Mealey v. Camuso

30 Mass. App. Dec. 79

• Court: Massachusetts District Court, Appellate Division
• Decided: December 18, 1964
• Docket: A.D. No. 5967; No. 1600
• Status: Published

Opinion

Eno, J.

This is an action of contract by which the plaintiff seeks to recover a commission for procurring a buyer for the real property of the defendants.

The report fails to follow the model prescribed by the Rules of District Courts (1952 p. 45) in that the reported evidence states what each witness testified, rather, than the substance thereof stated in narrative form. Rule 28, Rules of District Courts (1952); Cornell Andrews Co. v. B. & P. RR., 215 Mass. 381, 387; Gibbons v. Denoncourt, 297 Mass. 448, 450; Perry v. Hanover, 314 Mass. 167, 168.

Silverstein & O’Neil, A. Meyer, of Everett, for the Plaintiff.

There was evidence in the case which, if believed, would have warranted a finding for the plaintiff.

The plaintiff duly filed the following requests for rulings which the trial judge denied without giving any reasons for their denial or making any findings of facts.

The Supreme Judicial Court held in many cases that where a party has made a request that the evidence warranted a finding in his favor, and the evidence did warrant such a finding, the refusal of the requested ruling is error unless the judge, by clear and definite findings has demonstrated that it was inapplicable or immaterial because of his findings. John Hetherington & Sons Ltd. v. William Firth Co., 210 Mass. 8, 18, 19; Bresnick v. Heath, 292 Mass. 293, 298; Home Savings Bank v. Savransky, 307 Mass. 601, 603; Bern v. Boston Consolidated Gas Co., 310 Mass. 651; Belger v. Arnot, 344 Mass. 679, 680.

Since no findings of facts were made by the trial judge to show that these requests were inapplicable or immaterial, there was prejudicial error in this case.

The finding for the defendant is therefore reversed and the case is remanded for a new trial.

Thos. M. Sullivan, of Melrose, for the Defendants.