Ripp v. Schlaikjer

393 N.E.2d 967, 8 Mass. App. Ct. 898, 1979 Mass. App. LEXIS 1058

Opinion

1. There was no error in the material findings by the judge or in the judgment entered thereon. The plaintiffs were not bound by the defendant’s testimony although they had called him as a witness (see Gordon v. Bedard, 265 Mass. 408, 411 [1929]), and the judge was free to believe some parts of that testimony and disbelieve others. See Leach & Liacos, Massachusetts Evidence 111 (4th ed. 1967). The judge made no finding, and he was not required to find, that the alleged insertions in the note were fraudulent, so as to bring the case within the application of G. L. c. 106, § 3-407(2) (a). Because, on the facts found, no defense to the note was established, it was immaterial whether the plaintiff Ripp was a holder in due course. The defendant’s counterclaim was correctly dismissed for the reason stated by the judge. 2. Our disposition of the plaintiff Ripp’s motion for costs, attorney’s fees, and sanctions is as follows: We determine, under G. L. c. 211A, § 15, that the appeal herein was frivolous; and, in accordance with that determination (compare Swiss Credit Bank v. First Mortgage Investors, 6 Mass. App. Ct. 874 [1978]), we order that the following entry be made:

Judgment affirmed with double costs and interest at twelve per cent per annum from date of appeal.