Home DAVID S. LIPINSKY vs. MIDDLESEX SUPPLY, INC.

352 Mass. 771

April 3, 1967

Lipinsky obtained a verdict in this action to recover upon debentures issued by a corporation which later changed its name to that borne by the defendant (Supply). The crucial issue was whether Lipinsky's debentures had been paid by an uncle who died before the trial. Lipinsky questioned a receipt which he had signed on grounds which need not be stated. There was testimony that most of the debentures had been retired in 1958 by an issue of Supply's notes. One such note in (or $700 in excess of) the amount of his debentures was prepared for Lipinsky. Lipinsky's uncle saw the note and told Supply's attorney that Lipinsky's debentures had been paid. He placed in pencil a large X across the note and the notation "Pd" and said, "I paid him a long time ago." Others testified to similar declarations of the uncle. The trial judge admitted the oral testimony concerning the uncle's declarations, but, subject to Supply's only exception now argued, excluded the crossed out note. The note should have been admitted, if the judge made the necessary statutory preliminary findings, as a deceased person's declaration. G. L. c. 233, Section 65 (as amended through St. 1943, c. 232, Section 1). See Old Colony Trust Co. v. Shaw, 348 Mass. 212 , 216-220. The confused, conflicting evidence summarized in the record shows the note to have been at most documentary corroboration of much oral testimony about the uncle's declarations. Its exclusion does not appear to have injuriously affected substantial rights. See G. L. c. 231, Section 132; Bendett v. Bendett, 315 Mass. 59 , 65-66; Commonwealth v. Greenberg, 339 Mass. 557 , 586. Cf. Walter v. Sperry, 86 Conn. 474, 477-478.

Exceptions overruled.

Home KAREN B. GULSHEN & another vs. HERBERT C. KING & another.

352 Mass. 771

April 3, 1967

In this action of tort tried to a jury the defendants alleged exceptions relating to rulings of the trial judge on questions of evidence and to his refusal to grant the defendants' motions for a mistrial, a directed verdict, and a new trial. We perceive no error in the rulings of the judge on evidential matters. Nor was there error in denying a motion for a mistrial based on an isolated question from the plaintiffs' counsel.

Page 772

Cf. Reid v. Hathaway Bakeries, Inc. 333 Mass. 485 , 487. There was sufficient evidence to take the case to the jury and there was no error in denying the defendants' motions for a directed verdict and for a new trial. See Pochi v. Brett, 319 Mass. 197 , 204-205, and cases cited. In short, the exceptions are without merit and the substantial verdict has not in itself warranted the tax upon the litigants, counsel and the court in the lengthy briefs and arguments which this case has produced.

Exceptions overruled.