This is a bill in equity to reach and apply certain shares of stock in the Oxford Manor Nursing Home, Inc. and certain trust certificates in the Oxford Manor Realty Trust allegedly owned by the defendant Brodeur. The plaintiff claims that the defendants Broduer and T. J. Brodeur Associates, Inc., jointly and severally, owe him the sum of $25,500 under a "Security Agreement." The "Security Agreement" was later modified by a memorandum which shows that the plaintiff was to receive $16,000 of the amount he presently claims only if he succeeded in arranging a specific loan. The parties stipulated that a Mr. Joseph Talamo be appointed "Escrow Agent" to hold certain monies under the "Security Agreement" apparently to await the determination of the claim of the plaintiff. This stipulation was later amended because of the death of Mr. Talamo and a Mr. Harry Zarrow was appointed "Escrow Agent." The trial judge made "Findings, Rulings and Order for Decree" which he subsequently adopted as his "Report of Material Facts." He found that the amount due the plaintiff "from Brodeur is $8500." A final decree was entered to that effect and ordered Mr. Talamo to pay to the plaintiff "out of the moneys in his possession . . . [as Escrow Agent] the sum of . . . $8,500." The plaintiff appealed from the final decree. The evidence is reported. The plaintiff claims, in essence, that the judge erred in not entering a decree "in the amount of $25,500," because the "Security Agreement" was under seal. We do not agree. The plaintiff testified on cross-examination that he did not arrange the loan as called for in the memorandum. Thus it is clear that there was a failure of consideration. (The apparent discrepancy in the total claim of $25,500, rather than the total of $24,500, namely, $8,500 plus $16,000, is due to the fact that the parties state that the figure in the "Security Agreement" should have been $25,500 instead of $24,500. In any event, it does not affect our holding in this case.) The decree is to be modified by striking the name "Joseph Talamo" from the decree and inserting in place thereof the name Harry Zarrow, and as so modified the decree is affirmed with costs of appeal.

So ordered.

The trial was for the assessment of damages for the taking by the Boston Redevelopment Authority (Authority) of the petitioners' land and four apartment buildings. The jury returned a verdict for the petitioners in the sum of $57,000. Apparently, by stipulation, the only issue at the trial was the amount of damages to be awarded. The case is before us on the petitioners' exception to the denial of their motion for a new trial. The jury took a view of the property prior to hearing any testimony. At the trial one of the petitioners testified as to the income, certain repairs and "capital improvements" and stated that in his opinion the fair market value of the property at the time of the taking was $200,000. An "expert witness" for the petitioners testified that in his opinion the fair market value was $157,821. Another "expert witness" for the petitioners rendered an opinion as to the "fair and reasonable" rents of the various apartments. The Authority's "expert witness" testified that the fair market value of the property at the time of the taking was $70,000. The petitioners argue, in essence, that "[w]here a jury returns a verdict in a land damage case where the only issue is the amount of damage[s]" and the "verdict is substantially outside the range of the testimony as to value . . . [the] verdict should be set aside even . . . where the jury took a view." The petitioners

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in posing this question ignore testimony by one of the petitioners' experts and by the Authority's expert regarding income, expenses, vacancy allowance and capitalization of the four apartment buildings. The petitioners also disregard differences in testimony as to gross rental income. These differences, plus the differences in capitalization upon which the witnesses based their opinions presented to the jury questions of fact beyond the opinions of fair market value. In the circumstances of this case we cannot state that the trial judge abused his discretion in denying the motion.

Exceptions overruled.