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+"{\"id\": \"1080025\", \"name\": \"Town of Rowley vs. Michael K. Kovalchuk\", \"name_abbreviation\": \"Town of Rowley v. Kovalchuk\", \"decision_date\": \"2001-05-10\", \"docket_number\": \"\", \"first_page\": \"1006\", \"last_page\": \"1006\", \"citations\": \"434 Mass. 1006\", \"volume\": \"434\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:29:37.769307+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Town of Rowley vs. Michael K. Kovalchuk.\", \"head_matter\": \"Town of Rowley vs. Michael K. Kovalchuk.\\nMay 10, 2001.\\nDonald K. Freyleue for the defendant.\\nDonna Gorshel Cohen for the plaintiff.\", \"word_count\": \"174\", \"char_count\": \"1063\", \"text\": \"We granted the defendant's application for further appellate review in this case that was decided in the Appeals Court by an unpublished memorandum and order pursuant to its rule 1:28. Rowley v. Kovalchuk, 49 Mass. App. Ct. 1113 (2000). The case involves the lawfulness, under applicable zoning laws and regulations, of the defendant's use of his land for the operation of a sawmill. The case is an appropriate one for summary judgment. The nature of the question in controversy \\u2014 the lawfulness of the use \\u2014 is intensely fact specific. Based on the undisputed material facts set forth by the Superior Court judge in her written memorandum of decision, we agree with the reasoning and conclusion of the Appeals Court that the defendant's operation of the sawmill is not lawful as incident to a permitted agricultural use. The permanent injunction barring the defendant from operating a sawmill at the site is affirmed.\\nSo ordered.\"}"
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+"{\"id\": \"117677\", \"name\": \"Commonwealth vs. Thomas C. Ford\", \"name_abbreviation\": \"Commonwealth v. Ford\", \"decision_date\": \"1997-04-11\", \"docket_number\": \"\", \"first_page\": \"709\", \"last_page\": \"713\", \"citations\": \"424 Mass. 709\", \"volume\": \"424\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:21:52.675162+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Thomas C. Ford.\", \"head_matter\": \"Commonwealth vs. Thomas C. Ford.\\nWorcester.\\nDecember 5, 1996.\\nApril 11, 1997.\\nPresent: Wilkins, C.J., Abrams, Lynch, O\\u2019Connor, & Greaney, JJ.\\nBrian Cann, Assistant District Attorney, for the Commonwealth.\\nEric S. Brandt, Committee for Public Counsel Services, for the defendant.\", \"word_count\": \"1656\", \"char_count\": \"10300\", \"text\": \"Lynch, J.\\nThe defendant was charged in four indictments with assault with intent to kill (G. L. c. 265, \\u00a7 29), two acts of assault and battery by means of a dangerous weapon to wit: an automobile (G. L. c. 265, \\u00a7 15A), and possession of heroin (G. L. c. 94C, \\u00a7 34). A jury convicted the defendant on all indictments except the indictment charging assault with intent to kill. On that charge, the juiy convicted the defendant of simple assault, and the conviction was placed on file. See note 2, infra. In an unpublished memorandum and order under its Rule 1:28, the Appeals Court reversed the convictions, see 40 Mass. App. Ct. 1130 (1996), concluding that the judge erred in failing to require the Commonwealth to explain its peremptory challenge of the sole black member of the venire and, thereafter, in failing to undertake a meaningful evaluation of the reasons voluntarily proffered by the prosecutor to determine the sufficiency of the justifications advanced. We granted the Commonwealth's application for further appellate review. We also conclude that there must be a new trial, but without reaching the constitutional issues relied on by the Appeals Court.\\nFacts. The jury could have found the following facts. In December of 1992, police officers investigating drug activity in the Worcester area had the defendant under surveillance. In the course of this investigation the police attempted to stop the defendant's automobile on Interstate 495. After pulling over at the officers' signals, the defendant then accelerated his automobile, veered out to the left around one of the police vehicles, and drove toward the highway. The defendant's automobile struck one of the police officers and carried him into the middle lane of the highway; he was struck by another vehicle. A second officer testified that he also was struck by the defendant's vehicle. The defendant was then pursued, stopped, and arrested.\\nThe judge instructed the jury that, in order to find the defendant guilty of assault and battery by means of a dangerous weapon, the Commonwealth must prove that \\\"the defendant touched [the police officers], however slightly, without having any right or excuse for doing so. Secondly, that the touching was intentional in the sense that it was not accidental. Third, that the touching was done with a dangerous weapon.\\\" The judge then stated \\\"[i]t is not necessary that the defendant specifically intended to touch either [of the police officers]. It is only necessary \\u2014 and the Commonwealth must prove this to you beyond a reasonable doubt \\u2014 that he intentionally did the act which resulted in the touching as opposed to having done it accidentally\\\" (emphasis supplied). The emphasized portion of the instruction was essentially repeated in answering a question posed by the jury during deliberations. The defendant argues on appeal that the instructions on the \\\"mens rea\\\" element with respect to the assault and battery offenses failed to state the applicable law correctly. Defense counsel did not object to the charge on either occasion, however, and therefore we review under a substantial risk of a miscarriage of justice standard. See Commonwealth v. Claudio, 405 Mass. 481, 486 (1989); Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).\\nThis case presents us with substantially the same issue that was before the Appeals Court in Commonwealth v. Moore, 36 Mass. App. Ct. 455 (1994). In Moore, the Appeals Court noted that assault and battery may be proved using either of two theories. Id. at 459. See Commonwealth.v. Burno, 396 Mass. 622, 625 (1986); Commonwealth v. McCan, 277 Mass. 199, 203 (1931). Under the first theory, an assault and battery is \\\"the intentional and unjustified use of force upon the person of another, however slight.\\\" Commonwealth v. Burno, supra, quoting Commonwealth v. McCan, supra. Assault and battery may also be proved by the \\\"intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another.\\\" Commonwealth v. Burno, supra.\\nAs the Appeals Court correctly concluded in Commonwealth v. Moore, supra at 458-459, however, where, as here, the judge chooses not to instruct the jury under the wanton and reckless theory of assault, it is incorrect to instruct the jury that the defendant may be convicted on a finding that the defendant intentionally did the act which resulted in the touching. In order to convict the defendant under the intentional theory, the Commonwealth had to prove beyond a reasonable doubt that the defendant intended to commit an assault by means of a dangerous weapon, and having intended to commit the assault did touch the victim with the dangerous weapon. Commonwealth v. Appleby, 380 Mass. 296, 306-307 (1980). See Commonwealth v. Cataldo, 423 Mass. 318, 318-319 n.1 (1996); Commonwealth v. Moore, supra at 459 (intentional theory of assault and battery by means of dangerous weapon requires finding that touching or use of force was intentional). Because assault and battery by means of a dangerous weapon is a general intent crime, there is no requirement that the Commonwealth must prove the defendant had a specific intent to injure the victim. See Commonwealth v. Waite, 422 Mass. 792, 795 n.2 (1996); Commonwealth v. Appleby, supra at 307. To find the requisite intent, however, the jury must find beyond a reasonable doubt that the touching did not happen accidentally. See id. at 306; Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 585 (1991). It is not enough for the jury to find that the defendant intentionally did the act which resulted in the touching. Commonwealth v. Appleby, supra at 306 (assault and battery by means of dangerous weapon requires \\\"intentional, unjustified touching, however slight, by means of [a] dangerous weapon\\\").\\nMoreover, contrary to the Commonwealth's contention, the challenged portion of the instruction did more than instruct the jury that assault and battery by means of a dangerous weapon is a general intent crime. Rather, the instruction impermissibly lowered the Commonwealth's burden of proof regarding the mens rea element of the crime by instructing the juiy that all that was necessary for a guilty verdict was a finding that the defendant did an intentional act, the result of which was a touching of the victim. See Commonwealth v. Moore, supra at 457, 459.\\nSince the erroneous instruction was not objected to, we must consider whether it created a substantial risk of a miscarriage of justice. A portion of the charge correctly stated that the \\\"touching must be intentional in the sense that it was not accidental.\\\" The incorrect portion of the instruction, however, coupled with the correct portion of the instruction, rendered the charge as a whole confusing, for the charge confronted the jury with conflicting standards of intent. There is no way to know which of the two irreconcilable instructions the jurors applied in reaching their verdict. See Commonwealth v. Repoza, 400 Mass. 516, 519, cert. denied, 484 U.S. 935 (1987); Commonwealth v. Wood, 380 Mass. 545, 548 (1980); Commonwealth v. Goulet, 374 Mass. 404, 416 (1978). Therefore, because such confusion may have resulted in the jury convicting the defendant only on a showing that the defendant was intentionally driving the car and we are \\\"especially sensitive to this risk . . . where the instructions incorrectly defined the crimes,\\\" we conclude, as did the Appeals Court in Commonwealth v. Moore, supra at 459-460, where the same error was made, that a new trial is required. Commonwealth v. Goulet, supra. Because of this conclusion we need not consider whether the jury selection process violated art. 12 of the Declaration of Rights and the equal protection clause of the Fourteenth Amendment to the United States Constitution.\\nThe convictions of assault and battery by means of a dangerous weapon are reversed and remanded for a new trial.\\nSo ordered.\\nWhile the Appeals Court in Commonwealth v. Moore, 36 Mass. App. Ct. 455, 459-460 (1994), also concluded that the definition of general intent given by the judge should be avoided on retrial, the Appeals Court did base its decision to require a new trial on the erroneous instructions regarding assault and battery by means of a dangerous weapon. The Commonwealth's argument to the contrary is incorrect.\\nAlleged errors in the assault and battery by means of a dangerous weapon instruction would be dispositive because, although the defendant was also convicted of possession of heroin, he does not contest that conviction on appeal. Moreover, while the defendant was convicted of assault, that conviction was placed on file. A conviction placed on file \\\"suspend[s] for as long as the case remains on file, a defendant's right to appeal alleged error in the proceeding.\\\" Commonwealth v. Paniaqua, 413 Mass. 796, 797 n.1 (1992), quoting Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Here, while the record does not reflect the defendant's affirmative assent to placing the conviction on file, when given the opportunity by the judge to object, the defendant did not do so. Thus we decline to reach potential constitutional issues solely for a conviction that was properly placed on file. Cf. Commonwealth v. Nowells, 390 Mass. 621, 629-630 (1983) (where conviction on filed indictment was subject to same weakness as convictions on which defendant was sentenced, court ordered that defendant be granted appropriate relief with regard to filed indictment even though it was assumed that defendant, who did not affirmatively assent to placing conviction on file, did consent to placing indictments on file); Commonwealth v. Delgado, supra (where defendant's consent to placing convictions on file was neither sought nor obtained, defendant entitled to consideration of merits of his claims of error regarding filed convictions). We note also that the defendant seems to concede that errors in the assault and battery by means of a dangerous weapon instruction would be dispositive.\"}"
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diff --git a/mass/11923473.json b/mass/11923473.json
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+"{\"id\": \"11923473\", \"name\": \"John J. Nally v. James A. Brett et al\", \"name_abbreviation\": \"Nally v. Brett\", \"decision_date\": \"1994-05-16\", \"docket_number\": \"No. 91-2677-E\", \"first_page\": \"161\", \"last_page\": \"161\", \"citations\": \"2 Mass. L. Rptr. 161\", \"volume\": \"2\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:56:34.740734+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John J. Nally v. James A. Brett et al\", \"head_matter\": \"John J. Nally v. James A. Brett et al\\nSuperior Court, Middlesex, SS\\nNo. 91-2677-E\\nMemorandum Dated May 16, 1994\", \"word_count\": \"223\", \"char_count\": \"1343\", \"text\": \"Whitehead, J.\\nThe motion of the defendant Francis Glynn for summary judgment is allowed. The record is wholly insufficient to warrant a fact-finder in concluding that a partnership-in-fact existed between Mr. Brett and the defendant Glynn. With respect to the claim of a partnership by estoppel, the record would warrant a fact-finder in concluding that the defendant Glynn knew that his name was on the entrance to Mr. Brett's law offices and on the letterhead of \\\"Reed, O'Reilly and Brett,\\\" and even that he consented to such placement of his name. However, that is as much as the plaintiff can establish. Those circumstances are not sufficient to establish that the defendant Glynn held himself out as a partner of Mr. Brett. Accordingly, the first of the four elements of a partnership-by-es-toppel cannot be met. The defendant Glynn cannot be held liable for Mr. Brett's actions under principles of partnership law. See Brown v. Gerstein, 17 Mass.App.Ct. 558 (1984); Janjigian v. Ferraro and Walsh, 1 Mass. L. Rptr. No. 4, 86 (October 4, 1993).\\nSimilarly, because the plaintiff cannot establish that the defendant Glynn held himself out as a partner of Mr. Brett, Mr. Glynn has no liability to the plaintiff under G.L.c. 93A.\"}"
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+"{\"id\": \"11923517\", \"name\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc. and others\", \"name_abbreviation\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc.\", \"decision_date\": \"1994-03-23\", \"docket_number\": \"No. 85-5521\", \"first_page\": \"165\", \"last_page\": \"166\", \"citations\": \"2 Mass. L. Rptr. 165\", \"volume\": \"2\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:56:34.740734+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc. and others\", \"head_matter\": \"City of Cambridge v. Northeast Boiler, Insulation & Decking, Inc. and others\\nSuperior Court, Middlesex, SS\\nNo. 85-5521\\nMemorandum Dated March 23, 1994\\nBriggs Associates, Inc.; Reliance Insurance Company; and American Employers\\u2019 Insurance Company.\", \"word_count\": \"1470\", \"char_count\": \"9186\", \"text\": \"VOLTERRA, J.\\nBACKGROUND\\nThe City of Cambridge (City) is a municipal corporation who in 1982 retained the defendant Briggs Associates, Inc. (Briggs) to prepare a study to determine the extent of asbestos contamination in its public schools, prepare bid documents and specifications for a contract to remove asbestos from the schools, and to supervise and inspect the schools after the completion of the contract to insure compliance. The defendant Northeast Boiler, Insulation & Decking, Inc. (Northeast) was a corporation which engaged in the removal and disposal of asbestos insulation materials. Northeast is no longer in business. It has been substituted in this litigation by its bonding company, Reliance Insurance Company. Briggs is likewise not in business. It is substituted in this litigation by its bonding company, American Employers' Insurance Company.\\nCity claims that both Briggs and Northeast were negligent and in breach of their contractual obligations in City's project to remove asbestos from its public schools. City alleges that the defendants' breaches and negligence caused the City additional and unnecessary expense for the removal of other later discovered asbestos contamination in its schools.\\nAfter trial, I conclude that Briggs breached its contractual obligations with City, and that the American Employers' Insurance Company is liable on its bond. I also conclude that Northeast was not in breach of its obligations pursuant to the contract and that the defendant Reliance Insurance Company is not liable on its bond.\\nFINDINGS\\nThe City retained Briggs to inspect schools in Cambridge and provide a written report of its findings relative to the presence of asbestos. On November 19, 1982, Briggs provided City with a written report on asbestos in the schools. The report respecting the Fitzgerald School is silent as to any testing in the crawl space area of the school.\\nCity by a contract dated April 19, 1983 retained Briggs to provide contract management services for the sum of $13,115.00 for asbestos removal from various schools, including the Fitzgerald School. An assistant superintendent of schools directed Briggs to establish 0.01 fibers/cm3 as the standard to be adhered to by the asbestos removal contractor. This required that after final clean up the ambient air in any area of the schools would be a concentration of less than 0.01 fibers per cubic centimeter of air.\\nBriggs prepared the specifications for the work of removing asbestos from the schools of the city. The specifications were the basis for the bid documents used by City to solicit bids for the work.\\nThe work required to be performed at the Fitzgerald School was described in pertinent part as follows:\\nFitzgerald School\\n1.2 REMOVAL AND DISPOSAL\\n1.2.2 Description of Work:... The asbestos work includes the demolition and removal of all asbestos insulation in boiler room (excluding boiler) and pipe insulation throughout the building, including basement/crawl space . . . [Emphasis supplied.]\\nThe Fitzgerald School was constructed in the 1940s. The crawl space is located beneath the first floor of the school. It has approximately 20,000 square feet of area. The floor is composed of loose sand material. An adult can walk upright in the crawl space. Under the school's first floor and within the crawl space are various plumbing and heating lines of the building's mechanical systems. The pipes were insulated with asbestos materials.\\nCity made various repairs and alterations to the mechanical systems contained within the crawl space. Insulation was discarded and replaced as a result of this maintenance.\\nAsbestos was not generally recognized as a hazardous material until the 1970s. Prior to the 1970s, no precautions were engaged in by applicators and maintenance personnel. Scraps of asbestos would be discarded in areas such as crawl spaces, attics and the like. The material was sometimes buried and covered over by earth or sand in cellars and crawl spaces. Only large pieces would be removed. Small scrap was often buried or raked over.\\nBriggs negligently failed to identify the buried and covered-over asbestos in the crawl space on the crawl space floor of the Fitzgerald School.\\nThe specifications drawn by Briggs and adopted by City limited the areas of the work to \\\"insulation in boiler room (excluding boiler)\\\" and \\\"pipe insulation throughout the building.\\\" No requirement was made for asbestos removal from the crawl space sand floor. This was the case although it could have been inferred that after 30 years of maintenance to the mechanical systems of the school asbestos would have been discarded into the sandy surface of the earthen floor.\\nAfter Northeast completed the work at the Fitzgerald School, testing of the ambient air of the crawl space revealed that it fell within the less than 0.01 of fiber per cubic centimeter of air. I find that Northeast took appropriate care to protect the crawl space area from contamination with asbestos material by the placement of plastic drop cloths under the areas in which they worked or through the use of other techniques which avoided material falling to the ground.\\nNortheast certified to Cily on September 15,1983 that it had completed its contractual obligations. Thereafter, City's employees began to reinsulate the plumbing and heating pipes in the Fitzgerald School crawl space. City's employees by necessity disturbed the soil floor of the crawl space. I find that this activity caused the material which had been buried in the soil to surface. At City's request, Briggs reinspected the crawl space area to determine if asbestos was still present.\\nOn December 6, 1983, Briggs reported to City that crumbs of asbestos was present in piles of debris. The letter from Briggs to City stated:\\nFitzgerald School: A survey of the sand-floored crawl space revealed piles of debris which contains crumbs of asbestos insulation as well as other scraps of wood and refuse. Small crumbs of asbestos were also found scattered across the sand floor in the area of the pipes.\\nBriggs informed City that it was suspending its September 9, 1983, certificate of final inspection.\\nNortheast, at City's demand, returned to the crawl space area to inspect and rectify the problem. Northeast agreed to rake the surface to remove any visible crumbs of asbestos and the small piles of debris that had been raked into piles.\\nNortheast refused to excavate the floor or take any other remedial activity.\\nOn March 1, 1984, Briggs advised City that Northeast's recleaning of the crawl space area at the Fitzgerald School had been \\\"most generous . . . since the original clean air samples showed no signs of contamination nor have any re-evaluations revealed elevated fiber counts.\\\"\\nCity, in 1985, filed this action to recover damages for the alleged failures of Briggs and Northeast. However, it was not until 1990 when City entered into a contract with another asbestos removal contractor to remove the soil in the crawl space to a depth of six inches and then encapsulate the crawl space area with concrete. This work was to cost in excess of $74,000. This contractor discovered the existence of asbestos material extended up to nine inches below the surface.\\nRULINGS\\nI rule that Northeast fully performed its contractual obligations as specified by the contract. I rule that there was no breach of contract by Northeast. Accordingly, the defendant Reliance Insurance Company has no obligation to City under its performance bond.\\nI rule that Briggs was negligent in the duty of care it owed City, and that the failure of Briggs to properly inspect the crawl space soil at the Fitzgerald School to determine the presence of asbestos material proximately caused the damages which were sustained by City. The failure of Briggs extends to the lack of appropriate specifications for the removal of the material from the crawl space. City had a right to rely on the engineering skills and expertise of Briggs to detect the presence of asbestos material. The lack of due care on the part of Briggs in drawing appropriate specifications led directly to the failure of the City to draft bid documents which would have required the excavation and encapsulation of soil in the crawl space of the Fitzgerald School.\\nThus, I rule that the American Employers' Insurance Company is liable on its bond for the full face amount of its bond in the sum of $3,200.00.\\nAccordingly, the plaintiffs complaint against Reliance Insurance Company is dismissed, and judgment is to enter for the plaintiff against the American Employers' Insurance Company in the sum of $3,200.00 plus interest from September 16, 1985.\\nORDER FOR JUDGMENT\\nFor the foregoing considerations, the plaintiffs complaint against Reliance Insurance Company is ordered DISMISSED without costs, and judgment is to enter for the plaintiff City of Cambridge in the sum of $3,200.00 plus interest from September 16, 1985, and costs.\"}"
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diff --git a/mass/12535350.json b/mass/12535350.json
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+"{\"id\": \"12535350\", \"name\": \"NATIONAL LUMBER COMPANY v. Matthew L. FINK.\", \"name_abbreviation\": \"Nat'l Lumber Co. v. Fink\", \"decision_date\": \"2018-03-22\", \"docket_number\": \"17\\u2013P\\u2013386\", \"first_page\": \"768\", \"last_page\": \"768\", \"citations\": \"103 N.E.3d 768\", \"volume\": \"103\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-27T21:02:24.483485+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"NATIONAL LUMBER COMPANY\\nv.\\nMatthew L. FINK.\", \"head_matter\": \"NATIONAL LUMBER COMPANY\\nv.\\nMatthew L. FINK.\\n17-P-386\\nAppeals Court of Massachusetts.\\nEntered: March 22, 2018\\nMEMORANDUM AND ORDER PURSUANT TO RULE 1:28\", \"word_count\": \"1837\", \"char_count\": \"11303\", \"text\": \"This is an appeal from the summary judgment dismissing National Lumber Company's (National Lumber's) claims against the defendant, Matthew L. Fink. Viewed in the light most favorable to National Lumber, against which summary judgment entered, the summary judgment record reveals the following:\\nIn August of 2007, MFN LLC (MFN), owned in part by Nicholas Sivieri, signed a credit agreement with National Lumber to purchase lumber and building materials. In August of 2008, Fink, who was not a member of MFN or otherwise affiliated with it, signed an agreement guaranteeing MFN's debts to National Lumber. In July of 2009, MFN executed a material supply purchase agreement with National Lumber to purchase building materials to be used to construct a residential dwelling known as the \\\"Hajjar project.\\\" From July, 2009, until April 26, 2010, MFN purchased said materials from National Lumber for the Hajjar project and submitted multiple \\\"change orders,\\\" which added to and subtracted from the list of building materials outlined in the material supply purchase agreement.\\nOn April 26, 2010, MFN, through Sivieri, filed a certificate of cancellation with the Secretary of State. That same day, Sivieri filed a certificate of organization for a new company, NAS Development LLC (NAS). According to Sivieri's deposition testimony, MFN was dissolved and NAS formed because the other members of MFN had moved to Brazil.\\nAfter MFN was dissolved, Sivieri continued to work uninterrupted on the Hajjar project, ordering building materials and submitting additional change orders. The balance with National Lumber as of September 30, 2010 was (at least as Fink views it) paid in full by October 7, 2010. Sivieri signed three subsequent change orders, change orders 16, 17, and 18, in October, 2010. The last two deliveries pursuant to these change orders occurred in October and November of 2010. MFN did not pay for these materials, and this nonpayment is the subject of this litigation.\\nThe parties dispute what, if anything, Sivieri told any National Lumber employee, before National Lumber had made its final deliveries, with respect to NAS and MFN. According to National Lumber's chief executive officer, Steven Kaitz, though, whose claims we must credit at the summary judgment stage, National Lumber did not know of MFN's dissolution until after this litigation commenced. After MFN's dissolution, Sivieri did begin to communicate with National Lumber employees using his NAS electronic mail (e-mail) account, and there is some evidence that invoices for the relevant materials were sent to him at the NAS address. However, he also sent e-mails from this account to his and his assistant's MFN e-mail addresses, and he and his assistant replied to e-mails that were sent to their MFN addresses. Furthermore, change orders 16, 17, and 18-all signed in October of 2010-by their terms state that Sivieri was signing on behalf of MFN.\\nAnalysis. Viewing the evidence in the summary judgment record and the reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party, here National Lumber, summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009). Our review of the record is de novo. Ibid.\\nThe motion judge granted Fink's motion for summary judgment on two independent grounds. First, she held that, \\\"once MFN was dissolved and National Lumber began to do business with NAS, of which there is ample evidence, Fink was no longer the guarantor of MFN's debts.\\\" We read this to mean that, as a matter either of law or of undisputed fact, once MFN was dissolved, National Lumber stopped doing business with MFN and started doing business with NAS, and therefore, since Fink was not a guarantor for NAS, Fink could not be liable for any of the postdissolution debts. But, as our discussion of the evidence makes clear, there is also ample evidence from which a jury could infer that National Lumber was doing business with MFN postdissolution. This fact is material, and genuinely disputed, and the judge should not have granted summary judgment on this ground. Whether the change orders were really submitted on behalf of NAS, the course of conduct between the parties, the knowledge of National Lumber, the nature of \\\"change orders\\\" like those at issue here, and other circumstances surrounding the transactions will have to be explored at trial.\\nThe judge's second ground for granting summary judgment to Fink draws from the law governing what LLCs are permitted to do postdissolution. Even after dissolution, an LLC may continue to do business in a limited form:\\n\\\"Upon dissolution and notwithstanding the filing of a certificate of cancellation pursuant to section 14, a limited liability company may continue its existence but shall not carry on any business except as necessary to wind up its affairs or distribute its assets which may include, but shall not be limited to, prosecuting and defending suits, whether civil, criminal or administrative, gradually settling and closing the limited liability company's business, disposing of and conveying the limited liability company's property, discharging or making reasonable provision for the limited liability company's liabilities and distributing to members any remaining assets of the limited liability company, without affecting the liability of members and managers and without imposing liability on a liquidating trustee.\\\" G. L. c. 156C, \\u00a7 45(b ), as appearing in St. 2014, c. 371, \\u00a7 1.\\nPostdissolution acts that are not \\\"winding up\\\" activity are ultra vires. See Salvato v. DiSilva Transp. Co., 329 Mass. 305, 308 (1952).\\nApplying these principles, the motion judge reasoned as follows: \\\"Even if National Lumber could prove that the change orders were part of the original contract,\\\" she wrote-meaning that the change orders were part of a contract between National Lumber and MFN so that National Lumber was in fact doing business with MFN, not NAS-\\\"the continuation of such business as the LLC was organized for after its dissolution is not considered part of winding up.\\\" That is, she concluded as a matter of law that this was not \\\"winding up\\\" activity, and that, if Sivieri had entered these change orders on behalf of MFN, he was acting ultra vires and, as a matter of law, while Fink would have been liable for proper winding up activity, he could not be liable for Sivieri's ultra vires actions.\\nTo begin with, the factual record is insufficiently developed to support the motion judge's conclusion that this was not winding up activity within the meaning of the statute. National Lumber argues that the change orders were anticipated modifications of an underlying agreement obligating MFN to complete further purchases from National Lumber. If the change orders were anticipated modifications of the original agreement, this may be relevant to whether submitting them was winding up activity, as it might mean that the activity is properly characterized as \\\"gradually settling and closing the limited liability company's business . [or] discharging or making reasonable provision for the limited liability company's liabilities .\\\" G. L. c. 156C, \\u00a7 45(b ). There is, however, insufficient evidence in the record to allow us to determine what the nature of these change orders is, what the status of the Hajjar project was, and thus whether under the applicable standard submitting the change orders amounts to winding up activity; there are thus genuine issues of fact about the matter that must be resolved. Thus, the motion judge erred in granting summary judgment on this ground as well.\\nBeyond this, the motion judge concluded that if MFN's acts were ultra vires, Fink would be able to raise this as a defense. National Lumber challenges this assumption. It argues first that the terms of the guaranty agreement preclude Fink from raising a defense not available to MFN, and that MFN would have no ultra vires defense because it benefited from the change orders. See Nowell v. Equitable Trust Co., 249 Mass. 585, 602 (1924) (corporation cannot avail itself of ultra vires defense when other party has performed its contractual obligations in good faith and corporation received benefit of performance). In a footnote, the judge rejected the proposition that MFN would have no ultra vires defense because it benefited from the change orders:\\n\\\"National Lumber argues that MFN cannot accept the benefits of the change order contracts, the 'additional materials,' and then set up a valid ultra vires defense to escape liability thereon. See Commissioner of Banks v. Tremont Trust Co., 259 Mass. 162, 180 (1926). After the dissolution of MFN, however, National Lumber was doing business with Sivieri; MFN did not accept the benefits of the change order contracts.\\\"\\nThis analysis is erroneous because, for the reasons given above, it relies upon a disputed material fact: that National Lumber was not doing business with MFN upon dissolution. If the change orders were made on behalf of MFN, MFN likely got the benefit of National Lumber's performance. If this is the case, and if National Lumber's interpretation of the guaranty agreement is correct, then Fink would have no ultra vires defense. Since a trial on the disputed material fact is warranted in any event, we leave it up to the trial judge to consider the contract-based argument in the first instance.\\nNational Lumber also argues that, as a matter of the law of suretyship, Fink could not raise ultra vires as a defense even if it could be raised by MFN. See Winn v. Sanford, 145 Mass. 302, 303-304 (1887) (surety cannot raise defenses \\\"personal\\\" to principal obligor, such as incapacity, even if principal obligor could raise such defense); Matter of L & S Indus., Inc., 989 F.2d 929, 934 (7th Cir. 1993) (ultra vires is personal defense that cannot be raised by surety); Restatement (Third) of Suretyship and Guaranty, \\u00a7 34(1)(b) (1996) (surety cannot raise incapacity as defense even if available to principal obligor). Again, we leave it for the trial judge to consider this argument in the first instance.\\nThe summary judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.\\nSo ordered.\\nReversed and remanded.\\nThe plaintiff's claims against the other two defendants, Nicholas A. Sivieri and MFN LLC, were resolved by a default judgment and are not the subject of this appeal.\\nNational Lumber did not appeal from the denial of its cross motion for summary judgment.\\nWe do not read this to mean that, as a matter of law, had MFN been winding up its business, as allowed by the statute, see infra, Fink would not have been its guarantor-the motion judge correctly indicated elsewhere that he would have been.\\nIndeed, depending on the circumstances it might be possible to view the change orders that way even if they are new contracts, necessary to finish the work on the outstanding project as part of winding up MFN's business.\"}"
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+"{\"id\": \"18323\", \"name\": \"William T. Janvrin & others, petitioners\", \"name_abbreviation\": \"Janvrin\", \"decision_date\": \"1899-11-28\", \"docket_number\": \"\", \"first_page\": \"514\", \"last_page\": \"521\", \"citations\": \"174 Mass. 514\", \"volume\": \"174\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:03:43.171514+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William T. Janvrin & others, petitioners.\", \"head_matter\": \"William T. Janvrin & others, petitioners.\\nSuffolk.\\nMarch 24, 27, 1899.\\nNovember 28, 1899.\\nPresent: Holmes, 0. J., Knowlton, Morton, Lathrop, Barker, Hammond, & Loring, JJ.\\nMetropolitan Water Supply \\u2014 Water Rates \\u2014 Constitutional Law.\\nThe provisions of \\u00a7 23 of St. 1895, c. 488, entitled \\u201c An Act to provide for a metropolitan water supply,\\u201d as amended by St. 1897, c. 336, giving to actual water takers within ten miles of the state house of the city of Boston aggrieved by the rate charged or about to be charged, the right to apply to the court to determine the reasonableness of the rate and what rates are reasonable so far as the interests before the court are concerned, is constitutional. .\\nPetition, filed October 11, 1898, by the selectmen of Revere, a town within a radius of ten miles from the state house in Boston, and within the metropolitan water district as designated by St. 1895, c. 488, entitled \\u201c An Act to provide for a metropolitan water supply.\\u201d\\nThe petition alleged that within Revere, a corporation known as the Revere Water Company was engaged in the business of supplying the inhabitants thereof with water for domestic and other purposes; that the rates charged to the inhabitants by that company for water supplied for domestic and other purposes was unreasonable, exorbitant, and greatly disproportionate to the prices ordinarily charged for a similar service in the other cities and towns within said metropolitan water district.\\nThe prayer was that the court would fix the rate to be charged by the company for water supplied to the inhabitants of Revere at a reasonable sum, measured by the price ordinarily charged for a similar service in the other cities and towns within the metropolitan district.\\nThe Revere Water Company, which had been summoned to appear, demurred, assigning as grounds therefor: 1. That the petition did not contain any matter of law or equity whereon the court could ground any decree, or give to the petitioners any relief against the defendant. 2. That the jurisdiction of the court over the matters contained in the petition depended upon the validity of the provisions of St. 1897, c. 336, and that that statute was unconstitutional and void.\\nHearing before Hammond, J., who reserved the case for the consideration of the full court.\\nThe case was argued at the bar in March, 1899, and after-wards was submitted on briefs to all the justices.\\nS. R. Cutler, (B. B. Dewing with him,) for the petitioners.\\nB. N. Johnson, for the Revere Water Company.\", \"word_count\": \"2866\", \"char_count\": \"16190\", \"text\": \"Holmes, C. J.\\nThe only question raised by the demurrer is the constitutionality of the provision of St. 1897, c. 336, \\u00a7 1, under which the petitioners proceed. This section amends \\u00a7 23 of the Metropolitan Water Supply Act, St. 1895, c. 488. It embodies a scheme which forbids cities or towns within ten miles of the state house to use water for domestic purposes, from any source not now used by them, except under the statute. This prohibition standing alone might seem to put into the hands of a water company now supplying any such town or city the power to make exorbitant charges, by giving it a monopoly. Therefore, with a view, no doubt, of dealing with the danger, the section just referred to provides as follows: \\\" The selectmen of a town, or any persons deeming themselves aggrieved by the price charged for water by any such company may, in the year eighteen hundred and ninety-eight and every fifth year thereafter, apply by petition to the Supreme Judicial Court, asking to have the rate fixed at a reasonable sum, measured by the standard above specified; and two or more judges of said court, after hearing the parties, shall establish such maximum rates as said court shall deem proper; and said maximum rates shall be binding upon said water company until the same shall be revised or altered by said court pursuant to this act.\\\"\\nWhen we first read this sentence the impression of some of us was that it was an attempt to make out of this court a commission for the taking of one step in fixing a legislative rule of future conduct, irrespective of any present relation between the parties concerned, and that it was no more competent for the Legislature to impose or for us to accept such a duty than if the proposition were to transfer to us the whole law-making power. See Smith v. Strother, 68 Cal. 194. But upon further reflection it seems to a majority of the court that the act can be sustained. If we can do so without perverting the meaning of the act, we are bound to construe it in such a way that it will be consistent with the Constitution, and we think that this can be done without any wresting of the sense, even if we should \\u2022 doubt, which we do not intimate that we do, whether the Legislature had the limit of its power distinctly in mind.\\nThe statute goes upon the footing that every taker of water from the companies in question has a right to be furnished with water at a reasonable rate. No one questions the power of the Legislature to require these water companies to furnish water to the takers at reasonable rates, (Attorney General v. Old Colony Railroad, 160 Mass. 62, 86, 87 ; Spring Valley Water Works v. Schottler, 110 U. S. 347, 354 ; Budd v. New York, 143 U. S. 517, 537, 549, 552,) and this statute does require the companies to do so, and thereby gives to water takers a correspond ing right, or declares that they have it. It is with the relations between actual water takers and the companies that the statute calls on this court to deal. It does not undertake merely to make of the court a commission to determine what rule shall govern people who are not yet in relation to each other, and who may elect to enter or not to enter into relations as they may or may not like the rule which we lay down: it calls on us to fix the extent of actually existing rights. With regard to such rights judicial determinations are not confined to the past. If it legitimately might be left to this court to decide whether a bill for water furnished was reasonable, and, if not, to cut it down to a reasonable sum, it equally may be left to the court to enjoin a company from charging more than a reasonable sum in the immediate future.\\nBut it has been regarded as competent for a court to pass on the reasonableness of a rate even when established by the Legislature, to the extent of declaring it unreasonably low. Chicago, Milwaukee, & St. Paul Railway v. Minnesota, 134 U. S. 418. Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339, 344. Reagan v. Farmers' Loan Trust Co. 154 U. S. 362. Smyth v. Ames, 169 U. S. 466. A fortiori, when the rate is established by the company and it has undertaken to charge the plaintiff a sum which he alleges to be unreasonable, and the Legislature in terms has referred him to this court, this court has \\\" jurisdiction to inquire into that matter and to award to the [plaintiff] any amount exacted from him in excess of a reasonable rate.\\\" Reagan v. Farmers' Loan & Trust Co. 154 U. S. 362, 397.\\nIt is true that in Reagan v. Farmers' Loan & Trust Co. it was said, also, that \\\" it is not the function of the courts to establish a schedule of rates,\\\" 154 U. S. 400 ; and to that proposition we fully agree. But it will be observed that the proposition is laid down in connection with the statement that \\\" the challenge in this case is of the tariff as a whole, and not of any particular rate upon any single class of goods.\\\" Probably to prepare a new schedule, or to rearrange the old one, would have gone beyond the scope of the rights immediately affected or threatened in the case before the court, into the realm of abstract law making- for the future, and so beyond the power of the court; and,if it had not been beyond the court's power, still very possibly it might have been refused in the court's discretion, the court leaving it to the proper body to undertake that task. But it is implied that if the challenge had been of a single rate threatened to be charged for a service demanded, the court might have determined the question between the parties for the immediate future, as it is stated three pages earlier that the court would determine it with regard to a charge for past services. When you are prepared to say that a given charge is \\u2022 too high or too low, it hardly would be consistent to say that you had not power or ability to say what is a proper charge.\\nIt is true that the phrase \\\" shall establish such maximum rates as said court shall deem proper,\\\" and the following provision that such \\\"maximum rates shall be binding upon said water company until the same shall be revised or altered by said court,\\\" etc.; suggest that the Legislature had in mind the establishment of a rate to be charged to all parties for the use of water for domestic purposes, and not merely a rate to be charged the petitioner. It may be that the former was the main object which the Legislature had in mind. But although we cannot doubt that the meaning of the words last quoted is that the rate shall be binding as a general rate, even that is not said distinctly, and we feel bound to assume in support of the act that the Legislature is dealing primarily with the rights of the party aggrieved before the court, and only secondarily adopts in advance the rate thus fixed between the parties as a general rate for all. If this is so, the question whether such a legislative consequence can be attached to the decision is not before us. Even if it should fail, the failure would not necessarily affect the constitutionality of sending \\\" persons deeming themselves aggrieved \\\" to this court to get their rights settled. But as it is not likely that a rate thus established for a given moment after full investigation would be departed from upon the application of a second person similarly circumstanced, it may be questioned whether there is anything to prevent the Legislature from sanctioning without further hearing a rate which once has been declared judicially to be reasonable. It is to be remarked in this connection that the decisions which we have cited for the proposition that the Legislature may require rates to be reasonable, establish the further proposition that the Legislature may fix what the rates shall be, subject only to judicial inquiry whether they are so unreasonably low as to deprive the company of its property without due compensation.\\nIt will be understood from the reasoning on which we sustain the act that the court would not regard itself as warranted or called on to undertake the fixing of rates except so far as they concern interests actually and legitimately before the court.\\nThe liberty to apply to this court is confined to the year 1898 and every fifth year thereafter, so that seemingly it is contemplated that the rate when fixed will remain unchanged for five years. This is another indication that the Legislature had its attention directed to the establishment of a general rate. But supposing a party aggrieved should obtain an injunction, obviously the decree would be drawn so as to bind the defendant for a reasonable time, or, if it were drawn in the common form, subject to review on a change of circumstances, the court would not be likely to grant leave to file a bill of review until a reasonable time had elapsed, and if the Legislature should say that in these cases five years was a reasonable time, we could not say that it was wrong. It is true that the party aggrieved is not given an injunction in terms by the act, and this is another peculiarity in the procedure, looking as it does to a decree affecting the future. Of course it is assumed, and no doubt rightly, that a company would not venture to disregard the decree. But if a company should prove recalcitrant, in case such disregard should not be construed as ipso facto a contempt, undoubtedly the decree could be enforced by injunction.\\nThere is still one more peculiarity in the statutory proceedings which adds a little to the difficulty of the question before us. We have construed the statute to deal primarily with existing rights and grievances. But the proceedings are given to \\\"the selectmen of a town, or any persons deeming themselves aggrieved.\\\" So far as the alternative mention of the selectmen should be used as an argument that the primary purport of the act was not to deal with present rights, we should answer that it does not appear that the towns within the ten mile radius do \\u2022not all of them take water in their corporate capacity, and if it was assumed by the Legislature that they did, as they probably do, the argument would lose its force.. It may be that the Legis lature thought of the selectmen rather as representing the whole body of water takers in the town. Whether they could be made compulsory agent's to represent private interests in that way it is not necessary to inquire. We may add that we understand the demurrer to be intended to raise the single question of constitutionality, and therefore we do not consider whether the petition in strictness ought not to show that the town or whoever may be represented by the petitioning selectmen is a water taker, and, in short, disclose enough to make out a present grievance. If there is any defect of form, which we do not intimate, probably it could be amended.\\nOne question remains. The fixing of a reasonable rate is not left at large to the court. The rate is to be \\\"a reasonable sum, measured by the price ordinarily charged for a similar service in the other cities and towns within said metropolitan district.\\\" Of course it is argued that this is an.attempt to let one company fix a price for another. To a certain extent the standard runs in a circle, since the price charged by water companies in the other towns within ten miles of Boston also may come before this court for revision. But leaving that consideration on one side, it is evident that the Legislature regarded the cities and towns referred to as constituting a class; and while a mere accumulation of instances is not evidence of what is reasonable, the general practice in the class to which a case belongs stands on a different footing, and if the circumstances are sufficiently similar may be instructive. See McMahon v. McHale, ante, 320; Veginan v. Morse, 160 Mass. 143, 148.\\nAs has been said, the cases establish the power of the Legislature to fix rates, subject to the qualification that they shall not be unreasonably low. It cannot be assumed on demurrer, as against the implied opinion of the Legislature, that the circumstances are not similar, or that all the prices in the ten mile circuit will be unreasonable. If in the opinion of the court at any time they should be so, no doubt in that event it would be bound to disregard the standard of comparison set for it by the act. The governing requirement is that the price should be reasonable. But, especially in view of the fact that companies furnishing the standard have before them the possibility of a petition like the present, such a possibility is not to be feared.\\nIt is suggested that the duty to be done by the court sitting with two justices, under this statute, calls for an investigation of details and the consideration of matters of administration which cannot properly be required of the Supreme Judicial Court. If an extended investigation of accounts or an examination of minute details is necessary in the hearing upon this petition, it will be in the power of the court to appoint a master, in accordance with the practice of the court in equity, to hear the parties and report the facts. The statute authorizes a novel proceeding not known to the common law. It does not say whether it shall be deemed a proceeding at law or a proceeding in equity. In some particulars it is more nearly analogous to suits in equity than to suits at law. It is a judicial investigation in aid of a legislative regulation. In actions at law, when accounts are involved, an auditor may be appointed. The Legislature must be presumed to have intended that the court should have the assistance of a master when needed in hearing such matters as have always been heard by masters under the equity practice of the court.\\nDemurrer overruled.\"}"
