Home GENNARO CAPALDI, trustee, vs. BURLWOOD REALTY CORPORATION.

350 Mass. 765

February 3, 1966

On January 31, 1961, the defendant entered into an agreement with the United States of America (government) whereby the government was given an assignable option to purchase a parcel of real estate in Burlington for $19,000. The option was thereafter assigned to the plaintiff under an arrangement whereby the plaintiff was to construct a building on the property for postal purposes and lease it to the government. The defendant was duly notified of the assignment. Before the option period had expired the defendant notified the plaintiff that it had discovered that it did not own all the land mentioned in the option and would be unable to convey. In this action of contract for breach of the option agreement a verdict of $1,500 was returned for the plaintiff. The bill of exceptions brings before us several exceptions of the plaintiff to various rulings on evidence. The plaintiff was permitted to introduce evidence as to the difference between the option price and the fair market value of the property. The rulings complained of arose out of attempts to introduce evidence of loss of profits and certain out of pocket expenses. Specifically, these were rulings excluding (1) the agreement between the plaintiff and the government to lease the property; (2) evidence that the plaintiff engaged an architect to make plans and the cost thereof; and (3) evidence tending to show the income to be derived from the lease after expenses. We lay to one side the defendant's contentions that the plaintiff did not properly save his rights to these rulings either because of a failure to except to them or because offers of proof were lacking, and deal with the rulings on their merits. There was no error. The measure of damages in a case of this sort is the difference between the value of the property at the time the purchaser was to have a conveyance of it, and the price which he was then to pay. Hallett v. Taylor, 177 Mass. 6 , 8-9. Olszewski v. Sardynski, 316 Mass. 715 , 717-718. Widebeck v. Sullivan, 327 Mass. 429 , 434. Williston, Contracts, Section 1399. The plaintiff had the benefit of this rule. He was not entitled to show loss of estimated profits or out of pocket expenses. Exceptional cases may arise where a departure from the usual rule is permitted (see, e.g., Neal v. Jefferson, 212 Mass. 517 , 523), but this is not one of them.

Exceptions overruled.

Home GIOVANNI PASQUALE DIROSA vs. IDA EDITH COCCHI DIROSA.

350 Mass. 765

February 3, 1966

This is an appeal by the wife from a decree entered in the Probate Court denying a petition to vacate a decree nisi for divorce granted to the husband on the grounds of cruel and abusive treatment. There was evidence that the husband was a frequent visitor at the home of another woman. However, there was no evidence of any display of affection between them. The fact that the parties had ample opportunity to commit adultery is not, of itself, grounds for divorce. Murphy v. Murphy, 244 Mass. 110 , 113. There must be some evidence of speech or conduct indicating an adulterous disposition. See White v. Ely, 234 Mass. 221 , 223. "[A] marital offence to be a bar to a libel for divorce must be sufficient of itself to constitute a ground of divorce." Krasnow v. Krasnow, 280 Mass. 252 , 255. Reddington v. Reddington, 317 Mass. 760 , 764. "[T]he court has discretionary power to reopen the

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case . . . `with the limitation that the discretion of the court ought not to be exercised unless it appears in some way that the defence is meritorious or substantial.'" Lye v. Lye, 322 Mass. 155 , 157. Our examination of the transcript does not reveal any error.

Decree affirmed.