Home ALVIN JACK SIMS and others vs. JACK MASON & others.

361 Mass. 881

April 6, 1972

Two attorneys, lessees under a ten year lease of officers in Brockton, by this bill in equity seek to require their lessors to provide facilities and services allegedly required under the lease. A master's report, supplemented and as modified as to damages, was confirmed. The lessors appealed from the final decree, but not from the decree confirming the report. The master found that there had been various breaches by the lessors, which diminished the value of the leasehold to the lessees. The final decree ordered $7,431.25 to be paid by the lessors to the lessees as damages with interest from December 2, 1968. The lessors' breaches appear not to have been sufficient to amount to a constructive eviction and the lessees remained in possession. The master's subsidiary findings justified the conclusion that the lessors had not provided proper cleaning services, had not undertaken promised improvements, and had not furnished suitable heat and air conditioning. There is no indication that the damages allowed by the final decree were excessive. A court of equity may fail to grant specific relief and retain a case for the assessment of damages. Charles E. Burt, Inc. v. Seven Grand Corp. 340 Mass. 124 , 128-132 (which, in effect, treated Callahan v. Goldman, 216 Mass. 238 , 239, as not controlling in equity). See Winchester v. O'Brien, 266 Mass. 33 , 38; Am. Law of Property, Sections 3.50, pp. 278-279; 3.51, 3.52. See also A. W. Banister Co. v. P. J. W. Moodie Lumber Corp. 286 Mass. 424 , 426-429; Dyecraftsmen, Inc. v. Feinberg, 359 Mass. 485 , 488-490; Charlotte Theatres, Inc. v. Gateway Co. Inc. 191 F. Supp. 834, 844 (D. Mass.), reversed on other grounds, 297 F. 2d, 483, 484-485 (1st Cir.); Hall, Landlord and Tenant (Adams and Wadsworth's 4th ed.) Section 242; annotation, 91 A. L. R. 2d 638. Questions concerning the amount of damages and the admissibility of evidence, which the lessors raised before the master, are not sufficiently argued to require any decision by us. S. J. C. Rule, 1:13, 351 Mass. 738 .

Decree affirmed with costs of appeal.

Home YVONNE C. WING vs. WAILEY L. WING.

361 Mass. 881

April 6, 1972

The husband appealed from a decree granting, inter alia, a divorce to his wife on the ground of cruel and abusive treatment. Although the divorce has become absolute prior to the case being argued before us, we have nevertheless reviewed the entire transcript of evidence and discern no error.

Decree affirmed.

Home CARLOTTA E. MCISAAC vs. JORDAN B. PECK, executor.

361 Mass. 881

April 6, 1972

On a petition for an execution for unpaid separate support payments a probate judge concluded that the court was without jurisdiction and allowed a motion to dismiss, together with other ancillary motions, appeals from which actions are now before us. It appears from the judge's report of material facts that the execution was sought against assets in the hands of the executor of the estate of the petitioner's deceased husband. On August 11, 1949, the petitioner had obtained in the Probate Court for Suffolk County a separate support decree ordering her husband to pay her $25 a week. Thereafter,

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he discontinued payments under the order and left Massachusetts. He died on August 9, 1970, a resident of Dade County, Florida. Notice of this petition for an execution was served by certified mail upon the executor in Florida. The deceased husband had no Massachusetts assets but the petition alleges substantial Florida assets now in the hands of the Florida executor, and arrears in support payments in excess of $24,000. There was no error. The court lacked jurisdiction to enter a decree for the payment of money. Wiley v. Wiley, 328 Mass. 348 , 349. Katz v. Katz, 330 Mass. 635 , 639. See Pennoyer v. Neff, 95 U.S. 714; G. L. c. 227, Section 1; G. L. c. 246, Section 1. The action of the judge taken on the special appearance of the respondent contesting the jurisdiction of the court was correct. It follows that the several decrees of the Probate Court are to be affirmed.

So ordered.