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+"{\"id\": \"192277\", \"name\": \"Elvis Hernandez v. Commerce Insurance Company\", \"name_abbreviation\": \"Hernandez v. Commerce Insurance\", \"decision_date\": \"2000-09-25\", \"docket_number\": \"No. CA000923G\", \"first_page\": \"307\", \"last_page\": \"308\", \"citations\": \"12 Mass. L. Rptr. 307\", \"volume\": \"12\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:21:51.595004+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elvis Hernandez v. Commerce Insurance Company\", \"head_matter\": \"Elvis Hernandez v. Commerce Insurance Company\\nSuperior Court, Suffolk, SS\\nNo. CA000923G\\nMemorandum Dated September 25, 2000\", \"word_count\": \"1124\", \"char_count\": \"7101\", \"text\": \"Fremont-Smith, J.\\nThis matter, which was before the court on September 8, 2000, is a petition, by the plaintiff Elvis Hernandez (\\\"Hernandez\\\"), seeking to compel arbitration of his claim for bodily injury caused by an uninsured vehicle. The defendant, Commerce Insurance Company (\\\"Commerce\\\"), opposes arbitration, and has filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6) on the ground that the plaintiff has failed to state a claim upon which relief can be granted. For the reasons stated below, defendant's motion to dismiss is DENIED and the defendant is hereby ORDERED to proceed to arbitration.\\nBACKGROUND\\nThe case arises out of a motor vehicle accident on August 3, 1997, when Hernandez was a passenger in a motor vehicle driven by his friend, Tony Guzman (\\\"Guzman\\\"). The vehicle was struck by another car on Columbia Road, Dorchester, Massachusetts. Hernandez alleges he sustained personal injuries as a result of the accident, which he alleges was a \\\"hit-and-run.\\\" Commerce contends that the accident was not a hit-and-run, but that the insured (Guzman) vehicle was pulling out of a parking space when another vehicle, whose driver has been identified, collided with Guzman's vehicle causing personal injuries and damages.\\nHernandez applied to Commerce to recover uninsured benefits pursuant to Guzman's insurance policy. On February 3, 1998 and September 20, 1999, Commerce denied Hernandez's claim on the grounds that there was insufficient evidence of whether the accident was a covered loss and.that Hernandez had breached the cooperation clause of the insurance policy by making material misrepresentations during the investigation and failing to submit to two medical examinations. Commerce also alleges that the other vehicle involved in the accident was not uninsured and unidentifiable, as the plaintiff contends, but rather the owner of the vehicle was identified through Commerce's investigation and insured with Horace Mann Insurance Company.\\nStandard of Review\\n\\\"When evaluating the sufficiency of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), the court must accept as true the well-pleaded factual allegations of the complaint, as well as any inference which can be drawn therefrom in the plaintiffs favor.\\\" Fairney v. Savogran Co., 422 Mass. 469, 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). \\\"A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\\\" Nader v. Citron, 371 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).\\nDISCUSSION\\nA party aggrieved by the failure or refusal of another to proceed to arbitrate under an agreement may apply to the Superior Court for an order directing the parties, to proceed to arbitration. G.L.c. 251, \\u00a72(a). \\\"[A] provision in a written contract to submit to arbitration any controversy thereafter arising . . . shall be valid, enforceable, and irrevocable, except upon the grounds that exist at law or in equity for the revocation of any contract.\\\" G.L.c. 251, \\u00a71. In order for a person to be compelled to arbitrate a dispute under a contract containing an arbitration clause, both persons must be a party to that contract. See Computer Corp. of America v. Zarecor, 16 Mass.App.Ct. 456, review denied, 390 Mass. 1103 (1983). The insurance contract provides: \\\"ftjhe determination as to whether an injured person is legally entitled to recover damages from the legally responsible owner or operator will be by agreement between us and the injured person. The amount of damages, if any, will be determined in the same way. Arbitration will be used if no agreement can be reached.\\\" Massachusetts Automobile Insurance Policy 6th Ed., at 9. The statute similarly provides: \\\"(wlhether the insured or his legal representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the insurer or, if they fail to agree, by arbitration.\\\" G.L.c. 175, \\u00a711 ID. Commerce is clearly a party to the contract and Hernandez, as a passenger in the vehicle of the insured, is an intended beneficiary of the contract.\\nDefendant cites Lumbermens Mutual Cas. Co., v. Malacaria, 40 Mass.App.Ct. 184, 188-89 (1996), for the proposition that only damages questions, but not coverage questions, are arbitrable. There, the Court said:\\nIn plain terms, this provision commits to arbitration the determination whether an injured party such as Nancy Malacaria can recover damages under the policy from the operator of another vehicle, and, if so, the amount of damages. These matters typically involve factual determinations of relative or comparative fault, and the extent of injuries proximately caused by the other motorist's fault. By contrast, the provision does not contemplate that legal questions involving the insurer's possible liability to the insured under the policy will be determined through arbitration.. Hence, we do not think that Lumbermens was contractually bound by its policy to submit to arbitration a coverage question, such as the one here presented.\\nBut the court's statement must be understood in the context of the coverage dispute in that case, which involved a purely legal coverage question whether the exclusion clause contained in the policy prevented the \\\"stacking\\\" of additional policies, and did not turn, as here, on disputed factual issues. Here Commerce admits that coverage was denied based on fraudulent conduct, lack of cooperation, as well as and whether there was a hit-and-run operator who can not be identified, all of which are disputed issues of fact. In cases where coverage has turned on factual issues, such as are raised in this case, rather than on the scope and meaning of the policy or of the statutes, Massachusetts courts have held that the proper forum is arbitration. See Employers' Fire Ins. Co. v. Garney, 348 Mass. 627, 631-632 (1965); Allstate Insurance Co. v. Harris, 26 Mass.App.Ct. 1017, 1019 (1989). This court does not read Malacaria to change the rule enunciated in these cases.\\nORDER FOR JUDGMENT\\nFor the foregoing reasons, it is hereby ORDERED that the plaintiffs complaint for the appointment of an arbitrator is ALLOWED, and the defendant's motion to dismiss is DENIED. Final judgment is to enter in favor of the plaintiff ordering Commerce Insurance Company to submit to arbitration.\\n\\\"After an accident or loss, you or anyone else covered under this policy must cooperate with us in the investigation, settlement and defense of any claim or lawsuit.\\\" Massachusetts Automobile Insurance Policy, at 32.\\nThe coverage includes \\\"bodily injuiy to people injured or killed in certain accidents caused by uninsured or hit-and-run autos . . . We will pay for hit-and-run accidents only if the owner or operator causing the accident cannot be identified.\\\" Massachusetts Automobile Insurance Policy 6th Ed., at 7.\"}"
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+"{\"id\": \"1978398\", \"name\": \"Luther Barnard vs. Zebadiah Graves\", \"name_abbreviation\": \"Barnard v. Graves\", \"decision_date\": \"1847-09\", \"docket_number\": \"\", \"first_page\": \"85\", \"last_page\": \"96\", \"citations\": \"13 Met. 85\", \"volume\": \"54\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:45:36.828050+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Luther Barnard vs. Zebadiah Graves.\", \"head_matter\": \"Luther Barnard vs. Zebadiah Graves.\\nA warrant to collect taxes, issued by assessors to a collector, does not authorize him. to collect a tax by distress, unless it is accompanied with a tax list; but it is not necessary that the tax list should be annexed to the warrant.\\nThough a warrant to a collector erroneously direct him, for want of goods or chattels, whereon to make distress, for the space of twelve days after demanding payment, (instead of fourteen days, as directed by the Rev. Sts. e. 8, \\u00a7 11,) to take the body, &c., yet if the warrant be in other respects sufficient, this error therein will not vitiate it, so as to render illegal a distress made by virtue of it, if, in making the distress, the warrant be executed according to law.\\nUnder the Rev. Sts. c. 8, \\u00a7 8, a collector of taxes, who distrains goods, may post a notification of the sale thereof before the expiration of four days after the seizure. The return made by a collector, on his warrant, of his doings in making a distress for taxes, is so far an official act, as to be prima facie evidence in his favor, on the trial of an action against him for making the distress: And a demand by him of payment of a tax, before he made distress for it, may.be shown by his return. In a collector\\u2019s return of his doings on a distress for a tax, he stated that he dis-trained a horse on the 6th of April, and on the 7th of April posted up a notification, at the B. B. House in D., of- said distress, and of his intention to sell said horse at public auction at said house on the 11th of April; that he kept the horse four days and more, and posted up said notification more than forty eight hours before the sale, and sold the horse, within seven days after the seizure, at public auction, at said B. B. House, pursuant to said notification: On the trial of an action brought against the collector for taking and selling the horse, the original notification was produced, which was dated April 8th, and stated that the sale would be on the 11th of April, at the house of T. S. S, in D. Held, that the variance between the return and the notification was immaterial; that the return must be taken to be true, until it should be impeached; and that, if impeached merely by showing facts which would equally well justify the collector, he might rely on such facts to sustain his justification.\\nA collector\\u2019s notification of the sale of a horse, distrained for non-payment of a tax by the owner, need not mention the owner\\u2019s name, nor describe the horse, nor state the amount of the tax.\\nWhen a collector of taxes is also a constable, his notification of a sale by him of personal property, distrained for non-payment of a tax, is not vitiated by his adding to his signature the word \\u201c constable,\\u201d instead of collector.\\nThis was an action of trover for a horse, and was tried in the court of common pleas, before Wells, C. J. At the trial, the only question was, whether the taking of the horse by the defendant, as collector of taxes for the town of Deerfield, for the year 1845, was legally justifiable. The defendant introduced the records of said town for that year, from which it appeared that the defendant, at the annual town meeting, held in March, was chosen constable and collector of taxes for the ensuing year, and was sworn in both capacities ; that assessors were also chosen at the same meeting, and sworn, who assessed a state, county and town tax, and committed the tax list to the defendant, with a warrant under their hands, commanding him, (among other things,) in these words: \\u201c Levy and collect of the several persons named in the list herewith committed to you each one his respective proportion therein set down.\\u201d The concluding part of this warrant was m these words : \\u201c And if any person shall refuse or neglect, upon demand by you made, to pay the sum he is assessed in the said list, you are to distrain the goods or chattels of such person to the value thereof, and the distress so taken to keep for the space of four days, at the cost and charge of the owner; and if he shall not pay the sum so assessed, within the said four days, then you are to sell openly, at public vendue, the distress so taken, for the payment thereof, with charges; first giving forty eight hours\\u2019 notice of such sale, by posting up advertisements thereof in some public place in said town, which said notice may be given either before or after the said four days shall have expired; and the overplus arising by such sale, if any there be besides the sum assessed, and the necessary charges of taking and keeping the distress, you are immediately to restore to the owner, with an account in writing of the sale and charges; and for want of goods or chattels to oe shown you, whereon to make distress, (besides tools or implements necessary for his trade or occupation, beasts of the plough necessary for the cultivation of his improved lands, arms, utensils for housekeeping, necessary for upholding life, bedding and apparel necessary for himself and family,) for the space of twelve days after demanding the payment of any sum so assessed, you are to take the body of such person so refusing or neglecting, and him commit to the common jail of'the county aforesaid, there to remain until he pay the same or such part thereof as shall not be abated by the assessors of said town for the time being, or by the court of cciunty commissioners for the county aforesaid.\\u201d\\nThe defendant\\u2019s return on the foregoing warrant is copied in the margin.\\nThe plaintiff objected to the validity of the said warrant, both in regard to its directions for the sale of property and arrest of the body of the plaintiff; but the judge overruled the objection.\\nThe defendant relied on the said warrant, with a tax list far the year 1845, which was not annexed to the warrant, and on said return, as prima fade evidence of the facts therein stated, and for his justification of the alleged conversion of the plaintiff\\u2019s horse; and the judge ruled accordingly.\\nThe plaintiff then gave in evidence the following advertisement posted up by the defendant: \\u201c Sale at auction.\\nTaken in distress for taxes, and will be sold at public auction, on Saturday, the eleventh day of April instant, at one of the clock in the afternoon, one valuable horse, unless said taxes shall be settled previous to the time appointed for said sale, at the house of T. S. Sargent, S. Deerfield. Deerfield, April 8th 1846. Zebadiah Graves, Constable.\\u201d The plaintiff contended that this advertisement was insufficient as a notice of sale, and also that it so far contradicted and impeached the return aforesaid, as to destroy its effect, even if it were otherwise good jprima fade evidence of the facts therein stated; but the judge ruled that, notwithstanding this, the defendant had made out a sufficient defence. The defendant offered no further evidence, and the jury found a verdict for him. The plaintiff alleged exceptions to the judge\\u2019s rulings.\\nHuntington, for the plaintiff.\\n1. The warrant was illegal, not being conformed to Rev. Sts. c. 7, \\u00a7 33, which require that it \\u201cshall specify the duties of the collector, as required .by law.\\u201d Rev. Sts. c. 8, \\u00a7 8, direct that\\\" \\u201cthe collector shall keep the goods distrained for the space of four days, at the least', and shall within seven days after the seizure sell the same,\\u201d &c. This seems, in spirit and in terms, to require the keeping of the property four days, at least, before the expense of advertising is incurred. (See Sts. 1785, c. 70, \\u00a7 2, and 1791, c. 22, \\u00a7 2, the provisions of which are changed by the revised statutes.) But the warrant in question allowed the defendant to give the notice \\u201c either before or after the four days \\u201d should have expired; and his return shows that he posted up notice before the four days had expired, to wit, on the next day after the seizure.\\nThe warrant also directed the defendant to seize the body within twelve days after demand; whereas the Rev. Sts. c. 8, \\u00a7 11, do not permit such seizure until fourteen days after demand.\\nThese objections apply to a state of facts alluded to, but which did not exist, in King v. Whitcomb, 1 Met. 328. In that case, the property was kept four days before the notice was posted up; and the proceedings of the collector conformed to the directions of the law, and were not in conflict with his warrant. In the case at bar, the warrant directed proceedings contrary to law, both as to sale and arrest, and presents the very question which was alluded to, but not decided, in King v. Whitcomb.\\n2. The defendant cannot justify under a warrant without a tax list annexed. Rev. Sts. c. 7, \\u00a7\\u00a7 31 - 33. In St. 1785, c. 50, \\u00a7 6, the form of the warrant was prescribed, and \\u201c the .ist herewith committed \\u201d was mentioned. The warrant is not a warrant, unless the list be annexed to it, any more than a mortgage, referring to a schedule not annexed, is a mortgage of the goods named in the schedule.\\n3. The defendant\\u2019s return was not sufficient evidei.ee in justification of his invasion of the plaintiff\\u2019s property. In Bruce v. Holden, 21 Pick. 187, a field driver\\u2019s return was held to be prima fade evidence, on the ground that it was an official act, required by the provisions of law. But a collector of taxes is not required by law to make a return; and his return, when made, is not an official act. Neither his oath nor his prescribed duties require him to make returns. See St. 1785, c. 50, \\u00a7, 6 ; c. 70, \\u00a7\\u00a7 2, 17. Rev. Sts. c. 8, \\u00a7\\u00a7 1 - 14. In Alvord v. Collin, 20 Pick. 428, the court say, \\u201c the employment of a collector cannot be deemed a public office.\\u201d He \\u201chas a single duty to perform, viz. to collect the taxes committed to him.\\u201d If he is obliged to return his doings as to one tax payer, he is as to every other tax payer in the list. See 1 Greenl. on Ev. \\u00a7 498.\\n4. The return, if evidence for any purpose, was not evidence to prove either a demand or notice of the sale. The demand should have been proved aliunde; and the return, if it were to prove notice of the sale, should have set forth a copy of the notice, either in terms or substance, and the acts done, and not the inference of law. Wellington v. Gale, 13 Mass. 483. The effect of the return, as prima facie evidence, is impeached or impaired so far as to call for further testimony, (which was not offered,) by the variance between the statement in the return and the date of the notice on its face. The return states that the notice was posted up on the 7th of April; but the notice is dated April 8th. The return states that the sale was made at the Bloody Brook House ; but the notice itself mentions the house of T. S. Sargent.\\n5. The notice of sale was insufficient in many respects First, it was signed by the defendant, as \\u201c constable,\\u201d though he was also chosen collector. So far as the plaintiff is supposed to know the law, this signature as \\u201c constable \\u201d di< recti y tended to mislead him ; for it implied that the defendant had distrained the property of a person who had removed from another town after a tax had been assessed upon him, under the St. of 1842, c. 34. Secondly, the notice did not state the name of the owner of the property distrained; and therefore the plaintiff was not informed of the proceedings. See Whitaker v. Sumner, 7 Pick. 551. Alvord v. Collin, 20 Pick. 421, 431. Rev. Sts. c. 8, \\u00a7\\u00a7 22, 23, 25. Thirdly, there was no description of the property by which the owner, or any other person, could recognize it, or judge of its value. Fourthly, the amount of the tax was not mentioned. The defendant\\u2019s return showed that the plaintiff\\u2019s tax was only $5\\u201891; and the defendant had no reason to suppose his \\u201c valuable horse\\u201d could have been seized for so small a sum. Fifthly, the notice is otherwise ambiguous; for it does not distinctly say whether the sale is to be \\u201c at the house of T. S. Sargent,\\u201d or whether the tax is to be paid there.\\nGrennell, for the defendant.\\nThe first two objections to the warrant are answered by the Rev. Sts. c. 7, \\u00a7 33, which provide that it \\u201c shall be substantially in the form heretofore used,\\u201d and \\u201c shall specify the duties of the collector, as prescribed by law.\\u201d The form heretofore used, and the duties prescribed in case of distress and sale, are found in Sts. 1785, c. 50, \\u00a7 6, and c. 70, \\u00a7 2, and in Rev. Sts. c. 8, \\u00a7 8. And no requisition of the warrant in question is in conflict with the provisions of those statutes. Certainly there is none which made the warrant invalid. The warrant might well have contained a direction to sell a distress within seven days; but this was not necessary. Taking all the directions of the warrant together, they sufficiently conform to the provisions of law.\\nThe direction to arrest the body within twelve days after demand and non-payment was erroneous. The old form under St. 1785, c. 70, \\u00a7 2, was used too exactly. But this misdirection could not vacate the whole instrument, nor render the defendant liable to an action for distraining property under it. King v. Whitcomb, 1 Met. 328. Sanford v. Nichols, 13 Mass. 286.\\nThe Rev. Sts. c. 8, \\u00a7 8, bound the defendant, in the distress and sale, by three leading provisions. 1st. To keep the distress four days at least, at the expense' of the owner. 2d. To sell within seven days. 3d. To give notice of the sale forty eight hours before the sale. It is not directed how soon after the seizure the notice shall be posted up. Nor is it declared or implied that four days shall elapse before the notice of sale shall be given.\\nNow, if the defendant\\u2019s return is taken as evidence of his acts, no one can see wherein he departed from the precept of his warrant, or disobeyed the commands of the law. The supposed intent of the legislature that the tax payer should not be subjected to the expense of advertising, &c. till four days should have expired, is nowhere apparent. If such intent existed, it would have been easy to express it, for the guidance of collectors.\\nThe law does not require that the tax list should be annexed to the warrant. The Rev. Sts. c. 8, \\u00a7\\u00a7 l, 5, speak of a tax list and warrant committed to collectors, but nothing of their being annexed. In the present case, the two papers were under the hands of the same assessors; and the warrant, addressed to the collector, described the list as \\u201c herewith committed\\u201d to him \\u2014 simply signifying that they went together into his hands.\\nThe defendant\\u2019s return or certificate of his doings is evidence in justification thereof. Eastabrook v. Hapgood, 10 Mass. 313. Bean v. Parker, 17 Mass. 601. Bruce v. Holden, 21 Pick. 187, 191. In King v. Whitcomb, 1 Met. 328, the court admitted a collector\\u2019s return as evidence of the facts in that case, and spoke of it as proving important facts of which no other proof existed. It would seem necessary that an officer, vested with power, and intrusted with precepts to seize and distrain property, and commit persons to prison, should have the right to return facts for the knowledge of others in terested, and for his own protection in his official capacity especially as he is under solemn responsibilities. The defendant was sworn as collector and constable.\\nIf the facts certified by a collector are not to be taken as evidence, it follows that he must take witnesses along with him, to witness a demand of payment made by him on half, perhaps all, the persons assessed, and whose names are on his tax bill, if he would protect himself in the matter of distraining property. Who shall pay the witnesses, as such, not as aids, taken about by the collector? This officer must prove the time of making distress, at his peril. If he sell a distress after the seven days next following the seizure, he will be liable as a trespasser. Pierce v. Benjamin, 14 Pick. 356. This proof as to time must be made aliunde, if a demand must.\\nCollectors, for some purposes, are to make returns to selectmen. Rev. Sts. c. 3, \\u00a7\\u00a7 3, 4. An officer\\u2019s written return proves an attachment, although the writ is never returned to court. Wilder v. Holden, 24 Pick. 8.\\nIt is objected that the defendant\\u2019s return, if evidence as to some facts, is not full and particular enough as to the notice of sale. But the court will not hold a collector to stricter rules, in selling goods distrained for taxes, than those by which they hold an officer in returning a sale of goods seized on execution. See Sprague v. Bailey, 19 Pick. 440.\\nThe variance between the return and the date of the notification cannot impeach the return. The notification was misdated, and the return will govern. The time, in either, would have been sufficient and legal. The Bloody Brook House, and the house of T. S. Sargent \\u2014 a public hotel \\u2014 are well known to be the same. See Thayer v. Stearns, 1 Pick. 109.\\nAs to the alleged defective notice of sale, it is to be observed that the defendant was chosen collector and constable, and was sworn into both offices. His \\u201c precinct \\u201d was the town of Deerfield, the place of the plaintiff\\u2019s residence. Rev. Sts. c. 15, \\u00a7 33.\\nIt is objected that the notice did not state the name of the owner of the property seized. Is it a grievous wrong, that the defendant did not post his -neighbor, at the tavern, for refusing to pay his tax ? And was it necessary to describe the animal seized, as minutely as an impounded beast or stray horse should be described ? In Whitaker v. Sumner, cited for the plaintiff, the officer\\u2019s advertisement mentioned no \\u201c place of sale; \\u201d omitting what the St. of 1798, c. 77, \\u00a7 4, in terms, required to be done, and what was most essential to be done.\\nFranklin ss. April 11th 1846. By virtue of this warrant, and the tax lists committed to me as collector of taxes in and for the town of Deerfield for the year of our Lord 1845, by the assessors of said town, having first demanded of Luther Barnard, of said Deerfield, whose name is borne on said ist with a tax against him of the sum of five dollars and ninety one cents, ihe payment of said sum and tax, which the said Bamai 1 refused to pay; I: distrained one horse, the property of the said Barnard, for the payment of said tax, and all legal and necessary charges and expenses in consequence of said distress, on the 6th day of April 1846. And on the 7th day of the same April, I posted up a notification at the Bloody Brook House, a public place in said town, as the law directs, of the said distress, and of my intention to sell the said horse, distrained as aforesaid, at public auction at said house, on the 11th day of said April at one o\\u2019clock P. M. for the payment of said tax and keeping and. sale of the said horse, and legal charges of the same. The aforesaid demand of said tax was made 14 days before making the said distress. And I kept the said distress for the space of four days and more, and posted up said notification more than 48 hours before the sale of said horse, and sold the. same within 7 days after the seizure, at public auction at said Bloody Brook. House, pursuant to said notification, to William Chapman, he being the highest bidder therefor. The said horse was sold as aforesaid for $70, and the result thereof is as follows: Horse sold, $70-00. Tax, $5-91. Travel in service, 4 miles, $0-16; keeping horse 5 days, $1-25 ; fees for taking, &e. $0-50; commissions, 4 per cent, of tax, $0-23, = $7-05. Surplus money, $63-05; which I hold for the said Barnard when demanded. Deerfield, April 11th 1846. Zebadiah Graves.\", \"word_count\": \"4698\", \"char_count\": \"25841\", \"text\": \"Dewey, J.\\nVarious objections are relied upon by the plaintiff, founded upon the irregularity of the proceedings under which the defendant justifies the taking and sale of the property, which is the subject in controversy.\\nI. As to the objection that the warrant, without a tax list annexed, is no legal authority to collect taxes by distress. No one can doubt but that such tax list must accompany the warrant, must proceed from the same source, and be committed to the collector as a part of the documents constituting the authority for the collection of the taxes. But no precise form of annexation is prescribed, nor is there any requirement, that it be actually annexed, specified in any statute provision. Rev. Sts. c. 7, \\u00a7 32, enact \\\" that the assessors shall commit the tax list, with the warrant, under their hands, to the collector for collection.\\\" We think the evidence in this case sufficient to authorize a jury to find that the warrant and tax list were committed as the tax list and warrant for the collection of the tax which was collected, and that there is no ground for exception to any ruling of the court upon that point.\\nII. As to the form of the warrant. The direction to arrest the body within twelve days after a demand of the tax, if the same should not be paid, although erroneous in form, is of no practical consequence here, as it was not acted upon. The case of King v. Whitcomb, 1 Met. 328, is an authority, that an omission to comply fully with the requisitions of Rev. Sts. c. 7, \\u00a7 33, that the assessor's warrant shall specify the collector's duties as prescribed by law, will not vitiate a warrant if sufficient in other respects, and executed in all respects in conformity to law.\\nAs to the direction in the warrant, that notice of the sale might be given \\\" either before or after four days shall have expired,\\\" we see no objection. We are of opinion that such notice may, under the existing laws, be legally given before the expiration of four days after the seizure, a proper time being fixed for such sale.\\nIII. The certificate or return of a collector of taxes is so far an official act, as to his doings upon a levy on personal property, that such certificate or return is to be deemed prima facie evidence, in his favor, of the facts stated therein. He is a sworn officer, (Rev. Sts. c. 15, \\u00a7 33,) and certainly in every respect as much entitled to be protected by his returns as a field driver, whose certificates are prima fade evidence as to all matters upon which they are required by law to make returns. Bruce v. Holden, 21 Pick. 187. Although this case of Bruce v. Holden, so far as it bears upon the question of the official duty of the field driver impounding beasts for being at large .upon the highway, has been overruled, yet the general doctrine of the case, as to the effect of a return made by a field driver in cases where by law it is his duty to make such a return, is sound, and has not been doubted.\\nWe have no doubt that in case of distraining the goods or arresting the body of the debtor, and a commitment to jail, for the non-payment of a tax, it is the duty of the collector to make an official return of his doings, and that, when properly made, he will be qntitled to the benefit of the same, as prima fade evidence of the facts therein stated.\\nIV. The demand of the tax may be shown by the return of the collector.\\nV. The variance is not material between the return and the evidence introduced by the plaintiff to control it. The return is to be taken to be true until impeached; and if impeached merely by showing facts which, if true, would equally well justify the defendant, the variance is immaterial, \\u00bbs the defendant may rely upon such facts as sustaining his justification for taking and disposing of the rroperty. Hence, whether the notice of the sale was posted up on the seventh or eighth of April is entirely immaterial. And so, also, as to any supposed variance in the notice actually given, and in the return of the officer, as to the place at which the sale was to be made, it does not seem to be material. It is enough that proper notice was given of the time and place of sale, be it in the one form or the other.\\nVI. The plaintiff insists that the notice of the sale, which was in fact posted up, and a copy of which he now introduces, was insufficient and defective in many particulars. 1. That it does not state the name of the person whose property was seized. This is not necessary. The seizure and removal of the property are supposed to give effectual notice of the distraining of it, so far as is necessary to the individual whose property is taken. 2. The property taken is not sufficiently described in the advertisement. This objection is not well taken. 3. It is objected that the amount of the tax is not stated in the advertisement. This is not necessary in .the case of a distress of personal property for non-payment of taxes; nor do we perceive any ambiguity as to the place of the sale sufficient to render the proceedings illegal on that account. 4. The notice of the sale, as appears from the copy now offered in evidence by the plaintiff, was signed by the name of Zebediah Graves, with the addition of \\\" constable J' annexed thereto ; and this is supposed to vitiate the notice. This objection is one certainly not as free from doubt as some of the others which have been raised. It seems to us, however, that all reasonable certainty as to the essential requisites of a notice is found in the recitals and signature, in the present case. The officer was both collector and constable. The terms of the advertisement in themselves clearly indicate that the seizure was by virtue of a warrant of distress for taxes, and that the proposed sale would take place only upon non-payment of the taxes. The name of the officer, oorne upon the advertisement, pointed out the person who gave the notice, and the recitals apprised all concerned that it was a seizure upon a warrant of distress for non-payment of taxes, and not a seizure on execution, nor a sale on an attachment upon mesne process.\\nUnder these circumstances, the court are of opinion that the addition of the word \\\" constable,\\\" as found in the advertisement, did not vitiate the notice, and that this ground of exception must also be overruled.\\nThe result is, that all the exceptions are overruled, and that there must be\\nJudgment on the verdict for the defendant.\"}"
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+"{\"id\": \"1981898\", \"name\": \"Commonwealth vs. Thomas E. Wood\", \"name_abbreviation\": \"Commonwealth v. Wood\", \"decision_date\": \"1848-10\", \"docket_number\": \"\", \"first_page\": \"149\", \"last_page\": \"151\", \"citations\": \"2 Cush. 149\", \"volume\": \"56\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:23:47.878961+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Thomas E. Wood.\", \"head_matter\": \"Commonwealth vs. Thomas E. Wood.\\nA grand jury, in this commonwealth, cannot consist of more than twenty-three, or of less than thirteen\\nThe defendant was indicted, at the last May term of the court of common pleas, in this county, for selling spiritous liquor contrary to law. At the same term, he pleaded in abatement, that, at the term of the court of common pleas, begun and holden on the third Monday of January last, being the first term of the court for the year 1848, twenty-two grand jurors were empanelled and sworn, and no more; that at the then present term of the court, at the time of the alleged finding of the indictment, no other grand juror was empanelled and sworn; and that but twenty-two persons were present or constituted the grand jury, by whom the indictment was returned. To this plea, the district attorney demurred, and the defendant joined in demurrer. The presiding judge, Mellen, J., overruled the plea, and the defendant thereupon alleged exceptions. Subsequently, the defendant, with the consent of the district attorney, who agreed that the defendant\\u2019s rights as to the matter set forth in the plea in abatement should not be prejudiced thereby, entered a plea that he would not contend with the commonwealth.\\nH. D. Stone, for the defendant,\\nadmitted, that previous to the passing of the revised statutes, \\u2014 no particular number being required by statute to constitute a grand jury \\u2014 a less number than twenty-three would suffice. But by the Rev. Sts. c. 136, <\\u00a7> 1, the number is fixed at twenty-three; and the demurrer admits that only twenty-two were returned.\\nE. Wilkinson, (district attorney,)\\nfor the commonwealth. By the common law, a grand jury may consist of any num her not exceeding twenty-three and not less than thirteen. The provisions of the Rev. Sts. c. 136, relative to grand jurors, are evidently in affirmance of the common law. The fourth section provides, that in case of a deficiency of grand jurors, the court may take measures for the return of such further number as may be required. A deficiency is such a reduction of the number as will prevent the efficiency of the grand jury; and, according to the common law, thirteen are competent to act. Tucker's Case, 8 Mass. 286 ; Wadlin's Case, 11 Mass. 142 ; Commonwealth v. Smith, 9 Mass. 10T.\", \"word_count\": \"511\", \"char_count\": \"2969\", \"text\": \"Shaw, C. J.\\nIt is conceded, that by the common law, a grand jury may consist of thirteen, or of any greater number not exceeding twenty-three. But it is contended, for the defendant, that this rule has been altered by the Rev. Sts c. 136, \\u2022\\u00a7> 1, which directs that clerks shall issue writs of venire facias for twenty-three grand jurors to be returned, &c The statute makes no provision relative to the number necessary to form a quorum, but leaves that to the same rule of the common law, by which it was previously regulated; it is merely directory to clerks, in order that the actual attendance of a sufficient number may be the better insured.\\nExceptions overruled.\"}"
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+"{\"id\": \"1998231\", \"name\": \"Reuben E. Demmon vs. Davis Locke\", \"name_abbreviation\": \"Demmon v. Locke\", \"decision_date\": \"1854-10\", \"docket_number\": \"\", \"first_page\": \"183\", \"last_page\": \"185\", \"citations\": \"2 Gray 183\", \"volume\": \"68\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:24:39.674671+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Reuben E. Demmon vs. Davis Locke.\", \"head_matter\": \"Reuben E. Demmon vs. Davis Locke.\\nIt is no defence to an action for the price of two buildings sold on credit, and one cf which has been removed by the purchaser, that before the expiration of the term of credit, the seller gave him notice not to remove the other until the price was paid.\\nAction of contract, brought on the 22d of June 1852. \\u201c And the plaintiff says, the defendant owes him ninety five dollars for barn and shed sold by the plaintiff to the defendant.\\u201d\\nThe defendant, in his answer, \\u201c says, that he did buy of the plaintiff the barn and shed, declared for in the plaintiff\\u2019s writ, for the sum of ninety five dollars; but that it was agreed by and between the plaintiff and defendant at the time of the purchase of said barn and shed, that the defendant should have ten days\\u2019 credit upon the same from the day of the purchase aforesaid; that, notwithstanding said agreement, the plaintiff, before the expiration of said ten days, notified the defendant not to remove said barn and shed until the same were paid for; and so the defendant became absolved from the payment of said sum of ninety five dollars. But the defendant further says, that before the notice aforesaid he had sold the shed aforesaid to one Robbins, who had removed the same; and that since the suing out of the plaintiff\\u2019s writ, to wit, on or about the nineteenth day of July last past, the defendant tendered to the plaintiff the sum of twenty three dollars and fifty cents in payment for said shed and for the costs of suit upon said writ, which said sum of twenty three dollars and fifty cents the defendant now brings into court for the use of the plaintiff. And so the defendant says, he does not owe the plaintiff the sum of ninety five dollars, as the plaintiff has declared against him.\\u201d\\nThe plaintiff demurred to the answer, because it did not state a legal defence to the cause of action set forth in the declaration, according to the rules of law.\\nE. Buttrick, for the plaintiff.\\nM. G. Cobb, for the defendant.\", \"word_count\": \"895\", \"char_count\": \"4895\", \"text\": \"Bigelow, J.\\nThe single question in this case is, whether, taking all the facts stated in the defendant's answer to be true, they constitute any valid defence to the plaintiff's claim. The sale of the barn and shed for the sum stated in the declaration is admitted, and the removal of the shed in pursuance of this contract of sale is averred, in the defendant's answer. There was therefore an agreement of sale, and a delivery of a portion of the chattels sold under it. Upon familiar principles, these constitute a good ground of action for the agreed price, and they entitle the plaintiff to recover, unless some other fact is stated in the answer, which changes the legal rights of the parties.\\nThe averment on which the defendant rests his defence is, that the sale was made on a credit of ten days, and that before the expiration of this term of credit, but after a removal of a part of the chattels sold, he had notice from \\\"the plaintiff not to remove the property, until the purchase money had been paid. But these facts constitute no defence to the action, because they do not amount to a rescission of the contract, nor to a failure by the plaintiff to fulfil his part of the agreement. The notice not to remove the property did not change the rights of the parties, as fixed by the terms of the contract of sale. If it was contrary to the original agreement of the parties, it was a nullity, and the defendant was at liberty to disregard it. The case might have been materially changed, if the plaintiff had prevented the removal of the property, and retained it in his possession; but no such averment is made in the defendant's answer. Assuming the defendant's statement of the contract to be the true one, the title to the property sold passed to the defendant, by virtue of the sale, and the removal of the shed in pursuance of it. They constituted a valid sale and delivery. The defendant had the right thereby to an immediate possession of the barn, and a license, implied from the sale of it while standing upon the plaintiff's land, to go thereon and remove it. Wood v. Manley, 11 Ad. & El. 34, and 3 P. & Dav. 5. The contract was therefore complete between the parties, upon the defendant's own statement of its terms. All that remained to be done was for him to pay the stipulated price when it became, due. It is no answer to a suit brought to recover it, after the berm of credit had expired, to say that he had notice not to remove the property. It was his; he had the right to take it away; the notice from the plaintiff did not prevent him from exercising his dominion over it; and if he has failed to do so, it was a voluntary omission by him to enforce a legal right, which constitutes no defence to this action. The answer therefore does not state a valid defence to the plaintiff's claim; and the demurrer thereto is well taken. Judgment for the plaintiff.\"}"
\ No newline at end of file
diff --git a/mass/2002188.json b/mass/2002188.json
