, INC.

346 Mass. 777

January 2, 1964

Order sustaining demurrer affirmed. Judgment for the defendant. In this action by a tenant against its landlord for loss of furs by theft, the declaration, on demurrer, fails as to the first count, in tort, because the mere relationship of landlord and tenant imposes no duty on the landlord to secure entrance doors. Teall v. Harlow, 275 Mass. 448 , 452. The second count, in contract, fails because there is no allegation of an express contract, written or oral, whereby the landlord assumed the duty to secure entrance doors. Pollock v. New England Tel. & Tel. Co. 289 Mass. 255 , 258. G. L.

Page 778

c. 231, Section 7, Second. G. L. c. 231, Section 7, Eleventh. In oral argument, the plaintiff conceded that the third count, in tort, was demurrable. The remaining count, in contract, fails because there is no allegation, essential to the existence of a bailment, that possession of the furs was delivered to, and accepted by, the landlord. D. A. Schulte, Inc. v. North Terminal Garage Co. 291 Mass. 251 , 256-258. Williston, Contracts (2d ed.) Section 1032.