Reliance Drug Co. Inc. v. Colonial Pharmacy of Lexington, Inc.

42 Mass. App. Dec. 87

• Court: Massachusetts District Court, Appellate Division
• Decided: May 28, 1969
• Docket: No. 7028; No. 3801
• Status: Published

Opinion

Connolly, J.

In this action of contract for goods sold and delivered, there was conflicting testimony as to whether the goods were actually delivered to the defendant and therefore chargeable to him.

There was a finding for the plaintiff.

The defendant did not file any requests for rulings but contends that Barton v. Cambridge, 318 Mass. 420, 424, authorized its appeal to this Division. The defendant goes on to quote from that case “where the basis for the general finding or decision is not in dispute, an exception to, or a request for a report from, the general finding or decision, suffices to raise the question of law whether it was warranted.”

Neil A. Cooper for the Plaintiff Peter V. Maggio for the Defendant.

In the case at hand, the basis for the general finding, the delivery of the goods sued on, was very much in dispute and the Barton case would not apply.

In fact the Barton case is authority for the proposition that, “... the question whether a general finding or decision upon disputed facts was warranted by the evidence must be raised by an exception to the denial of a requested ruling that such a finding would not be warranted and cannot be raised merely by an exception to that general finding or decision taken after it was made.” Barton v. Cambridge, 318 Mass. 420, 423, 424.

In view of the above, it is not necessary to discuss the second issue raised by the defendant, whether the finding of the trial judge was supported by the evidence. We think that it was but see no point in reviewing the evidence in detail to illustrate that support.

There being no prejudicial error, the report is dismissed.