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+"{\"id\": \"2002188\", \"name\": \"Samuel Campbell versus Amaziah Howard\", \"name_abbreviation\": \"Campbell v. Howard\", \"decision_date\": \"1809-09\", \"docket_number\": \"\", \"first_page\": \"293\", \"last_page\": \"295\", \"citations\": \"4 Tyng 376\", \"volume\": \"5\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:10:06.025379+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"* Samuel Campbell versus Amaziah Howard.\", \"head_matter\": \"* Samuel Campbell versus Amaziah Howard.\\nWhere an appeal is duly made from a judgment of the Common Pleas, such judgment ceases to have any force.\\nBut an appeal not given by law has no operation, and although allowed by the Court below, the judgment appealed from remains in force, and execution may issue, or an action of debt will lie upon it.\\nThis was an action of debt, in which the plaintiff declares on a judgment of the Court of Common Pleas for this county, rendered in his favor against the defenuant for the sum of 34 dollars, 13 cents, costs; which judgment he avers to be in full force, and not reversed, annulled or satisfied.\\nThe defendant prayed oyer of the judgment declared on, the record of which comports with the declaration, as far as it was therein described. But it further appears that the plaintiff\\u2019s demand in the original action did not exceed 50 dollars, and that from the judgment rendered for the original defendant, the now plaintiff, upon a demurrer with reservation replied to a good plea, the original plaintiff, the now defendant, appealed to the Supreme Judicial Court, and entered into recognizance with sureties, as the law directs, to prosecute his appeal with effect. Upon oyer had, the defendant demurs generally to the plaintiff\\u2019s declaration, and the plaintiff joins in demurrer.\\nBangs, for the defendant\\nargued that the question was not whether the Court below ought or ought not to have permitted the party to appeal; they had permitted it, and the appeal thus interposed suspended the effect of the judgment, and rendered it a mere nullity. But further, it cannot appear to the Court here, that the appellant did not enter his appeal in this Court, or if he did not, that the other party did not file his complaint, and in either case, that a new judgment was not rendered by this Court in the action.\\nMerrick, for the plaintiff,\\ninsisted that he had shown a regular judgment of the Common Pleas, agreeing with his declaration, and it rested with the defendant to avoid it if he could. As to the ap peal, it was expressly disallowed by the statute of 1803, c. 154. <\\u00a7> 5., and it is therefore absolutely and wholly void, and [ * 377 ] of no effect at * all. The judgment is still in force, and an action well lies upon it.\", \"word_count\": \"1321\", \"char_count\": \"7571\", \"text\": \"Parsons, C. J.\\nThe sufficiency of this declaration must depend on the construction of the statutes of 1782, c. 11., and 1803, c. 154. By the second section of the former statute, any party aggrieved at the judgment of the Common Pleas may appeal to this Court; but before his appeal be allowed, he shall recognize with sureties to the other party, to prosecute his appeal with effect, and to pay all intervening damages and costs; and no execution shall be issued by the Common Pleas on the judgment appealed from. By the third section, the appellant is to produce to this Court a copy of the case; and if he neglect to do it, or fail to prosecute his appeal, this Court may, on complaint of the other party, affirm the former judgment, with additional damages and costs.\\nFrom these provisions we are satisfied, that when the appeal has been regularly allowed, no further proceedings can be had on the judgment, until through the default of the appellant it be affirmed in this Court, on the complaint of the appellee; in which case it may be executed by writ issuing from this Court, and not from the Common Pleas. If the appellant prosecute his appeal to effect, a new judgment is entered in this Court, according to the justice of the case, as apparent from the proceedings here. If he enter his appeal, so that the parties are before the Court, and the appellant fail to prosecute, if he be the original plaintiff, the Court enter judgment for the defendant for the costs of both the Courts; but if the appellant be the original defendant, on his failing to prosecute after appearance, his default is recorded, and the plaintiff has judgment according to the justice of his case, without regard to the judgment of the Common Pleas. But if the appellant does not enter his appeal, the remedy for the appellee is to complain of this [* 378 ] neglect, and pray affirmation of his former * judgment, with additional damages for the delay, and the costs of the complaint.\\nFormerly, when the appellant was the original defendant, and af ter entering his appeal, failed to prosecute, he was nonsuit on the appeal, and the appellee recovered only the costs of the appeal, but was obliged to file his complaint for affirmation of the former judgment. The alteration of the practice took place when the currency was paper, perpetually depreciating. The judgment of the Common Pleas might be correct when it was rendered for the plaintiff ; but if, on the defendant's appeal, the final judgment was delayed a year, or perhaps less, the defendant would then be nonsuit on the appea., and leave the plaintiff to his former judgment. To prevent this mischief, the Court entered a new judgment on the appeal, if the appellant had appeared, on recording his default. Thus in actions for tort, which sounded only in damages, the plaintiff might have justice by increasing the damages in proportion to the depreciation ; but he was without relief in actions on contracts for the payment of specific sums of money.\\nThe judgment of the Common Pleas, when regularly appealed from, becomes wholly inoperative. No execution can ever issue upon it. But if the appellant does not enter his appeal, the appellee, by his complaint in this Court, may make that judgment the appeal, and the loches of the appellant a foundation for a judgment of this Court, which may be executed here.\\nWhen the appeal is allowed, the judgment no longer, in legal construction, remains in force, and cannot be the foundation of an action of debt. This construction is not new. The question has frequently been before the Court, when a judgment appealed from, and not affirmed, has been pleaded in bar to another action for the same cause; and it has been considered as no bar, as a judgment inoperative, and not in force after the appeal was allowed.\\n*But this practice is necessarily confined to cases [*379] where a party aggrieved at the judgment of the Common Pleas might lawfully appeal to this Court. Where no appeal is given by law, the judgment of the Common Pleas must necessarily be final. As in actions brought before that Court by appeal from the judgment of a justice of the peace, the title to real estate not being drawn into question; \\u2014 and also by the late statute of 1803, c. 155., before referred to, in actions upon simple contract, where the plaintiff's demand does not exceed fifty dollars, and in all actions wherein judgment is rendered in the Common Pleas upon the default of the defendant.\\nIn these cases an appeal is a mere nullity, and the party obtaining the judgment may sue out execution upon it, or maintain an action of debt upon it, as a judgment in force; otherwise he would be without remedy. For the power of this Court to affirm judgments below, where the appeal is not prosecuted, is confined to cases in which the appellant might lawfully prosecute his appeal, and on his neglect is chargeable with loches.\\nIn the case at bar, the plaintiff's demand did not exceed fifty dollars, and from the judgment no appeal by law lay. The appeal was therefore a nullity, and notwithstanding the allowance of it by the Common Pleas, the judgment remained in full force, and formed a legal consideration of an action of debt. The declaration therefore appears to us sufficient, and the plaintiff must have judgment.\"}"
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diff --git a/mass/2002224.json b/mass/2002224.json
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+"{\"id\": \"2002224\", \"name\": \"Freeman Waterman versus Jesse Robinson\", \"name_abbreviation\": \"Waterman v. Robinson\", \"decision_date\": \"1809-05\", \"docket_number\": \"\", \"first_page\": \"233\", \"last_page\": \"235\", \"citations\": \"4 Tyng 303\", \"volume\": \"5\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:10:06.025379+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Freeman Waterman versus Jesse Robinson\", \"head_matter\": \"Freeman Waterman versus Jesse Robinson\\nWhere the messenger of the commissioners of a bankrupt had delivered goods of the bankrupt to a stranger, taking his obligation to keep them safely, and to redeliver them on demand, it was held that the bailee could not maintain replevin against one who had taken them; property, either general or special, beng required to be shown in replevin, though possession is sufficient to maintain trover.\\nIn an action, depending on the bankruptcy of a stranger, and in which the assignee is not plaintiff, the plaintiff must prove the act of bankruptcy, and the regular issuing of the commission.\\nBy the writ in this case, the plaintiff replevied certain articles of household furniture from the defendant, who, as a deputy sheriff, had attached them as the property of Isaiah Lucas. A verdict was found for the plaintiff, that the goods replevied were his property, subject to the opinion of the Court upbn a case reported by the judge.\\nOn the 23d of July, 1801, the property was in the said Lucas, on which day a commission of bankruptcy issued against him, and he being declared a bankrupt, by a warrant from the commissioners, their messenger .seized the goods, caused them to be appraised and inventoried, and on the 28th of the same July, he delivered them to the plaintiff, taking his obligation to keep them safely, and redeliver them on demand. An assignee was chosen, and all the bankrupt\\u2019s effects duly assigned to him. The goods had not been demanded of the plaintiff, who had put them into the possession of Lucas\\u2019s wife, daughter to the plaintiff, for the purpose of housekeeping, she and her husband living together. There [ * 304 ] * was no evidence of the petitioning creditor\\u2019s debt, but a copy of his oath annexed to the petition; and no evidence of any bankruptcy, but the warrant to the messenger, and the ' certificate of the discharge of Lucas.\", \"word_count\": \"939\", \"char_count\": \"5511\", \"text\": \"At this term, the cause was shortly argued by Perley, for the' plaintiff, and Mellen, for the defendant, after which the opinion of the Court was delivered by\\nParsons, C. J.\\n[After reciting the facts as stated above.] Upon these facts, we are to decide whether the property of the goods, so that he might lawfully replevy them, was in' the plaintiff.\\nTrover may be maintained by him who has the possession; but replevin cannot be maintained but by him who has the property, either general or special. Admitting the commission, and the proceedings under it, to be regular, what property had the plaintiff in the goods ? The general property was in the commissioners until the assignment, and then in the assignee. The messenger, if any person, had the special property, and not the plaintiff, who had no interest in the goods, but merely had the care of them for safe keeping. If his possession was violated, he might maintain trespass or trover, but he had no special property, by which he could maintain replevin; in which the question is not of possession, but of property, although possession may be prima facie evidence of property. On this ground we are of opinion that the plaintiff cannot maintain this action, he not proving that either the general or special property was in himself.\\nBut he must fail for the insufficiency of the evidence. Unless I/ucas had actually committed an act of bankruptcy, and a commission had regularly issued against him, the property of the goods always remained in him; and the plaintiff cannot have any control over them, which would prevent their being attached as the property of Lucas.\\n[ * 305 ] * In this action, the plaintiff must prove an act o\\u00ed bankruptcy, and that the commission regularly issued on the petition of a creditor of the bankrupt. He must also then prove the debts of the petitioning creditor. To prove these facts at common law, the best evidence which the nature of the case will admit, must be produced.\\nNo evidence was given of the act of bankruptcy; and evidence, not the best the nature of the case admitted, was received to prove the debt of the petitioning creditor, being only a copy of the oath annexed to the petition. The plaintiff must on this ground fail, unless the statute of bankruptcy has provided that, in a case like the pre& ent, these facts may legally be presumed from the evidence offered, or has superseded the necessity of proving them, because the certificate of discharge is proved.\\nThe thirty-fourth section of the bankrupt law provides, that when a certificated bankrupt is sued for debts due before the bankruptcy, he may give the certificate in evidence, which shall be sufficient to prove his bankruptcy, and the regularity of all the proceedings previous to the certificate. But the bankrupt is not the defendant in this case.\\nThe fifty-sixth section enacts, that where the assignee shall prosecute any debtor of the bankrupt's to recover any debt due to the bankrupt, a certified copy of the commission and the assignment by the commissioners, shall be conclusive evidence of the issuing of the commission, and of the bankruptcy. But in this action, the assignees are not the plaintiffs, nor is a debtor of the bankrupt the defendant.\\nThe plaintiff cannot bring himself within any of the provision* of the statute, and he ought to have produced the regular evidence of an act of bankruptcy, and of * the debt [ * 306 ] of the petitioning creditor. Not having done this, he has on this ground also failed.\\nConformably to the agreement of the parties, the verdict must be set aside, and the plaintiff must be called.\"}"
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diff --git a/mass/2007214.json b/mass/2007214.json
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+"{\"id\": \"2007214\", \"name\": \"Constant Benson versus Benjamin Swift\", \"name_abbreviation\": \"Benson v. Swift\", \"decision_date\": \"1806-03\", \"docket_number\": \"\", \"first_page\": \"53\", \"last_page\": \"57\", \"citations\": \"1 Tyng 50\", \"volume\": \"2\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:07:40.354168+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Constant Benson versus Benjamin Swift.\", \"head_matter\": \"Constant Benson versus Benjamin Swift.\\n'L'tcre afterwards continuing his said assault is not within the technical meaning of a continuando, in a declaration for an assault and battery\\nThis was an action of assault and battery, brought by a mariner against the master of the ship. The declaration contained several counts, reciting as many distinct injuries. Upon the general issue, pleaded at last March term, there was a verdict for the plaintiff for 755 dollars damage; upon which the counsel for the defendant moved in arrest of judgment, because the plaintiff, in the third count of his declaration, has charged the assault and battery, therein complained of, with a continuando ; and the jury have rendered a general verdict for the plaintiff, with entire damages for all the matters complained of in the declaration.\\nThe third count, to which the exception was taken, alleged that the defendant, on such a day, at such a place, with force and arms, did make an assault on the plaintiff, and, making fast his body in an inclining posture over a large water-cask, did beat, bruise, and wound him, with a large piece of three inch plank, by means whereof he was lacerated and maimed, and there afterwards, (he said. Benjamin, continuing his assault, last aforesaid, on the body of the said Benson, with force and arms, to wit, with four parts of a two inch and a half rope, did beat, bruise, &c.\\n* On the part of the defendant, it was argued that an [ *51 j assault is one entire and individual act, and the same assault cannot be committed at divers times. The declaration, in this case, is not so well as if laid diversis diebus et vicibus, as it was in Michell vs. Neale, where judgment was rendered for the defendant. Where the act is of such a nature as that it may be performed at several times, there it may be laid with a continuando; but where the act must be done all at one time, and terminates in itself, as an assault, it cannot. This objection may as well be made in arrest of judgment as upon demurrer.\\nOne of the Court, inquiring if no authorities to the point could be \\u25a0sited from more modern books, was answered that the point was early so well settled as to furnish a fair presumption that the same error has not occurred in later times.\\nThere being no limit assigned to the time of this trespass, its continuance is implied up to the commencement of the action. Ilovt' could the defendant be prepared to answer to such a charge ? In fact, this count describes two several trespasses, with two distinct instruments. It cannot be known what part of the damages were given for that part of the trespass which is ill alleged, perhaps the whole.\\nOn the other side, it was said that the trespass is alleged to hate been committed on a day certain ; whereas a continuando always includes several days. But if this is within the technical idea of a continuando, and if a trespass of this kind does not lie in continuance, the Court will intend that no part of the damages was given for it. The case in Cowper, 828, shows that advantage must be taken of this defect, if there is any, upon special demurrer. Courts are more liberal in modern times than formerly, and many faults in pleading, heretofore held fatal, are now cured by verdict.\\nFor the defendant, in reply. Afterwards certainly means at another and subsequent time. And should it be yielded that this whole transaction is laid, in this third count, as having [ *58 ] taken * place in one day, still, as several assaults may be committed in one day, some of which shall be justifiable, and some not, this is, in strictness, declaring with a continuando, and liable to all the objections which have been urged. Is this fault cured by the verdict ? Where, in the same count, some things are laid with a continuando, which may well be so laid, and some which cannot, the Court will presume the damages given for the causes which are well laid. But the whole of this third count is laid with a continuando, whereas the matter does not lie in continuance. When a declaration is bad through negligence, the Court will not be inclined to favor it. Liberality has been carried, in modern times, too far for the honor of the profession. Ancient authorities, like ancient landmarks, are more venerable than modern ones.\\nCowper, 828.\\nViner's Abr. tit. Trespass, 1. pl. 5, also the note to pl. 9, Ibid. 1. 2, pl. 3.\\n1 Vent. 363. \\u2014 Clayton vs. Gillam, T. Jones, 109 \\u2014 1 Lev. 210.\\n2 Ld Raym. 823, Brook vs. Bishop. \\u2014 Ibid. 974, Monkton vs. Pashley & Al\", \"word_count\": \"1999\", \"char_count\": \"11305\", \"text\": \"Parker, J.\\nI am against arresting the judgment in this case, however my opinion might have been on a special demurrer and 'cinder, where the parties are properly brought to a conflict on points of nicety.\\nI understand it to have been uniformly endeavored by courts to support declarations after verdict, if the words therein contain sufficient for that purpose. And indeed, where there may be some question on the literal sense of the words, the courts will give them such a reasonable construction (if they are capable of it) as will support the action after verdict.\\nThe objection here is, that the assault and battery alleged in the declaration is laid with a continuando; which the objectors say cannot be done in an action of this nature. Without undertaking to decide whether it can or not, I will only say that the declaration ought clearly to contain a continuando, to authorize us to arrest judgment. I see nothing in this declaration from which a continuando must necessarily be inferred. Indeed, the person who drew the declaration seems to have labored to give an idea of an incessant and continuous beating, the whole of which was one act, with only a change of instrument, lest the putting down the plank, and taking up the rope, should be construed into the very thing he meant to avoid. The word \\\" continuing \\\" does not necessarily imply the technical * sense of a. continuando. Indeed, the [ *53 J word is evidently in this case used inartificially.\\n\\\" There afterwards \\\" also may have its use in the sentence, without supposing that another time was intended to be expressed by it, It most probably was intended to show that the beating with a rope, though a part of the same outrage as the beating with a plank, was subsequent to it in order of time.\\nUpon these considerations, it being possible lo exclude the idea of a continuando from the declaration, without doing violence to any part of it, and a conslruction favorable to the verdict being to be gathered from the declaration itself, upon a reasonable use of the words, I am of opinion that the motion in arrest of judgment ought not to prevail.\\nThatcher, J.\\nI doubt whether this objection would have been held good, even in the ancient times of extreme technical nicety, and although attempted on a special demurrer. Here, however, the defendant saw the declaration before he pleaded to it, and went to trial. If he would avail himself of this point, he ought to have done it at an earlier stage of the cause. But I apprehend the declaration to be good and sufficient, and am therefore against arresting ' the judgment.\\nSedgwick, J.\\nThere is no doubt that the principle of law is settled, that where there are several counts in a declaration, and one of them is materially defective or bad, and a general verdict is found upon them all, the judgment must be arrested. The question now to be determined is \\u2014 Does this rule apply in the present case?\\nThe third count in the declaration, which gives rise to the present question, after stating the assault by the defendant, and the manner of confining the plaintiff for the purpose of beating him, alleges that he did beat him with a plank, and it then goes on in these words : \\\" And there afterwards the said Benjamin, continuing his assault last aforesaid on the body of the said Benson, with force and arms, viz., with four parts of a two and a half inch rope, did beat,\\\" &c. It is said that this is alleging an assault and battery with a continuando; that this count is for that reason ma- [ * 54 ] terially bad ; and that it may be taken advantage * of in arrest of judgment. I give no opinion whether this objection, if well founded, would prevail in this stage of the cause. Williams in a note on Saunders, lays it down, without any qualification, that advantage cannot be taken of such an inaccuracy after verdict, although available on a demurrer, or after a default. But it may be doubted whether the case to which he refers, in Lord Raymond, as the ground of his opinion, does support it. The Court will always support a verdict, if by any reasonable construction it can be done. Now, in this case, although it must be confessed that the words made use of in this count, \\\" there afterwards,\\\" are usually inserted to disjoin allegations of material and issuable facts, yet in this case, on a careful perusal, it does appear to me that it may fairly be understood that the story intended to be to.d by the plaintiff is, that the defendant made an assault, and that, during the continuance of that assault, he beat the plaintiff, first with a plank, and then with a rope. The assault was the same ; but one assault is alleged ; the beating was a continued injury, and the instruments only different. This seems to me to be the reason able construction, and not that two distinct and independent in juries are intended to be charged. If this is correct, the objection of the defendant's counsel is answered, and the judgment ought not to be arrested.\\nDana, C. J.\\nI agree in opinion with my brethren. Unless this declaration can be shown to allege the trespass with a continuando in form, there is no ground for arresting the judgment. An action is said to be laid with a continuando when the injury is alleged to have been committed by continuation from one day to another, or at divers days' and times between such a day and such a day. It does not appear that the trespass in this case is so alleged as to be brought within the legal and technical import of a continuando. \\\" There afterwards continuing his said assault \\\" may be understood to imply nothing more than a continuance of the trespass, without intermission of time longer than was sufficient to change the instruments used; first beating the plaintiff with the plank, and after-wards with the rope ; he continuing, the whole time of the [ * 55 ] beating with * both the instruments, lashed over the cask; so that there never was a cessation of the first assault noi of the beating. It is not necessary to decide the question which has been agitated at the bar, whether an assault and battery may be well laid with a continuando in any case, it appearing that it is not so laid in the count, to which the exception has been taken.\\nDexter and Selfridge for the plaintiff.\\nParsons and Jackson for the defendant.\\nJudgment according to verdict\\nKingsley vs. Bill, 9 Mass. Rep. 198. \\u2014 Stevenson vs. Hayden, post, 406. \\u2014 Barnard vs. Whiting & Al. 7 Mass. Rep. 358. \\u2014 Nye vs. Otis, 8 Mass. Rep. 122. \\u2014 Bames vs Hurd, 11 Mass. Rep. 59. \\u2014 Sullivan vs. Holker, 15 Mass. Rep. 374.\\n1 Saund. 24.\\nFontleroy vs. Aylmer, 1 Ld. Raym. 240\\nMitchel vs. Neale, Cowp. 828. \\u2014 English vs. Purser, 6 East, 395. \\u2014 M'Fadden vs. Olivant, 6 East, 390. \\u2014 Burgess vs. Freelove, 2 Bos. & Pul. 425. \\u2014 1 Chitty, 439, 5th Lond. ed.\"}"
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diff --git a/mass/2007370.json b/mass/2007370.json
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+"{\"id\": \"2007370\", \"name\": \"Edward Cutts, Esq., Judge of Probate, versus Joseph Parsons\", \"name_abbreviation\": \"Cutts v. Parsons\", \"decision_date\": \"1807-05\", \"docket_number\": \"\", \"first_page\": \"396\", \"last_page\": \"397\", \"citations\": \"1 Tyng 440\", \"volume\": \"2\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:07:40.354168+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward Cutts, Esq., Judge of Probate, versus Joseph Parsons.\", \"head_matter\": \"Edward Cutts, Esq., Judge of Probate, versus Joseph Parsons.\\nThe resignation of a judge of probate operates a discontinuance of an action Lu his name upon an office bond.\", \"word_count\": \"93\", \"char_count\": \"539\", \"text\": \"This was an action of debt, brought upon an administration bond 'or the use and benefit of one George Lord. Since the last con tinuance the plaintiff resigned his office. There being no motion to the Court for the continuance of the action, that the successor who may be hereafter appointed may come in and prosecute, the Court ordered a discontinuance to be entered.\"}"
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diff --git a/mass/2011491.json b/mass/2011491.json
new file mode 100644
index 0000000000000000000000000000000000000000..0d36f62514e496e721b5d645e9e29e94dfec99aa
--- /dev/null
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+"{\"id\": \"2011491\", \"name\": \"Elisha Copeland Junior versus The Mercantile Insurance Company\", \"name_abbreviation\": \"Junior v. Mercantile Insurance\", \"decision_date\": \"1828-03-29\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"206\", \"citations\": \"6 Pick. 198\", \"volume\": \"23\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:29:33.762575+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elisha Copeland Junior versus The Mercantile Insurance Company.\", \"head_matter\": \"Elisha Copeland Junior versus The Mercantile Insurance Company.\\nA vessel was owned by the plaintiff, the master, A and B, one quarter each ; &nd the plaintiff effected insurance upon her in his own name for whom it might concern, for six months. Before she sailed,'he gave a power of attorney to one P to sell his quarter, and in a subsequent letter of instructions he and A authorized P and the master to sell their respective quarters after the delivery of the outward cargo. After such delivery a bill of sale under seal, of the two quarters belonging to the plaintiff and B, was made by P alone to the master for himself and A, and the master drew bills upon A in favor of the plaintiff and B for the purchase money, which were protested for non-acceptance. The vessel was lost after the sale and within the six months, but the loss was not known until after the bills had been protested. In an action on the policy by the plaintiff for the benefit of the assured ; \\u2014\\nIt was held, that the power of attorney to P alone was revoked by the subsequent letter of instructions to him and the master ; \\u2014\\nThat a sale in pursuance of such instructions must be made by the master and P jointly ; \\u2014\\nThat the deed of sale being in the name of P, and signed \\u201c P, attorney to C,\\u201d (the plaintiff,) was insufficient in point of form ; \\u2014\\nThat the master, being an agent to sell, could not himself be the purchaser, and so nothing passed to him by the sale ; \\u2014\\nThat as A repudiated the sale, and the ratification, if any, on the part of the plaintiff and B must have proceeded on the ground that A was a joint purchaser with the master, the sale was entirely invalid, and so the ownership of the vessel re mained the same at the time of the loss as at the date of the policy ;\\u2014\\nThat a revocation by the master, pending the action, of the plaintiff\\u2019s authority to claim indemnification for the master\\u2019s quarter part of the loss, did not affect the plaintiff\\u2019s right to recover in this action for the other three quarters ; \\u2014\\nAnd that he might so recover under counts alleging respectively, that the insurance was made for the benefit of one of the owners, and that he was interested to tne whole amount insured.\\nAssumpsit on a policy of insurance, made on the 17th of September, 1825, by which the defendants assured for the plaintiff, for whom it might concern, 3600 dollars on the brig Joseph and appurtenances, for the term of six months from the 20th of the same September.\\nThe first count alleged the insurance to have been made for the benefit of the plaintiff, William Bright and Joshua Seaver, one quarter for each, and one quarter for Porter & Greene. The third alleged it to have been made for the benefit of Seaver, and that he was interested to the whole amount insured upon the vessel. The ninth was similar, substituting Porter & Greene for Seaver. The fifth alleged it to have been made for the plaintiff\\u2019s own account and benefit, and that he was interested one quarter part in the vessel.\\nA total loss happened on the 2d of March, 1826, while the vessel was on her passage from Monte Video to Boston. The defence was, that at the time of the loss no part of the vessel was owned by the plaintiff, nor by any person for whom he had caused the insurance to be made, except Bright, (who it was alleged disavowed the action,) and Seaver.\\nAt the time of making the policy, the vessel was owned by the plaintiff, Seaver and Bright, one fourth each, and the remaining fourth by Porter & Greene. The plaintiff acted as ship\\u2019s husband in fitting her out, and had authority to make insurance on the whole vessel. By a letter of instructions, signed by the plaintiff and Seaver, dated October 22, 1825, and delivered the same day, the care of the brig and cargo was committed to Bright, who was the master, and John Pedrick 3d, with instructions to proceed from Boston to Buenos Ayres, and there deliver the cargo. The letter adds, \\u201chaving accomplished this, we wish the vessel to be sold, if it can be done at such a price as yourselves, who represent the other half of the vessel and cargo, think reasonable.\\u201d By a letter of attorney, dated the 15th of October and acknowledged before a notary public on the 21st, the plaintiff authorized Pedrick alone to make sale of his quarter part of the vessel, stating that she was then bound on a voyage to the Brazils. On the 18th of February, 1826, at Monte Video, in consideration of 1700 dollars received of Bright, Pedrick made a bill of sale of one half of the vessel to Bright and Seaver. This instrument, in the body of it, purported to be a conveyance by Pedrick personally, but was executed in the following manner : \\u2014 \\u201c John Pedrick 3d, attorney to E. Copeland jr.\\u201d, and a seal. \\u201c Porter and Greene by John Pedrick 3d,\\u201d and a seal. There was no evidence in the case of any authority from Porter & Greene to Pedrick to sell the brig, or from Seaver to Bright to purchase any part of her.\\nMarch 14th.\\nThe plaintiff contended that Pedrick had no authority to sell his share, nor that of Porter & Greene ; that if he had authority to sell for him, it was not executed in such a manner as to pass the property ; and that Bright had no authority to purchase for Seaver. The defendants insisted that Pedrick had lawful authority to sell, and that it was duly executed.\\nTwo bills of exchange, one in favor of Porter & Greene for 425 dollars, the other in favor of the plaintiff for 850 dollars, were drawn by Bright on Seaver for the price agreed for the purchase between Bright and Pedrick, 425 dollars being paid in cash towards the share of Porter & Greene, and passed to their credit in Pedrick\\u2019s account with them. These bills were remitted by Pedrick-, but on presentment were not accepted, but were protested ; and they were also protested for non-payment. The protest for non-acceptance was before notice of the loss of the brig was received.\\nOn the 23d of March, 1827, Bright executed a sealed instrument revolting the authority of the plaintiff to claim of the defendants indemnification on account of the loss of Bright\\u2019s quarter part insured as before mentioned ; and notice of such revocation was given on the 22d of November, 1827, (pending this action,) to the defendants, accompanied with a demand in Bright\\u2019s own name for indemnification, and on the 23d to the plaintiff.\\nThe defendants contended, that from certain correspondence in the case between them and the plaintiff, it appeared that there was, in point of law, a ratification of the doings of Pedrick in regard to the sale of the brig ; which legal inference was denied by the plaintiff.\\nIn order to have the matters of law arising on trie several instruments settled, as also the effect of the correspondence, a verdict was taken for the plaintiff, subject to the opinion of the Court.\\nFletcher, for the defendant.\\nThe interest of the persons for whom the action is brought, must be proved as it is alleged. Gardner v. Bedford Ins. Co., 17 Mass. R. 613. The plain tiff could originally recover, if at all, only on the first count ; but Bright has revoked the authority to prosecute for his ben. efit, and the proof does not now support that count. Paley Princ. & Ag. 134, 135; 3 Chit. Com. & Manuf. 223, 224; Bristow v. Taylor, 2 Stark. R. 50; Sargent v. Morris, 3 Barn. & Aid. 281.\\nMarch 29th\\nOn the counts alleging the whole interest insured to have been in some one of the owners of the vessel, the plaintiff cannot recover, because the proof is, that no more than a quarter was owned by any individual. Graves v. Boston Mar. Ins. Co. 2 Cranch, 419; Lawrence v. Sebor, 2 Caines\\u2019s R. 203; Perchard v. Whitmore, 2 Bos. & Pul. 155, note.\\nThe interest of the plaintiff and of Porter & Greene in the property insured, had been transferred before the loss ; the plaintiff therefore cannot recover in this, nor in any suit, for the loss on two quarters of the vessel. Phillips on Ins. 27. The bill of sale, it is true, is informal, and if it had relation to real estate, would be invalid, as Pedrick represents himself to be the grantor ; but a ship may be transferred without deed, and the form of the instrument is consequently immaterial. It will be objected that Bright had no authority to purchase for Seaver ; but the effect of that would be only to make Bright himself the purchaser.\\nAdmitting that in consequence of the letter of instructions giving a joint authority, Pedrick alone had no power to sell nor Bright to purchase, yet in fact there has been a ratification of the sale, at least so far as regards the plaintiff and Seaver. Pedrick and Bright, by letters dated in February, 1826, informed the plaintiff of the sale, and he, after the receipt of them, wrote to the defendants that Seaver and Bright were the sole owners of the vessel ; and on the 26th of April a policy was made out accordingly, and Seaver gave his note for the premium.\\nCurtis, contra,\\nreferred to most of the authorities cited in the opinion of the Court ; and in regard to Bright\\u2019s interference in the action, he cited Offley v. Warde, 1 Lev. 235, and Doe v. Brewer, 4 Maule & Selw. 300.\", \"word_count\": \"3659\", \"char_count\": \"20500\", \"text\": \"Morton J.\\ndelivered the opinion of the Court. This is an action of assumpsit on a policy of insurance upon the brig Joseph for six months. The loss within that time by a peril insured against, and a reasonable notice and offer to abandon, are admitted.\\nThe plaintiff procured the insurance to be made in his own name, for whom it might concern, and now alleges that it was made for the account and benefit of himself and three others, each of whom he avers was owner of one quarter part at the time of the loss as well as at the date of the policy.\\nIt is agreed by the defendants, that the several persons named in the declaration were interested in the manner alleged, at the time of effecting the insurance ; and the defence is, that the plaintiff and Porter & Greene had sold their parts of the vessel before the loss, and at that time had no insurable inter est in her.\\nBefore the loss, John Pedrick, assuming to act as the attorney of the plaintiff and of Porter & Greene, executed a bill of sale purporting to convey their half of the vessel to Bright and Seaver, the owners of the other half. The first inquiry will be whether any thing passed by this instrument.\\nPedrick's authority to convey must have been derived either . from the power of attorney of the plaintiff, or from the letter of instructions from the plaintiff and Seaver to Pedrick and Bright of a subsequent date. There is no evidence in the case of any other authority from either of the former owners. Neither of these was executed by Porter & Greene, and the act of Pedrick was wholly unauthorized by them.\\nThat the power of attorney, while in force, authorized Pedrick to sell the plaintiff's quarter, cannot be questioned. But the letter of instructions subsequently written by the plaintiff and Seaver, gave to Pedrick and Bright a joint authority to sell the two quarters of the plaintiff and Seaver. This was inconsistent with the authority before given by the plaintiff to Pedrick alone, and when he received the instructions, he must have understood them as a substitute for the former authority They must therefore be considered a revocation of the power of attorney.\\nThe letter of instructions conveyed to Pedrick and Bright a joint authority, which neither of them separately could execute. Co. Litt. 112 b. 181 b; Paley on Principal & Agent, 129; First Par. in Sutton v. Cole, 3 Pick. 244. The bill of sale was therefore unauthorized. It is manifest, too, that even had there been sufficient authority in the agent, it was not properly executed. The deed ought to have been in the name of the principal, instead of the agent. It is not now the deed of the principal. Paley, 131, 132, 133, and cases there cited.\\nThis bill of sale was therefore ineffectual to pass the property of the plaintiff and Porter & Greene ; unless power may be derived from a subsequent ratification. The instrument is not so far void as to be incapable of becoming effectual by the adoption of the principals ; and this ratification may be by implication, as well as by a direct sanction. The receipt by the owner, of the purchase money, would necessarily imply a ratification of the sale ; but to be binding on the principal, the \\u2022 ratification must be made with a full knowledge of all the circumstances. Paley, 143, 144; Smith v. Cologan, 2 T. R. 189, note; Fenn v. Harrison, 3 T. R. 757.\\nIn the case under consideration Pedrick communicated to the plaintiff the fact that he had sold, the price, and the names of the purchasers, and other circumstances attending the sale. The plaintiff expressed no disapprobation, but in applying for a renewal of the policy for another term of six months, exPressty stated that the brig was owned by. Seaver and Bright. This could only have been true in consequence of his approbation of the sale by Pedrick. Also, upon the receipt of the bill drawn in payment for his quarter of the brig, he presented it for acceptance and demanded payment of it. These acts are sufficient evidence of a ratification on the part of the plaintiff.\\nThe ratification of the sale on the part of Porter & Greene does not so clearly appear. According to the testimony of Pedrick, the money received in part payment for their quarter was placed to their credit and settled in their account. From the language used in his deposition, it does not clearly appear that this settlement was made with the knowledge and assent of Porter & Greene. They did, however, upon the receipt of the bill drawn for the remainder of the price for which their quarter was sold, present it for acceptance and for payment. These circumstances strongly tend to show, and perhaps will warrant the inference, that they assented to and confirmed the sale on their part. But still the question will recur, whether this sale passed any thing to Bright and Seaver. Could Bright, being agent to sell, purchase either for himself or as agent for another ?\\nIt is a rule of law well settled, and founded in the clearest principles of justice and sound policy, that the agent of the seller cannot become the purchaser or the agent of the purchaser. These relations are utterly incompatible with each other. Paley, 32; Barker v. Mar. Ins. Co. 2 Mason, 369; Church v. Mar. Ins. Co. 1 Mason, 341. The attempt of Bright to become the purchaser of a part of the vessel was a breach of trust on his part, and could not divest the other owners of their interest.\\nSeaver had given to Bright no power to purchase for him, > but had authorized and instructed him with Pedrick to sell his part. This act of Bright was therefore wholly unauthorized. Has Seaver ever adopted it ? After he received information of the purchase, he procured insurance to be effected upon the vessel in his name for whom it might concern, for six months, to commence at the expiration of the former policy. It does not appear that he made a statement, or that any was made with his knowledge, of the names of the owners. This insurance might as well be procured by him, being owner of a quarter, as if he was owner of half. Nothing tending to show a ratification can be inferred from this circumstance.\\nAnd the first opportunity which he has to act decisively upon the subject, he repudiates the contract. Before information of the loss of the vessel reached him, he refused to accept Bright's bills drawn in payment of the half which he had purchased. To hold this transfer to be valid, would be to compel him to become a purchaser without his consent.\\nNotwithstanding this breach of confidence on the part of Bright, the parties interested might waive all objection to his conduct and ratify his contract. And we have already seen that the acts of the plaintiff and of Porter & Greene have a strong tendency to show such waiver and ratification. But these acts were founded upon a reasonable presumption, that Seaver and Bright were to become joint purchasers and jointly responsible for the purchase money. The refusal of Seaver to adopt the contract and to accept Bright's bill, produced such an entire change of circumstances as furnished to the plaintiff and to Porter & Greene sufficient reason for disavowing a contract which perhaps before they had intended to adopt. The bill of sale purporting to be a joint contract between the parties passed no property to Bright and Seaver, or either of them, and produced no change in the ownership of the vessel.\\nWe are therefore all of opinion, upon the facts disclosed in the case, that Pedrick had no authority to make sale of the half of the brig, that Bright had no legal right to become the purchaser, either for himself or for Seaver, and that these unauthorized acts have never been so ratified as to change the property of the former owners. The interest in the vessel remained the same at the time of the loss that it was at the date of the policy ; and is correctly stated in the first count in the plaintiff's declaration.\\nSince the commencement of the' action Bright has disavowed it and annulled the authority of the plaintiff to prose cute it, so far as that authority was derived from him. He might well prohibit the plaintiff from maintaining the suit for his proportion of the loss ; but the policy was in the name of the plaintiff. The action is brought by him for the benefit of himself and the other owners ; and it would be manifestly unjust that one owner, having received payment for his part of the loss, having compromised with the underwriters, or being unwilling to litigate the claim, should have the power to defeat the legal rights of the others. Bright might well revoke the power which he had given to the plaintiff to prosecute for his benefit, but he could not annul the authority which the other owners had given to sue for them, much less the right which he had to maintain the action in his own name for his own benefit. We are therefore well satisfied, that the plaintiff is entitled to judgment for his own quarter and those of Seaver and Porter & Greene, and the verdict must be amended accordingly.\\nApril 4th.\\nApril 5th.\\nAfter this opinion was delivered, Fletcher insisted that the declaration was insufficient. The plaintiff, being the agent in a joint contract for four, the action brought by him must be to enforce the whole contract. Besides, there is no count alleging the interest to be in three only, and the counts in which the whole interest is averred to be in some one of the three, are not supported by the evidence.\\nBut per Curiam. We were inclined to think the first count sufficient to sustain a judgment for three quarters of the sum insured ; that as it stated correctly the interest of all the parties for whose benefit the suit was originally brought, the revocation by Bright of the authority to prosecute any further on his behalf, ought not to be allowed to prejudice the other parties concerned ; but it is not necessary to determine this, as we are of opinion that judgment may be rendered for the plaintiff upon the other counts.\\nSee 2nd ed. 245 and notes; 2 Kent's Comm. (3d ed.) 633, note b, and eases there cited.\\nThe rule that an attorney or agent, to bind his principal, must sign the name of the principal, applies only to deeds and not to simple contracts. New England Mar. Ins Co. v. De Wolf, 8 Pick. 56; Andrews v. Estes, 2 Fairfield, 267. See Spencer v. Field, 10 Wendell, 87; Means v. Morrison, l Breese, 172; Minard v. Mead, 7 Wendell, 68; Elwell v. Shaw, 1 Greenl. 339; Stinchfield v. Little, 1 Greenl. 231; Colburn v. Ellenwood, 4 N. Hampsh. R. 102; Jordan v. Trice, 6 Yerger, 479; Magill v. Hinsdale, 6 Connect. R. 464; Hovey v. Magill, 8 Connect. R 680; Berkeley v. Hardy, 8 Dowl. & Ryl. 102; 5 Barn. & Cressw. 355; Pentz v. Stanton, 10 Wendell, 271; Hills v. Bannister, 8 Cowen, 31; Barker v. Mechanics Fire Ins. Co. 3 Wendell, 94; Shelton v. Darling, 2 Connect R. 435; 2 Kent's Comm. (3d ed.) 631 and note E; Spencer v. Field, 10 Wendell, 87; Montgomery v. Dorion, 7 N. Hampsh. R. 475.\\nSee Hanford v. M'Nair, 9 Wendell, 54; Blood v. Goodrich, 9 Wendell, 68; 2 Kent's Comm. (3d ed.) 614.\\nSee Thorndike v. Godfrey, 3 Greenl 429; 2 Kent's Comm. (3d ed.) 616; Owings v. Hull, 9 Peters, 629; Cunningham v. Bell, 5 Mason, 168; Belly. Cunningham, 3 Peters, 81.\\nSee 1 Story's Comm. Eq. 310 to 312; Rothschild v. Brookman, 2 Dow & Clark, 188; 5 Bligh, N. S. 165; 3 Simon, 153; Crome v. Bullard,2 Cox 253; Lees v. Nutt\\u00e1ll, 1 Russ. & Mylne, 53.\\nSee 2 Phillips on Ins. 379.\"}"
