Rosenfield Advertising Co. v. Rabinovitz

5 Mass. App. Dec. 29

• Court: Massachusetts District Court, Appellate Division
• Decided: December 31, 1952
• Docket: No. 341583
• Status: Published

Opinion

Keniston, C.J.

This is a cross action tried with the case of Rabinovitz v. Rosenfield Advertising Company in which the plaintiff in this action seeks to recover upon an account annexed consisting of eight items and totalling $643.24. The answer is a general denial.

Although the report states that it “contains all the evidence material to the question reported,” it is apparent, on reading the evidence contained in the report that it largely, if not entirely, con-sists of the evidence favorable to the plaintiff and omits most, if not all, evidence favorable to the defendant. So far as any question of law is raised it is unnecessary to restate the evidence set forth in the report.

The court having found for the defendant the plaintiff claims to be aggrieved by the court’s rul-ings upon the plaintiff’s requests as follows:

1. That there is sufficient evidence, as a matter of law, to warrant a finding for the plaintiff.

Warrant but not require. I find on facts defendant does not owe for items enumer-ated in declaration.

2. That there is sufficient evidence, as a matter of law, to warrant a finding for the plaintiff on the declaration.

Warrant but not require. See 1.

3. That there is sufficient evidence to warrant a finding that the defendant failed, neglected and refused to return to the plaintiff certain articles which were the property of the plaintiff and the return of which was demanded by the plaintiff and refused by the defendant.

Warrant but not require. I find on facts defendant has returned all goods to which plaintiff was entitled.

4. That there is sufficient evidence to warrant a finding that the defendant overcharged the plain-tiff on a number of invoices submitted to the plain-tiff, agreed to make certain adjustments in those overcharged and failed to do so up to the time of the trial of this action.

Warrant but not require. I find on facts nothing is due plaintiff.

5. That upon all the evidence the court is war-ranted to make a finding that the defendant is in-debted to the plaintiff in accordance with the account annexed in the declaration.

Warrant but not require. See 4.

All these requests are based on the sufficiency of evidence to warrant findings for the plaintiff or against the defendant.

The rulings are all in effect granted, the court ruling “warrant but not require.” The plaintiff cannot complain of rulings granted at his own request.

Baker v. Davis, 299 Mass. 345

Korb v. Albany Carpet Cleaning Co., 301 Mass. 317, 318

Noble v. American Express Co., 234 Mass. 536, 539

Deyrmanjian v. Palais, 311 Mass. 553, 555

The granting of these requests was not incon-sistent with a finding for the defendant.

Liberatore v. Framingham, 315 Mass. 538, 541-542 and cases cited.

Godfrey v. Caswell, 321 Mass. 161

Wm. Aronoff, for the Plaintiffs. Joseph S. Finstein, for the Defendants.

The credibility of witnesses testifying orally and the weight of their evidence was entirely for the trial judge to determine.

Topjian v. Boston Casing Co. Inc., 288 Mass. 167, 168 and cases cited.

Dolham v. Peterson, 297 Mass. 479, 481

The plaintiff’s evidence even though uncontra-dicted need not have been believed by the court.

Lindenbaum v. N.Y., N.H. & H. R.R., 197 Mass. 314, 323

Learned v. Hamburger, 245 Mass. 461, 468

Engel v. Checker Taxi Co., 275 Mass. 471, 476

Ashapa v. Reed, 280 Mass. 514, 517

Perry v. Hanover, 314 Mass. 167, 170

The special findings of the trial judge that “de-fendant does not owe for items enumerated in dec-laration,” “defendant has returned all goods to which plaintiff was entitled” and “nothing is due plaintiff” disposed of the plaintiff’s case and would render any error in the rulings, if any existed, immaterial. The evidence did not require a finding for the plaintiff.

McDonough v. Metropolitan Life Insurance Co., 228 Mass. 450, 452 and cases cited.

Winchester v. Missin, 278 Mass. 427, 428

Hoffman v. Chelsea, 315 Mass. 54, 56

Owen v. Williams, 322 Mass. 356, 361.

Report dismissed.