Home ERIC BJORNLUND & others vs. ZONING BOARD OF APPEALS OF MARSHFIELD & another.

353 Mass. 757

December 1, 1967

The town's zoning board of appeals on November 2, 1966, filed with the town clerk its decision granting a permit. The plaintiffs brought this bill in equity to review the board's decision. G. L. c. 40A, Section 21 (as amended through St. 1960, c. 365). The bill was dismissed because of the plaintiffs' failure to comply with the requirement of Section 21 that notice of filing the bill "with a copy of the bill . . . be given to . . . [the] town clerk so as to be received within . . . twenty days" after the board's decision had been filed in the town clerk's office. The trial judge, on the basis of stipulations, found that notice of filing the bill had been sent to the town clerk by certified mail from Boston on the afternoon of November 21, and had been received in Marshfield on November 23, more than twenty days after November 2. It was stipulated, in effect, that normally a notice mailed in Boston on November 21 would have been received in the Marshfield Post Office on November 22. The case is governed by Lincoln v. Board of Appeals of Framingham, 346 Mass. 418 , 420. Nothing in that case, in Section 21, or in its 1960 amendment, permits us to interpret the section as requiring only that notice be mailed early enough "so as to be received" in normal course of the mails within the statutory period. Section 21 requires seasonable receipt of the notice by the town clerk and makes no allowance for slow and inefficient postal service, as it would if the section merely required that the notice be mailed and postmarked within the twenty day period.

Decree affirmed.

Home HAROLD RICHMAN vs. MARGUERITE J. SEABERG.

353 Mass. 757

December 1, 1967

Richman, an experienced plumbing contractor, agreed to purchase a house and lot in Milton from Mrs. Seaberg. Prior to executing the agreement, he inspected the premises including the cellar. Mrs. Seaberg, seventy-three years old, remained upstairs. A sump pump and pipes were hidden from view by cartons and boxes. A drain under the floor was covered by a removable linoleum panel and was not seen because of the boxes and clothing hanging on the wall. No conversation about "any water problem with the house" took place between Richman and Mrs. Seaberg. After Mrs. Seaberg had vacated the house, Richman observed the sump pump, drain, and cement floors. The sump pump was installed after a 1955 hurricane. The cellar linoleum has been dry since then. Richman does not contend that any concealment was intentional. He seeks a declaration that he may have rescission of the agreement and return of his deposit. A master's report was confirmed. By final decree specific performance was ordered. Richman appealed. The master's report affords no basis for concluding that there was any misrepresentation by Mrs. Seaberg, or any legally significant intentional concealment of, or failure to disclose, the condition of the cellar. See Swinton v. Whitinsville Sav. Bank, 311 Mass. 677 , 678-679; Spencer v. Gabriel, 328 Mass. 1 , 2.

Page 758

Cf. Williams v. Benson, 3 Mich. App. 9. Richman was not prevented from making any investigation. There was no inequitable conduct by the seller which should cause discretionary denial of specific performance. See Exchange Realty Co. v. Bines, 302 Mass. 93 , 100. See also Yerid v. Mason, 341 Mass. 527 , 529-531 (promissory representation did not warrant rescission). Cf. Yorke v. Taylor, 332 Mass. 368 , 371 (innocent misrepresentation). If evidence excluded by the master had been admitted, the result should not have been affected.

Decree affirmed with costs of appeal.