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+"{\"id\": \"2027007\", \"name\": \"Samuel Kincaid, Plaintiff in Error, versus John Howe\", \"name_abbreviation\": \"Kincaid v. Howe\", \"decision_date\": \"1813-06\", \"docket_number\": \"\", \"first_page\": \"211\", \"last_page\": \"213\", \"citations\": \"9 Tyng 203\", \"volume\": \"10\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:44:16.222512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel Kincaid, Plaintiff in Error, versus John Howe.\", \"head_matter\": \"Samuel Kincaid, Plaintiff in Error, versus John Howe.\\nA B, being the younger of the same name in the same town, brought an action by the name of A B only, omitting the addition of junior. The Common Pleas refused to allow him to amend his writ by making the addition, and to give in evidence the written promise of the defendant, made to the plaintiff; by the name of A B, junior.\\nUpon error brought in this Court, the judgment rendered against the plaintiff; upon a verdict taken in the court below, was reversed, and a new trial ordered.\\nThe writ of error in this case was sued to obtain the reversal o\\u00ed a judgment of the Court of Common Pleas for this county, rendered May term, 1810, in an action wherein the said Kincaid was plaintiff, and the said Howe defendant. * The origi- [ * 204 ] nal action was case upon two promissory notes made by the defendant, and payable to Samuel Kincaid, Jun., or order; and was originally commenced before a justice of the peace for this county, and tried by him upon the general issue. The plaintiff having obtained a judgment before the justice in his favor, the defendant appealed to the Common Pleas.\\nAfter several continuances in that court, the plaintiff moved for leave to amend his writ and declaration, by adding junior to his name; it being agreed that in the place of the plaintiff\\u2019s residence his father, named Samuel Kincaid, also lived at the time of serving the original writ. The court refused to allow the amendment, and, when the action came to trial, they also refused to permit the notes so declared on to be read in evidence, although the defendant\\u2019s attorney admitted that the said notes were made and signed by the defendant. To these decisions of the Common Pleas the plaintiff offered a bill of exceptions at the common law, containing the foregoing facts, thus made part of the record ; and the same facts constituted the errors assigned on this writ of error.\\nSiebbins for the plaintiff in error.\\nWilde for the defendant in error.\", \"word_count\": \"1110\", \"char_count\": \"6216\", \"text\": \"Per Curiam.\\nIt is not easy to conjecture the reasons by which the Court of Common Pleas were prevailed on to reject finally the proposed amendment, by which the plaintiff's writ and declaration would have been rendered conformable to the fact and truth of the case, in every descriptive circumstance; especially as the court seem to have been apprized that the motion for the amendment was directed to the purpose of conforming the plaintiff's declarat.on to the state of his evidence, and as, in their apprehension, the amendment was essential to enable the plaintiff to proceed in his action. If the court had rejected the amendment as unnecessary, and had proceeded afterwards to receive the notes in evidence, considering the variance as altogether immaterial, we should have thought the decision much nearer to the legal principles applicable to the case.\\n* Junior, or younger, is no part of the name; but\\nan addition by use, and serving for a convenient distinction, when a father and son have each of them the same Christian and surname, or when two persons of the same names and occupations reside in the same town. And it seems to be only in the case of a father and son of the same names, that the addition is required to be stated in a writ, where the son is made defendant, and other words describing the defendant as the son, are equivalent. And if the description is omitted, and the right defendant appears and pleads, he cannot afterwards object for the uncertainty. And if the father appears, the plaintiff may aver that he is not the person sued, and may then show, by additional averments or suggestions on the record, that the son is the party against whom the writ was directed, and upon whom it had been served.\\nWhere the omission respects the plaintiff, it is not a circumstance which can be taken advantage of in abatement: if at all, it must be by objecting to the written evidence, where the variance is discoverable. But even then, and in the case of a deed, where more precision in recitals is generally required, a variance in any addition or description of the person is considered as immaterial, and not to be taken advantage of in pleading, and, of course, not in objecting to the deed as evidence; for there a greater latitude is indulged than when the exception is by pleading or demurring for the variance, upon oyer of the deed.\\nIn the case at bar, a precision, not to any purpose perhaps aoso lately essential, might have been obtained by permitting the amendment ; and an objection would have been avoided, which was merely captious and dilatory in its nature, not at all affecting the merits of the action, or important in any degree to the security of the party sued, or to any other person,\\nThe judgment of the Court of Common Pleas is reversed, and a new trial is to be had at the bar of this Court.\\nADDITIONAL NOTE.\\n[An amendment in the name of the plaintiff will be granted, where it is wrongly spelled. \\u2014 Furniss vs. Ellis, 2 Brock. 14. \\u2014 So in the name of a corporation, which is sued under a wrong name.\\u2014 Burnham vs. Savings, &e., 5 JV. H. 573.\\nThe omission, in a warrant, of the defendant's Christian name cannot be amended. \\u2014 Johnston vs. McGuin, 4 Dev. 279.\\nA mistake in the name of an execution plaintiff may be amended, after a delivery bond taken in the right name, and execution thereupon, if the error is a clerical one, and the record contains enough to amend by. \\u2014 Bank vs. Lacy, 1 Monr. 7.\\nSee Bowman vs. Green, 6 Monr. 341. \\u2014 Cain vs. Kersay, 1 Yerg. 443.\\u2014 Lynes vs The State, 5 Por. 236.\\u2014F. H.]\\n[Commonwealth vs. Perkins, 1 Pick. 388. \\u2014 Ed ]\\nCom. Dig., Abatement, F, 21, cites Theol. Dig. 1. 6, c. 13, \\u00a7 7, 8, 9, 10, &c., 44 E, 3, 34, b, 39; H, 6, 46. \\u2014 1 Sid. 247. \\u2014 Salk. 7.\\nCom. Dig., Abatement, H, 9, cites Theol. Dig. 1. 9, c. 3, \\u00a7 10, &c.\\n[The permitting amendments is a matter of discretion. \\u2014 Mandeville & Al. vs. Wilson, 5 Crunch, 14. \\u2014 A superior court will not direct the court below to allow the proceedings to be amended. \\u2014 Sheely vs. Mandeville & Al., 6 Cranch, 253. \\u2014 And the allowance or disallowance of amendments is not a matter for which error lies.\\u2014 Chirac & Al. vs. Rheinecker, 11 Whea. 280.\\u2014 Thacker vs. Miller, 13 Mass. Rep. 270 \\u2014 Ed.]\"}"
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+"{\"id\": \"2038895\", \"name\": \"James Riddle versus Benjamin F. Varnum\", \"name_abbreviation\": \"Riddle v. Varnum\", \"decision_date\": \"1838-06-25\", \"docket_number\": \"\", \"first_page\": \"280\", \"last_page\": \"285\", \"citations\": \"20 Pick. 280\", \"volume\": \"37\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:05:55.438579+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Riddle versus Benjamin F. Varnum.\", \"head_matter\": \"James Riddle versus Benjamin F. Varnum.\\nWhere some act remains to be done in relation to the articles which are the subject of a sale, as that of weighing or measuring, and there is no evidence tending tc show the intention of the parties to make an absolute and complete sale, the prc^ierty in such articles does not pass to the vendee, until such act is performed. But it is otherwise, if the payment of the purchase money is not a condition precedent to the transfer, and it appeals that the parties intended that the sale should be complete before the articles were weighed or measured.\\nIt. who was the owner of a quantity of timber, lying in a mill pond at the termina tion of a canal, under the charge of the superintendent of the canal, entered into a contract witli C. for the sale thereof, in pursuance of which C. signed the following'writing : \\u201cReceived of R. four shots of white oak plank, &c. for which I promise to pay him twenty-six dollars per thousand, board measure. The above timber delivered in the mill pond, &c. ; and R., at the same time, executed a writing in the following words : \\u201cReceived of C. two hundred dollars in part pay for the timber in question. \\u201cRemainder to be paid in ninety dajs from surveying. The canaliage to be paid by C., when he takes the plank and timber from the pond. R. further agreed, that C. might procure the timber to be measured by the superintendent of the canal, and that he would abide by the measurement. Before the timber was measured, C. became insolvent, and it was attached by one of his creditors. It was held, that if there was\\\" a delivery to C., and if it was the intention of the parties to make the sale complete before the measure of the timber was ascertained, the property was vested in C. at the time of the attachment.\\nTrover for a quantity of timber attached in January 1835, by a deputy of the defendant, who was sheriff of the county of Middlesex, upon a writ issued in favor of one Trowbridge against Curtis & Barstow.\\nThe trial was before Wilde J.\\nThe plaintiff proved, that in the autumn or winter of 1834, he was the owner of the timber, and sent the same by the Middlesex Canal from New Hampshire to Charlestown ; and that it was left in the pond at the termination of the canal in Charlestown, in the charge of one Greenleaf, the superintendent of the canal in that town, where it remained at the time of the attachment.\\nThe defendant introduced Curtis as a witness, who testified, that the plaintiff, a short time previously to December 17, 1834, and while the timber was lying in the pond frozen up, came to Boston, and proposed to sell it to the witness ; thal the plaintiff and the witness went to Charlestown, and examined it; that upon their return to Boston, an agreement was made for the purchase thereof; that the witness, on Decern ber 17, 1834, paid the plaintiff the sum of $200, and thereupon the two following instruments were executed by the parties respectively, and interchanged.\\n\\u201c Received of James Riddle four shots of white oak plank, for which I promise to pay him twenty-six dollars per thous- and board measure. Also one shot of black oak plank,\\u201d &c \\u201c The above timber delivered in the mill pond at Charlestown locks, and plank. Boston, December 17, 1834. Curtis & Barstow.\\u201d\\n\\u201c Received of Curtis & Barstow two hundred uollars in part pay for five shots of oak plank, Sic. in the mill pond at Charlestown, as follows, white oak plank, twenty-six dollars a thousand, board measure,\\u201d &c. \\u201c Remainder to be paid in ninety days from surveying. The canallage to be paid by Curtis & Barstow, when they take the plank, &c. from the pond. The amount for canallage to be deducted from the residue of money due for the above plank, &c. when settled for. Boston, December 17, 1834. James Riddle \\u201d\\nCurtis also testified, that previously to their separation, the plaintiff agreed, that the witness might procure the timber to be measured by Greenleaf, and that he, the plaintiff, would abide by such admeasurement.\\nThe defendant called one Josselyn, as a witness, who testified, that in June 1835, he met the plaintiff in Quincy, on his way to see Curtis, who lived in Scituate ; that the plaintiff told him, that his object was to get up his contract which he had given Curtis, and then get back the timber which was attached ; that the witness told the plaintiff, that the timber was delivered, and that he could not do as he proposed ; and that the plaintiff replied, that if he could get back the paper or receipt held by Curtis, he could accomplish his purpose.\\nIt further appeared, that after the attachment, the timber and plank was receipted for by Greenleaf, at the request of the plaintiff, and sold by the agreement of the parties ; and that the proceeds, amounting to the sum of $ 336\\u201875, were paid over to the defendant, who applied them in part satisfaction of the execution subsequently issued in favor of Trowbridge.\\nUpon this evidence, the defendant contended, that the delivery as well as the sale of the timber by the plaintiff to Curtis &, Barstow, was understood and agreed by them,.at the time, to be complete, and he desired that the case might go to the jury upon this point; but as the plaintiff consented, that, if a verdict of the jury for the defendant could by law be sustained, judgment might be entered for the defendant, the case, was taken from the jury and submitted to the Court.\\nJune 13th.\\nIf such verdict could be sustained, judgment was to be rendered for the defendant; otherwise, for the plaintiff.\\nSewall, for the plaintiff.\\nThe property in the timber had not vested in Curtis &, Barstow at the time of the attachment, Decause there had been no admeasurement of it. If it had been destroyed, it would have been impossible to have ascertained the amount of the purchase money, and the plaintiff must have borne the loss. The contract was executory. Hanson v. Meyer, 6 East, 614 ; Rugg v. Minett, 11 East, 210 ; Long on Sales, 153 et seq. ; Shepley v. Davis, 5 Taunt. 617; Simmons v. Swift, 8 Dowl. & Ryl. 693 ; S. C. 5 Barn. & Cressw. 857 ; Brown on Sales, 358 ; Dig. lib. 18, tit. 1, c. 35, \\u00a7\\u00a7 5, 6, 7; Outwater v. Dodge, 7 Cowen, 85 ; M'Donald v. Hewett, 15 Johns. R. 349 ; Rapelye v. Mackie, 6 Cowen, 250; Brewer v. Smith, 3 Greenl. 45 ; Ward v. Shaw, 7 Wendell, 404 ; Andrew v. Dieterich, 14 Wendell, 31.\\nWhere the delivery is conditional, the vendor has a right lo reclaim, in case the condition is not performed. Reed v. Upton, 10 Pick. 522; D\\u2019Wolf v. Babbelt, 4 Mason, 289 ; Haggerty v. Palmer, 6 Johns. Ch. R. 437 ; Hussey v. Thornton, 4 Mass. R. 405 ; Whitwell v. Vincent, 4 Pick. 449.\\nThe right of stoppage in transitu existed in this case. Greenleaf was the agent of the plaintiff, and the timber continued in his possession. Curtis & Barstow had no right to take possession, till it was measured and the canallage paid ; and even then their insolvency would have entitled the plaintiff to retain the timber. Long on Sales, 186, 187 ; Stubbs v. Lund, 7 Mass. R. 453 ; Naylor v. Dennie, 8 Pick. 198.\\nBartlett, for the defendant,\\nto the point, that as between the parties to a sale, the property in the thing sold vests in the vendee before delivery, if the contract is complete, delivery only being necessary in reference to third parties, cited Noy\\u2019s Maxims, c. 42 ; to the point, that the property had vested in Curtis &s Barstow, at the time of the attachment, as nothing remained to be done by the vendor, Tarling v. Baxter, 6 Barn. & Cressw. 364 ; and to the point, that even where something remains to be done by the vendor, the property in the thing sold vests m the vendee, if the contract shows that it was the intention of the parties that the property should pass, Macomber v. Parker, 13 Pick. 175 ; Hinde v. Whitehouse, 7 East, 558 ; Andrew v. Dieterich, 14 Wendell, 31.\\nJune 25th.\", \"word_count\": \"2274\", \"char_count\": \"12723\", \"text\": \"Dewey J.\\ndelivered the opinion of the Court. The question presented for adjudication is, whether upon the evidence detailed in the report of this case, it would have been competent for the jury to return a verdict in favor of the defendant. If such a verdict could by law be sustained, the parties agree, that judgment shall be entered for the defendant.\\nThe point in controversy is, as to the property in certain timber and plank attached by the deputy of the defendant as belonging to Curtis & Barstow. Was the property in these articles in the plaintiff, or in Curtis & Barstow, at the time of the attachment ?\\nIt is admitted by the plaintiff, that a contract in reference to the sale of the articles had been made, between himself and Curtis & Barstow, but he denies that the sale was so far completed as to vest, the property in Curtis & Barstow prior to the attachment.\\nThe leading objection to the alleged transfer of the property, is founded upon the fact, that the timber and plank were contracted for at a certain price, by the thousand feet, and that at the time of the attachment, they had not been surveyed and the measure of them ascertained.\\nThe general doctrine on this subject is, undoubtedly, that when some act remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the performance of such act is a prerequisite to the consummation of the contract; and until it is performed, the property does not pass to the vendee. But in the case of sales where the property to be sold is in a state ready for delivery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties, that the sale is perfected, and the interest passes immediately to the vendee, although the weight or measure of the articles sold remains yet to be ascertained. Such a case presents a question of the intention of the parties to the contract. The party affirming the sale must satisfy the jury, that it was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascertaining the price of the articles sold, at the rate agreed upon.\\nThese views are fully sustained by the decision of this Court in the case of Macomber v. Parker, 13 Pick. 182. The objection was there taken in relation to a contract for the sale of a quantity of bricks, in which it was stipulated, that the bricks were to be counted ; and this not having been done before an attachment of the same, it was insisted, that the sale was not complete. But it was held, that if it was the intent of the parties to the contract to complete the sale prior to the counting, then the property might well pass, although that operation might yet remain fo be done, for the purpose of ascertaining the amount to be paid for the article sold. See also Hawes v. Watson, 2 Barn. & Cressw. 540.\\nThe Court are of the opinion, that upon a proper application of these principles to the present case, the jury would have been warranted from the testimony to find, that it was the intention of the parties here contracting to make the sale of the articles complete and absolute before the measure of them was ascertained.\\nThere is evidence in the case, from which the jury might have inferred a delivery to Curtis &i Barstow of the articles sold. This will be found in the written memorandum which the plaintiff received from the vendees, and in the testimony of Josselyn as to a conversation between himself and the plaintiff. In connexion with this may be considered the evidence of an actual payment of two hundred dollars on account of the purchase, and the fact that payment for the residue was not a condition precedent to the delivery, inasmuch as, by the terms of the contract, a credit of ninety days was given. If such a delivery were found by the jury, the sale might be considered as perfected, and the property would pass to the vendees, as is well settled.\\nIt was further contended, that the plaintiff might avoid the sale and reclaim the goods, if the vendee became insolvent before payment was made for them. This right, we apprehend, exists only while the goods are in the possession of the vendor or of a carrier employed to convey the same to the vendee, and with the change of possession the lien of the vendor on the goods for the payment of the price of the same is wholly lost, If the jury would have been authorized to infer a delivery to the vendee, tliev might also have found against the lien of the plaintiff.\\nUpon the whole matter, the Court are of opinion, that the jury would have been authorized to return a verdict for the defendant; and agreeably to the stipulations of the parties, the plaintiff must become nonsuit.\"}"
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+"{\"id\": \"2067545\", \"name\": \"Thomas Saunders vs. Elizabeth Robinson & others\", \"name_abbreviation\": \"Saunders v. Robinson\", \"decision_date\": \"1843-11\", \"docket_number\": \"\", \"first_page\": \"310\", \"last_page\": \"316\", \"citations\": \"7 Met. 310\", \"volume\": \"48\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:06:01.465550+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas Saunders vs. Elizabeth Robinson & others.\", \"head_matter\": \"Thomas Saunders vs. Elizabeth Robinson & others.\\nA. bought land of B. under a parol agreement; built a house thereon; occupied part of it, and leased the other part: B. mortgaged the land to C., with the knowledge and consent of A., and C. brought a writ of entry against A. and B. and A.\\u2019s lessee: A. disclaimed all title to the demanded premises, except the house: C. discontinued against B. and took a conditional judgment against A.\\u2019s lessee only; and on the writ of habere facias, which issued on that judgment, A. was removed from the house: After A.\\u2019s death, his widow and children took possession of the house, and C. brought a writ of entry against them: Held, that A.\\u2019s disclaimer, in the Former action, was conclusive against their right to compensation, under the Rev. Sts. c. 101, $ 19, for improvements made by him on the demanded premises. Held also, that they did not hold possession under a title which they had reason to believe good, and were therefore not entitled, under \\u00a7 20 of that chapter, to compensation for improvements made by him.\\nWrit of entry to recover a lot of land, with a dwelling-house thereon, in Lynn. The tenants pleaded ml disseizin, and entered on the record a claim, under Rev. Sts. c. 101, for allowance for improvements made on the demanded premises by William P. Robinson, (under whom they claimed,) in case judgment should be rendered for the demandant. Trial before Shaw, C. J., who reported the case as follows:\\nIt appeared that the tenants were the widow and the two minor children and heirs of William P. Robinson, deceased ; said two children appearing and defending by their mother, the other tenant, as their next friend and guardian.\\nBoth parties admitted that the demanded premises formerly belonged to Henry A. Breed.\\nThe demandant, to support his action, gave in evidence a mortgage deed made to him by Henry A. Breed, September 4th 1835, to secure payment of $ 1500. On that mortgage, it appeared that the demandant brought a suit, in 1838, against said Breed, the Nahant Bank, and the said William P. Robinson, under whom the tenants claim; that in the progress of that suit, the demandant discontinued against Breed ; that Robinson filed a disclaimer as to all except the dwelling-house ; that the demandant took a conditional judgment against the Nahant Bank only, at April term 1839, and that as the money was not paid, the demandant sued out a writ of possession, and deliv ered it to the sheriff for service, by whom seizin and possession were delivered to the demandant on the 20th of June 1839,\\nThe ground of defence taken by the tenants was, that in 1832, Henry A. Breed, being owner of the land, entered into a parol agreement with said William P. Robinson, to sell him the land for $ 300; that this sum was charged to said Robinson by said Breed, in account; that Breed charged him at least one year\\u2019s interest on said sum ; that this account was afterwards settled, by means of w'hich the said sum was paid; that in 1835 Robinson proceeded to build a double house on the land, at the cost of four or five thousand dollars ; that he had the lumber ot said Breed; but that it was charged to Robinson, as lumber sold: that Robinson employed the masons, painters and other mecnanics, being himself a carpenter; and that the house was built on his account.\\nIt appeared that Robinson continued in the occupation of the house, dwelling in part, and letting part, till July 20th 1839, when he was removed by the execution of the writ of possession before mentioned: That soon afterwards Robinson, with his wife and children, left Lynn, (whether for a permanency, or not, did not appear,) went to Boston for a short time, and thence to the State of Maine, where he died: That his wife, with her children, afterwards returned to Lynn, and by some means, which did not definitely appear, obtained possession of said house : That a process of forcible entry and detainer was instituted against her by the present demandant, which was formerly before this court, and which was decided against him, on the ground that no forcible entry or detainer was proved ; (5 Met. 343 ;) and afterwards this action was brought, viz. on the 22d of October 1842.\\nThe defendants proposed to rely on their claim for improvements, and to be allowed for the value of the buildings erected on the premises by Robinson. Several objections were taken to the right of the defendants to go into proof of improvements. 1. It was testified by Henry A. Breed, that when he made the mortgage to the demandant, Robinson well knew the fact and consented thereto. 2. It was objected that the defendants were estopped from claiming for improvements, by the disclaimer of Robinson, under whom they claim, in the action before mentioned, which was brought in 1838. 3. It was objected that this claim for improvements was barred by the provision in the Rev. Sts. c. 101, $ 50, excluding such claim when the action is brought by a mortgagee, or his heirs or assigns, against a mortgagor, or his heirs or assigns. 4. Another objection was, that on the 7th of October 1837, Robinson, by deed duly executed and recorded, conveyed all his estate and interest in the premises to Henry B. Newhall, who demised them, and collected some rent before June 20th 1839; and that this deed was outstanding when this action was brought. Said Newhall, on being called as a witness, testified to the execution and delivery of the deed to himbut he further stated, that he gave no consideration for the conveyance; that he took it at the request of Robinson, and considered himself as his agent in letting the house and receiving the rent prior to the service of the writ of possession; and that he had, on the day of trial, quitclaimed, by deed, all his right and interest in the estate to Mrs. Robinson, one of the tenants. 5. It was objected that the execution of the writ of possession, in June 1839, by which the demandant was put into possession \\u2014 although the judgment, as rendered, did not go against Robinson, and he was no party to that writ, and although Mrs. Robinson might afterwards have regained the possession without force \\u2014 was such an interruption of the possession of the tenants, and him under whom they claim, within six years next before the commencement of this action, as to exclude their claim for improvements under Rev. Sts. c. 101, <\\u00a7, 19.\\nThese objections were overruled, for the purposes of the trial, and the tenants gave evidence tending to show, that in 1835 and 1836 the house was erected by Robinson ; that he employed the respective mechanics who worked on the same; that, although the lumber came from Breed, yet it was charged to Robinson in account, and that the house was erected by him and at his expense; that this was done with the knowledge of Breed, and without interference on his part. There also was evidence tending to prove that Breed had failed before Robinson\\u2019s decease; that no settlement of their accounts had been made; that there were large transactions between them, and that each claimed a large balance against the other.\\nWhereupon the judge, being requested to express an opinion whether this claim for improvements was within the statute, proposed to direct the jury, that if they believed, upon the evidence, that Breed, being the owner of the land, made a parol agreement for the sale thereof to Robinson, and under that agreement Robinson, with the consent of Breed, entered and took possession, and afterwards built a house thereon, he must seek his remedy under the agreement; and that he could not afterwards, on > that ground, set up a claim for improvements against the demandant, who came in under a deed from the former proprietor: That one who enters into possession of land, with the consent of the owner, under a bond or other con tract or promise for a deed of conveyance, is a tenant and not a trespasser, and has not such a possession as will enable him to claim compensation for improvements, under Rev. Sts. c. 101, <\\u00a7> 19: That such an entry and possession is not a holding under such a defective title, as the tenants\\u2019 predecessor might have had reason to believe good, so as to entitle them to claim for improvements, under <\\u00a7> 20 of said chapter.\\nThe tenants thereupon waived their claim for compensation for improvements, and were defaulted, subject to the opinion of the whole court upon the correctness of the foregoing opinion. If the whole court are of opinion that this proposed direction to the jury was wrong, and that, notwithstanding the objections hereinbefore stated, the tenants are .entitled to improvements, then the value of the improvements, and the value of the land without them, are to be ascertained according to law, in such manner as the court may direct, and judgment is to be entered accordingly; otherwise, a general judgment is to be entered for the demandant, on the default.\\nHallett, for the tenants.\\nRobert & Ward, for the demandant.\", \"word_count\": \"2293\", \"char_count\": \"13093\", \"text\": \"Wilde, J.\\nThe only question for our present consideration is, whether the tenants are entitled to compensation for the value of any buildings or improvements made or erected on the premises by them or the person under whom they claim, accord ing to the Rev. Sts. c. 101, \\u00a7 19; for it is very clear that the} have shown no legal title to the demanded premises, which cap avail them in this action. It is true that William P. Robinson, the husband and father of the tenants, agreed to purchase the premises of Henry A. Breed, the owner; but the agreement was by parol, and he acquired no title thereby. Nor was his title by occupation valid against Breed, or the demandant to whom Breed .conveyed the premises by a deed of mortgage, and (as it was testified at the trial) with the consent of Robinson. And besides ; in an action afterwards commenced against him by the demandant, he disclaimed all title to the premises, except the dwelling-house by him erected thereon ; and this undoubt edly is conclusive as to the legal title. The only question therefore is, whether it is not conclusive also as to the claim for the value of the building and the improvements.\\nIt was argued for the tenants, that the exception in the disclaimer was intended as a reservation of Robinson's claim for improvements, and that it ought to be so construed. The answer was, that no such intention is expressed, the reservation being of the house disconnected with the land, and so is to be considered as a claim of personal property ; that by the Rev. Sts. c. 101, <\\u00a7> 21, when a tenant claims allowance for his improvements, he is bound to enter on the record a suggestion o\\u00ed such claim, with a request that the value of th\\u00e9 improvements may be ascertained and allowed to him; and that not having so claimed his improvements, he must be considered as having waived his claim under the statute. And our opinion is, that it must be so considered. We think the demandant has the same rights that he would have had if he had taken judgment against Robinson, as well as against the other defendants, in the former action. If Robinson had any right to the house, he might have removed it; or if not, the only remedy he had, after his disclaimer, for his expenditures in the building of the house, was against Breed. Against the demandant he had no claim, legal or equitable, if it is true, as Breed has testified that it is, that the mortgage to the demandant was given with the knowledge and consent of the said Robinson.\\nIf a party, having a lien upon property, stands by, encouraging the sale by the owner to a third person, without giving notice of his lien, he will not be allowed to enforce it against the purchaser, who purchased in the belief that he was to receive an unencumbered title. Such concealment is deemed fraudulent, and not to be countenanced by a court of equity.\\nThe only remaining question is, whether the tenants have proved any such possession by themselves as entitles them to compensation for their improvements. And we think clearly that they have not. In the first place, they have not proved that they have made any improvements. And in the second place, if they have in fact made any improvements, they have failed to prove any such possession as would entitle them 'o compensa tion therefor under the Rev. Sts. c. 101. They have not had possession for the term of six years, and are not entitled to compensation under <\\u00a7.19 of that chapter. And they are not so entitled under <\\u00a7> 20, because they have failed to prove that they held the premises under a title which they had reason to believe good. On the contrary, this seems to be satisfactorily disproved by the evidence. William P. Robinson was sued by the demandant for the recovery of the possession of the premises, and he thereupon disclaimed his title thereto, and quitted the pos session, with his family. After this, it cannot be presumed that his widow and children could reasonably believe that they had a good title from him. On no ground therefore can the tenants claim; and according to the agreement of the parties, we arc to enter a general\\nJudgment for the demandant\"}"
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+"{\"id\": \"2079295\", \"name\": \"Charles W. Walker vs. John Penniman\", \"name_abbreviation\": \"Walker v. Penniman\", \"decision_date\": \"1857-03\", \"docket_number\": \"\", \"first_page\": \"233\", \"last_page\": \"237\", \"citations\": \"8 Gray 233\", \"volume\": \"74\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:37:56.586670+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles W. Walker vs. John Penniman.\", \"head_matter\": \"Charles W. Walker vs. John Penniman.\\nIn an action on an agreement to pay a debt contracted by another, the jury were instructed that whether the case was within the statute of frauds depended on the question whether the defendant\\u2019s contract was new.and original, or a mere promise to pay the existing debt of another and collateral j and that if the evidence satisfied them that at the time of the defendant\\u2019s promise to pay the amount to the plaintiff, it was also . agreed that the claim against the original debtor should be cancelled and given up to him, and it was so cancelled and given up in pursuance of such agreement, \\u201c it would constitute a good consideration, not within the statute of frauds.\\u201d Held, that the defendant had no ground of exception.\\nThe question whether a verdict is against evidence cannot be raised upon a bill of exceptions.\\nAction of contract to recover $238.25, \\u201c which the defendant promised to pay the plaintiff, in consideration that he would enter into his employ in the making and repairing of piano fortes.\\u201d Answer, a denial of the promise; and the statute of frauds.\\nAt the trial in the superior court of Suffolk at January term 1856, before Huntington, J., the plaintiff introduced evidence that before the 8th of September 1853 the defendant had been in the habit of furnishing stock to one Hamblin to make pianofortes, and, when they were finished, advancing the money for the labor, and taking bills of sale of them; that on said 8th of September two pianofortes were finished, and in the depot fot sale, and the plaintiff threatened to attach them, or assert a lien for his work upon them, unless a note for $238.25, then due from Hamblin to him for labor, (with which note and labor the defendant was in no way connected,) was paid; and that it was then agreed between the plaintiff and the defendant, in the presence of Hamblin, that the plaintiff should finish up all the unfinished work for the defendant, and be paid the same prices which the defendant was then paying Hamblin; and the defendant agreed \\u201c that if the plaintiff would go on and finish up the instruments, the defendant would pay him the amount of the note,\\u201d to which the plaintiff consented, and agreed to give up the note and abandon all claim on Hamblin, and afterwards did give up the note.\\nThe bill of exceptions, after reciting this evidence and some testimony introduced by the defendant, stated that \\u201c there was other evidence in the case, which the defendant and the plaintiff respectively relied on to maintain the issues raised.\\u201d\\nThe defendant\\u2019s counsel, in his closing argument to the jury, contended \\u201c that the evidence, as reported, even if the jury believed it to be true, was not sufficient to bind the defendant to pay the note; and that it proved no such consideration between the parties, as would take the case out of the statute of frauds.\\u201d\\nThe court declined so to rule; and instructed the jury \\u201c that whether the case was within the statute of frauds, or not, depe nded upon whether the contract between the parties was a new and original one, or a mere promise to pay the existing debt of another, and collateral; that giving up some advantage oi submitting to some loss would be sufficient to create an original contract; that it was for them to determine, upon the evidence, what the agreement was between the parties; and that if the evidence satisfied them that the plaintiff, at the time of the alleged contract, agreed to give up his claim against Hamblin, and the defendant promised on his part to pay the amount to the plaintiff, and if it was also at the same time agreed that the due bill should be cancelled and given up to Hamblin, and if it was so cancelled and given up in pursuance of such agreement, it would constitute a good consideration, not within the statute of frauds.\\u201d\\nThe jury found a verdict for the plaintiff, and the defendant alleged exceptions.\\nS. C. Maine, for the defendant.\\nJ. Q. A. Griffin, for the plaintiff.\", \"word_count\": \"1521\", \"char_count\": \"8667\", \"text\": \"Merrick, J.\\nThe principal, and perhaps the only question, which can be considered as fairly arising upon the bill of exceptions in this case, relates to the instructions given to the jury concerning the statute of frauds, so far as its provisions are applicable to the contract set forth in the declaration, and the evidence by which it was attempted to be proved at the trial. No action can be brought to charge any person upon a mere oral promise, of which no written note or memorandum has been made, to answer for the debt, default or misdoings of another. Rev. Sts. c. 74, \\u00a7 1. If, therefore, the agreement of the defendant was simply to answer for or to pay the debt which was due from Hamblin to the plaintiff, it,was a contract which the provisions of the statute will not permit to be enforced. But if, for a good and sufficient consideration, the defendant assumed and took upon himself the debt which Hamblin had before owed to the plaintiff, and promised to pay it, and Hamblin was thereby, and as a part of the agreement between the parties, released and discharged from all liability upon his note, then the promise of the defendant was a promise to pay his own debt, and not the debt of another person, and an action at law may well be maintained upon it.\\nThe instructions given to the jury appear to us to recognize and to have been framed substantially in accordance with this distinction. They are not very plainly or accurately stated in the bill of exceptions; but the import and meaning of them, we think, cannot be mistaken. The jury were, in substance and effect, advised that the sufficiency of the defence depended upon the decision first to be made upon the question whether the promise of the defendant was a mere collateral undertaking to pay the debt of another person, or constituted one part of a new, original and independent contract between the parties; and that if, in pursuance of their mutual agreement, the indebtedness of Hamblin upon his promissory note to the plaintiff was cancelled, released and extinguished, and the defendant, for a good consideration, such as some loss or disadvantage submitted to by the plaintiff therefrom, promised the plaintiff to pay him the amount of said note, this would be a contract not within or affected by the statute of frauds. The precise language of the presiding judge was, that it would be \\\" a good consideration, not within the statute; \\\" but considering the connection in which that word is used, and the explanation of which it is a part, it is obvious that he was defining what he had just before spoken of as a new and original contract. Taking this view of the instructions, we think the law was properly stated and explained to the jury, and that there is no ground for the exceptions taken by the defendant.\\nIt has been urged further, as a cause for setting aside the verdict, that there is a substantial variance between the allegation in the declaration, and the evidence given upon the trial in support of it; that the contract set forth in the declaration is absolute in its terms, while that which was proved was conditional. This is substantially a motion to this court to interpose and set aside the verdict because the verdict is against the evidence, a course of proceeding which is not admissible upon a bill of exceptions. Exceptions are to be allowed whenever a party is aggrieved by any opinion, direction or judgment of the court in matter of law ; but not when he conceives that the jury have misapplied or have erroneously given an unjust or inadmissible effect to the evidence. Rev. Sts. c. 82, \\u00a7 12.\\nThere are other answers, however, to this objection, which, if it were necessary to resort to them, would seem to be quite decisive against it. The whole evidence which was submitted to the jury is not now before this court; for the bill of exceptions, after reciting a portion, and, it may be, the least material part, of that which was introduced upon the trial, adds, that (t there was other evidence in the case, which the defendant and plaintiff respectively relied on to maintain the issues raised.\\\" It is impossible, therefore, for the court here to see that the jury erroneously found that the allegations of the declaration were proved by the evidence laid before them; it does not possess all the means which are indispensable to the formation of an opinion upon the subject. But further, in looking at the part of the evidence which is reported, it appears to us to have a very strong tendency to establish the proposition which the plaintiff attempted to maintain; and we are not prepared to say that it was not fully sufficient to support it. Exceptions overruled.\"}"
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+"{\"id\": \"2080645\", \"name\": \"Lucy A. Ray vs. Joseph V. Smith\", \"name_abbreviation\": \"Ray v. Smith\", \"decision_date\": \"1857-10\", \"docket_number\": \"\", \"first_page\": \"141\", \"last_page\": \"144\", \"citations\": \"9 Gray 141\", \"volume\": \"75\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:25:02.061657+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lucy A. Ray vs. Joseph V. Smith.\", \"head_matter\": \"Lucy A. Ray vs. Joseph V. Smith.\\nIn an action for breach of promise of marriage, evidence of the acts and conversation of the parties towards each other during a previous intimacy, which was broken off before the mutual promises relied on, is admissible.\\nIn an action for breach of promise of marriage, the plaintiff introduced evidence that while the intimacy between the parties was broken off, and before the mutual promises relied on, the defendant expressed satisfaction that she had refused to walk with another man, and said that man could not get her away as long as he had a claim on her.\\u201d Held, that the evidence was admissible.\\nIn an action for breach of promise of marriage, the plaintiff testified that, after the intimacy between the parties was broken off, she boarded at the same house as the defendant and another woman whom he married; and never knew or heard of any intimacy between them before the marriage. Held, that evidence that during that time the defendant was publicly attentive to his present wife, with the plaintiff\\u2019s knowledge, was immaterial, and therefore inadmissible to contradict the plaintiff.\\nThe admission, after the close of the defendant\\u2019s evidence, of evidence which does not tend to rebut new matter introduced in defence, is within the discretion of the presiding judge, and no ground of exception, even if he does not assign any reason for its admission.\\nBefore the St. of 1857, c. 305, took effect, the wife of a party \\\"to a suit was not admissible as a witness.\\nAction of contract for breach of promise of marriage. The answer denied all the allegations in the declaration. Trial in this court at October term 1856 before Merrick, J., who allowed this bill of exceptions :\\n\\u201c The plaintiff\\u2019s counsel, in opening the case, stated that in the spring of 1852 intimacies commenced between the plaintiff and the defendant, which continued to February 1853, when, in consequence of improper proposals made by the defendant to the plaintiff, the plaintiff rejected the further addresses of the defendant, and all intimacy was broken off between them ; but that renewed attentions occurred, and renewed mutual promises, upon which the plaintiff relied to maintain this action, were afterwards made by them between the 1st and 15th of Oc tober 1853.\\n. \\u201c The plaintiff was introduced as a witness, and allowed by the court to detail what occurred during the intimacy existing between the parties previously to the alleged rejection of the defendant by the plaintiff; and the fact that it was broken off and what she said to him at the time; and that she returned his niniature, which he had previously given her.\\n\\u201c The plaintiff called Timothy Bicker, who was allowed by the court, in answer to questions proposed to him by the\\\" plaintiff\\u2019s counsel, to state that one Sunday evening in the spring of 1853, after the intimacy was broken off, he called upon the plaintiff when the defendant was not present, and invited her to take a walk with him, which invitation she declined; that some time in the week following, in a conversation between the witness and the defendant, the defendant, referring to this invitation, asked the witness what he tried to get Lucy to walk with him for, and told the witness that Lucy (the plaintiff) had bluffed him (the witness) off, and that he could not get the girl away as long as he (the defendant) had a claim on her.\\n16 The plaintiff testified that, in the latter part of the winter or spring of 1854, (after the defendant first promised to marry her,) and also after all attentions to her on his part had ceased, she went to board with the mother of Susan Hemenway (whom the defendant afterwards married) where the defendant also boarded, and that she there remained until after the defendant\\u2019s marriage, which took place on the 17th of October 1855. The plaintiff also testified that she never knew or heard of any attentions or intimacies between the defendant and his wife, prior to their marriage.\\n\\u201c To contradict this, the defendant offered to show, that after the alleged intimacies were broken off between the plaintiff and the defendant, and subsequently to the time of the alleged breach of the alleged promise of marriage, the defendant was publicly attentive to his present wife with the plaintiff\\u2019s knowledge ; which testimony was, upon the plaintiff\\u2019s objection, rejected as immaterial.\\n' \\u201c On the cross-examination of the defendant, questions were asked him as to intimacies, walks and visits supposed to have taken place between the parties, some of which were, and some of which were not, introduced by the plaintiff in putting in her case ; and all of which intimacies, as well as the existence of any engagement at any time, the defendant denied. After the\\ndefendant had closed his defence, the plaintiff was introduced, and allowed by the court, for the purpose of contradicting the defendant upon the matters drawn out in cross-examination, to testify to certain transactions between the parties, which tended to prove the issue denied in the answer to the declaration.\\n\\u201c The defendant offered his wife as a witness, to facts material to the issue, and which occurred before her marriage. Bu the court refused to admit her to testify.\\n\\u201c To all which rulings, (the verdict being for the plaintiff,) the defendant excepts.\\u201d\\nT. H. Sweetser, for the defendant.\\n1. What occurred and was said between the parties at a time anterior to the promises and attentions relied upon by the plaintiff in this action was immaterial, and tended to prejudice the jury. 1 Greenl. Ev \\u00a7\\u00a7 52, 448. Odiorne v. Winkley, 2 Gallis. 53.\\n2. The testimony of Ricker should have been rejected, fa\\u00bb the same reasons.\\n3. Evidence of the defendant\\u2019s attentions to another woman, subsequently to the alleged promises, in the presence and with the knowledge of the plaintiff, should have been admitted. Her remaining in the same boarding-house under such circumstances tended to show that the alleged promises were never made to her. And the evidence tended to contradict the plaintiff; and also to show that her feelings were never much enlisted, and thus to affect the measure of damages, if any. Sedgwick on Damages, (2d ed.) 368, 369.\\n4. After the close of the defendant\\u2019s case, the plaintiff could only introduce evidence to rebut new matter shown in defence, except by the discretion of the court, and for reasons assigned. Here no such appeal was made, but the evidence was admitted as matter of right.\\n5. All objections against the admission of the testimony of the defendant\\u2019s wife have been removed by the recent changes in the statutes.\\nB. F. Butler, for the plaintiff.\", \"word_count\": \"1287\", \"char_count\": \"7624\", \"text\": \"By the Court.\\n1. The testimony of the existence and breaking off of a previous intimacy was rightly admitted. The whole relation Of the parties was admissible, including the whole course of the courtship.\\n2. Ricker's testimony was admissible to prove the feelings of the defendant, and that he was in the receipt of information as to the plaintiff's acts, and had not abandoned all intention o\\u00ed prosecuting his addresses.\\n3. The evidence introduced by the defendant, that the plaintiff had the means of knowing his attentions to another woman, related to a time when the intimacy between the plaintiff and the defendant had been entirely broken off, and was immaterial to the issue, and therefore rightly rejected.\\n4. The order of proof was within the discretion of the presiding judge, and not a subject of exception.\\n5. The wife of the defendant was not a competent witness under the statutes in force at the time of the trial. Barber v. Goddard, ante, 71. Exceptions overruled.\"}"
