Home ROBERT E. WEAVER'S CASE.

351 Mass. 709

January 5, 1967

The employee appeals from a final decree in the Superior Court in accordance with a decision of the Industrial Accident Board. While employed as a carpenter he sustained injuries. He was a recipient of total disability under G. L. c. 152, Section 34, until the date of the report filed by the single member. At the hearing before the single member, two witnesses for the employee testified that he was totally disabled as a carpenter but that he could do light work. Medical reports of three impartial medical experts were generally in accord with this evidence. The single member ruled that he was able to do "many types of light work" and found the employee to have an earning capacity of $95 a week. The reviewing board adopted the decision of the single member with the exception of its finding that the employee had an earning capacity of $85 a week, and ordered payments under G. L. c. 152 in accordance with that finding. There was evidence to support the findings of fact and they must stand. Garrigan's Case, 341 Mass. 413 , 416, and cases cited. There is no inconsistency in the finding that the employee was incapable of performing his work as a carpenter and concurrently finding partial disability. Carmossino's Case, 268 Mass. 35 . McKeon's Case, 326 Mass. 202 .

Decree affirmed.

Home JAMES SACCO & another vs. VINCENT G. PENDLETON, JR., & another.

351 Mass. 709

January 5, 1967

Sacco and his wife seek (1) specific enforcement of an alleged binding agreement by Pendleton, for himself and another defendant, Costin, to purchase property including the shares of Ace Welding Service, Inc. and land and equipment, and (2) to have two mortgages declared invalid. The trial judge, upon documents and conflicting testimony, found, on the reported evidence, that Pendleton did not intend, by initialling parts of the document, "to authenticate . . . it as a purchase . . . agreement." He concluded (a) that the agreement "was an option . . . [which] the defendants never exercised"; (b) that there was no fraud by either defendant; and (c) that the mortgages were given by Sacco and his wife to secure $60,000 of loans. Loans, previously unsecured, in the aggregate amount of $35,000 (including an allowance for interest) had been made by Pendleton prior to the two mortgages. A final advance of $25,000 (found to be a loan) was made when the two mortgages were given. By final decree, the mortgages were adjudged valid. Otherwise the bill was dismissed with costs. The Saccos appeal. The confused and conflicting evidence justified the judge's findings and conclusions. Evidence that the title of the alleged agreement had been amended, prior to its execution, to describe it as an "option" did not stand alone. Cf. Morgan v. Forbes, 236 Mass. 480 , 483-484; Kelley v. Ryder, 276 Mass. 24 , 28; Oleson v. Bergwell, 204 Minn. 450, 454-456; Corbin, Contracts, Section 274. That only the Saccos were to be bound by this document was also indicated by the circumstance that only they (and not Pendleton or

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Costin) signed it at the end and by the judge's justifiable determination that the $25,000 was a loan (and thus not a deposit under a purchase agreement).

Decree affirmed with costs of appeal.