Home PHILIP M. CRONIN vs. ROBERT J. BOTTOMLY & another.

358 Mass. 813

December 30, 1970

This is an appeal by the respondents from a decree of the Probate Court allowing the first account of the guardian. There is no report of material facts but all the evidence is reported. The appeal presents nothing worthy of discussion. However, we feel impelled to state that the appeal is an imposition on this court and is transparently frivolous. Double costs of appeal are to be paid by the respondents.

Decree affirmed.

Home PIPELINE CONSTRUCTION COMPANY INC. vs. SAMUEL H. JAFFEE & others.

358 Mass. 813

December 30, 1970

This is an appeal by the plaintiff from an order of the Superior Court sustaining generally the defendants' demurrer to the plaintiff's substitute declaration. The action is in tort or contract and the declaration contains four counts. We perceive no value in detailing the allegations in the various counts of the declaration or in stating the grounds set out in the demurrer. Only in count 2 are there essential averments which state a case with reasonable clarity and are sufficient to enable the defendants to plead to it intelligently and directly. We note that the plaintiff has appeared pro se throughout these proceedings and that the trial judge did not deny the plaintiff leave to amend. The judge may in "consideration of justice" grant leave to amend. Keljikian v. Star Brewing Co. 303 Mass. 53 , 62. That part of the order sustaining the demurrer as to count 2 is reversed, and that part of the order sustaining the demurrer as to counts 1, 3 and 4 is affirmed.

So ordered.

Home JOHN J. DONOVAN & another vs. MAC-GRAY CO., INC.

358 Mass. 813

December 30, 1970

Mr. Donovan and his wife obtained a verdict on a count in tort for alleged misrepresentations by Joseph O'Brien, a sales representative of the defendant (Mac-Gray). Mac-Gray argues exceptions to the trial judge's refusal to direct a verdict for it and to rulings on evidence. On confused, conflicting evidence, the jury could have concluded that the Donovans, in purchasing from Mac-Gray coin-operated dry cleaning equipment, reasonably relied upon O'Brien's statements, material to the Donovans' decision to purchase, concerning (a) the extent to which the equipment could be employed without an attendant, (b) the scope of a general written survey (if one existed) of the area in which the equipment was to be used and of O'Brien's examination of the books of a laundry run by one Tunha in which the Donovans planned to lease space for the dry-cleaning equipment, and (c) the volume of the laundry business there conducted by Tunha. The jury also could conclude that O'Brien's statements, made as of his own knowledge, were either false or concerned unverified subsidiary facts (underlying the misrepresentations alleged) which were susceptible of verification. See Yorke v. Taylor, 332 Mass. 368 , 371-374. The refusal to direct a verdict was proper. The bill of exceptions does not

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state that it contains all the material evidence (Ginsburg v. Gross, 334 Mass. 709 ) and does not sufficiently show error, or harm to Mac-Gray, in the judge's limitation of cross-examination of Mr. Donovan. Tunha, called as a witness by the Donovans, made contradictory statements in his own testimony. If there was error in permitting the Donovans, without asking appropriate preliminary questions of Tunha (G. L. c. 233, Section 23), to impeach Tunha's testimony on the same subject by that of another witness, the error was harmless. It did no more than what Tunha's own testimony already had done.

Exceptions overruled.