Mitrushi v. Vespa

29 Mass. App. Dec. 33

Opinion

Eno, J.

This is an action of tort or contract by which the plaintiffs seek to recover a deposit of money paid on a purchase and sale agreement of real property. The answer is a general denial.

The trial justice made findings of facts in which he found that there was an attachment pending against the property; that the defendants were willing and able to post a bond to discharge the attachment; that the plaintiffs had changed their minds about purchasing the property; that the defendants .could have conveyed the property by a good and sufficient deed; and found for the defendants.

The trial justice also allowed all of the plaintiffs’ requests for rulings and their only claim by this report is that the_ finding for the defendant is inconsistent with the granting of their requests for rulings.

This question cannot be raised in this manner. The plaintiffs should have filed a motion for a new trial or a motion to correct the alleged inconsistency. Then, if the court denied either motion, the plaintiffs could have claimed a report on that ruling and preserved their right to have it reviewed. DiLorenzo v. Atlantic National Bank, 278 Mass. 321, 323-324; Godfrey v. Campbell, 321 Mass. ; Kelsey v. Hampton Court Hotel Co., 327 Mass. 150, 153; Viera v. Balsamo, 328 Mass. 37, 39.

Hartstone & Hartstone, Louis Kobrin, of Boston, for the Plaintiffs. Edward E. Cohen, Dwork & Goodman, of Boston, for the Defendants.

The report is to be dismissed.