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+"{\"id\": \"2080721\", \"name\": \"John C. Haskins vs. Joseph P. Haskins\", \"name_abbreviation\": \"Haskins v. Haskins\", \"decision_date\": \"1857-10\", \"docket_number\": \"\", \"first_page\": \"390\", \"last_page\": \"393\", \"citations\": \"9 Gray 390\", \"volume\": \"75\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:25:02.061657+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John C. Haskins vs. Joseph P. Haskins.\", \"head_matter\": \"John C. Haskins vs. Joseph P. Haskins.\\nThe use of a mill privilege purchased from the owner of a lower privilege on the sam, stream is not regulated by the use made of it before such purchase, but by what is reasonable and proper, conformably to the wants and usages of the community.\\nIn a civil case the jury were instructed that the burden of proof was upon the plaintiff, and was sustained \\u201c if upon the whole proof there was a preponderance of evidence, that is to say a balance of the probabilities of the case, in his favor.\\u201d Held\\u00a1 that the explanation was indefinite, and tended to mislead the jury.\\nAction of tort for filling up and obstructing the plaintiff\\u2019s mill pond and stream, by sawdust and shavings from a box-board machine at the defendant\\u2019s mill, above the plaintiff\\u2019s on the same stream.\\nAt the trial in the court of common pleas before Sanger, J., it appeared that the defendant purchased his mill and privilege of the plaintiff in 1846, previously to which the plaintiff had used said mill as a shingle mill, and suffered the dust therefrom to fall into the pond and stream now the plaintiff\\u2019s. There was conflicting evidence upon the comparative amount of sawdust and consequent obstruction of the plaintiff\\u2019s pond and stream before and since that purchase.\\nThe defendant requested the court to instruct the jury \\u201c that, under the law, by virtue of the conveyance from the plaintiff to the defendant, the defendant' acquired the right to use the mill in substantially the same manner as it was used while owned by the plaintiff; that if new machinery was invented subsequently, by means of which the defendant could do more work, he would have a right to adopt it and run it, although the effect would be to throw more dust into the plaintiff\\u2019s pond ; and the defendant was not restricted to the precise use which had been before made of the privilege, nor to the precise quantity and character of sawdust before suffered to fall into the stream; \\u201d and \\u201c that the plaintiff could not recover for a merely theoretical damage, but the damage must be actual and appreciable, and that if the jury should find that there was, at the date of the writ and previously, more sawdust in the plaintiff\\u2019s pond than before the box-board machine was introduced, yet if they found that the plaintiff could run his mill substantially as before, the plaintiff could not recover.\\u201d\\nThe court instructed the jury \\u201cthat by virtue of the conveyance from the plaintiff to the defendant, the defendant did acquire the right to use the mill substantially as it was used while owned by the plaintiff, and was not restricted to the precise use which had been before made of the privilege, nor to the precise quantity or character of the sawdust before permitted to fall into the stream; and could use new and improved machinery, if thereby the quantity and character of the sawdust, permitted by the defendant to fall into the stream, was substantially the same as when the mill was owned by the plaintiff; but if the sawdust, permitted by the defendant to fall into the stream from his box-board machine, was substantially different in character or quantity, and the plaintiff\\u2019s stream, pond and mill privilege were thereby obstructed and injured, the plaintiff could recover such damage therefor as he had actually suffered thereby.\\u201d\\nThe court further instructed the jury \\u201c that the burden of proof was on the plaintiff to make out the injury set forth in his declaration ; that this burden would be sustained, if upon the whole proof there was a preponderance of evidence, that is to say a balance of the probabilities of the case, in his favor.\\u201d The jury found for the plaintiff, and the defendant alleged exceptions.\\nC. I. Reed, for the defendant.\\nT D. Robinson, for the plaintiff.\", \"word_count\": \"1216\", \"char_count\": \"6960\", \"text\": \"Bigelow, J.\\nThe rights of the parties to the use of their mills respectively did not depend on the fact that the defendant held his title to his mill privilege under a conveyance from the plaintiff. Irrespectively of the mode in which the parties acquired title to the mill privileges, each had the right to use the water belonging to his mill in a reasonable, ordinary and proper manner for the regular and usual prosecution of his business. Such use of the water by one millowner, although it might impair in some degree the efficiency of the mill privilege of another owner-on the same stream, would give no right of action to the latter. It would be damwum absque injuria. Cary v. Daniels, 8 Met. 476. Barrett v. Parsons, 10 Cush. 367. The real issue before the jury therefore, in the present case, was not as to the manner in which the plaintiff had used the upper mill and the pond below the same, while it was owned by him and before it was conveyed to the defendant; but whether the latter, since he became the owner of the upper mill, had used his privilege in a reasonable and proper manner, conformably to the usages and wants of the community, and in a mode not inconsistent with a like reasonable and proper use of the plaintiff's mill situated on the same stream below. By the case as stated in the exceptions, it would seem that the trial of this case proceeded on a misapprehension of the true question at issue, and that the jury may have been thereby misled into an erroneous view of the rights of the parties.\\nWe are apprehensive that they were also misled by the instructions of the court as to the amount of proof necessary to warrant them in finding a verdict for the plaintiff. If the judge bad gone no further than to tell the jury that the burden of proof was on the plaintiff, and that this burden would be sustained if on the whole evidence there was a preponderance of proof in his favor, his instruction would have been intelligible, precise, and strictly correct. The \\\" weight \\\" or \\\" preponderance of proof\\\" is a phrase constantly used, the meaning of which is well understood and easily defined. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. But the phrase \\\" balance of probabilities,\\\" used by the judge in his instructions as equivalent to the words \\\" preponderance of proof,\\\" has no well settled or clearly defined meaning. It is at best a vague and indefinite phrase, and would rather lead the jury to infer that they might form their verdict on a guess at the truth, gathered from the evidence, than on a real solid conviction of it, founded on a careful scrutiny and examination of the proof. We cannot sanction an instruction which seems to us to introduce into the practical administration of justice a new phrase of doubtful signification, which tends to cloud the meaning of that which was before clear and well understood, and to confuse and mislead the jury in the discharge of their duty.\\nExceptions sustained.\"}"
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+"{\"id\": \"2084783\", \"name\": \"George M. Atwater vs. Silas B. Bodfish\", \"name_abbreviation\": \"Atwater v. Bodfish\", \"decision_date\": \"1858-09\", \"docket_number\": \"\", \"first_page\": \"150\", \"last_page\": \"152\", \"citations\": \"11 Gray 150\", \"volume\": \"77\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:22:39.201563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George M. Atwater vs. Silas B. Bodfish.\", \"head_matter\": \"George M. Atwater vs. Silas B. Bodfish.\\nUnity of possession and title extinguishes a right of way for the owner of one estate ovei another, although the right has existed for more than twenty years.\\nA way over another\\u2019s estate, used for the purpose of taking away wood only, cannot be extended to other purposes, when the dominant estate is occupied by dwellings and cultivated.\\nPloughing up an old way and substituting a new one from one estate over another by the consent of the owners of both estates, one of whom asserts and the other admits a right of way over the second estate somewhere, give the owner of the first estate no greater right in the new way that he had in the old one.\\nAction of tort for obstructing a right of way claimed by the plaintiff across the defendant\\u2019s land in Chicopee. The case was submitted to an arbitrator, who reported the following case for the decision of the court:\\nOf a row of four lots of land running from west to east, the plaintiff purchased lot 1 in 1853, and lots 2 and 3 in 1855; and the defendant owns lot 4, bounded on the highway, and across. which the right of way is claimed. Until 1838 these lots were all wood lots, and, from 1809 to that time, a way from lots 1 and 2 over lots 3 and 4 existed, but was used for no other purpose than to draw off wood and timber. Part of lot 3 was brought under cultivation in 1838, lot 2 has remained uncultivated to the present time, and the road to it was used almost exclusively for drawing away wood and timber until the plaintiff built his house on lot 1 in 1855, since which he has used it for all purposes. There is another access from the plaintiff\\u2019s lots southwardly to the highway. Lot 4 was uncultivated and uninclosed until 1849.\\nPliny Chapin owned lot 3 from 1839 till 1855. In 1836 Asher Hitchcock conveyed lot 4 to Veranus Chapin, by deed containing this clause: \\u201c With the privilege of a road across the same to be used as heretofore.\\u201d Veranus Chapin conveyed this lot in 1846 to Pliny Chapin, who conveyed it to Francis Bliss in 1849, without reservation.\\nWhile Bliss owned lot 4, he ploughed up the old way across it and substituted another, with the concurrence of the owners of lots 2 and 3, the right to cross somewhere being asserted by them, and admitted by Bliss, who desired to change the road because it crossed his land in an inconvenient manner. After the change the new road was used in the same manner as the old one, until interrupted by the defendant. In the various conveyances of the lots, no mention is made of the way except as above stated.\\nF. Chamberlin, for the plaintiff.\\n1. The case finds a use and enjoyment for more than twenty years of a way across the defendant\\u2019s land, by the owner of lots 2 and 3, sufficient to establish a prescriptive right or right by adverse use. Kent v. Waite, 10 Pick. 142. Sargent v. Ballard, 9 Pick. 254. Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241. Williams v. Nelson, 23 Pick. 141. Bright v. Walker, 1 Cr., M. & R. 219. Gale & Whately on Easements, c. 5, \\u00a7 3. Campbell v. Wilson, 3 East, 300. This enjoyment has been uninterrupted, except as to lot 3, as to which there may have been such a unity of possession with lot 4 as to interrupt the continuous adverse use. But as to that lot there was more than twenty years\\u2019 adverse use before 1846.\\n2. The proof that the plaintiff and those under whom he claims used the way whenever they required it is strong evidence to show that they had a general right to use it for all purposes. Cowling v. Higginson, 4 M. & W. 252.\\n3. The defendant is bound by the acts of Bliss, who ploughed up the old way across lot 4 and substituted another. These acts, done with the concurrence of the owners of lots 2 and 3, (whose assertion of a right to cross somewhere was admitted by Bliss,) show a dedication by Bliss, which the defendant is estopped to deny. Larned v. Larned, 11 Met. 423. Commonwealth v. Fisk, 8 Met. 243. Morse v. Copeland, 2 Gray, 305.\\nC. A. Winchester, for the defendant,\\ncited Rev. Sts. c. 60, \\u00a7 27 ; Sargent v. Ballard, 9 Pick. 254; Arnold v. Stevens, 24 Pick. 110 ; Gayetty v. Bethune, 14 Mass. 53 ; Thomas v. Marshfield, 13 Pick. 240; Nichols v. Luce, 24 Pick. 105; Kilburn v. Adams, 7 Met. 33 ; Commonwealth v. Fisk, 8 Met. 245 ; Slater v. Jepherson, 6 Cush. 129; Cook v. Babcock, 11 Cush. 210; Luther v. Winni simmet Co. 9 Cush. 171; Thayer v. Paine, 2 Cush. 332; Henshaw v. Hunting, 1 Gray, 218 ; Stearns v. Mullen, 4 Gray, 151; Rogers v. Sawin, 10 Gray, 376; Lawton v. Rivers, 2 McCord, 452; Collins v. Prentiss, 15 Conn. 39; Pierce v. Selleck, 18 Conn. 329; Shep. Touchst. 78; 4 Kent Com. (6th ed.) 468.\", \"word_count\": \"1184\", \"char_count\": \"6285\", \"text\": \"Bigelow, J.\\n1. The way across lots Nos. 3 and 4 was extinguished by unity of possession and title in Pliny Chapin; he having acquired title to and occupied both lots from 1846 to 1849, when he conveyed No. 4 to Bliss, and after which, in 1855, he conveyed No. 3 to the plaintiff. Neither of these deeds contained any reservation of a right of way.\\n2. The right of way to lot No. 2 from 1809 to 1835 was only used for the purpose of taking wood from that lot, while the whole tract was wild and uncultivated. Such a right cannot be extended to the larger use claimed by the plaintiff as a way for all purposes, now that the land is occupied for dwellings and purposes of cultivation. It must be limited to the use for which it is shown by the evidence to have been originally designed. Since 1835, the use of the way has been interrupted, so that no right of way has been gained by adverse user since that time.\\n3. The act of Bliss in laying out a new track across another part of lot No. 4 cannot be regarded as an absolute dedication of a way over his land. If a private way can be established between parties by dedication, it must appear to have been done with a full knowledge of the rights of the parties, thus indicating a clear intent by the party owning land to devote his land to such purpose so as to give to others an irrevocable right to use it. But in the present case, the new way laid out by Bliss was only a substitute for the old one alleged to exist over another part of his land. The right to the original way being unfounded, the way substituted for it cannot be held to stand on a better title. Judgment for the defendant.\"}"
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+"{\"id\": \"2084853\", \"name\": \"William A. Howe vs. Ebenezer Wilder\", \"name_abbreviation\": \"Howe v. Wilder\", \"decision_date\": \"1858-10\", \"docket_number\": \"\", \"first_page\": \"267\", \"last_page\": \"271\", \"citations\": \"11 Gray 267\", \"volume\": \"77\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:22:39.201563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William A. Howe vs. Ebenezer Wilder.\", \"head_matter\": \"William A. Howe vs. Ebenezer Wilder.\\nA. mortgagee, who has assigned the mortgage and indorsed the mortgage note, may, upon the indorsement of the note back to him, and the cancellation of the assignment before it has been recorded, maintain a writ of entry to foreclose the mortgage.\", \"word_count\": \"1532\", \"char_count\": \"8462\", \"text\": \"Merrick, J.\\nThis is a writ of entry, brought to recover possession of the demanded premises for the purpose of foreclosing the right of the defendant to redeem the same from a mortgage made by him to the plaintiff. By the production of the mortgage and of the promissory note which it was given to secure, it is conceded that he has shown all that is necessary to enable him to maintain this action, and that he ought to recover judgment therein, unless the defendant in his defence can avail himself of the title acquired by Rufus Hastings by the assignment made by the mortgagee to him. And this, we think, under the circumstances disclosed in the deposition used at the trial, the statements in which are by special agreement of the parties to be taken and considered by the court as true, he cannot be allowed to do. After the indorsement of the note and the assignment of the mortgage to Hastings, and while he was entitled to all the rights conferred upon him by those conveyances, for a full and valuable consideration he sold and transferred the note to the plaintiff, and at the same time delivered to him the mortgage deed, having first effaced and can-celled the deed of assignment, which had never been recorded. The parties supposed that this cancellation would be equivalent to a reassignment; and it was their intent and purpose in this way to restore to the plaintiff all the rights which he originally acquired and held as mortgagee. In the mean time no other person had in any way become interested in the estate or in the title to it, which was held by any parties to these transactions. And by the sale and transfer of the note, if not by the cancellation of the assignment, Hastings then put it out of his power by any future deed to invest a third person with a title which he could effectually assert against the right of the mortgagor to remain in possession of the estate.\\nIf the plaintiff, after the cancellation of the unrecorded deed of assignment to Hastings, had made a second assignment to another party in good faith and for a valuable consideration, it cannot be denied that his right .against Hastings would have been perfect and complete. Trull v. Skinner, 17 Pick. 213. Lawrence v. Stratton, 6 Cush. 163. If Hastings is thus effectually precluded from interfering with the title of a second assignee, has he any interest which he can assert, or rights which he can enforce against either the mortgagor or mortgagee 1 If the principle, suggested by the chief justice in delivering the opinion of the court in the case of Trull v. Skinner, 17 Pick. 213, and for the rejection of which it would be difficult to assign satisfactory reasons, that an estoppel would arise from the voluntary surrender, by the cancellation of his deed, of the only legal evidence by which his claim to the estate could be established, should be adopted, it would be decisive of the question. In that aspect of the case any claim he might prefer would be considered and treated exactly as if no assignment to him had ever been made, because by his own act he had voluntarily precluded himself from resorting to or availing himself of it\\nBut there are other grounds upon which it is perfectly clear that Hastings has no interest or right which he can effectually set up or assert against either the mortgagor or mortgagee. He has no possible interest in the question between those parties ; for by the sale and transfer of the note to the plaintiff he has lost all right to enforce the payment of it to himself, and by accepting the consideration paid for it has received all that he was ever entitled to have under the assignment. Whatever may be the state or condition of the legal title to the estate, it is equally clear that he has no equitable claim upon or right to disturb the mortgagor or interrupt him in the possession and enjoyment of it. And if he should attempt anything of that kind, as by prosecuting a writ of entry for that purpose, he must necessarily fail to maintain his action, even if it should be taken to be the settled and established law that the cancellation of the deed of assignment neither defeated the title created thereby in the assignee, nor revested it in the assignor. For in pursuing such a suit he has only the rights of a mortgagee, and is limited by the restrictions imposed upon him. He can have only the conditional judgment rendered in his behalf; that is, judgment that he shall have possession of the demanded premises if the mortgagor shall fail within sixty days therefrom to pay him the sum which the court shall upon inquiry find and determine to be his due. Rev. Sts. c. 107, \\u00a7 3, 5. If nothing is found due to the plaintiff, it follows by necessary implication, from the provisions of the statute, that he can recover no judgment at all; none to have possession at common law, because that is expressly prohibited ; and none under the statute, because where there is no condition to be performed, there can be no failure of performance, and no consequences can follow a contingency which in the nature of things can never occur.\\nIt is thus seen that Hastings has no title by virtue of which he can interfere with the defendant or interrupt him in the possession of the mortgaged premises; and therefore none which the defendant can set up in defence to the plaintiff's action. For if, by the sale and retransfer of the note and the cancellation of the deed of assignment, the latter is rendered useless and ineffectual to the assignee, the mortgage is not discharged or in any degree affected by these proceedings. If it remains in force, as no one can deny that it does, there must be some party by whom it can be enforced; and as no action can be maintained upon it by Hastings, the assignee, the right of doing so must be vested in the mortgagee, who alone has any interest in it. He may therefore well be allowed to insist upon having judgment for possession, unless the condition upon which it is made shall be performed. Upon the performance of that condition, by the payment to the plaintiff of the money remaining due upon the promissory note, to which he is confessedly entitled, the mortgage will be discharged and the tenant will be in as of his former estate. In this way the rights of all the parties are severally respected and secured. No one is subjected to a burden, or allowed an advantage, that is not strictly in accordance with the provisions of the contracts into which they have respectively entered.\\nC. C. Stevens, for the plaintiff,\\ncited Rev. Sts. c. 59, \\u00a7 28, 29, 33, and commissioners' report; St. 1783, c. 37, \\u00a7 1, 4, 6 ; Farnsworth v. Childs, 4 Mass. 638; Sherburne v. Fuller, 5 Mass. 138 ; Conway v. Deerfield, 11 Mass. 327 ; Dana v. Newhall, 13 Mass. 498; Marshall v. Fisk, 6 Mass. 24; Commonwealth v. Dudley, 10 Mass. 403; Scott v. McFarland, 13 Mass. 311; Rice v. Rice, 4 Pick. 349; Cutler v. Haven, 8 Pick. 490 ; Holbrook v Tirrell, 9 Pick. 105; Trull v. Skinner, 17 Pick. 213 ; Lawrence v. Stratton, 6 Cush. 163; 1 Greenl. Ev. \\u00a7 265, note; 4 Cruise Dig. (Greenl. ed.) tit. 32, c. 1, \\u00a7 15, note; c. 27, \\u00a7 19, note; Browne on St. of Frauds, \\u00a7 60; Barrett v. Thorndike, 1 Greenl. 73 ; Nason v. Grant, 21 Maine, 160 ; Tomson v. Ward, 1 N. H. 9 ; Farrar v. Farrar, 4 N. H. 191; Mussey v. Holt, 4 Foster, 248; 2 Story on Eq. \\u00a7 1016; 4 Kent Com. (6th ed.) 194, & note 1 Hilliard on Mortgages, 103, 215-240, & cases cited; Rev. Sts. c. 107, \\u00a7 29 ; Peck v. Hapgood, 10 Met. 172 ; Stewart v. Clark, 11 Met. 388; Amidown v. Peck, 11 Met. 469; Gibson v. Crehore, 3 Pick. 475; Crocker v. Thompson, 3 Met. 235 ; Newcomb v Presbrey, 8 Met. 406.\\nConditional judgment to be rendered for the plaintiff.\\nP. C. Bacon, for the defendant,\\ncited Reading of Judge Trowbridge, 8 Mass. 551; Goodwin v. Richardson, 11 Mass. 473; Fay v. Cheney, 14 Pick. 400 ; Blanchard v. Brooks, 12 Pick. 57; Page v. Robinson, 10 Cush. 102 ; Clark v. Beach, 6 Conn. 331; Rev. Sts. c. 74, \\u00a7 1, cl. 4; Warden v. Adams, 15 Mass. 236; 4 Cruise Dig. (Greenl. ed.) tit. 32, c. 1, \\u00a7 15, note; Trull v. Skinner, 17 Pick. 213 ; Farrar v. Farrar, 4 N. H. 191; Barrett v. Thorndike, 1 Greenl. 73; Holbrook v. Tirrell, 9 Pick. 105.\"}"
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+"{\"id\": \"2087740\", \"name\": \"Sarah Tilden & others vs. John Tilden, Executor\", \"name_abbreviation\": \"Tilden v. Tilden\", \"decision_date\": \"1859-06\", \"docket_number\": \"\", \"first_page\": \"110\", \"last_page\": \"114\", \"citations\": \"13 Gray 110\", \"volume\": \"79\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:42:08.316029+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sarah Tilden & others vs. John Tilden, Executor.\", \"head_matter\": \"Sarah Tilden & others vs. John Tilden, Executor.\\nUpon the offer for probate of a will, not in the handwriting of the testator, but signed by him, with the usual attestation clause added, signed by three witnesses, one witness testified that he and the second witness signed it at the same time, in the presence and at the request of the testator, without reading it or being told that it was a will, and that the testator directed him where to put his name, but did not sign it in his presence, nor say the signature was his. The second witness testified that the testator, after requesting them to sign it, signed it himself, and declared it to be his will, and then they signed it, and his impression was that the third witness was then present. The third witness testified that the other witnesses did not sign in his presence; that the testator brought the paper to him, and requested him to witness it, which he did in the testator\\u2019s presence, but without reading it; that he thought the names of the other witnesses were then upon \\u25a0 it, but could not say whether the testator\\u2019s name was; and that the testator did not sign it in his presence, or say anything about his signature. Held, that this was sufficient evidence of the execution and attestation of the will.\\nAppeal by the heirs at law of Thomas Tilden, of itoxbury, from a decree of the probate court of the county' of Norfolk, establishing an instrument as his last will. The questions, whether the will was duly attested by three subscribing witnesses, and whether the proof was sufficient in law to sustain the will, were submitted to the decision of the court upon an agreed statement of the facts, and of the testimony of the witnesses, the material parts of which were as follows:\\nThe will is not in the handwriting of Thomas Tilden ; but it is subscribed by him, followed by this attestation clause :\\n\\u201c Signed, sealed, published and delivered by the abovenamed Thomas Tilden, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the. same.\\n\\u201c John Hunt,\\n\\u201c Edwin Lemist,\\n\\u201c John W. Lord.\\u201d\\nJohn Hunt testified: \\u201c Mr. Tilden came to my factory, and my impression is that he had a paper in his hand. He said to me, 61 wish you to go with me to witness this.\\u2019 He did not call it his will. We went up to Mr. Lemist\\u2019s store. After we had entered, he opened a paper, laid it down on Lemist\\u2019s desk, and said, \\u2018 Put your name there \\u2019 \\u2014 directing me. I did so, and Lemist put his on, and we came off. I did not read a scrap of the paper. I did not see his signature at all. He did not sign it in my presence, nor call my attention to it, as being his signature. My recollection is positive, and I have no doubt the facts are just as I have stated. No other persons were present Some years subsequent I witnessed a will, and then I saw another form of witnessing, which I thought if important in one case, was in the other. I then told the old gentleman of the circumstance, saying to him that I did not think his will was legally witnessed. My reason for doing this was because I did not see his signature. He made no answer. I had known Mr. Tilden ever since I was a schoolboy, for fifty years.\\u201d\\nEdwin Lemist testified: \\u201c The late Thomas Tilden came to my store in Roxbury in company with Mr. Hunt. They came directly to the back part of my store, where my desk stood. Mr. Tilden took from his pocket a folded paper and laid it upon the desk, and when he had adjusted his spectacles, he said, \\u2018 Gentlemen, I wish you to witness my signature to my will.\\u2019 I took from the stand a steel pen and handed it to him, with which he signed his name to said paper, in the presence of Mr. Hunt and myself. Mr. Hunt signed his name as a witness, and I did the same, in the presence of Mr. Tilden. The paper was not read in our hearing, nor did we read it that I know of. I had upon my desk an inkstand, and in it usually kept three steel pens. Mr. Tilden used the same ink, I have no doubt, but think he may not have used the same pen that Mr. Hunt and myself did. Mr. Tilden thanked us for witnessing the will, bade us good morning, and left. The impression is very strong on my mind that Mr. Lord was present when the will was signed.\\u201d\\nJohn W. Lord testified: \\u201c The will was signed by me, in my counting room, in Roxbury. Mr. Tilden came in with the paper, and said, \\u2018 I wish you to witness this.\\u2019 No one came with him, and no one else was present. I think the names of the other witnesses were on at the time. I cannot say whether Mr. Tilden\\u2019s name was on or not when I signed my name. He did not sign his name in my presence. He did not say any thing about his signature, or make any allusion to it. When I signed, he was in the doorway. After the paper was signed, he took it away. I think Mr. Tilden\\u2019s position was such that he could see me sign my name. I have no recollection of reading any part of the paper. I was not present when Mr. Hunt and Mr. Lemist signed their names.\\u201d\\nPeter Butler, a competent expert, testified that, in his opinion, the signature of Mr. Tilden to the will was made with other ink than that used by Messrs. Hunt and Lemist.\\nThis case was argued at Boston in January 1859.\\nW. S. Leland, for the appellants.\\nThere were no acts or words equivalent to a signing by the testator in the presence of three witnesses, as required by the Rev. Sts. c. 62, \\u00a7 6. There must be a perfect execution in the presence of each witness. Only one of the witnesses testifies that the testator signed in his presence; the two others testify positively that he did not; and as the will was not in the testator\\u2019s handwriting, and all the witnesses testify that they did not read the attestation clause, there is no room for presumption in favor of the will. To establish the will, under these circumstances, would be to take a step beyond any adjudged case, and entirely disregard the statute of frauds. Rutherford v. Rutherford, 1 Denio, 33. Lewis v. Lewis, 1 Kernan, 220. Rogers v. Diamond, 13 Ark. 474. Boldry v. Parris, 2 Cush. 438. Hall v. Hall, 17 Pick. 379. Dewey v. Dewey, 1 Met. 349. Hogan v. Grosvenor, 10 Met. 54. Osborn v. Cook, 11 Cush. 532. White v. British Museum, 6 Bing. 310. Wright v. Wright, 7 Bing. 457. Hudson v. Parker, 3 Notes of Cases, 236. Beach v. Clarke, 7 Notes of Cases, 120. Ilott v. Genge, 3 Curt. Eccl. 181. 1 Jarman on Wills, 72.\\nJ. J. Clarke, for the appellee.\", \"word_count\": \"1986\", \"char_count\": \"10708\", \"text\": \"Dewey, J.\\nThe testimony of Edwin Lemist, if believed, establishes the fact that this instrument was executed by the testator, in the presence of himself and John Hunt as witnesses, under accompanying circumstances that present a case as to the two witnesses that would not have been questioned even before the late cases of Hogan v. Grosvenor, 10 Met. 54, and Osborn v. Cook, 11 Cush. 532. It is true that Hunt does not recollect all the facts stated by Lemist, and now declares that the testator did not actually sign it in his presence, and did not call it his will. But Hunt says that the testator asked him to witness the instrument, produced the instrument, laid it on Lemist's table, and said, \\\" Put your name there,\\\" directing him as to the place. Upon looking at the will and the place where he was directed to sign, it will be seen to have had the full attestation clause, 16 signed, sealed, published and delivered, by the abovenamed Thomas Tilden, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the same.\\\" Th< testimony of Lemist, being positive in its character, is rather tc be taken than the negative testimony of Hunt as to the testator's not signing it in his presence, nor declaring, it to be his will; as the omission of Hunt to state this fact might result from mere failure of memory.\\nThe only difficulty in the case arises upon the fact of a proper attestation by the third witness, John W. Lord. In reference to this witness, it is said that there was.no publication of the will by the testator, no actual signing in his presence, no direct acknowledgment that he had signed the paper, and no knowledge on the part of the witness whether the testator's signature was on the paper at that time. But we have the fact that the testator came to the counting room of Lord with the paper in his hand, and said to the witness, \\\" I want you to witness this.\\\" We have the further facts that he had previously signed the paper, and that the names of the other witnesses were already on the same, written under the attestation clause already quoted. Lord says he thinks the names of the witnesses were there. He must, of course, have seen them there, and the attestation clause was before him and to it he attached his signature. The testator came there from Lemist's store, where\\\" he had just said to the other witnesses, \\\" Witness my signature to my will.\\\" He was the sole agent in procuring the attestation of the witnesses. He was the keeper of the instrument. It had already been signed by him, and all the circumstances tend to show, beyond any doubt, that he was fully cognizant of the nature and purposes of the instrument. It is true that the will was not in his handwriting; and therein the case differs from Hogan v. Grosvenor and Osborn v. Cook, above cited. But in the absence of this fact we have the other circumstances already alluded to, of the undoubted knowledge of the testator of the character of this paper, and we have the ancient form of an attesting clause, declaring it to be his last will and testament. So far as the fact is material that the testator was fully cognizant that this paper was his last will and testament, the evidence is quite sufficient to find this fact from. It was not necessary that the witness Lord should know the character of the instrument. It was enough that the testator had actually signed it, knowing it to be his last will and testament, and designing to have it duly executed as such, had so declared it, as testified by Lemist, and had called upon Lord to attest his execution of an instrument, whose character he well knew, by the request, \\\" I wish you to witness this,\\\" and that thereupon the witness signed this attesting clause.\\n.This subject has been much considered, and the authorities cited, in the cases already referred to, and in Dewey v. Dewey, 1 Met. 349, and Nickerson v. Buck, 12 Cush. 339, and it is only necessary here to refer to those eases. In the opinion of the court, the evidence was sufficient to authorize finding this instrument to have been duly signed by the testator, and duly attested as his last will and testament.\\nDecree of the court of probate affirmed.\"}"
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+"{\"id\": \"2113042\", \"name\": \"Frederick O. Prince & another vs. City of Boston\", \"name_abbreviation\": \"Prince v. City of Boston\", \"decision_date\": \"1872-11\", \"docket_number\": \"\", \"first_page\": \"226\", \"last_page\": \"232\", \"citations\": \"111 Mass. 226\", \"volume\": \"111\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:18:59.207510+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frederick O. Prince & another vs. City of Boston.\", \"head_matter\": \"Frederick O. Prince & another vs. City of Boston.\\nIt is no objection to the assessment of a betterment by the aldermen of Boston, under the St. of 1866, c. 174, on the abutters upon a street for the expense of widening the street, that no notice of intention to assess the betterment was given to the abutters before the widening, if notice was given to them of intention to take their lands for the widening.\\nIt is no objection to the assessment of a betterment by the aldermen of Boston, under the St. of 1866, c, 174, on the abutters upon a street for the expense of widening the street, that the order for the widening did not award any damages to the abutters whose land was taken, and did not adjudge that any estates were benefited by the widening.\\nUnder the St. of 1866, c. 174, the assessment of a betterment by the aldermen of Boston for the expense of widening a street might be laid after the widening.\\n\\u25a0 Petition by Frederick 0. Prince and William Gr. Prince, for a writ of certiorari, to be directed to the board of aldermen of the city of Boston, ordering them to return into this court the record of their doings touching the assessment upon an estate of the petitioners on Devonshire Street in Boston of a portion of the expense of widening said street, that the same might be quashed as erroneous.\\nThe petition alleged that the board of aldermen, by an order passed March 16,1868, reciting that in their opinion the safety and convenience of the inhabitants required that Devonshire Street should be widened, ordered notice to be given to the abutters that the board intended to widen the street \\u201c by taking a portion of their land, and laying out the same as a public street; \\u201d that the board \\u201c neither ordered nor gave any notice to any owners of estates abutting upon Devonshire Street that it was necessary to assess nor that said board had any intention of assessing any portion of the expense of said widening upon the estate of the petitioners, of upon any estates; \\u201d that on April 11, 1868, the board passed an order that the safety and convenience of the inhabitants of the city required that Devonshire Street should be widened, and for that purpose it was necessary to take and lay out as a public street or way certain parcels of land, described in said order, including a part of the petitioners\\u2019 estate, and therefore that the said parcels were taken and laid out as a public street or way; that in said order no damages were awarded to any of the abutters ; that by said order it was also adjudged that the expense of widening the street as aforesaid would amount to $400,000 ; and that in said order the board \\u201c made no mention of the estate of the petitioners, or of any estates, as being benefited by said widening or laying out, nor made any estimate of damages incurred by such widening; nor did said board continue the subject for a hearing at any future time, but, in fact, adjudicated that there were no damages.\\u201d\\nThe petition further alleged that immediately \\u201c after said adjudication, said board proceeded to widen the street, and long after the widening was completed, made an estimate of damages occasioned thereby, but made that estimate without notice to the petitioners, or to any other parties; that on August 16, 1869, for the first time, and without notice, the board adjudged that the petitioners and others, owners of estates abutting on Devonshire Street, were benefited by said widening, and ordered notice to be given to such owners, of the intention of the board to assess a portion of the expense of said widening upon their estates; \\u201d that on November 8,1869, the board passed an order, assessing the estate of the petitioners and others; and that the amount assessed upon the petitioners\\u2019 estate was $4547.\\nThe petitioners alleged that said proceedings and orders were \\u201c wholly erroneous and unlawful: 1st. Because before proceeding to adjudicate upon said widening no notice was given of any intention on the part of the board of aldermen to assess any part of the expense thereof upon any owners of estates abutting on the street widened. 2d. Because in the adjudication of widening it was adjudged that there were no damages sustained by persons whose land was taken, and that there were no estates abutting on the street that were benefited by the widening. 3d. Because in the adjudication of widening, no estimate was made of the expense of the widening. 4th. Because the board of aldermen proceeded, without authority and without notice, to determine that the estates of the petitioners and others had been benefited, and were liable to assessment. 5th. Because there was no authority in law to make said assessments, at the time and in the manner they were made.\\u201d\\nThe answer alleged that the assessment complained of was lawfully laid; that the orders mentioned were duly served upon the petitioners; and \\u201c that the respondents did not adjudge that there were no damages sustained by persons whose land was taken, or that no estates abutting on the street were benefited by the widening.\\u201d\\nHearing on petition and answer before Ames, J., who reserved the case for the consideration of the full court.\\nH. W. Paine $ 0. Stevens, for the petitioners.\\nJ. P. Healy, for the respondents.\", \"word_count\": \"2549\", \"char_count\": \"14452\", \"text\": \"Ames, J.\\nThe proceedings of the board of aldermen, in the matter of the widening of the street in question, were instituted under the St. of 1866, c. 174. The subsequent repeal of one section in that statute by the St. of 1868, e. 276, was- accompanied with the saving clause, that it should not affect any rights or liabilities already accrued. According to the decision in Jones v. Boston, 104 Mass. 461, the liability of the petitioners to be assessed was not affected by the St. of 1868.\\nThe first reason assigned in the petition for holding the assessment to be unauthorized and void is substantially that, before proceeding to adjudicate upon the widening of the street, the board of aldermen gave no notice of any intention on their part to make any assessment of the kind. We are all of opinion that in this case the law did not require any formal preliminary notice of that kind to be given. The law, under which the board of aldermen were acting, had made a material change in the rule which was to regulate the estimate of damages to be awarded to any person, a portion of whose land should be taken for a street. Under this new rule, no allowance whatever by way of set-off, or reduction of damages, was to be made, on account of any special or peculiar benefit or advantage which such person might derive from the improvement. Authority was given to the board to assess the expense of making such improvement, with a definite limitation as to amount, upon all estates abutting upon the street so laid out or altered, and receiving any special benefit and advantage from the proceeding. The power to widen a street, under such a regulation as to damages, included the power, at game stage of the proceedings, to make such an assessment. The right of assessment was one of the incidents of the widening, so that when the petitioners were notified that a portion of their land was to be taken, in this manner and for such a purpose, they were virtually notified that so much as remained, after the taking, might be liable to be assessed for a part of the expense of the widening, and would be so assessed, if, in the opinion of the board, it had received any special benefit and advantage from the widening. St. 1866, c. 174, \\u00a7 5. Notice of the intent to take was substantially equivalent to, and included, notice of all that would in regular course follow such taking. The petitioners had the opportunity, provided for in \\u00a7 8, to exercise the option of giving up their estate to the city rather than to be assessed according to \\u00a7 5. The statute requires that option to be exercised before any portion of the expenses are incurred, and even before the land damages are estimated. As the question of the public convenience and necessity that might require the proposed improvement was one in which these petitioners had no voice, and as the necessary expenses to be thereby incurred were matters as to which the city authorities had the exclusive control and responsibility, there was no apparent necessity for any special notice to the petitioners upon either of these points. It is safe to say that in the case of proprietors, a portion of whose land is to be taken for a public use of this kind, no preliminary notice is required by law other than that which was given in this case.\\nThe next objection relied upon by the petitioners is that in the adjudication of the widening it was adjudged that no damages were sustained by any person whose land was taken, \\\" and that there were no estates abutting on the street that were benefited by the widening.\\\" If any injustice was done to persons whose land was taken by the judgment that they had sustained no damage, they had an ample remedy, by applying for a jury to revise the decision of the board of aldermen. If they have neglected to do so, we do not see how that decision, upon the subject of damages, could have any effect upon the validity of this assessment. It could only diminish the amount of the expenses which were te be in part paid from the assessment. As a matter of fact, there was no adjudication \\\" that there were no estates abutting on the street that were benefited by the widening.\\\" The aider-men, at that stage of the case, were dealing with the question of public convenience, and with that of land damages only. They certainly did not, and it is questionable whether they could, at that point of time \\\" adjudicate \\\" that no estates had been benefited, so as to be liable to assessment.\\nThe third objection is that \\\" in the adjudication of widening, no estimate was made of the expense of the widening.\\\" If this objection refers to the final order of the board, it seems to be without foundation in fact, inasmuch as that order expressly estimates the expense at $400,000. Moreover, we see no reason to suppose that the statute contemplates that the net expenses will be computed by estimation beforehand\\\". Whiting v. Boston, 106 Mass. 89, 95.\\nThe two remaining objections may conveniently be considered together, namely, 1st, that the board proceeded, without authority and without notice, to determine that certain estates had been benefited and were liable to be assessed; and 2d, that \\\" there was no authority in law to make said assessments, at the time and in the manner they were made.\\\" In support of these objections, it is argued that the law requires an adjudication of betterments at the same time with, and as a part of, the adjudication widening the street and awarding damages. But we have recently decided that an assessment of this kind is necessarily subsequent to the widening. From the nature of the case it cannot be made until the completion of the work. \\\" One element in the apportionment, 1 the net expense of grading the whole widened street,' cannot be sooner ascertained.\\\" Whiting v. Boston, 106 Mass. 89, 95. Jones v. Boston, 104 Mass. 461. In a certain limited sense, this assessment may be said to be a part of the same proceeding with the original laying out or widening. The right of a party, whose land is taken, to damages, and his liability to be assessed for benefits received from such taking, accrue at the time of the taking; and the benefits, as well as the damages, are to be estimated as of that date. Jones v. Boston, ubi swpra.\\nBut in all other respects it appears to us that an assessment of this kind is a separate and independent proceeding. It is a tax, local and special it is true, but the object of the expenditure is a public one, for which taxation is authorized. Codman v. Johnson, 104 Mass. 491. It is to meet the case of a street which has been constructed or altered for public reasons, but in such a manner as not only to be a matter of public convenience, but also, as to estates adjoining or near to it, to be productive of certain special and peculiar benefits and advantages beyond the general advantage to other real estate in the same city. In such a case money is expended in effecting an improvement of a special and local character, which, although it may enure to a certain extent to the benefit of the public, is especially necessary and beneficial to the owners of private property in the immediate vicinity. In Dorgan v. Boston, 12 Allen, 223, it was held to be within the constitutional capacity of the Legislature to authorize such a tax. But it has very little connection with the preliminary proceeding of the taking of the land. The expenses which are to be assessed are all of them incurred after such taking. The city appropriates the land in the first place, as it has a right to do, paying, or becoming liable to pay, such damages as may be legally recoverable therefor. It then proceeds, as it has a right to do, after having laid out a new street or altered an old one, to tax the owners of all the estates specially and peculiarly benefited thereby, including the party a portion of whose land has been appropriated to this public use, for a portion of .the expense of the improvement. The statute then in force prescribed no limit of time within which this assessment should be made; Jones v. Boston, 104 Mass. 461; and the law as it now stands allows two years from the passage of the original order. St. 1869, e. 367, \\u00a7 1. It is therefore not only unnecessary, but it is also impossible, that the assessment of the expenses among the persons who have derived benefit from the improvement should be contemporaneous with, and make a part of, the original adjudication widening the street and awarding damages.\\nThis assessment, being in the nature of a tax, which the board of aldermen had authority to levy, has been apportioned among the proprietors of the estates abutting upon the street. The expenses of the widening have been ascertained, and ample notice has been given to the petitioners of the portion which was charged against them. If any .wrong has been done to them by a disproportionate valuation of their estate, or by including any illegal element of computation, or by any error in the estimate of the benefit which they have derived from the widening, the proper remedy is by an application for a jury to revise the finding of the aldermen. It is not a case for the issue of a writ of certiorari.\\nPetition dismissed.\"}"
