Home KARL BACKLUND vs. GENERAL MOTORS CORPORATION.

352 Mass. 776

May 2, 1967

This petition for examination of an allegedly defective piece of machinery is stated to be under G. L. c. 153, Section 9, which permits one injured through some defect in his employer's machinery to obtain a Superior Court order for examination of the machinery. General Laws c. 152, Section 68 (as amended through St. 1949, c. 427, Section 8), provides that c. 153 "shall not apply to employees of an insured person or a self-insurer" under the Workmen's Compensation Law (c. 152). The defendant was so injured. No evidence is reported. There is no report of material facts. The entry of the decree imported a finding of every fact necessary to sustain it and within the scope of the pleadings. Birnbaum v. Pamoukis, 301 Mass. 559 , 561-562. See Zottu v. Electronic Heating Corp. 334 Mass. 442 , 446; St. Martin v. Spinner, 347 Mass. 774 . It may well be that the discovery sought could not be obtained or would be irrelevant in connection with compensation relief under c. 152. A bill for discovery, however, would be in aid of an existing or possible action at law permitted by G. L. c. 152, Section 15 (as amended through St. 1965, c. 487, Section 1A), against a third person such as the manufacturer of the allegedly defective machine. See Turner v. Guiliano, 350 Mass. 675 , 676-678. The scope and character of the petition must be judged by its essential substance and not by its title. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108 , 110. Tierney v. Tierney, 332 Mass. 414 , 416-417. The petition viewed as a bill for discovery, makes meager allegations. On this record we cannot say it is insufficient or that it was an abuse of discretion to grant relief. The investigation afforded by c. 152, Sections 2 and 8, is not the equivalent of discovery (with respect to a possible action against a third person). See MacPherson v. Boston Edison Co. 336 Mass. 94 , 100-101, 103-105.

Final decree affirmed.

Home RUSSELL H. MANN, JR. vs. ALVIN WOLFF & another.

352 Mass. 776

May 2, 1967

The Wolffs accepted Mann's written offer to purchase two parcels of land for $229,000 to be paid (1) by the assumption of existing first and second mortgages "totalling approximately $213,000"; (2) by "[d]eposit herewith" $1,000; (3) by "[c]ash on delivery of deed," $10,000; and by "[t]hird mortgage to be taken back by [s]eller for the balance of approximately" $5,000. The offer was "conditioned upon . . . the buyer and seller executing a mutually satisfactory purchase . . . agreement." The Wolffs proposed a definitive agreement which provided that the amount of the third mortgage note should be computed by deducting from the total price of $229,000 "the aggregate of the cash paid and the principal balances of the" existing first and second mortgages "so that the principal of . . . [the] third mortgage note shall be approximately" $5,000. "Any

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adjustments due [b]uyer at the passing are to be deducted from the principal sum of this third mortgage note and not from the cash due [s]eller at time of delivery of deed." Mann, who accepted the agreement except for this last sentence, brings this bill for specific performance of the initial agreement and of the definitive agreement apart from that last sentence. The trial judge rightly sustained the Wolffs' demurrer. By final decree the bill was dismissed. We interpret, as the judge apparently did (see Ingalls v. Green, 337 Mass. 444 , 447), the original agreement (a) as requiring the Wolffs' approval of the definitive agreement as "satisfactory" (see Connor v. Rockwood, 320 Mass. 360 , 362), and (b) as requiring payment in cash of the explicitly stated $11,000 cash (including the deposit) and the application of any adjustments due to the buyer to reduce the third mortgage expressed as only "approximately" $5,000. It is not alleged that the Wolffs had any knowledge of a real estate trade custom mentioned in the bill which would make it binding upon them. See Webb v. Johnston, 246 Mass. 229 , 233.

Final decree affirmed with costs of appeal.