Mitrushi v. Vespa

Mass. Dist. Ct., App. Div.

Mitrushi v. Vespa

29 Mass. App. Dec. 33

CourtMassachusetts District Court, Appellate Division

DecidedJuly 17, 1964

DocketNo. 5776; No. 560,498

StatusPublished

This text of 29 Mass. App. Dec. 33 (Mitrushi v. Vespa) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitrushi v. Vespa, 29 Mass. App. Dec. 33 (Mass. Ct. App. 1964).

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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. [35]*35161, 162; 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.

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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. [35]*35161, 162; 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.

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29 Mass. App. Dec. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitrushi-v-vespa-massdistctapp-1964.

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