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+"{\"id\": \"2149272\", \"name\": \"George F. Choate, Judge of Probate, vs. Edward W. Jacobs & others; Same vs. Same\", \"name_abbreviation\": \"Choate v. Jacobs\", \"decision_date\": \"1884-01-22\", \"docket_number\": \"\", \"first_page\": \"297\", \"last_page\": \"299\", \"citations\": \"136 Mass. 297\", \"volume\": \"136\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:27:52.540830+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George F. Choate, Judge of Probate, vs. Edward W. Jacobs & others. Same vs. Same.\", \"head_matter\": \"George F. Choate, Judge of Probate, vs. Edward W. Jacobs & others. Same vs. Same.\\nEssex.\\nNov. 7, 1883.\\nJan. 22, 1884.\\nW. Allen & Holmes, JJ., absent.\\nIf a decree of the Prohate Court, reforming the account of an administrator, has been affirmed by this court on appeal, and the case remitted to the Probate Court for further proceedings, that court may authorize the bringing of an action upon the administrator\\u2019s bond, although the certificate of the decision of this court has not then been filed in the Probate Court; and, in the action on the bond, neither the administrator nor his sureties are entitled to contest the validity of the order authorizing the action.\\nThe failure of an administrator to pay to the widow of his intestate an allowance, made and ordered to be paid by a decree of the Probate Court, is a breach of his bond for which his sureties are liable; and, in an action on the bond, evidence of gross negligence on the part of the administrator, offered by the sureties as tending to show that the decree should not have been made, is incompetent.\\nThe failure of an administrator to pay to the heirs of his intestate, on demand, rents of real estate received by him, before any decree of the Probate Court in relation thereto, is not a breach of his bond for which his sureties are liable.\\nTwo ACTIONS OF CONTRACT upon a bond executed to the judge of probate by the defendant Jacobs, as principal, and William P. Clark, who alone defended, and Charles L. Pierce, as sureties, and conditioned for the faithful performance by Jacobs of his duties as administrator of the estate of Joshua H. Poole; the first action being brought for the benefit of the widow of. Poole, and the second for the benefit of the widow and next of kin of Poole. Trial in this court, before Eield, J., who reported the cases for the consideration of the full court The facts sufficiently appear in the opinion.\\nJ. M. Raymond, for the plaintiff.\\nH. Wardwell, for the defendant Clark.\", \"word_count\": \"1125\", \"char_count\": \"6340\", \"text\": \"Devens, J.\\nThe defendant Clark, the surety on the bond in suit, objects, in regard to both these actions, that, when the order of the Probate Court was made, authorizing the bringing these suits upon the bond, the whole matter had been transferred to this court; and that, although a decision had been rendered affirming the decree of the Probate Court reforming the account of the administrator, and remitting the case for further proceedings, the certificate thereof not having then been filed in the Probate Court, it had at the time no jurisdiction to make such an order. The decree of the Probate Court appealed from having been affirmed, it was in full force when the order was granted, even if the proper certification of such affirmance had not been made. It was competent to supply this deficiency in the records of the Probate Court- at any time, so as to show thereby that the original decree had been affirmed when the order was made. Again, as the administrator has no such interest in the matter of granting leave to bring an action on the bond as to give a right to resist the application therefor, or to be heard thereon, it follows that, when a suit has been brought thereon, neither he nor his sureties are entitled to contest the validity of the order of the court authorizing it. Fay v. Rogers, 2 Gray, 175. Richardsons v. Oakman, 15 Gray, 57. Richardson v. Hazelton, 101 Mass. 108. Bennett v. Woodman, 116 Mass. 518. The ruling requested, that the order of the judge of probate permitting the suits to be brought was unauthorized, was therefore rightfully refused.\\nThe decree of the Probate Court making an allowance to the widow and ordering the same to be paid, and the failure and refusal of the administrator to pay according to the decree, was a breach of his bond for which his sureties were liable. Pub. Sts. c. 135, \\u00a7 2. Nor were the sureties entitled to impeach the decree collaterally, and to show that the settlement of the accounts of the administrator, as made by the Probate Court, was erroneous. Their obligation is that their principal shall pay the moneys in his hands in such manner and to such persons as the Probate Court shall direct. His failure to make payment according to such decree is the breach of the administration bond. White v. Weatherbee, 126 Mass. 450. The evidence of gross negligence on the. part of their principal, offered by the sureties as tending to show that the decree should not have been made, was therefore incompetent.\\nIn the second action, without reference to the question whether the surety on the bond would be liable for the rents of the real estate received by the administrator, it was correctly ruled that the action could not be maintained. If the executor or administrator uses or occupies any part of the real estate, he is to account for the same as ordered by the Probate Court, and provision is made for determining the amount thus to be accounted for by him. Pub. Sts. c. 144, \\u00a7 5. Rents received by the ad ministrator are governed by the same rule. Brooks v. Jackson, 125 Mass. 307. He is to account for them to the heirs and devisees only, unless they, either expressly, or by implication from assenting to his accounts in which he has charged himself with rents as part of the general assets, have agreed that they shall be applied to the payment of legacies and expenses of administration, in which case he is chargeable accordingly. Stearns v. Stearns, 1 Pick. 157. Newcomb v. Stebbins, 9 Met. 540, 544. Palmer v. Palmer, 13 Gray, 326, 328. Alden v. Stebbins, 99 Mass. 616. Almy v. Crapo, 100 Mass. 218. Towle v. Swasey, 106 Mass. 100. Choate v. Arrington, 116 Mass. 552. Brooks v. Jackson, ubi supra. As therefore the administrator might have received these rents with the consent of the heirs, and for the benefit of the parties interested in the estate, that he might thereby pay the debts of the intestate, a decree was necessary to determine whether the administrator was to account for them to heirs only, as well as to determine their rights inter sese. Until this decree was made, the failure to pay the same to the heirs on demand did not make a breach of the bond.\\nIn conformity with the terms of the report, judgment in the first case is to be entered for the penal sum in the bond; and, in the second, the plaintiff is to become nonsuit.\\nJudgments accordingly.\"}"
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+"{\"id\": \"2152592\", \"name\": \"John D. Noxon & another, trustees, vs. Hannah E. Smith\", \"name_abbreviation\": \"Noxon v. Smith\", \"decision_date\": \"1879-10-27\", \"docket_number\": \"\", \"first_page\": \"485\", \"last_page\": \"487\", \"citations\": \"127 Mass. 485\", \"volume\": \"127\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:58:42.314119+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John D. Noxon & another, trustees, vs. Hannah E. Smith.\", \"head_matter\": \"John D. Noxon & another, trustees, vs. Hannah E. Smith.\\nBerkshire.\\nSept. 9.\\nOct. 27, 1879.\\nEndicott & Lord, JJ., absent.\\nA promissory note, payable to \\u201cthe trustees\\u201d of a church \\u201cor their collector,\\u201d is not regotiable; and an action thereon cannot be maintained by a part only of the trustees.\\nContract on a promissory note for $333, dated Great Barrington, March 10, 1870, payable to \\u201cthe trustees of the Methodist Episcopal Church or their collector,\\u201d and signed by the defendant. Answer, a denial that the plaintiffs could maintain the action; and want of consideration. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court on appeal, on an agreed statement of facts, which, after stating that the pleadings might be referred to, was in substance as follows:\\nThere is and has for a long time been a religious corporation at Great Barrington called the Methodist Episcopal Church, of which the defendant was a member at the time of the giving of the note in suit. The financial and business affairs of the church are entrusted to a board of trustees who are elected annually. The trustees of the church, when the note in suit was given, were five in number including the two plaintiffs, who were of the trustees at the time of bringing this action, and were at the time of bringing this action a collection committee authorized by the board of trustees to collect said note by suit or otherwise. The church for many years has owned and occupied a meeting house in Great Barrington, and a few years prior to the date of the note made additions to and repairs upon the meeting-house. After the additions and repairs were completed, the means pi ovided therefor were found to be insufficient, and the church was left in debt. After the debt had stood for some time, and until February 1,1869, it was proposed by persons, who were members of the church or interested therein, to raise money by subscription to pay off the debt, or to obtain the promise of money for that purpose, and a subscription paper was drawn up and different persons subscribed thereto in various sums, some paying their subscriptions in money and some giving notes therefor; and it was the duty of the board of trustees for the time being to pay the money received from the subscriptions and the money from time to time collected on the notes, in discharge of the indebtedness of the church. The defendant subscribed for said purpose the sum of $500, and, having paid a part of that sum in money, gave the note in suit for the balance, upon which she has made payments from time to time of principal and interest, which were indorsed on the note. No other consideration was given or received for the note than is shown by the above facts.\\nB. Palmer & H. C. Joyner, for the plaintiffs.\\nJ. Dewey, for the defendant.\", \"word_count\": \"743\", \"char_count\": \"4200\", \"text\": \"Soule, J.\\nThe instrument sued on is properly described as a promissory note. Though it purports to be payable to \\\"the trustees of the Methodist Episcopal Church or their collector,\\\" the payee is not therefore uncertain, and the instrument does not come within the class of cases in which instruments otherwise in the form of promissory notes are held not to be promissory notes because made payable in the alternative to either of two persons named. Osgood v. Pearsons, 4 Gray, 455. That rule applies to cases in which, so far as the instrument shows, the two persons named as alternative payees are strangers to each other. It does not apply when the instrument discloses the fact that one of the two persons named is named as agent for the other to receive the money. Holmes v. Jaques, L. R. 1 Q. B. 376. In the case at bar, it is evident that \\\"their collector \\\" is merely a person authorized by the payee to receive the money in its behalf.\\nThe note is not negotiable, and it is not payable to the plaintiffs. They have no beneficial interest in it, are not personally named as payees, and are not \\\" the trustees \\\" of the church, but only a part of them, and they cannot maintain the action. Wiggin v. Cumings, 8 Allen, 353. In this view of the case, it is unnecessary to consider the other questions which were raised at the argument. Judgment for the defendant.\"}"
\ No newline at end of file
diff --git a/mass/21681.json b/mass/21681.json
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+"{\"id\": \"21681\", \"name\": \"Trustees of Amherst College vs. Assessors of Amherst\", \"name_abbreviation\": \"Trustees of Amherst College v. Assessors of Amherst\", \"decision_date\": \"1899-05-16\", \"docket_number\": \"\", \"first_page\": \"232\", \"last_page\": \"233\", \"citations\": \"173 Mass. 232\", \"volume\": \"173\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:29:28.927653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Trustees of Amherst College vs. Assessors of Amherst.\", \"head_matter\": \"Trustees of Amherst College vs. Assessors of Amherst.\\nHampshire.\\nSeptember 20, 1898.\\nMay 16, 1899.\\nPresent: Field, C- J-, Holmes, Kn owl ton, Barker, & Hammond, JJ.\\nTax upon House of President of a College\\u2014 Law and Fact.\\nAt the trial of a petition for the abatement of a tax upon the house of the president of a college, upon the ground that it was exempt by Pub. Sts. c. 31, \\u00a7 5, cl. 8, it appeared that before he occupied the house it had been let for a school, that be lived in it with his family, paid rent to the college and water rates, established a tennis court at his own expense, and some years at least paid for the care of the grounds, and that he paid the inside expenses. He might be found to have exercised the same control over it that he did over another house which lie previously had hired. Held, that it could not be said, as matter of law, that the house was exempt.\\nAppeal to the Superior Court, from the decision of the respondents, on' a petition for an abatement of a tax. Trial, without a jury, before Hardy, J., who found for the petitioners; and the respondents alleged exceptions. The facts appear in the opinion.\\nW. Hamlin, ( W. J. Reilley with him,) for the respondents.\\nM. F. Dickinson, Jr., (J. C. Hammond & H. P. Field with him,) for the petitioners.\", \"word_count\": \"495\", \"char_count\": \"2684\", \"text\": \"Holmes, J.\\nThis is a petition for the abatement of a tax upon the house of the president of Amherst College, upon the ground that the house was exempt by Pub. Sts. c. 11, \\u00a7 5, cl. 3. The judge presiding in the Superior Court ruled, as matter of law, that the house was exempt, and reported the question. The ease came before him upon the testimony of the president, supplemented by some agreed facts. It appeared that before the occupation by the president the house had been let for a girls' school. The president lived in it with his family, paid rent to the college and water rates, established a tennis court at his own expense, and some years at least paid for the care of the grounds. He paid the inside expenses of the house. He might be found to have exercised the same control over\\\" it that he did over another house which he previously had hired. In view of these facts, we think it impossible to say, as matter of law, that the case is not within Williams College v. Williamstown, 167 Mass. 505. The most that could be contended is that there was evidence warranting a finding of fact that the dominant purposes of the president's occupation were not private, but those for which the college was incorporated. It is unnecessary to state what evidence there was tending in that direction. It is enough to say that the ruling to that effect, as matter of law, was wrong. New trial ordered.\"}"
\ No newline at end of file
diff --git a/mass/235595.json b/mass/235595.json
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+"{\"id\": \"235595\", \"name\": \"Sheila M. Astuccio, trustee, vs. R.K. Ahern Co., Inc., & others\", \"name_abbreviation\": \"Astuccio v. R.K. Ahern Co.\", \"decision_date\": \"2001-01-05\", \"docket_number\": \"No. 98-P-2299\", \"first_page\": \"662\", \"last_page\": \"666\", \"citations\": \"50 Mass. App. Ct. 662\", \"volume\": \"50\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:04:19.407040+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sheila M. Astuccio, trustee, vs. R.K. Ahern Co., Inc., & others.\", \"head_matter\": \"Sheila M. Astuccio, trustee, vs. R.K. Ahern Co., Inc., & others.\\nNo. 98-P-2299.\\nEssex.\\nOctober 10, 2000.\\nJanuary 5, 2001.\\nPresent: Perretta, Gillerman, & Porada, JJ.\\nMorris J. Gordon for the plaintiff.\\nThomas C. Tretter for Family Mutual Savings Bank.\\nOf the Wenfield Realty Trust.\\nRobert K. Ahem, Roland Couillard, and Family Mutual Savings Bank as defendant pursuant to trastee process.\", \"word_count\": \"1908\", \"char_count\": \"10937\", \"text\": \"Porada, J.\\nThe plaintiff commenced an action in the Superior Court against R.K. Ahem Co., Inc., Robert K. Ahem, and Roland Couillard (debtors) on a promissory note. In that action, she obtained approval of a trustee process attachment of all funds of the debtors in possession of Family Mutual Savings Bank (trastee). Upon the debtors' default, the plaintiff was awarded judgment in that action in the sum of $699,764.30, after which she filed a motion to charge the trustee, and requested an evidentiary hearing to determine the sum the trustee should be charged based on a discrepancy between the amount of funds the trustee had answered it possessed and the amount of funds the trustee disclosed in answers to interrogatories was actually held by it for R.K. Ahem, Co., Inc., at the time of service of process upon the trustee. The motion was scheduled for a hearing before a Superior Court judge whom the parties agree heard arguments of counsel and allowed counsel to file memoranda. After the memoranda were filed, without holding an evidentiary hearing, the judge found based on \\\"undisputed facts\\\" that even though there was $52,820.06 in the account of R.K. Ahem Co., Inc., at the time of service of process upon the bank on September 28, 1991, the bank was only chargeable for the sum of $349.07, the sum remaining in the account on October 7, 1991, when the bank discovered the existence of the account. Relying on Eddy v. O'Hara, 132 Mass. 56, 61 (1882), and by implication on the provisions of G. L. c. 246, \\u00a7 27, the motion judge determin\\u00e9d that the bank's employees had acted reasonably and in good faith in an effort to comply with the attachment and, thus, should not be chargeable for the withdrawal of funds from this account between the time of service and the bank's discovery of its existence. On appeal, the plaintiff argues that the motion judge should have afforded her an evidentiary hearing before rendering this decision, because there were material issues of fact in dispute. Although the judge should not be faulted for believing that the parties had submitted the case to him based on their memoranda, an evidentiary hearing was warranted to determine whether knowledge of the service of process should be imputed to the agents of the trastee who allowed withdrawals to be made on this account after service and, thus, whether the trustee should be chargeable with a sum greater than that set forth in its answer. We reverse the judgment and remand this case to the Superior Court for further proceedings.\\nAs a backdrop for our decision, we outline additional facts that do not appear to be in dispute by the parties. At issue in this case is a checking account of R.K. Ahem, Co., Inc., which the trastee had acquired from the former Lowell Institution for Savings under an agreement with the Federal Deposit Insurance Corporation (FDIC) on or about August 30, 1991. At the time of service upon the trustee's employee at a branch bank in Bradford on September 28, 1991, which was a Saturday, this account had $52,820.06 in it. At the time service was received, employees of the trustee receiving a summons were required to initial the time and date of receipt of service and to call the trustee's operations office so that a hold could be placed on the funds in question. The operations office of the trustee was not open on Saturdays and was located at Ward Hill. The branch employee of the trustee served with the summons averred that she had no memory of the service, and the trustee stated that the operations department first learned of the trustee process summons on Wednesday, October 2, 1991, at 10:15 a.m., at which time a computer search was made which failed to disclose any accounts of the debtors. Nor did a subsequent search at 1:00 p.m. on that date reveal any such accounts. On October 7, 1991, the president of the trustee received a letter from the FDIC dated October 4, 1991, informing the trustee that the FDIC had received at the office of the former Lowell Institution for Savings a trustee summons for the Family Mutual Savings Bank regarding the debtors' accounts and had determined that the FDIC was not a trustee of any of the debtors' accounts. The trustee process summons was enclosed in that letter. As a result of the receipt of this letter on October 7, 1991, another search was made and an account standing in the name of \\\"R.K. Ahemco., Inc.,\\\" with $349.07 in it was found on that date. During the interval from Monday, September 30, 1991, until Monday, October 7, 1991, the account had dwindled from $52,820.06 to $349.07 as a result of payments made by the trustee on this account including two to Robert Ahem, one (an \\\"in-clearing cash letter\\\") on October 1, 1991, for $20,000, and one on October 2, 1991, for $15,500 (this payment was alleg edly made one hour after the operations department had been alerted to an outstanding trustee summons on the account).\\nIn reaching his decision, the motion judge determined that the trustee's employees had acted reasonably and in good faith in an attempt to comply with the trustee process summons and thus should not be held liable for a greater sum than set forth in its answer. The motion judge relied on dicta in Eddy v. O'Hara, 132 Mass. at 61, in which the Supreme Judicial Court noted that \\\"[t]he trustee, being a mere stakeholder summoned into a suit in which he has no personal interest, is entitled to the protection of the court under circumstances in which an ordinary defendant might be held liable.\\\" In light thereof, the motion judge also reasoned that if a trustee, who after receipt of service of process but without knowledge of the service of process makes a payment in good faith from the trusteed account, cannot be held liable pursuant to G. L. c. 246, \\u00a7 27, it would be inequitable to hold a trustee who has knowledge of the attachment but does not know that he possesses funds subject to the attachment liable for payments made in good faith out of those funds. However, in so ruling, we believe the motion judge overlooked the compulsory nature of the payments in the Eddy case in contrast to the voluntary payments by the trustee's agents in this case, and misread the thrust of \\u00a7 27, which provides protection to a trustee from liability when he makes a payment in good faith of trusteed funds after receipt of service but before knowledge of the service of process. Here, the pertinent inquiry was whether knowledge of receipt of the trustee process by the branch employee should have been imputed to the trustee's employees who made payments from the trustee account after the service but before the trustee placed a hold on the account and, if so, when. If not, then the trustee under the provisions of G. L. c. 246, \\u00a7 27, could not be chargeable for any such payments made without knowledge. See Spooner v. Rowland, 86 Mass. 485, 486-488 (1862) (under G. S. c. 142, \\u00a7 28, a predecessor of G. L. c. 246, \\u00a7 27, a trustee was not chargeable for funds paid out after receipt of proper service on it but before actual knowledge of service of process on it by agent making payment); Williams v. Kenney, 98 Mass. 142, 143-144 (1867) (\\\"[pjayment in good faith and without knowledge of the service of trustee process, on the part of the party so paying, will discharge the trustee\\\"). This determination would of necessity present material issues of fact, namely to whom did the branch employee receiving the trustee process summons give notice of receipt of the summons, when did she give notice, was the action taken by her reasonable, and was there neglect or an unreasonable delay in discovering this account and placing a hold on it by the trustee, particularly in light of the continuing processing of checks on this account by agents of the trustee after receipt of service on September 28, but before a hold was placed on the account on October 7. See Williams v. Kenney, 98 Mass. at 144-145. Upon remand, a judge of the Superior Court may determine whether those factual issues should be tried by him or a jury, G. L. c. 246, \\u00a7 17, and the burden will lie with the plaintiff to show that the trustee should be charged in an amount greater than the sum set forth in its answer. Workers' Credit Union v. Hannula, 285 Mass. 159, 160 (1934).\\nThe judgment is reversed and the action is remanded to the Superior Court for further proceedings not inconsistent with this opinion.\\nSo ordered.\\nThe judge also took a statement from Couillard. The plaintiff in this appeal has waived any claim to assets held by the trustee for Couillard.\\nGeneral Laws c. 246, \\u00a7 27, provides: \\\"If, after the service of process on the trustee, but before he has knowledge thereof, he makes any payment in good faith or becomes liable to a third person by reason of the goods, effects or credits in his hands, or delivers such goods, effects or credits to the defendant or to any other person who may be entitled thereto, he shall be allowed therefor in the same manner as if the payment or delivery had been made, or as if the liability had been incurred, before the service of process.\\\"\\nAlthough the plaintiff requested an evidentiary hearing in her motion, in the memorandum submitted she does not continue to press for an evidentiary hearing on the chargeability of the trustee on the R.K. Ahern, Co., Inc., account or clearly state the material issues of fact in dispute. Likewise, the defendant in its memorandum refers to the facts as undisputed.\\nThe motion judge found that this summons had been forwarded to the FDIC at the former Lowell Institution for Savings by the branch employee.\\nThe trustee argues that the service of process was insufficient in this case and thus it should be discharged. We deem this issue waived, for it was not raised in the trustee's answer. While we recognize that the form of a trustee's answer is prescribed by Mass.R.Civ.P. 4.2(d), 365 Mass. 742 (1974), we see no reason why the waiver provisions of Mass.R.Civ.P. 12(h), 365 Mass. 757 (1974), should not also apply to a trustee's answer. The trustee should have moved either to strike the summons or to have included a challenge to the sufficiency of service in its answer and not waited until a motion to charge the trustee was filed more than six years after service of process. In any event, the return on the trustee summons shows service on \\\"Ann English, agent in charge at the time of service for Family Mutual Savings Bank,\\\" which on its face would appear to comply with G. L. c. 223, \\u00a7 37. See Zani v. Phandor Co., 281 Mass. 139, 144 (1932).\"}"
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diff --git a/mass/235639.json b/mass/235639.json
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+"{\"id\": \"235639\", \"name\": \"Commonwealth vs. Keith Nurse\", \"name_abbreviation\": \"Commonwealth v. Nurse\", \"decision_date\": \"2000-08-24\", \"docket_number\": \"No. 99-P-461\", \"first_page\": \"36\", \"last_page\": \"41\", \"citations\": \"50 Mass. App. Ct. 36\", \"volume\": \"50\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:04:19.407040+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Keith Nurse.\", \"head_matter\": \"Commonwealth vs. Keith Nurse.\\nNo. 99-P-461.\\nPlymouth.\\nMarch 21, 2000.\\nAugust 24, 2000.\\nPresent: Kass, Gillerman, & Jacobs, JJ.\\nBrownlow M. Speer, Committee for Public Counsel Services, for the defendant.\\nJohn E. Bradley, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"1906\", \"char_count\": \"11314\", \"text\": \"Kass, J.\\nWhile in the custody of police on a charge of prostitution, Tracy Jones complained of a rape that had occurred close to three months (more precisely, eighty-three days) earlier. The police detective to whom she confided the details of that sexual assault was permitted, over objection, to testify in full detail before a jury in Superior Court about what Jones had told him. The defendant was convicted of rape. We conclude that, in the circumstances, Jones's complaint to the detective was not reasonably prompt, and that the detective's account of his conversation with her should not have been received in evidence as fresh complaint. Accordingly, we reverse the judgment of conviction.\\n1. The evidence at trial. Jones's description of the rape at trial was that it occurred in the early morning on a Sunday during the first week of April. Jones had been out buying drugs, \\\"did 'em,\\\" i.e., had used them, and was walking to what at the time was home, the apartment of her friend \\\"Buttons\\\" Hagler. En route, she noticed a man, whom she identified at trial as the defendant, in a red \\\"sports car-looking car.\\\" The defendant and Jones negotiated an act of fellatio for $20 to $25, and she went with him in his car to where this might be done discreetly. Jones, who was a prostitute, had a favorite spot, but the man wished to go to his location of choice. When the defendant directed that they leave the car, on the ground that it belonged to his girlfriend and he did not want to risk soiling it, Jones became uneasy.\\nJones was justly apprehensive. Once they were outside the car, the defendant threw her to the ground, put his foot on her throat, demanded oral sex, called her \\\"a cunning bitch, a whore,\\\" and said he was going to kill her. Jones got on her knees and performed fellatio. After about two minutes the defendant ejaculated. Then he choked her. Jones told the defendant that someone was coming. He looked around and told her to \\\"run this way,\\\" while he went the opposite way toward his car. Jones first ran to a bus stop, but no bus was due for fifteen minutes, and she continued on. Jones then encountered Arthur Dias, who was outside his house on the way to work, and she asked him for a ride. Once inside Dias's truck, she told him she had just been raped behind a nearby abandoned building. He suggested driving her to the police station, but she declined and asked to be taken home. There, Jones testified, she told her friend Hagler that she had been raped and almost killed. Hagler did not appear as a witness.\\nAlmost three months later, on June 26, 1993, Jones was arrested after getting into a car with an undercover policeman and discussing sex for a price. On the way to the police station, she expressed wonder to Detective Robert Leedburg, who was taking her there, that the police were \\\"after me when he should be after the guy who raped me.\\\" At the police station, she saw a picture of the defendant on a poster and identified the photograph as of her assailant. Later at the police station, she made a confirmatory identification from a photographic array.\\nAt trial, the Commonwealth buttressed the testimony of Jones with fresh complaint evidence from Dias. He testified that Jones had told him she had just been raped and where. Dias was quite certain that the day was not a Sunday as he had assisted Jones on a work morning and did not go to work on Sunday mornings. When the Commonwealth offered to have Detective Leedburg testify as to what Jones had said to him in the police cruiser, defense counsel objected \\\"to any testimony from this officer under the theory of fresh complaint.\\\" More specifically, defense counsel said, \\\"I'm asking the [cjourt to rule that this testimony is not fresh, that the complaint is not fresh. It does not fall under any theory of an exception to the hearsay rule.\\\" The trial judge overruled the objection and Detective Leedburg proceeded to repeat in detail the rape as Jones had described it, plus a detail (involving the defendant having put his knee on Jones's chest and then hitting her several times) that had not been included in Jones's account.\\n2. The fresh complaint. Fresh complaint has been the object of frequent appellate analysis and commentary in the past decade. See Commonwealth v. Montanino, 409 Mass. 500, 507-511 (1991); Commonwealth v. Lavalley, 410 Mass. 641, 642-646 (1991); Commonwealth v. Licata, 412 Mass. 654, 656-660 (1992); Commonwealth v. Peters, 429 Mass. 22, 27-31 (1999); Commonwealth v. Lagacy, 23 Mass. App. Ct. 622, 623-627 (1987); Commonwealth v. Dion, 30 Mass. App. Ct. 406, 412-414 (1991) (see Appendices A and B in which cases are collected); Commonwealth v. Hyatt, 31 Mass. App. Ct. 488, 490-492 (1991); Commonwealth v. Johnson, 35 Mass. App. Ct. 211, 215-217 (1993); Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 346-347 (1999). It is instructive also to consult one of the original decisions on this evidentiary question, Commonwealth v. Cleary, 172 Mass. 175, 176-177 (1898).\\nSeveral guiding principles emerge from the decisional history. There is unease about the historical assumption behind the fresh complaint doctrine, that a rape complainant who has not raised an immediate hue and cry is suspect. Commonwealth v. Licata, 412 Mass. at 658. Commonwealth v. Dion, 30 Mass. App. Ct. at 412. We accept fresh complaint as an exception to the hearsay rule, however, because rape cases are generally without percipient third party witnesses and, therefore, present credibility duels between alleged attackers and alleged victims. Prompt complaint, by reason of its spontaneity, is taken as reliable for the limited purpose of corroborating the complainant's account. While \\\" 'freshness' is not solely a question of the clock or calendar, yet the passage of time is surely important: as time extends itself, a complaint loses character as a spontaneous accusation after grievous wrong; moreover, opportunity grows for invention or distortion of an event by mistake, twist of memory, fantasizing, contrivance, etc.\\\" Id. at 413.\\nIn cases of complaint of rape by children, the tolerance of what is fresh complaint has become quite extended in recognition of the child's fear, repression, threats of coercion, psychological control by the abuser, or lack of understanding of what happened. See, e.g., Commonwealth v. Souther, 31 Mass. App. Ct. 219, 222 (1991) (nine months); Commonwealth v. Hyatt, 31 Mass. App. Ct. at 489-490 (two years). Similarly, in the case of adults, we have recognized a complainant may be subject to confusion and fear, Commonwealth v. Lagacy, 23 Mass. App. Ct. at 626-627, or cultural pressures, Commonwealth v. Kruah, 47 Mass. App. Ct. at 346-347, that warrant tolerance of less than immediate complaint. In Lagacy we thought a delay of twenty-three days approached \\\"the extreme\\\" of tolerable delay. In the Kruah case, however, we accepted a fifteen-month delay because the victim was subject to pressures of her closely knit immigrant community not to bring shame upon them by complaining against the defendant, who was a powerful member of that community.\\nThe Commonwealth argues that the pressure on the complainant in the instant case was that a prostitute is likely to see contact with the police as trouble and that, therefore, Jones's disinclination to complain to the police about the rape (it will be recalled that Dias offered to drive Jones to the police station and that she declined) was reasonable. Once she was in the hands of the police anyway on June 26, 1993, Jones no longer felt that inhibition and felt free to talk about the April rape.\\nAssuming inhibition by a prostitute about contact with the police, in the instant case Jones had earlier been in the custody of the police, in connection with a drug offense, two weeks after the sexual assault of which she complained, and long before the brush with the police in June. Jones said nothing then about the rape, even though at that time keeping the police at arm's length was academic; she was in their arms. The disinclination of a prostitute to talk to the police, particularly on the facts of this case, is too marginal a rationalization to extend what would be a reasonable time for reporting a rape to the police.\\nWe think that in the case of an adult of normal intelligence and emotional state, not subject to powerful family or community forces, or intimidation from the abuser, a complaint of rape made eighty-three days after the event, as matter of law, is not fresh, but stale. To receive evidence of a complaint to another in such circumstances would proceed far down the path of eliminating any criterion of promptness from \\\"fresh complaint,\\\" would run the risk of fabrication, and would eviscerate the rule as it is generally understood. We are of opinion that this is a case of extreme delay in which the evidence of Jones's complaint to Detective Leedburg should have been excluded as matter of law. The error was not a harmless one as, unlike the fresh complaint evidence given by Dias, the testimony drawn from Detective Leedburg, as we previously observed, repeated all the details that Jones had described, and then some. Nor, as the Commonwealth argues, was Leedburg's testimony about what Jones said to him admissible on the ground that defense counsel's cross-examination of Jones had opened it up. That cross-examination did not delve into what Jones had said to Leedburg about the rape and, therefore, did not establish a basis for redirect examination on the subject.\\n3. Comment on missing witness. Against the possibility that the issue may recur at a new trial, we consider the defendant's claim that the trial judge erred in not permitting defense counsel to comment on the failure of the Commonwealth to call Buttons Hagler, to whom Jones said she reported the rape as soon as she got home after the assault. Defense counsel had hoped to call Hagler \\u2014 and so told the jury in his opening statement \\u2014 to testify that she had not heard from Jones about the rape and that, indeed, she did not know Jones. Hagler did not respond to her summons. Faced with resting his case without this tactical trump, defense counsel sought to comment in closing that the jury should remark the failure of the Commonwealth to present Hagler as a witness to confirm her conversation with Jones.\\nThe trial judge acted within his discretion in disallowing such a comment. It was the defense that had said it would produce favorable testimony and it would not have been fair to allow a comment that implied the Commonwealth had a reason to call Hagler and had failed to do so because her testimony would be unfavorable. The prosecutor did not comment in his closing argument about the defendant's failure to produce Hagler. For recent cases considering the missing witness problem, see Commonwealth v. Richardson, 429 Mass. 182, 183-185 (1999); Commonwealth v. Spencer, 49 Mass. App. Ct. 383, 386-387 (2000); Commonwealth v. Smith, 49 Mass. App. Ct. 827, 829-833 (2000).\\nJudgment reversed.\\nVerdict set aside.\\nA pseudonym.\"}"
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+"{\"id\": \"300426\", \"name\": \"Samuel Pearlin, administrator, & individually vs. Grace Farrell\", \"name_abbreviation\": \"Pearlin v. Farrell\", \"decision_date\": \"1970-01-30\", \"docket_number\": \"\", \"first_page\": \"741\", \"last_page\": \"741\", \"citations\": \"356 Mass. 741\", \"volume\": \"356\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:35:01.421224+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samuel Pearlin, administrator, & individually vs. Grace Farrell.\", \"head_matter\": \"Samuel Pearlin, administrator, & individually vs. Grace Farrell.\\nJanuary 30, 1970.\\nBenjamin Rudner for the plaintiff.\\nClement McCarthy for the defendant.\", \"word_count\": \"302\", \"char_count\": \"1755\", \"text\": \"This action of tort for personal in j mies sustained by the plaintiff's wife, Irene Pearlin, and for consequential damages sustained by the plaintiff arose from an accident in which the plaintiff's wife was struck and knocked down by an automobile owned and operated by the defendant on the Southern Artery in Quincy. The action was heard before an auditor, findings of fact not final, who found for the plaintiff. A trial before a judge and jury resulted in a verdict for the defendant. The case is here on the plaintiff's exceptions to the denial of twelve requests for instructions and of his motion for a new trial. We have reviewed the charge which we find to be comprehensive and exact and aided greatly by the defendant's analysis in her brief of the interrelationship of the plaintiff's requests and the charge itself. No good purpose would be served by an elaborate account of the facts and an item by item treatment of the requests. It suffices to say that we agree with the defendant that all requests which might properly have been given were covered in the charge, in some instances in more detail than was sought in certain of them. There was no error in the disposition of the requests. Campbell v. Shea, 332 Mass. 422, 425, and eases cited. Nor was the verdict of the jury so greatly against the weight of the evidence that it could be said that the denial of the plaintiff's motion for a new trial was an abuse of discretion amounting to an error of law or a miscarriage of justice. Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 59-61, and cases cited.\\nExceptions overruled.\"}"
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+"{\"id\": \"300542\", \"name\": \"James Athas & others vs. Mayor of Holyoke & others\", \"name_abbreviation\": \"Athas v. Mayor of Holyoke\", \"decision_date\": \"1969-11-04\", \"docket_number\": \"\", \"first_page\": \"382\", \"last_page\": \"385\", \"citations\": \"356 Mass. 382\", \"volume\": \"356\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:35:01.421224+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Athas & others vs. Mayor of Holyoke & others.\", \"head_matter\": \"James Athas & others vs. Mayor of Holyoke & others.\\nHampden.\\nOctober 8, 1969.\\nNovember 4, 1969.\\nPresent: Wilkins, C.J., Cutter, Kirk, Spiegel, & Reardon, JJ.\\nJames F. Freeley, Jr., for the plaintiffs.\\nSamuel W. Ripa for the defendants.\", \"word_count\": \"971\", \"char_count\": \"5693\", \"text\": \"Cutter, J.\\nThree inhabitants of Holyoke and a corporation owning land there by their bill (the original bill) sought declaratory and injunctive relief. They named as defendants the mayor, the aldermen, and the members of the school committee of Holyoke.\\nThe original bill described an area in Holyoke comprising twenty-six acres (the locus), and then made substantially the following allegations. The locus had been used asr:a public park and a playground since 1907. In 1966 the school committee determined that the locus was \\\"necessary\\\" for a school site. The aldermen voted in favor of a transfer of the locus for use for school purposes. The Legislature purported to authorize this use by St. 1967, c. 174, with respect to about fourteen acres of the locus. The locus had been conveyed to the city by Holyoke City Hospital by deed dated August 31, 1907. A copy of the deed is attached to the original bill. It contained the provision, \\\"It is part of the consideration of this deed that the land herein conveyed is to be forever used for public park purposes.\\\"\\nA demurrer to the original bill was sustained on the grounds that the bill did not set forth facts warranting relief to the plaintiffs and that it appeared from the bill \\\"that there exists a want of necessary parties.\\\" The plaintiffs moved to amend the bill (first proposed amendment) to add six more individual inhabitants as plaintiffs, to add certain parties defendant, and to refer more specifically to \\\"an enforceable general public obligation or trust\\\" concerning the locus. This motion to amend was denied. The plaintiffs also sought to file a substitute bill which somewhat amplified the original bill and attempted to add the city, Holyoke Hospital (formerly Holyoke City Hospital), and the Attorney General as named defendants. The motion to make this amendment was denied. From this action and from a final decree dismissing the bill, the plaintiffs appealed.\\n1. If the locus was not acquired by the city in 1907 subject to a specific trust, it was \\\"held . . . [by the city] only in its municipal capacity . for the benefit of the general public subject to the power of the Legislature to authorize its sale.\\\" Brooks v. Boston, 334 Mass. 285, 287. See Loomis v. Boston, 331 Mass. 129, 131-132; Wakefield v. Attorney Gen. 334 Mass. 632, 636; Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 643. See also Vallentine v. Jacobson, 353 Mass. 769; Winchester v. Cox, 129 Conn. 106, 110-114. The plaintiffs contend, however, that the language of the deed of August 31, 1907, imposed a trust upon the city's holding of the locus. See Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18-25; Salem v. Attorney Gen. 344 Mass. 626, 630-631; Scott, Trusts (3d ed.) \\u00a7 351; Bogert, Trusts and Trustees (2d ed.) \\u00a7 34, 324; Restatement 2d: Trusts, \\u00a7 351. The 1907 deed is ambiguous. We refrain from deciding whether its provisions, taken with other allegations of the bill, sufficiently allege the existence of a valid public or charitable trust. The case can be dealt with on the grounds set forth below.\\n2. General Laws (Ter. Ed.) c. 214, \\u00a7 3 (11), specifically places within the concurrent jurisdiction in equity of this court and the Superior Court suits \\\"to enforce the purpose . of any . . . conveyance which has been . . . made to and accepted by any . . . city . for a specific purpose . . . in trust or otherwise . . . .\\\" It is provided, however, that \\\"[V]uch. a suit shall be commenced only on petition of the attorney general or, by leave of court, on petition of ten tax-payers of such . . . city.\\\" It is further provided that in the case of a petition by ten taxpayers, \\\"the attorney general shall be served with notice of the preliminary petition for leave.\\\" No compliance with this last mentioned provision has been alleged, and the Attorney General has not been joined as a party and has not intervened. See Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 644, 646. He has not authorized the bill to be brought in his name, and the original bill was not brought by ten taxpayers as plaintiffs. The demurrer to the original bill thus was properly sustained on the ground of want of parties.\\n3. It was within the discretion of the trial judge to deny leave to amend by filing the substitute bill. See Foster v. Shubert Holding Co. 316 Mass. 470, 477; Fryefield v. Boston Diaper Serv. Inc. 338 Mass. 401, 404. Cf. McDade v. Moynihan, 330 Mass. 437, 441-446. There had been no complete compliance with the prerequisites to suit under G. L. c. 214, \\u00a7 3 (11). There had been no attempt by amendment (see G. L. c. 231, \\u00a7 51, and \\u00a7 55, as amended by St. 1935, c. 318, \\u00a7 6; cf. Fulton v. Belmont, 333 Mass. 64) to seek relief by mandamus (see the Nickols case, 341 Mass. 13, 18, 27, supra) to require the appropriate municipal officers to enforce the provisions of the 1907 deed, so far as still enforceable. The judge may reasonably have thought that any litigation of the issues which the plaintiffs seek to present for decision could better be done by the initiation of wholly new proceedings joining all appropriate parties.\\nInterlocutory decree denying motion for leave to file a substitute bill affirmed.\\nFinal decree affirmed.\\nThe plaintiffs also filed a motion to add one more inhabitant of Holyoke as a plaintiff and a motion to refer in a new paragraph to the interest of the Attorney General. No action was taken on these motions.\"}"
