North Shore Gas Co. v. Ricci

22 Mass. App. Dec. 99

• Court: Massachusetts District Court, Appellate Division
• Decided: September 12, 1961
• Docket: A. D. No. 5533; No. 4240
• Status: Published

Opinion

Eno, J.

In this action of contract the plaintiff seeks to recover for gas services rendered to the defendant.

In addition to a general denial and a plea of payment the defendant pleaded several other defenses and testified in regards to them and as to his agreement with the plaintiff, which was denied and contradicted by the plaintiff.

Martin Berkal of Salem, for the Plaintiff. No brief or argument. James Dennis Leary of Peabody, for the Defendant.

The report is before us on the denial of defendant’s request that

“Upon all the evidence a finding must be directed (sic) for the Defendant.”

There was no prejudicial error in its denial.

1. It fails to include specifications as required by Rule 27, of the Rules of District Courts (1952), and Okin v. Sullivan, 307 Mass. 227, 228; Sokoloski v. Splann, 311 Mass. 203, 205, 206.

2. The trial judge was not obliged to accept the defendant’s testimony as the true facts. He could disbelieve it as he apparently did in accepting the plaintiff’s evidence as shown by his finding in its favor. It could not be ruled as a matter of law that the plaintiff had failed to prove a prima facie case.

3. See opinion of Northrup, J., in the case of Muzi Motors, Inc. v. Caruso, No. 5500 of this Division, and reported in Legalite, Vol. XII, No. 25, August 11, 1961, p. 7, for citations which are applicable to this case.

The report is to be dismissed.