Home CHRISTOS PATSADES vs. JAMES A. ATSALES & another.

353 Mass. 772

February 6, 1968

The defendants appeal from an order of the Appellate Division of the Municipal Court of the City of Boston dismissing a report. The plaintiff made an agreement in writing with the defendant Atsales under the terms of which a commission was to be paid to him after a buyer whom he produced had completed his purchase of the defendant Riverside Cafeteria Corporation located in Boston, all the stock of which was owned by Atsales. Thereafter, pursuant to an agreement for sale between the corporation and the buyer, the corporation transferred all of its assets to the buyer. The defendants have argued that the agreement between Patsades and Atsales contemplated payment of a commission to the plaintiff only when the stock of the corporation was transferred to the buyer. A review of the agreement between Patsades and Atsales, as well as that between the corporation and the purchaser, sufficiently indicates that the Appellate Division did not err in holding that "[i]n the context of these agreements the sale was consummated in its entirety and the agreed consideration for the transfer of the assets to a corporation designated by the buyer was paid." Without further elaboration it is sufficient to say that the indifference of the purchaser as to whether or not he received the certificates of stock on the transfer is not determinative of the liability of the defendants which is clear.

Order dismissing the report affirmed.

Home TOIVO LEMINEN'S CASE.

353 Mass. 772

February 6, 1968

The insurer appeals from a decree awarding total incapacity and dependency compensation, plus certain counsel and medical fees, to the employee which in effect confirmed the decision of the reviewing board. The basis of the appeal lies in the insurer's assertion that the employee failed to give notice "as soon as practicable" after his injury. The reviewing board had affirmed and adopted the findings and decision of the single member. The single member found that on the morning of the alleged injury the employee felt unwell, so informed his foreman, and shortly thereafter departed for his home. The foreman learned "within two to three days following the injury" that the employee had sustained a heart attack which totally disabled him. The single member further found that the late filing for compensation on September 11, 1962, was due to the failure of the employee to realize "that he had a compensation claim," of which he was informed by a fellow union member months after he suffered the attack. The employee had been immediately treated for his condition and hospitalized. There was available to the insurer all medical information which

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it might have had had it been promptly notified. The single member found, and the reviewing board confirmed, that the insurer was not prejudiced by the delay in filing the claim. There was no error. The employee's mistake on his rights did not prejudice the insurer. G. L. c. 152, Sections 41, 42, 44 and 49. The foreman had early knowledge of the illness of the employee and knowledge several days later of his heart attack. His knowledge was that of his employer. Davidson's Case, 338 Mass. 228 . Sherman's Case, 352 Mass. 769 .

Decree affirmed.