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+"{\"id\": \"310334\", \"name\": \"Commonwealth vs. Jeffrey S. Collier, Sr.\", \"name_abbreviation\": \"Commonwealth v. Collier\", \"decision_date\": \"1998-05-06\", \"docket_number\": \"\", \"first_page\": \"385\", \"last_page\": \"391\", \"citations\": \"427 Mass. 385\", \"volume\": \"427\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T02:00:38.183447+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Jeffrey S. Collier, Sr.\", \"head_matter\": \"Commonwealth vs. Jeffrey S. Collier, Sr.\\nMiddlesex.\\nApril 10, 1998. -\\nMay 6, 1998.\\nPresent: Wilkins, C.J., Lynch, Greaney, Fried, Marshall, & Ireland, JJ.\\nStella Robinson for the defendant.\\nStephen C. Hoctor, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"2269\", \"char_count\": \"13351\", \"text\": \"Greaney, J.\\nA jury in the District Court found the defendant, Jeffrey S. Collier, Sr., guilty under G. L. c. 209A, \\u00a7 7, of violating a protective order because he came within one hundred yards of his former wife and in so doing placed her in fear of imminent serious physical harm. The defendant appealed, and we granted his application for direct appellate review. We must decide whether the Commonwealth was required to prove that the defendant intended to do the act that resulted in the apparent violation. We conclude that such proof was necessary on the evidence in this case. We reject the defendant's argument that his motion for a required finding of not guilty should have been allowed because the Commonwealth's proof of intent was insufficient. We agree, however, that the jury instructions were inadequate because no instruction was given on the intent element. Accordingly, the judgment of conviction must be reversed, and the jury verdict set aside.\\nThe Commonwealth presented the following evidence in its case-in-chief. On April 8, 1997, a judge in the Lowell Division of the District Court Department granted Cheryl Ann Tremblay a one-year extension of a G. L. c. 209A protective order against the defendant. The protective order, among other restrictions, prohibited the defendant from coming within one hundred yards of Tremblay. The defendant, accompanied by another former wife, Sandra Smith, his son (Jeffrey), and Jeffrey's girl friend, Sabrina Pedro, was present in court when the extension was granted. After the hearing, Tremblay, accompanied by her mother, left the court room and walked to the court clerk's office to obtain a copy of the protective order. While they were there, Smith, Jeffrey, and Pedro entered the clerk's office. Tremblay obtained a copy of the protective order, retrieved a can of mace from the court house security desk, and left the building with her mother.\\nAs Tremblay and her mother were walking toward the parking garage where the mother's car was parked, they heard a car' across the street, approximately twenty feet away, \\\"revving\\\" its engine. Jeffrey was driving this car with the defendant in the front passenger seat. Tremblay and her mother made direct eye contact with the defendant. They continued walking toward the parking garage, and when they reached a crosswalk, they saw the same car with the defendant inside, now closer and still \\\"revving\\\" its engine. Tremblay and her mother waited to cross the street in the company of two men (for protection). When they were almost across the street, the car containing the defendant and his son drove by them with \\\"squealing tires\\\" and came within three feet of Tremblay. The car continued on to the parking garage and blocked the exit to the garage. There were other routes the car's driver could have taken to leave the court house area which would have avoided any encounter with Tremblay.\\nTremblay and her mother continued on to their car in the parking garage. After they entered the car, Sandra Smith walked up, knocked on the car window, and yelled, \\\"Cheryl, do not leave this parking garage; if you do he's going to ram your car. You'd be a damn idiot if you leave this parking garage; he is going to ram you.\\\" At that point, Tremblay telephoned the police.\\nThe defendant presented evidence in his case that he was still in the court house when the incident occurred, and that Tremblay and her mother had misidentified him as the passenger in the car, mistaking him for his son's girl friend. The evidence in the defendant's case also was sufficient to require the jury to consider whether the defendant, if found by them to have been the car's passenger, had any intent to come within one hundred yards of Tremblay. Put differently, the jury, if they rejected the defendant's misidentification claim, had to decide whether the defendant's son was the real perpetrator, with the defendant only passively present in the car and neither directing, nor acquiescing in, his son's conduct.\\n1. The defendant's trial counsel moved at the close of the Commonwealth's evidence for entry of a required finding of not guilty which the judge denied without argument. The defendant contends that, because he may have been unaware of what his son was doing, his conviction under G. L. c. 209A, \\u00a7 7, required at least minimal proof that he intended to do the act that resulted in the violation, and that the Commonwealth's proof was insufficient to warrant such a finding.\\nIn Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997), cert. denied, 118 S. Ct. 714 (1998), we considered the mens rea requirement necessary under G. L. c. 209A, \\u00a7 7, to prove a criminal violation of a c. 209A order. We rejected the argument made by the defendant that, in order to be convicted of violating a c. 209A order, the Commonwealth was required to show a \\\"manifest intent\\\" on his part to violate the order. Id. at 595. We stated that a violation prosecuted under G. L. c. 209A, \\u00a7 7, \\\"requires no more knowledge than that the defendant knew of the order,\\\" and that \\\"[w]e decline to read any additional mens rea requirements into the statute.\\\" Id. at 596-597. We went on in Delaney to discern no error in jury instructions which explained that a defendant may be convicted under G. L. c. 209A, \\u00a7 7, if it is shown that (1) a c. 209A order had been entered and was in effect when the alleged violation occurred; (2) the defendant knew about the order; and (3) he violated it by abusing the alleged victim. Id. at 595. The Delaney case sought to make clear that a violation of G. L. c. 209A, prosecuted under \\u00a7 7, does not require proof that the defendant actually intended to abuse the victim. We were not required in the Delaney case to consider the precise point raised in this case concerning a legitimate claim that a third party committed without the defendant's awareness an act which, if the defendant had committed it, would have been a criminal act.\\nA long-standing common law principle requires that, \\\" 'in the absence of specific words saying so,' it is not supposed 'that the legislature intended to make accidents and mistakes crimes.' State v. Brown, 38 Kan. 390, 393 (1888).\\\" Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982). This is especially so where the offense in issue calls for a severe penalty, in this case a possible penalty of up to two and one-half years of imprisonment. Id., and cases cited. See 1 W. LaFave & A.W. Scott, Jr., Substantive Criminal Law \\u00a7 3.5(e), at 314 (1986) (\\\"Where the definition of a crime requires some forbidden act by the defendant, his bodily movement, to qualify as an act, must be voluntary. To some extent, then, all crimes of affirmative action require something in the way of a mental element \\u2014 at least an intention to make the bodily movement which constitutes the act which the crime requires.\\\" [Footnote omitted.]) In this case, the jury could have found that the defendant was aware of the protective order, but that the Commonwealth failed to prove that he intended that the car take a route that might violate the order. Where the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation. Accordingly, in those comparatively rare situations where a third party is involved in the act that results in the violation, to obtain a conviction under G. L. c. 209A, \\u00a7 7, the Commonwealth is required to prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order. We reaffirm the principle enunciated in Delaney that, in order to convict a defendant of violating a c. 209A order, the Commonwealth is not required to show that the defendant intended to violate the order.\\nThe Commonwealth's evidence, considered under the governing standard, Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995), including reasonable and possible inferences that could be drawn by the jury from the circumstantial evidence, Commonwealth v. Gordon, 407 Mass. 340, 344 (1990), was sufficient to warrant a finding that the defendant had the requisite state of mind. The jury could have found that the defendant knew of the protective order since he was present in the court room when it was entered. Further, the jury could have found that the defendant was a passenger in the car driven by his son; that there were other routes that his son could have taken to avoid encountering Tremblay; that Tremblay had direct eye contact with the defendant as the car driven by his son deliberately approached her from about twenty feet away; and that the car was purposely driven within three feet of her in a threatening manner. From these findings, the jury could have reasonably inferred that the defendant had an intent, or shared intent, to do an act that could result in a violation of the protective order. As a consequence, the jury properly could have found that the defendant had not acted accidentally or through\\ninadvertence, but had acted in a manner that constituted abuse. The defendant's motion for a required finding of not guilty was properly denied.\\n2. The judge instructed the jury substantially in accordance with Instruction 5.61 of the Model Jury Instructions for Use in the District Court (1995). This instruction is based on the instruction tacitly approved in Commonwealth v. Delaney, supra at 595. The judge did not instruct that the defendant had at least to intend to do the act that caused the violation. He was not asked to do so by the defendant's trial counsel, and counsel did not object to the given charge. In light of what we said in the Delaney case, we would not expect the jury to have been charged on intent (we also would not expect the defendant's trial counsel to have sought such an instruction or to have objected to the charge). Because the evidence fairly raised a question whether the defendant directed, assented to, or acquiesced in his son's conduct, the jury should have been instructed that the defendant could not be convicted under G. L. c. 209A, \\u00a7 7, in the absence of an intent on his part to commit the act that resulted in the violation of the protective order. The defendant may have been prejudiced by the absence of the instruction, and, as a result, the conviction must be reversed.\\n3. The hearsay testimony by Tremblay about what Sandra Smith said to her when Tremblay and her mother were about to leave the parking garage is subject to several objections, not the least of which is its expression of an opinion that lacks any foundation in the evidence. The testimony is not qualified as a proper spontaneous utterance. The testimony is to be excluded at any retrial.\\n4. The judgment of conviction is reversed, the jury verdict is set aside, and the case is remanded to the District Court for a new trial.\\nSo ordered.\\nTo convict the defendant in this case, the Commonwealth had to show that his conduct constituted \\\"abuse,\\\" which includes, among other consequences, \\\"placing another in fear of imminent serious physical harm.\\\" G. L. c. 209A, \\u00a7 1. See Commonwealth v. Gordon, 407 Mass. 340, 344 (1990).\\nThe defendant is represented by new counsel on appeal.\\nThe motion for a required finding of not guilty was renewed at the close of the evidence and after the jury returned their verdict.\\nThis intent requirement constitutes what commonly has been called \\\"general intent.\\\" This intent differs from \\\"specific intent\\\" which is defined in terms of a purposeful and focused intention on the part of a defendant to bring about a specific result. As was explained fully in Commonwealth v. Gunter, ante 259, 268-269 (1998), we do not think much is gained by adding the adjectives \\\"general\\\" and \\\"specific\\\" before the word \\\"intent,\\\" so we shall forgo doing so here, referring simply to \\\"intent\\\" in terms of the intent in issue.\\nIn considering the defendant's motion for a required finding of not guilty, we have not considered Tremblay's testimony concerning the statement of Sandra Smith (which was not objected to) warning her not to leave the parking garage because \\\"he is going to ram you.\\\" As we will discuss later in this opinion, the testimony was inadmissible hearsay, and is to be excluded at any retrial. In not considering the testimony, we have considered the rule that improper hearsay evidence, which has not been objected to, may be weighed with the other evidence and given evidentiary value, but, in a criminal appeal, any such objectionable evidence will be examined to ascertain whether the jury's consideration of it may have created a substantial risk of a miscarriage of justice. See Commonwealth v. Keevan, 400 Mass. 557, 562 (1987).\\nThe District Court should supplement its present model jury instruction to cover the issue discussed in this case.\\nBecause neither the judge nor the defendant's trial counsel could have anticipated the need for the instruction, we see no need to analyze the case under the standard of a substantial risk of a miscarriage of justice.\"}"
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+"{\"id\": \"32150\", \"name\": \"Alden H. Sears vs. Mayor and Aldermen of Worcester\", \"name_abbreviation\": \"Sears v. Mayor & Aldermen of Worcester\", \"decision_date\": \"1902-01-03\", \"docket_number\": \"\", \"first_page\": \"288\", \"last_page\": \"289\", \"citations\": \"180 Mass. 288\", \"volume\": \"180\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:51:39.637779+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alden H. Sears vs. Mayor and Aldermen of Worcester.\", \"head_matter\": \"Alden H. Sears vs. Mayor and Aldermen of Worcester.\\nWorcester.\\nNovember 20, 1901.\\nJanuary 3, 1902.\\nPresent: Holmes, C. J., Knowlton, Lathbop, Hammond, & Loring, JJ.\\nCertiorari. De minimis non curat lex.\\nA writ of certiorari will not be issued to quash the levying of a betterment assessment on the ground that it exceeds one half of the adjudged betterment in the case specified by the amount of half a cent.\\nPetition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Worcester in levying certain betterment assessments on land of the petitioner for the widening of West Boylston Street in Worcester, filed May 12, 1900.\\nThe case was heard by Holmes, C. J., who, at the request.of the petitioner, reported it for the full court as follows:\\n\\u201cThe petitioner wished to offer evidence that West Boylston street was not substantially completed, but I ruled that in this proceeding I could not go behind the record set out in the answer. I also ruled that the assessment was levied in time, and that it was not void because it exceeded one half of the adjudged benefit in the case specified by one half of one cent, and ordered the petition dismissed.\\u201d\\nThe petitioner alleged exceptions, of which the only one argued related to the ruling last stated.\\nG. W. Wood O. H. Wood, for the petitioner.\\nA. P. Pugg, for the respondents.\", \"word_count\": \"518\", \"char_count\": \"2936\", \"text\": \"Lathrop, J.\\nThis is a petition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Worcester in making an ' assessment for street betterments, under the Pub. Sts. c. 51, \\u00a7 1.\\nWhile several questions were presented to the Chief Justice of this court, and are before us, on his report, the only one argued by the petitioner is an exception to the ruling that the assessment was not void because it exceeded one half of the ad judged benefit by one half of a cent. The other questions we regard as waived.\\nWe are of opinion that the ruling was right. As was said in ,Stone v. Boston, 2 Met. 220, 228: \\\" A petition for certiorari is addressed to the sound discretion of the court. It is not to be granted for the mere purpose of enabling a party to avoid the proceedings of an inferior tribunal, for technical errors. It must appear that manifest injustice has been done to the petitioner.\\\" See also Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491, 496; Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 212; Blake v. County Commissioners, 114 Mass. 583, 586; Lowell v. County Commissioners, 146 Mass. 403, 412; Haven v. County Commissioners, 155 Mass. 467 ; Devlin v. Dalton, 171 Mass. 338, 341.\\nIt cannot be said in this case that manifest injustice has been done the petitioner. In the language of Chief Justice Gray, in Workman v. Worcester, 118 Mass. 168, 175: \\\"A case can hardly be imagined which would more imperatively call for the application of the maxim de minimis non curat lex.\\\"\\nPetition dismissed.\"}"
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+"{\"id\": \"3454407\", \"name\": \"Mary E. Coffey vs. West Roxbury Trap Rock Company\", \"name_abbreviation\": \"Coffey v. West Roxbury Trap Rock Co.\", \"decision_date\": \"1918-01-05\", \"docket_number\": \"\", \"first_page\": \"211\", \"last_page\": \"213\", \"citations\": \"229 Mass. 211\", \"volume\": \"229\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:18:44.996059+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mary E. Coffey vs. West Roxbury Trap Rock Company.\", \"head_matter\": \"Mary E. Coffey vs. West Roxbury Trap Rock Company.\\nSuffolk.\\nDecember 6, 1917.\\nJanuary 5, 1918.\\nPresent: Rugg, C. J., Braley, Crosby, Pierce, & Carroll, JJ. \\u2022\\nNegligence, In blasting. Evidence, Circumstantial.\\nIn an action against a corporation that had been engaged in blasting for the construction of a sewer for alleged damage to the plaintiff\\u2019s house by an explosion, if there is evidence that the defendant had been using dynamite, that the explosion took place where the sewer was in process of construction and that there was no other blasting in the vicinity at the time, that the explosion was unusual and extraordinary and that the plaintiff\\u2019s building was shaken and the walls and ceilings cracked, and if there also is evidence that with a proper blast, properly set, there would be no cracking of walls in the adjoining premises, the case is for the jury, who would be warranted in finding that the explosion occurred in the sewer that was being constructed by the defendant and that the defendant was careless in doing the blasting.\\nTort against a corporation engaged in constructing a sewer in Judson Street in the part of Boston called Roxbury for damage done on May 15, 1915, to the plaintiff\\u2019s house numbered 28 on Judson Street alleged to have been caused by negligent blasting by the defendant. Writ dated October 20, 1915.\\nIn the Superior Court the case was tried before Brown, J. The evidence is described in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:\\n\\u201c1. That upon all the evidence the verdict must be for the defendant.\\n\\u201c2. That there is no evidence sufficient to warrant the finding that the defendant, its agents or servants, were guilty of negligence in carrying on their blasting operations.\\n\\u201c 3. That there is no evidence to warrant the jury in finding that the defendant failed to take any precautions in the conduct of its blasting operations which should have been taken by any reasonable and prudent man engaged in and acquainted with such work under similar conditions.\\u201d\\nThe judge refused to make any of these rulings. He submitted the case to the jury, concluding his charge as follows: \\\"Now you are to take all the testimony, conflicting testimony, and find out who is telling the probable story, the reasonable story, the true story, and when you have determined that, why you have settled the difficulties in this case. If you find it was negligent blasting and it caused these cracks that the plaintiff complains of, then she is entitled to recover; if it was not negligent blasting or did not cause these cracks she cannot recover, that is all there in is the case.\\u201d\\nThe jury returned a verdict for the plaintiff in the sum of $550; and the defendant alleged exceptions.\\nC. H. Cronin, for the defendant.\\nC. W. Rowley, (W. M. Robinson with'him,) for the plaintiff.\", \"word_count\": \"996\", \"char_count\": \"5733\", \"text\": \"Carroll, J.\\nThe plaintiff was the owner of a house on Judson Street, Roxbury, which she alleged was injured by reason of the negligence of the defendant while engaged in blasting for a sewer. There was a verdict for the plaintiff.\\nThe plaintiff asserted that the blast occurred between \\\"7:30 and 8 A. M.\\\" on May 15, 1915. The defendant's witness testified that at this time it was engaged in concreting; that no blasting ever was done before eight o'clock in the morning and that none was done in front of the plaintiff's house after May 8, 1915; that \\u2022no explosion occurred in the defendant's trench or about it on May 15; and that at no time did the earth side of the trench cave in or was the street disturbed by any explosion. It was agreed that the defendant contracted to build a sewer through Judson Street in front of the plaintiff's premises; that in order to do the work it was necessary to blast rock; and for this purpose dynamite was used, for which use the defendant had a license.\\nWhile the plaintiff did not show by any direct evidence that the explosion came from the defendant's trench, there was evidence that on the morning of May 15, before eight o'clock, there was an explosion which jarred the house, broke some glass, and cracked the ceilings; that the sewer was being constructed in Judson Street at the time; \\\"that the explosion appeared to come from the front of the house; that blasting had been going on in Judson Street at different times for about a month\\\" and that on this morning rocks were seen \\\"flying in the air from the direction of Judson Street over the roofs of the houses in the neighborhood of the plaintiff's house and toward his [the witness's] house.\\\" The president and treasurer of the defendant company testified that it \\\"did blasting in front of the plaintiff's house,\\\" and that he \\\"knew of no other blasting in the vicinity at the time.\\\"\\nWhile there is very little evidence to show that the blasting or the explosion which injured the plaintiff's house was caused by the defendant, we cannot say there is no evidence tending to establish that fact. The defendant had been using dynamite, the explosion came from the place where the sewer was in process of construction, and there was no other blasting in the vicinity at the time. Upon these facts the jury could find that the explosion occurred in the defendant's sewer.\\nApart from the circumstance that the explosion was unusual and extraordinary, there was evidence of the defendant's negligence. It was shown that with a proper blast, properly set, there would be no cracking of walls in the adjoining premises; and, if the plaintiff's building was shaken and the walls and ceilings cracked, as testified to by her, by a blast of the defendant, it would show carelessness of the defendant. The case was for the jury and we find no error of law.\\nExceptions overruled.\"}"
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+"{\"id\": \"3475956\", \"name\": \"Moses Williams, Jr., & another vs. Inhabitants of Dedham\", \"name_abbreviation\": \"Williams v. Inhabitants of Dedham\", \"decision_date\": \"1911-01-05\", \"docket_number\": \"\", \"first_page\": \"412\", \"last_page\": \"416\", \"citations\": \"207 Mass. 412\", \"volume\": \"207\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:26:32.246199+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Moses Williams, Jr., & another vs. Inhabitants of Dedham.\", \"head_matter\": \"Moses Williams, Jr., & another vs. Inhabitants of Dedham.\\nSuffolk.\\nNovember 18, 1910.\\nJanuary 5, 1911.\\nPresent: Knowlton, C. J., Morton, Loring, Sheldon, & Rugg, JJ.\\nMunicipal Corporations, Liability to purchaser of defective tax title. Tax. Covenant.\\nA purchaser at a tax sale made by the collector of taxes of a town cannot recover from the town the amount paid by him for his tax deed containing the warranty required by R. L. c. 13, \\u00a7 43, upon showing that the title was defective by reason of an insufficient notice of the sale by the collector, unless such purchaser within two years after the date of the deed complied with the requirement of R. L. c. 13, \\u00a7 44, by offering by a writing given to the collector to surrender and discharge his deed or to assign and transfer to the town all his right, title and interest in the premises.\\nWhether the liability to the purchaser at a tax sale, which is imposed on a town or city by R. L. c. 13, \\u00a7 44, in case it appears that, by reason of an error, omission or informality in the assessment or the sale, the purchaser has no claim upon the property sold, properly may be considered a liability upon the warranty of the collector of taxes that the sale has in all particulars been conducted according to law, which is required by R. L. c. 13, \\u00a7 43, to be inserted in all tax deeds, here was not passed upon, because, although the action was brought against a town on the warranty, no recovery was permitted on account of the plaintiff\\u2019s failure to make the offer required by R. L. c. 13, \\u00a7 44.\\nContract against the town of Dedham upon a covenant of warranty contained in a deed of the collector of taxes of that town dated January 21, 1908, under the requirement of R. L. c. 13, \\u00a7 43. Writ dated May 21, 1908.\\nIn the Superior Court the case was submitted to King, J., upon an agreed statement of facts, as follows:\\nOn January 17,1908, the tax collector of the town of Dedham sold the parcel of land described in the plaintiffs\\u2019 declaration to the plaintiffs at a tax sale, and in pursuance of such tax sale executed and delivered the deed, of which a copy was annexed to the plaintiffs\\u2019 declaration.\\nThe consideration paid by the plaintiffs was as stated in the deed, $54.60, which was the amount of the tax properly assessed upon the property, plus interest and the costs of collection.\\nThere was an alienation of the land in question on January 24,1905.\\nThe land was described in the notice of sale which the tax collector published preceding the sale, as set forth in the copy of the notice annexed to the plaintiffs\\u2019 declaration.\\nThe plaintiffs on August 11,1905, brought proceedings to enforce their title to the land, and in those proceedings it was decided by the Supreme Judicial Court for the Commonwealth that the description in the notice of sale did not comply with the law and that the plaintiffs acquired no title to the land by the deed. See Williams v. Bowers, 197 Mass. 565.\\nThe plaintiffs did not within two years after the date of the deed offer by writing given to the collector to surrender and discharge their deed or to assign and transfer to the town all their right, title and interest in the premises, nor did the collector within two years after the date of the deed give notice to the plaintiffs to release any interest which they might have in the land under said deed and to receive from the town the amount paid therefor with interest at ten per cent or to file with the collector a statement that they refused to release such interest.\\nThe deed of the collector contained the covenant required by R. L. c. 13, \\u00a7 43, that the sale had in all particulars been conducted according to law, and the action was brought upon that covenant.\\nThe court was authorized to draw such inferences of fact as properly might be drawn from the foregoing agreed statement of facts.\\nThe plaintiffs asked the judge to make the following rulings:\\n\\u201c 1. In order to sue on the covenant of warranty it was not necessary for the plaintiffs within two years after the date of their deed to offer by writing given to the collector to surrender and discharge their deed or to assign and transfer to the town all their right, title and interest in the premises.\\n\\u201c 2. The town is liable on the covenant.\\n\\u201c3. On the facts stated in the agreed facts judgment should be for the plaintiffs for $54.60 and interest from January 17,1903.\\u201d\\nThe judge ruled that there was a breach of the covenant, but refused to make any of the above rulings requested by the plaintiffs, and ruled, as requested by the defendant, that on all the agreed facts the plaintiffs could not recover, and that the plaintiffs, having failed to offer by a writing given to the collector to surrender and discharge their deed or to assign and transfer to the defendant all their right, title and interest in the premises within two years from the date of their deed, could not recover. He found as matter of law for the defendant on the agreed facts, drawing no inferences of fact therefrom.\\nThe plaintiffs alleged exceptions.\\nThe judge ordered judgment for the defendant. It did not appear that judgment was entered in accordance with this order, but it was stated in the record that the plaintiffs appealed.\\nR. I>. Swairn, for the plaintiffs.\\nJ. S. Soliday, for the defendant.\", \"word_count\": \"1640\", \"char_count\": \"9004\", \"text\": \"Kkowltob\\\", C. J.\\nThis is an action to recover from the defendant the amount paid by the plaintiffs for a tax deed of property described in the declaration, given by the collector of taxes of Dedham, it having been discovered that the title conveyed by the deed was defective by reason of an insufficient notice of the sale by the collector. The plaintiffs did not, within two years after the date of the deed, offer by writing given to the collector, to surrender and discharge their deed, or to assign and transfer to the town all their right, title and interest in the premises, as they might have done under the R. L. c. 13, \\u00a7 44. The question is whether they can recover without having made such an offer.\\nIt was held in Lynde v. Melrose, 10 Allen, 49, that, in the absence of a statute, a purchaser at a sale of real estate for taxes cannot recover from a city or town the amount paid, if the title proves to be invalid by reason of defects or informalities in the proceedings. The court said: \\\" He buys a title without warranty, except such covenants as he takes from the collector; and he must rely only upon them.\\\" These, in the form prescribed for a collector's deed, are the personal covenants of the collector, and not covenants of the town. The town is not liable by reason of them, except in the manner and to the extent declared by the statute. ,\\nThe first act on this subject was St. 1862, c. 183, \\u00a7 6, which required a collector to insert a covenant that the sale had \\\" in all particulars been conducted according to the provisions of law.\\\" It is then provided that, if it should appear that by reason of any error, omission or informality in any of the proceedings of assessment or sale, the purchaser had no claim upon the property sold, he might surrender and discharge his deed, and receive back from the city or town the amount paid by him. This was similar to the present statute, except that no limit of time was stated for the surrender and discharge of the deed. By the St. of 1878, c. 266, \\u00a7 1, this section was amended by adding a proviso that the purchaser should, within two years from the date of the deed, offer in writing to surrender and discharge the deed, or to assign and transfer to the town or city all his right, title and interest therein, as the collector should elect. This provision has been retained in all subsequent re-enactments. Pub. Sts. c. 12, \\u00a7 39. St. 1888, c. 390, \\u00a7 43, 44. R L. c. 13, \\u00a7 44. St. 1909, c. 490, Part II. \\u00a7 45.\\nThese provisions of the statute create the only liability of a city or town for any defect in the title conveyed by the deed of a collector of taxes. The last sentence of the section is as follows: \\\"Ho city or town and no treasurer or collector thereof shall pay or be liable for any amount due under the provisions of this section unless such statement is filed.\\\" R L. c. 13, \\u00a7 44. It is also said that the payment \\\" shall be in full for all damages for any defects in the proceedings or under the warranty in such deed. \\\" Upon payment the collector is relieved from liability on his warranty, and the city or town is also relieved in like manner, so far as the liability of the municipality under these sections, or by implication under the R L. c. 13, \\u00a7 70, may be considered a liability upon the warranty.\\nIn Spring v. Cambridge, 199 Mass. 1, is this language: \\\" By the terms of the statute it is only ' upon such surrender (of the deed) and discharge or assignment and transfer ' that such a city or town is required to pay.\\\"\\nWe are of opinion that the failure of the plaintiffs to avail themselves of their rights under this statute leaves them without a remedy against the town.\\nExceptions overruled ; judgment affirmed.\"}"
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+"{\"id\": \"3504179\", \"name\": \"John D. Biggert vs. Charles L. Straub & others\", \"name_abbreviation\": \"Biggert v. Straub\", \"decision_date\": \"1906-10-16\", \"docket_number\": \"\", \"first_page\": \"77\", \"last_page\": \"80\", \"citations\": \"193 Mass. 77\", \"volume\": \"193\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:13:46.045430+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John D. Biggert vs. Charles L. Straub & others.\", \"head_matter\": \"John D. Biggert vs. Charles L. Straub & others.\\nWorcester.\\nOctober 3, 1906.\\nOctober 16, 1906.\\nPresent: Knowlton, C. J., Hammond, Loring, Braley, & Rugg, JJ.\\nJurisdiction. Equity Jurisdiction, To reach and apply equitable assets. Insurance, Life.\\nA liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another State and in the possession of a pledgee in this Commonwealth is such property within this Commonwealth as gives jurisdiction to proceed in rem. against it without personal service on the holder of the policy.\\nIn a suit in equity under R. L. c. 159, \\u00a7 3, cl. 7, to reach and apply in payment of a debt due to the plaintiff equitable assets of the defendant debtor within this Commonwealth, it appeared that a Massachusetts corporation had issued a policy of insurance on the life of the defendant debtor in the sum of $10,000 for a term of thirty-two years, promising to pay that sum to him or his assigns at the end of that period or in the event of his death before that time to pay it to his wife, that this policy had a cash surrender value of more than $3,000 and was in the possession of the defendant insurance company to which it had been delivered by the defendant debtor as security for an advance to him of about $1,200. Held, that the interest of the defendant debtor in the policy contingent on his survival of his wife was an equitable asset whose value could be ascertained by sale or by some other means within the ordinary procedure of the court and which therefore could be reached and applied under the statute.\\nBill in equity, filed January 26 and amended May 31,1906, against Charles L. Straub and Bertha G. Straub, his wife, both of Pittsburgh in the State of Pennsylvania and temporarily residing at Brooklyn in the State of Hew York, and the State Mutual Life Assurance Company, a corporation organized under the laws of this Commonwealth and having its usual place of business at Worcester in this Commonwealth, under R. L. c. 159, \\u00a7 3, cl. 7, to ascertain and determine the indebtedness of the defendants Straub to the plaintiff and to reach and apply to the payment of such indebtedness a certain policy of insurance issued by the defendant corporation upon the life of the defendant Charles L. Straub.\\nThe defendants Charles L. Straub and Bertha G. Straub were not served personally with notice of the suit either within or without the Commonwealth. There was service by publication by order of the court. These defendants appeared specially and moved to dismiss the bill. There was service on the defendant corporation, and a temporary injunction was issued which was served upon that defendant, enjoining it from paying over the cash surrender value of the policy in question to the defendants Straub.\\nIn the Superior Court the motions to dismiss were denied by Crashill, J., and the defendants Straub appealed. The judge, being of opinion that it was proper for the question as to jurisdiction raised by the motions to dismiss to be determined by this court before any further proceedings in the Superior Court, reported the case for such determination. If the motions should have been allowed, the bill was to be dismissed or such other disposition was to be made of it as might seem just. If the motions should have been denied, the defendants were to be allowed to answer and the case was to stand for hearing in the Superior Court.\\nO. T. Taiman, for the defendants Straub.\\nA. T. Johnson, A. H. Bulloch 8\\u00a1- J. M. Thayer, for the plaintiff.\", \"word_count\": \"1354\", \"char_count\": \"7663\", \"text\": \"Knowlton, C. J.\\nThis is a suit in equity in the nature of an equitable trustee process, brought under the R. L. c. 159, \\u00a7 3, cl. 7, to reach and apply in payment of a debt due, the plaintiff's property in the hands of the defendant life insurance company, belonging to the debtor, Charles L. Straub. This defendant and his wife, Bertha Gr. Straub, the other defendant, who seems to have an interest in the property, are not residents of this Commonwealth and the only service made upon either of them was by publication. They have filed motions to dismiss the suit for want of jurisdiction. The presiding judge overruled these motions and then reported for consideration by this court the questions arising upon them.\\nThe first question is whether a liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another State is property within this Commonwealth, such as to give jurisdiction to the court here to enter a decree in the nature of a judgment in rem against it. This .question is precisely the same, in its legal aspect, as the question whether such a liability, in a form that can be reached by trustee process in an action at law, gives jurisdiction for an action of the latter kind. This question has long been treated in this Commonwealth as requiring an affirmative answer. Ocean Ins. Co. v. Portsmouth Marine Railway, 3 Met. 420. Whipple v. Robbins, 97 Mass. 107. American Bank v. Rollins, 99 Mass. 313. National Bank of Commerce v. Huntington, 129 Mass. 444. Garity v. Gigie, 130 Mass. 184. In view of conflicting cases in different jurisdictions, it was considered at some length and decided in the affirmative in Rothschild v. Knight, 176 Mass. 48, and it was settled by decisions in the Supreme Court of the United States, which is the final arbiter in all controversies as to the validity \\u2022 and effect of judgments of one State in the courts of another State. Chicago, Rock Island & Pacific Railway v. Sturm, 174 U. S. 710, 716. King v. Cross, 175 U. S. 396, 399. Rothschild v. Knight, 184 U. S. 334. Blackstone v. Miller, 188 U. S. 189, 205, 206. The defendants' objection to the jurisdiction on this ground is not sustained.\\nThe only other question is whether the property is of such a nature as to come within the statute. The State Mutual Life Assurance Company issued a policy of insurance on the life of the defendant, Charles L. Straub, in the sum of #10,000, for the term of thirty-two years from May 7, 1895, promising to pay this amount to him or his assigns on May 7,1927, or, in the event of his death before that date, to pay it to his wife, the defendant Bertha Gr. Straub. It appears that this policy now has a cash surrender value of more than $3,000. It further appears that the policy is in the possession of the insurance company, which has a lien upon it for $1,281 advanced to the defendant Charles L. Straub.\\nThe policy is not before us, and the only knowledge we have of its terms or provisions is derived from the averments in the stating part of the bill. Nor do we know whether the proceedings that have been had, or the assignment to the insurance company which we infer has been made as security- for the advance of money, are such as leave the defendant Bertha G. Straub without further interest in the policy. From the averments of the bill the debtor, Charles L. Straub, appears to have, at the least, an interest in the policy whose value depends in great measure upon the contingency of his survival of his wife. If he has no greater interest, this question arises: Whether, in view of this contingency, the value of his interest \\\" can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.\\\" See R. L. c. 159, \\u00a7 3, cl. 7. On this question the case of Alexander v. McPeck, 189 Mass. 34, 44, is decisive. It was there held that a right whose value depended on a similar contingency could be reached under this statute, and that, for the purposes of the statute, the value could be ascertained by sale, or some other means within the ordinary procedure of the court.\\nMotions disallowed.\"}"
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+"{\"id\": \"3506284\", \"name\": \"Commonwealth vs. M. F. McClusky\", \"name_abbreviation\": \"Commonwealth v. McClusky\", \"decision_date\": \"1890-05-10\", \"docket_number\": \"\", \"first_page\": \"488\", \"last_page\": \"490\", \"citations\": \"151 Mass. 488\", \"volume\": \"151\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T20:26:50.526306+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. M. F. McClusky.\", \"head_matter\": \"Commonwealth vs. M. F. McClusky.\\nMiddlesex.\\nMarch 31, 1890.\\nMay 10, 1890.\\nPresent: Field, Devens, W. Allen, C. Allen, & Holmes, JJ.\\nComplaint \\u2014 Appeal \\u2014 Nolle Prosequi.\\nIf a defendant who has been convicted upon a criminal charge in a district court takes an appeal to the Superior Court, the district attorney before the jury are impanelled may enter a nolle prosequi in the Superior Court, without the defendant\\u2019s consent, as in other cases.\\nAfter the entry of a nolle prosequi, if no step has been taken to reeall it or to revive tiie complaint, the defendant is entitled to a formal order discharging him from the complaint.\\nComplaint to the First District Court of Eastern Middle-sex, for embezzlement. The defendant was tried and found guilty in the district court, and appealed to the Superior Court. After the complaint was entered in that court, and before the jury were impanelled, the district attorney entered a nolle prosequi. The defendant thereupon filed a motion, in which he objected to the entry of the nolle prosequi, and asked to be \\u201c discharged from this complaint,\\u201d and \\u201c from further answering to the charge contained in this complaint.\\u201d Thompson, J. overruled the motion, and refused to order the discharge of the defendant; and the defendant alleged exceptions.\\nM. Coggan, for the defendant.\\nA. J. Waterman, Attorney-General, H. A. Wyman, Second Assistant Attorney General, for the Commonwealth.\", \"word_count\": \"875\", \"char_count\": \"5019\", \"text\": \"C. Allen, J.\\nIt is obvious that the defendant was put in peril by his trial in the district court, and while that peril continued, that is, during the trial in that court, it may be assumed that the refusal to prosecute further would have amounted to an acquittal. Commonwealth v. McCormick, 130 Mass. 61. Commonwealth v. Hart, 149 Mass. 7. But the defendant by his appeal from the judgment of the district court has availed himself of his right to have the trial in that court go for nothing, and to be tried anew in the Superior Court. By availing himself of this right, he placed himself in the sarde position as if he had not been tried at all, so far at least as respects the question now before us. The former judgment was set aside and vacated; he was discharged and free from the peril in which he formerly stood, and as one consequence the district attorney might enter a nolle prosequi with the same effect as if there had been no previous trial, and the general rule was applicable, that a nolle prosequi may be entered without the defendant's consent before the jury are impanelled. Commonwealth v. Scott, 121 Mass. 33. The case of Commonwealth v. Smith, 98 Mass. 10, is analogous, where it was. held that, after the verdict of guilty on an indictment had been set aside on a motion for a new trial, and before further proceedings in the case, the district attorney might enter a nolle prosequi against the objection of the defendant.\\nIt is plain that the effect of entering a nolle prosequi under such circumstances is not to acquit the defendant of the offence, so as to bar a new prosecution for it. Bacon v. Towne, 4 Cush. 217, 235. There has been some discussion elsewhere as to whether a nolle prosequi, after being once duly entered, can be recalled,. and fresh proceedings taken in the same case. The King v. Pickering, cited in Hardres, 83. The Queen v. Allen, 1 B. & S. 850. State v. Shilling, 10 Iowa, 106. Woodworth v. Mills, 61 Wis. 44. Bowden v. State, 1 Tex. App. 137, 145. See also 1 Bishop Crim. Proc. \\u00a7 1395, and Moulton v. Beecher, 1 Abb. N. C. 193, for ample citations of authorities. We need not enter upon that question, since no such course was attempted in the case before us. A nolle prosequi was duly entered, and it still remains of record. So far as this complaint is concerned, the district attorney declared, and still declares, that he will no further prosecute it. The defendant therefore should not be held further to attend to answer to it while this state of things continues, and he is entitled to be released and discharged from actual or constructive custody on this complaint; at the very least, until some step is taken to recall the nolle prosequi, and to revive the complaint. But the defendant has no right to decide this question for himself, and to depart without leave. Commonwealth v. Teevens, 143 Mass. 210. It follows that .he is entitled to a discharge by the court from any complaint which is at an end. The court should have granted that part of the defendant's motion which asked for an order that he be discharged from this particular complaint. Commonwealth v. Gould, 12 Gray, 171, 173. Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136. Knott v. Sargent, 125 Mass. 95, 98. Commonwealth v. Bressant, 126 Mass. 246. Such a discharge is not equivalent to an acquittal, or to a general discharge from custody, provided there is any other charge or complaint against him. Brown v. Lakeman, 12 Cush. 482. Morgan v. Hughes, 2 T. R. 225, 231. Goddard v. Smith, 1 Salk. 21; S. C. 6 Mod. 261, 262, and 2 Salk. 456.\\n_Exceptions sustained.\"}"
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+"{\"id\": \"3620268\", \"name\": \"Twin Fires Investment, LLC et al. v. Morgan Stanley Dean Witter & Co. et al.\", \"name_abbreviation\": \"Twin Fires Investment, LLC v. Morgan Stanley Dean Witter & Co.\", \"decision_date\": \"2002-12-23\", \"docket_number\": \"No. 0000751F\", \"first_page\": \"542\", \"last_page\": \"564\", \"citations\": \"15 Mass. L. Rptr. 542\", \"volume\": \"15\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:39:06.365888+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Twin Fires Investment, LLC et al. v. Morgan Stanley Dean Witter & Co. et al.\", \"head_matter\": \"Twin Fires Investment, LLC et al. v. Morgan Stanley Dean Witter & Co. et al.\\nSuperior Court, Suffolk, SS\\nNo. 0000751F\\nMemorandum Dated December 23, 2002\", \"word_count\": \"21645\", \"char_count\": \"129598\", \"text\": \"Gants, J.\\nOn February 11, 2000, at around 1:00 p.m., the initial public offering (\\\"IPO\\\") of 4,100,000 shares in webMethods, Inc. (\\\"WEBM\\\"), a technology company specializing in business-to-business communication, began to be publicly traded on the NASDAQ. In what seemed then the natural order of things and what, in retrospect, appears to have been \\\"irrational exuberance,\\\" the opening share price of $35 per share rose within minutes of public trading to $189, eventually rising to $215 later that day. The plaintiff, Twin Fires Investment, LLC (\\\"Twin Fires\\\"), a limited liability company organized by the plaintiff Stephens Dunne (\\\"Dunne\\\") and his accountant and business advisor, Rick Dlugasch (\\\"Dlugasch\\\"), for the sole purpose of purchasing shares in the WEBM IPO, contends that the defendant Andrew Finch (\\\"Finch\\\"), a stockbroker in the Wellesley office of the defendant Morgan Stanley Dean Witter & Co. (\\\"Morgan Stanley\\\"), had promised to allocate 75,000 shares in the IPO to Twin Fires but reneged on that promise. Since Dunne had issued Finch a futile sales order at around 1:10 p.m. on Februaiy 11 to sell 30,000 shares at the then-market price of $207 and an equally futile sales order at 2:50 p.m. to sell the remaining 45,000 shares at the then-market price of $197.85, Twin Fires contends that the breach of contract by Finch (and, through Finch, Morgan Stanley), cost it $12,487,940 in lost profits. Finch and Morgan Stanley contend that Finch simply took what is known in the trade as a General Expression of Interest (\\\"GEI\\\") from Twin Fires and never committed Morgan Stanley to allocate 75,000 shares in the IPO to Twin Fires.\\nAll parties waived their right to a juiy trial, and agreed to have all issues decided through a bench trial. This Court heard testimony from thirteen witnesses over nine days of trial between May 6 and May 20, 2002, and also read the testimony of fourteen witnesses who the parties agreed could testify via deposition. Based on the testimony at the trial and in those depositions, the exhibits admitted into evidence at trial, and the stipulations of the parties, viewed in light of the governing law, this Court makes the following findings of fact and conclusions of law.\\nFindings of Fact\\nBefore finding the facts, candor obliges me to admit that it is extraordinarily difficult to find the facts in this case for at least five reasons. First, the version of events proffered by each party is implausible. Twin Fires argues that Finch guaranteed Dunne, Dlugasch, and another Twin Fires investor, William Kams, that at least 75,000 shares of the WEBM IPO would be allocated to Finch and that he would ensure that at least 75,000 IPO shares would be sold to Twin Fires at the initial offering price even though Finch reasonably should have known at the time that he would not be able to deliver on this promise, since only Fidelity Investments received an allocation of this size. Morgan Stanley argues that Finch said nothing that reasonably could have been construed to mean that he was promising to sell Twin Fires 75,000 shares of the IPO, and that Dunne and Dlugasch essentially devised a get-rich-quick scheme whereby they would falsely transform Finch's acceptance of a GEI into a guarantee, feign outrage on Februaiy 11 that they had not received IPO shares they knew they would never get, and then demand that Morgan Stanley make good on this so-called commitment.\\nSecond, this Court did not find either of the two principal witnesses for each side \\u2014 Dunne and Finch\\u2014 to be entirely credible. The evidence reflects that, at times, both have wandered from the truth when it served them and, here, both had a strong motive to recall conversations and events in a light favorable to them.\\nThird, there are no writings memorializing the understanding between Dunne and Finch. Nor are there any contemporaneous writings that discuss or make mention of that understanding.\\nFourth, until the day of the IPO, there were no witnesses to either the in-person or telephone conversations between Dunne and Finch. There is no evidence that Finch discussed with anyone his conversations with Dunne, but abundant, albeit conflicting, evidence as to Dunne's conversations with others about his discussions with Finch. Finch met only once with Dlugasch and Kams after he had twice met with Dunne, and his memory of this conversation differs greatly from theirs.\\nFifth, the outcome of this case rests largely on Finch's choice of words in his conversations with Dunne and his meeting with Dlugasch and Kams \\u2014 essentially, Dunne contends that Finch offered him 75,000 shares in WEBM's IPO and he accepted the offer, while Finch contends that he simply said he hoped that he would receive an allocation of those shares and Dunne expressed an interest in buying as many shares in the IPO as Finch could deliver. From this Court's experience, a witness's memory of what another person specifically said in the past is colored by what the witness understood was being said, so the witness's memory of the words used are sometimes simply an articulation of his own understanding of what was meant. Separating out what was truly said from what the witness understood was meant is always difficult, especially when there is no documentation and so little witness corroboration as to what was actually said, but it is essential that it be done here because that distinction may prove dispositive. Having discussed these difficulties, I shall now And the facts.\\nAndrew Finch graduated from Boston University in 1994, having majored in business and excelled at crew. He passed the Series 7 and Series 63 examinations needed to become a registered financial advisor in Massachusetts and other states and, in September 1997, he began as a stockbroker at the brokerage firm of Joseph Charles & Associates, Inc. (\\\"Joseph Charles\\\"). He received no formal training at Joseph Charles, only on-the-job training, mostly from another broker, Chris Esposito, who Finch viewed as his friend and mentor. Finch wanted to work at a larger brokerage firm so, in the summer of 1998, he joined Morgan Stanley as a stockbroker. After spending a few weeks as a stockbroker in Morgan Stanley's Wellesley office, Finch received three weeks of formal training at Morgan Stanley's New York headquarters, and then returned to Wellesley.\\nA broker's compensation at Morgan Stanley is based on a percentage of the commissions he generates, referred to as his annual production. A broker receives between 25 to 40 percent of his annual production, with the actual percentage dependent on the size of his annual production. Virtually all of Finch's commissions derived from customers that he had brought to Morgan Stanley and, as a novice broker, he had yet to bring in very many customers. His annual production for 1999 was $67,453, which placed him among the bottom third of brokers in the Wellesley office in terms of production. Finch believed that his annual compensation for that year was roughly $30,000.\\nFinch Brings the WEBM IPO to Morgan Stanley\\nOne dinner with a friend who was employed as a sales manager at WEBM, however, presented an opportunity that had the potential to transform Finch's career as a stockbroker. During that dinner, Finch's friend, Albert Stefan, mentioned that he worked for a great private company that was considering going public some day. Finch said that he (Finch) would receive a large bonus if he could bring a company to Morgan Stanley's Investment Banking Group that Morgan Stanley took public. Stefan urged him to call WEBM's Chief Executive Officer, Phillip Merrick.\\nIn March 1999, Finch acted on Stefan's suggestion and tried to reach Merrick by telephone, but was able only to leave a message. Merrick returned the call and left a voicemail for Finch, saying that he would be interested in discussing with him the possibility of Morgan Stanley working with WEBM on a possible initial public offering. When they actually spoke together by telephone in a conference call, Merrick told Finch that his call had come just in time. Merrick explained that WEBM was holding a conference call with eligible investment banking firms within the next three weeks, that he had not yet spoken to anyone from Morgan Stanley, and that the window for bringing in new investment bankers was about to close. John Foley, the sales manager at the Wellesley office, who was a participant in the conference call, asked Merrick to send them by overnight delivery a set of audited financial statements and a business plan to get things moving as quickly as possible. Merrick sent these materials to the Wellesley office, which forwarded them to Ray Smesko, who directed Morgan Stanley's Branch Originator Program, who forwarded them to the Investment Banking Group.\\nFinch learned that Morgan Stanley's Investment Banking Group was not interested in underwriting WEBM's IPO because it thought WEBM had insufficient revenue. Finch telephoned Merrick and asked if WEBM had any transactions in the pipeline that would boost revenue. Merrick told him about a deal that WEBM had not disclosed to Morgan Stanley that would bring in significant revenue over the next few years, and Finch arranged for this information to be relayed to Smesko. The investment bankers, upon learning of this anticipated revenue stream, became interested in pursuing the WEBM IPO, and set up a conference call with Merrick, Finch, and Rick Ryan, the Wellesley branch manager. During this conference call, the investment bankers agreed to fly to Virginia to meet Merrick and evaluate WEBM. After this conference call, Finch's participation in the underwriting discussions regarding the WEBM IPO ended. He learned that Morgan Stanley was the lead underwriter for the WEBM IPO only when he saw it on the Internet on the ipo.com website in October or November 1999.\\nFinch Attempts to Curry Favor with WEBM's Chief Executive Officer\\nThe Branch Originator Program had been created by Morgan Stanley to encourage its retail brokers to explore with their financial service clients possible opportunities for Morgan Stanley's investment bankers. A retail broker who identified a lead with a company that Morgan Stanley had no prior relationship with and who influenced the company to retain Morgan Stanley as its investment banker was deemed the \\\"originator\\\" of such an opportunity, and thereby became eligible to receive bonus compensation of up to ten percent of all the revenue derived from the transaction by Morgan Stanley, with the bonus capped at $500,000. As will be discussed below, by making his \\\"cold call\\\" to Merrick and bringing the WEBM IPO to Morgan Stanley, Finch was declared the \\\"originator\\\" of this transaction under this Program.\\nEven before WEBM chose Morgan Stanley as its lead underwriter, Finch spoke with others at Morgan Stanley as to what it meant to be the \\\"originator\\\" of this IPO and how he could maximize the personal benefit to him. He learned that he would receive a \\\"finder's fee\\\" as the \\\"originator\\\" and that the quality of his relationship with Merrick would be an important factor in Morgan Stanley's determination as to the size of that \\\"finder's fee.\\\" He also learned of a number of other avenues by which he could leverage his origination of this IPO into an enormous and sustained increase in his annual production and, thus, his annual compensation.\\nFirst, he learned that he could become the broker for the WEBM Directed Shares Program, whereby IPO shares are directed specially to officers, employees, and friends of the issuing company, so that they may have an equity stake in the company after it becomes public and enjoy the anticipated increase in share price that routinely was occurring in high technology IPOs during this time period. In the WEBM IPO, 200,000 shares were set aside for the Directed Shares Program. If Finch were designated as the broker for those receiving WEBM IPO shares under this Program, he would not only enjoy the commissions that would derive from their subsequent sale of these shares but, more importantly, he would have an entree to become their stockbroker for all their assets, which would likely greatly increase in value as a result of their participation in the IPO.\\nSecond, he hoped to parlay his relationship with Merrick to become Merrick's personal financial advisor, brokering all Merrick's securities transactions involving his personal assets. Since, from his knowledge of other high technology company IPOs, Finch expected that this IPO would make Merrick a rich man (if he were not already one), Finch thought this an important potential account.\\nThird, and most importantly, Finch learned that it was possible to receive an extra allocation of IPO shares for his clients for having brought in the deal. While initially it was unclear how he could obtain this additional allocation, it soon became apparent to Finch that any substantial increase in his allocation would have to come from a special request made by Merrick on Finch's behalf. Finch discussed the possibility of a special allocation with Fred Caswell, who became the Wellesley branch manager in May 1999, and Gerald Curtis, the branch syndicate coordinator. From these discussions, Finch believed that he probably would receive a special allocation if the IPO reached fruition. Finch also spoke with a Morgan Stanley broker in the Wellesley office, Steve Keller, who had been the originator of another IPO involving a high technology company. Keller told Finch that his contact at the issuing company had arranged to allocate between 250,000 and 300,000 IPO shares to Keller if the IPO went through. Prior to January 2000, however, before Finch first discussed the WEBM IPO with Dunne, Keller's IPO fell through and he received no allocation of shares. As a result of these early discussions, Finch believed (1) that, if he played his cards right with Merrick, he would probably receive from Merrick a special allocation of shares; (2) that the special allocation could be as great as 250,000 to 300,000 shares; and (3) that everything depended upon the IPO going through. Indeed, in the summer of 1999, Finch told Katharine Dunne, the mother of plaintiff Stephens Dunne and of Finch's sister's husband, that he was going to receive between 200,000 and 300,000 IPO shares in WEBM for having brought WEBM to Morgan Stanley.\\nSince so much depended upon Merrick, Finch attempted to build and solidify his relationship with him. He used his own money to fly to Virginia in mid-July 1999 to meet Merrick in person for the first time, and spoke with him for about thirly minutes. At the end of that meeting, Merrick told him he would wait until after the IPO to consider retaining other Morgan Stanley financial services. When Finch returned to his Wellesley office on July 21, 1999, he wrote Merrick a letter promising to send him an information packet later that day. He added, \\\"I was pleased to have finally met you in person and am anxious to work with you in the future.\\\"\\nFinch stayed in touch with Merrick by telephone or e-mail eveiy few weeks. In an e-mail dated October 15, 1999, Finch attempted to schedule another visit to Virginia to meet with Merrick again \\\"in the next few months.\\\" Merrick suggested a conference call on October 26 but the call never happened that day. Finch e-mailed Merrick later on October 26 expressing his understanding of how busy Merrick had become. He noted that Merrick's Executive Assistant had arranged for them to speak on November 29. Finch explained only obliquely what he wanted to discuss with Merrick:\\nI mainly wanted to speak with you this afternoon to see how you felt the progress towards webMethods eventual public offering was going. I also wanted to cover some ground relating to the handling of certain aspects of such an offering.\\nOn November 7, Merrick e-mailed Finch and suggested that they meet in Philadelphia at a technology convention that Merrick was planning to attend. Finch arranged with Merrick's Executive Assistant to meet Merrick in Philadelphia on December 7, but Merrick later cancelled this meeting, too. On or just before November 29, after Finch learned that Merrick could not meet him in Philadelphia and after WEBM had filed its intent to become a publicly-traded company with the Securities and Exchange Commission (\\\"SEC\\\"), Finch reached Merrick by telephone. During this telephone call, Merrick told Finch that Finch was not going to obtain either the Directed Shares Program or Merrick's personal account. Finch understood that both had been won by Morgan Stanley's Private Wealth Management group in New York but, from Merrick's testimony, this Court finds that Private Wealth Management had won only Merrick's personal account and that Merrick had told Morgan Stanley that he wanted broker in Virginia to handle WEBM's Directed Shares Program. After learning this news, Finch e-mailed Ryan that he was \\\"(v]ery disappointed to say the least.\\\" Later, Morgan Stanley arranged for Finch to split the Directed Shares Program (and the commissions) with Jonathan Legg, a broker in Virginia who handled many high net worth clients.\\nFinch testified that, in his late November 1999 telephone call with Merrick, he asked Merrick for the first time to allocate shares to him and his branch. According to Finch, Merrick said, in substance, \\\"sure, that would not be a problem,\\\" and confirmed that Finch was in the Wellesley branch. I do not credit this testimony, for three reasons. First, Merrick did not recall Finch making this request and, more importantly, does not believe he told Finch that he would allocate shares to him and his branch. He testified that his standard response to such requests for allocation was to say, \\\"I don't know that we'll have the opportunity to influence the allocation. To the extent that perhaps we can do that, I will see what we can do but I can't make any promises or commitments.\\\"\\nSecond, if Merrick had indeed promised Finch a special allocation, one would think Finch would have made some mention of that good news in his e-mail to Ryan, who by this time was no longer his branch manager but still remained his mentor. Instead, that e-mail contains only disappointment. Finch wrote, \\\"To find clients and bring them to the firm only to have them completely taken out from under you is unreal.\\\"\\nThird, when Finch did specifically request from Merrick a special allocation of IPO shares in his letter dated January 5, 1999 (although sent on Januaiy 5, 2000), he made no mention of this earlier promise of a special allocation. If there had been such a promise, Finch would likely have reminded Merrick of it in some fashion in this letter. Indeed, if Finch had asked for an allocation and Merrick had given what he characterized as his standard response, Finch would likely have reminded him of it, because Merrick at least offered in his standard response to do what he could. Consequently, I find it more likely than not that Finch did not broach the topic of a special allocation at all during this conversation on or around November 29. If I am wrong and he did ask for an allocation, I find it more likely than not that Merrick's response was closer to his standard response than Finch's version.\\nDespite Finch's disappointment with what he perceived to be the loss of Merrick's personal account and of the Directed Shares Program, Finch persevered in offering to assist Merrick in matters regarding the IPO, no doubt in the hope of obtaining from Merrick a substantial share allocation. On December 7, 1999, Finch e-mailed Merrick to inform him that an old college friend of Finch's was a columnist with the Wall Street Journal and had mentioned to Finch that she could write about any company she wanted. Finch in this e-mail wrote that he was furnishing Merrick with this information as \\\"a heads up on something [he] may find useful either in the near term or in the future.\\\"\\nMerrick responded with a curt e-mail observing that the Wall Street Journal had covered WEBM several times, and that WEBM could not speak to the business press during the \\\"quiet period.\\\" Merrick correctly understood that, under SEC rules, a company going public was barred from making any public pronouncements from the moment that it first registered its IPO with the SEC, which occurred on November 19, 1999 (known as the \\\"pre-effective registration\\\"), until the registration became effective, which occurs immediately before IPO shares go on the market. During this \\\"quiet period,\\\" the company going public can respond to inquiries only by providing a copy of its most recent preliminary prospectus, sometimes referred to as its \\\"red herring.\\\" Finch's offer to Menrick to arrange for a Wall Street Journal interview regarding WEBM was at best, ill timed, and, more likely, a reflection of Finch's ignorance of the SEC rules governing IPOs.\\nIn December 1999, Finch had his annual performance review. In preparation for that review, Finch wrote a document setting forth his goals for 2000. In this document, Finch considered two scenarios, one in which the WEBM IPO reached fruition and another in which the WEBM IPO fell through. With the WEBM IPO, he set a goal of managing $400,000,000 in assets and earning more than $500,000 in gross commissions. Without the WEBM IPO, his goal was to bring in $5,000,000 in assets and earn $200,000 in gross commissions. Under both scenarios, he planned to bring in 100 new accounts. It is not clear what Finch was thinking when he prepared this document, and Caswell, his branch manager, certainly did not challenge the numbers during the performance review to cause Finch to think harder as to whether they were realistic. By the time he prepared this document, Finch had been told by Merrick that he was not going to get Merrick's personal account and Finch had no reason to believe he would receive more than half the commissions derived from the Directed Shares Program. All that can be fairly inferred from the goals Finch declared for 2000 is that Finch believed that the WEBM IPO was somehow going to transform him from being a marginal broker into a brokerage superstar, increasing the assets under his management eighty fold, and that Caswell did nothing to dissuade Finch from that belief.\\nAs the new millennium began and the IPO approached, Finch still had heard nothing from Merrick about a special share allocation. Consequently, on January 5, 2000, Finch wrote Merrick a letter specifically asking for his help and sent it via overnight delivery. He wrote:\\nWith the small size of this deal and the number of account executives across the country, there is normally a minute share allocation for any individual. I know that the only person capable of increasing that allocation is yourself and that is why I wanted to ask you the favor of directing additional shares for that purpose. I currently can expect to receive around 50 shares of this offering but would obviously have no trouble allocating up to one hundred thousand shares webMethods. My intentions are to distribute webMethods only to those investors who realize the long-term value of your company. I have an incredible interest in seeing this offering work well both as an IPO and in the future, and would love to have the opportunity to support your efforts thus far . . .\\nMerrick did not reply to this letter, either orally or in writing. Curiously, Finch did not follow up on this letter request with Merrick. The only e-mail Finch sent Merrick, dated January 21, 2000, simply made the observation that \\\"[t]hings must be crazier down there heading into the road shows,\\\" and concluded, \\\"Hope everything is going well. Talk with you soon.\\\" Yet, Finch did not soon speak with Merrick. Indeed, from the record at trial, Finch never spoke again with Merrick.\\nFinch wanted to explore with Smesko other possible ideas as to how to obtain a larger allocation. On January 12, 2000, Finch e-mailed Caswell to remind him to call Smesko regarding, among other matters, \\\"how to go about getting shares for myself/office.\\\" Nothing came of this e-mail, and Finch did not follow up on it himself.\\nWEBM IPO Shares as \\\"Tickets to Wealth\\\"\\nTo understand Finch's state of mind with respect to the WEBM IPO, one needs to understand the state of mind of the brokerage industry during this extraordinary \\\"boom\\\" period for technology stocks, especially IPOs. In 1999 and through the period leading up to the WEBM IPO (although not for long after), technology stocks were consistently rising in price at levels that, historically, were astronomical. IPOs were generally successful in the after-market; technology IPOs were even more successful; and technology IPOs involving business-to-business internet communications, which was WEBM's line of business, were among the most successful. Success during this time period did not simply mean a modest increase from the initial offering share price; it meant that the after-market price would multiply within hours, sometimes by as much as 400 percent or, as happened with WEBM, by more than 600 percent. Consequently, while there are few guarantees in life, during this time period, the purchase of shares in a technology IPO at the initial offering price, combined with a quick exit strategy, was as close to a guarantee of a huge short-term profit as life offers in the stock market. Therefore, an investor who could obtain IPO shares at the initial offering price was virtually assured of an enormous profit, and if he could obtain a large quantity of these shares, he would get rich (if he were not already rich).\\nThese \\\"tickets to wealth\\\" were not available to every investor. Rather, the allocation of these IPO shares was controlled primarily by the investment banking firms, like Morgan Stanley, who served as underwriters for these IPOs and allocated shares to favored institutional and private investors, and, to a lesser degree, by the IPO company itself, which was permitted to direct a certain amount of shares to its principals, officers, employees, and friends. To be blunt, underwriters, like Morgan Stanley, used these \\\"tickets\\\" to reward those institutional and private investors whom it deemed its best customers, and to encourage others to become its customers to enjoy the largesse it had the ability to hand out through these \\\"tickets.\\\" Suffice it to say, the average investor had no access to these \\\"tickets\\\" and was relegated to the after-market, where the profits were less and the risks far greater.\\nMorgan Stanley was among the largest underwriters of technology IPOs, and thereby had access to a great deal of these \\\"tickets.\\\" Morgan Stanley recognized that the potential for access to these \\\"tickets\\\" was a great draw to attract new accounts from private investors and to induce existing clients to invest greater amounts with Morgan Stanley. Since access to these \\\"tickets\\\" was so coveted, Morgan Stanley's Retail Equity Syndicate carefully allocated the roughly thirty percent of IPO shares reserved for its retail side among its various retail branches and Private Wealth Management, and among the stockbrokers within those branches and Private Wealth Management. Although the Retail Equity Syndicate retained some discretion to make adjustments, the distribution of IPO shares among the branches was generally determined by a model based on two factors: (I) the magnitude of the branch's participation in previous IPOs; and (2) the length of time the IPO shares were held by its customers in the after-market, since its public issuers preferred that its shares not be immediately flipped. Within the branch, the branch Syndicate Coordinator allocated the branch's share among its brokers through a broker syndicate index that used the same two factors, albeit retaining the discretion to make adjustments among brokers. Through the normal distribution of these shares among retail brokers, a young broker like Finch, as he indicated in his January 5, 2000 letter to Merrick, was likely to be allocated a relatively small number of shares to allocate among his best customers. Finch testified that the largest allocation of IPO shares he ever received in the roughly twenty IPOs that preceded WEBM's IPO during his tenure at Morgan Stanley was from two to three thousand shares. While a branch could ask the Retail Equity Syndicate for a greater allocation than dictated by the allocation model based on special circumstances, and a broker could invoke special circumstances to ask his Syndicate Coordinator for a greater allocation, such requests, even when honored, generally did not yield substantial increases in the amount of shares allocated to a particular broker.\\nSeparate and apart from this general allocation, Morgan Stanley generally honored a request made by the Chief Executive Officer of the issuing company for a special allocation to a person, entity, or broker that wished to reward. Indeed, Merrick did request that special allocation of WEBM IPO shares be made to a Morgan Stanley stockbroker, and Morgan Stanley honored this request. The special allocation that Merrick directed, however, was not to Finch, but to Jonathan Legg, the broker from Morgan Stanley's Virginia branch, in the amount of 5,000 shares.\\nThere were no fixed rules, either written or oral, at Morgan Stanley that determined which clients would receive the IPO shares that had been allocated to a retail broker. While its general policy provided that IPO shares should be offered only to those clients with at least $100,000 in Morgan Stanley accounts, the policy was not enforced and Finch did not always adhere to it. Morgan Stanley, however, had a written policy that adopted the Conduct Rules of the National Association of Securities Dealers (\\\"NASD\\\"), which barred certain \\\"prohibited persons\\\" from participating in a \\\"hot\\\" IPO, either directly or through a conduit. A \\\"hot\\\" IPO referred to the expectation of a price increase in the after-market; the WEBM IPO was deemed by Morgan Stanley to be a \\\"hot\\\" IPO. Among the \\\"prohibited persons\\\" barred from participation in a \\\"hot\\\" IPO were members of the immediate family of the stockbroker, defined to include parents, parents-in-law, spouses, brothers, sisters, brothers-and sisters-in-law, children, or any relative that the broker helped to support. In short, Finch could allocate these \\\"tickets\\\" to whomever he pleased, as long as the buyer was not a \\\"prohibited person.\\\"\\nWhile Morgan Stanley, apart from barring participation by \\\"prohibited persons,\\\" did not interfere with a broker's choice as to whom he sold IPO shares, it did limit the amount of IPO shares that any one retail client could receive. Without special permission, a retail client could not be allocated more than 2,000 shares of any IPO or more than 1,000 shares in any \\\"hot\\\" IPO. Therefore, no retail broker, without approval from a superior, could sell any single retail customer more than 1,000 shares in the WEBM IPO.\\nThis policy was poorly communicated within Morgan Stanley. Finch was not aware of either the general 2,000 cap on all IPO shares, or the 1,000 cap for \\\"hot\\\" IPOs, and no one at Morgan Stanley told him of any such cap. Indeed, neither Caswell, the Wellesley branch manager, nor Gerald Curtis, Wellesley's Syndicate Coordinator, knew of the 1,000 cap on WEBM shares until after public trading in those shares began on February 11, 2000.\\nAs a result, if Finch obtained the substantial special allocation he was hoping to receive from Merrick, he believed he would have the power, at the age of 27, to dispense to whomever he chose, except \\\"prohibited persons,\\\" WEBM IPO shares whose value would multiply in the after-market. Not only would this make him the benefactor of friends and clients but, if used strategically, it could also ignite his career as a broker by attracting wealthy new clients and by inspiring current clients to invest more money with him, all with the expectation that he could deliver shares to them from this and other \\\"hot\\\" IPOs.\\nFinch Discusses the WEBM IPO with Clients, Family, and Friends\\nIn the summer and fall of 1999, Finch traveled to Texas to visit three clients who resided there: David Hall, Andrew LeFave, and Andrew Sekel. He boasted to them that he had brought the WEBM IPO to Morgan Stanley, was working closely with WEBM's Chief Executive Officer (\\\"CEO\\\") to take the company public, and would receive a large allocation of IPO shares from this CEO. Hall said he wanted to purchase $100,000 worth of WEBM IPO shares, and Finch told him that he would be able to obtain these shares for him from his special allocation. LeFave told Finch that he wanted to invest all of the $125,000 in his Morgan Stanley account in WEBM IPO shares, and Finch said that there should be no problem to obtain enough shares for LeFave to be fully invested (or nearly fully invested) in WEBM shares. Sekel invested $100,000 in his Morgan Stanley account primarily to gain access to this IPO. Finch told him that his allocation would be large enough to permit him to sell Sekel $100,000 worth of WEBM shares, and still have enough for Hall and LeFave.\\nWhile Finch was trying to solidify his relationship with these investor clients by declaring his ability to obtain large quantities of WEBM shares, he was also trying to figure out how to make his sister and friends rich. Finch's sister had married Dwight Dunne, Stephens Dunne's younger brother. Finch and Dwight Dunne explored various ways in which Finch could sell WEBM IPO shares to Dwight despite the fact that Finch's sister and brother-in-law were \\\"prohibited persons\\\" and thereby barred from purchasing shares of this \\\"hot\\\" IPO from him. They considered various alternatives, including selling shares to a trust controlled by Dwight and selling shares to Dwight's daughter, but all these alternatives were rejected when they learned that indirect sales were barred to the same degree as direct sales. Instead, Dwight devised a scheme with a friend, Jordy Doran (\\\"Doran\\\"), who did research for an investment firm in Russia and was the brother of Missy Doran, Stephens Dunne's then-girlfriend. Under this scheme, Doran would purchase $100,000 in WEBM shares from Finch, and a portion of the shares he would purchase would be beneficially owned by Dwight, who would wire Doran at least half the money needed to buy these shares. This scheme was plainly a fraudulent attempt to evade the \\\"prohibited person\\\" rule through the use of Doran as a conduit. This Court finds that Finch knew that Doran was, at least in part, a conduit for Dwight's funds, and intended to allocate a large amount of WEBM shares to Doran precisely for this reason, since Doran was not a close friend of Finch. Finch also had intended, if he received the special allocation from Merrick, to sell WEBM shares to a number of his friends: Gerald Keane, Matthew Feingold, Eric Luck,' and Chris Esposito, his former mentor from his days at Joseph Charles.\\nStephens Dunne's Discussions with Finch\\nStephens Dunne learned of the WEBM IPO and Finch's role in it from his brother, Dwight, in December 1999. Stephens knew Finch, although not well, since Finch's sister was married to Dwight, Stephens' brother. Dwight told Stephens about the opportunity to purchase a large quantity of WEBM IPO shares from Finch, and encouraged him to call Finch. Stephens had not yet called him when Dwight saw Stephens again at a birthday dinner for their sister later that month. When Dwight learned from Stephens that he had not called Finch, he urged him to make the call. When Stephens met with Rick Dlugasch, his accountant and business advisor, just before the end of the year, he mentioned the WEBM opportunity and they agreed that Stephens should follow up and call Finch.\\nStephens Dunne is a direct descendant of John Deere, the founder of the farm equipment company that still bears his name. In January 2000, Dunne was engaged in the fine and commercial arts, both as an artist and as a businessman supporting other artists. Apart from his artwork and art business, he was also beginning to develop historic properties, mostly in the South End of Boston. While the matter was little discussed at trial, it is plain that his apparent wealth did not derive from either his art or development business but from his status as a beneficiary of the trust funds that arose from the John Deere fortune. He is not a trustee of any of those funds, but has observed their investment performance since he gained maturity. In short, his experience in the investment market derives from his being the beneficiary of investments made by others, not from being an active investor himself.\\nStephens Dunne finally telephoned Finch at the Morgan Stanley Wellesley branch on or about January 17, 2000. Dunne testified that Finch told him during this telephone call that:\\nFinch learned about WEBM from a college friend and \\\"cold-called\\\" the WEBM CEO about going public:\\nsince Finch helped to bring the IPO to Morgan Stanley, he would be given WEBM IPO shares to sell that Dunne could buy;\\nWEBM's CEO was at a symposium sponsored by the Massachusetts Institute of Technology's Media Laboratory where three or four of the principal developers of the Worldwide Web spoke of the need for a computer language to permit better communication on the Web. Merrick raised his hand and said that WEBM already had a language to solve this problem. Goldman Sachs, the Mayfair Fund, and Donald Dell of Dell Computers were so impressed that they all gave Merrick venture capital funds; and\\nFinch asked Dunne if he could purchase 75,000 shares of the WEBM IPO. Dunne accepted this offer, and then asked the offering price. Finch said the initial offering price was presently between $8 and $11 per share, but that Dunne needed to be flexible because the actual offering price would not be determined until the date of the offering. Finch said that, if Dunne were flexible as to the price, the shares were his.\\nThey scheduled to meet for lunch on January 19.\\nFinch had an entirely different memory of this telephone call. He testified that Dunne simply asked if he could open an account with him, and Finch said he could. They arranged to meet for lunch on the 19th and the telephone call ended. Finch said the subject of WEBM shares was not discussed in this first telephone call.\\nI do not credit Dunne's testimony regarding this first telephone call for at least two reasons. First, in Dunne's answers to Morgan Stanley's First Set of Interrogatories, signed under oath on May 20, 2000, just five months after this conversation, Dunne described this first telephone call far differently, \\\"In mid-January 2000, Dunne spoke with Finch and arranged a meeting to discuss the opportunity to purchase shares in the upcoming WEBM IPO through Finch and [Morgan Stanley].\\\" This virtually mirrors Finch's version of this conversation. Dunne's answer to this interrogatory indicates that the discussion regarding the purchase of 75,000 shares did not begin until the meeting in person on January 19.\\nSecond, I do not believe that Dunne, who knew virtually nothing about WEBM and who barely knew Finch, would commit to purchase 75,000 shares in a telephone call that he estimated lasted between five and fifteen minutes. Dunne had never personally purchased shares of stock in anything approaching this amount before, so it is unlikely that he would so quickly commit himself to a purchase of this size, especially since it was doubtful that he had the financial ability by himself to make so large a commitment. It is far more likely that any such discussion would have been deferred until they met for lunch.\\nI credit Finch's version of what was said, but not as to what was understood. When Finch spoke with Stephens Dunne, he understood that Dwight had spoken to Stephens about the WEBM IPO, and that Stephens was inquiring about the possibility of purchasing a large quantity of IPO shares from Finch. Finch also understood that Stephens, unlike Dwight, would not be a \\\"prohibited person\\\" barred from buying these \\\"hot\\\" IPO shares. Finally, Finch understood that Stephens was an heir to the John Deere fortune and may be an entree to obtaining accounts from other wealthy members of the Deere family. When they arranged the meeting for January 19, both Finch and Dunne understood that the purpose of this meeting to discuss Dunne's possible purchase of a large amount of WEBM IPO shares from Finch.\\nFinch came to Dunne's South End apartment around noon on January 19, and they spoke there for about thirty minutes. The focus of their discussion was the WEBM IPO. Finch told Dunne about the background of WEBM, including the MIT Media Lab story that Dunne had thought was described earlier over the telephone. Finch also described how he had brought the IPO to Morgan Stanley \\u2014 that he learned of WEBM from a friend who worked there, that Finch had called Merrick just before Merrick was about to choose Goldman Sachs as the lead underwriter for the IPO, that Morgan Stanley initially did not want to underwrite the IPO, and that Finch told Morgan Stanley about the new revenue stream that WEBM was about to enjoy and then Morgan Stanley wanted to proceed with the deal. Finch said that he had personally met with Merrick at WEBM's offices in Virginia and will receive a large allocation of IPO shares to sell. He asked Dunne if he wanted to take 75,000 of those shares; Dunne said he could. Finch asked Dunne if he could handle another 75,000 shares. Dunne said he could. Finch warned Dunne that he needed to be flexible as to these additional shares, because Finch could not be sure he would get them. Finch said the offering price was already higher than predicted and, as a \\\"hot\\\" IPO, would likely rise from four to eight times in the after-market.\\nDunne's father had been a stockbroker and Dunne's apartment contained many of the binders from deals that his father had handled. Finch leafed through some of these binders, noting that the dollars involved in these offerings were large in the 1960s but would not be viewed as large today. Finch said that he planned ultimately to move to New York City and into the institutional side of the business.\\nIn a detour on their way to lunch at Zygomates, Dunne took Finch on a tour of the real estate properties in the South End that Dunne was renovating, and they walked through one of the properties that was in the midst of renovation. By the time lunch concluded, Dunne had told Finch that he was going to form with Dlugasch a limited liability company (\\\"LLC\\\") to invest in the WEBM IPO, and was going to finance the investment through family members and business colleagues. They agreed to meet again soon for lunch so that Dunne could provide Finch with the LLC paperwork to open an investment account at Morgan Stanley and review where they were.\\nThis Court's findings as to the content of the January 19 discussions, set forth above, are an amalgam of the testimony of Dunne and Finch, adopting some of the testimony of each and rejecting some. Specifically, this Court does not credit Dunne's testimony that Finch said he had received an allocation of 300,000 shares. Dunne may have heard this information from his brother, Dwight, but I do not believe he learned it directly from Finch because, if he had, Finch would not have said that he was unsure he would receive a sufficient allocation to support an additional 75,000 shares for Dunne. This Court also does not credit Dunne's testimony that he twice asked Finch for a letter of intent, once at his apartment and a second time at lunch, and that Finch each time said that there was no need for such a letter, that a handshake was all that was necessary, and that he could trust him.\\nThis Court does not credit Finch's testimony that he did not mention either the purchase of 75,000 shares or the possible purchase of another 75,000 shares. Indeed, according to Finch, he did not specifically discuss with Dunne the possibility of Dunne purchasing any shares in the WEBM IPO. Certainly, based on Dlugasch's testimony, Dunne was discussing these numbers the next day, and it is unlikely that he made them up. Moreover, it stretches credulity that Finch would not even take a GEI from Dunne at this meeting, since its sole purpose was to discuss the upcoming WEBM IPO.\\nNor does this Court credit Finch's testimony that he was clear with Dunne that he was hopeful he would receive an allocation of shares but could not be certain that he would. This likely was what Finch told his friends, but it was not what he told the current and prospective clients he was trying to impress. To them, Finch presented himself as the stockbroker whiz kid who had been instrumental in bringing a major IPO to Morgan Stanley, who was working directly with the CEO to bring the company public, and who would be generously rewarded by both the CEO and Morgan Stanley for all that he had done for both. The cautionary note \\u2014 that he was hopeful to receive an allocation but could not be certain of one \\u2014 would have seemed discordant in such a story, since it would have raised the question of whether Finch was as important to this deal as he said he was. Rather, the message Finch delivered to his clients and prospective clients, including Dunne, was that he would receive a large allocation of IPO shares for all that he had done for this deal, and hoped to receive an even larger allocation.\\nAfter the luncheon, Dunne telephoned Dlugasch and arranged to meet with him the next day. On January 20, 2000, Dunne met with Dlugasch at Dlugasch's office at Waldron H. Rand & Co., P.C. (\\\"Waldron Rand\\\"), the accounting firm where Dlugasch was a shareholder, specializing in closely held corporations, tax matters, and business advice. At this meeting, Dunne told Dlugasch what occurred in his meeting with Finch the previous day. Dunne said that Finch had 75,000 shares, maybe 150,000 shares, in the WEBM IPO to sell to him. They promptly took steps to form the LLC that would be used as the investment vehicle to finance and hold the WEBM shares they hoped to purchase, since they understood they had only two weeks before the IPO shares would be sold. They figured they needed initially to raise more than $1 million to purchase the 75,000 shares at the initial offering price, which they understood had already increased. They agreed, at Dlugasch's suggestion, that profits in the LLC would be split 70-30: 70 percent to the investors and 30 percent to them as the managing members of the LLC. They agreed to retain the law firm of Holland & Knight LLP to do the legal work needed to form the LLC. They also agreed upon a division of labor: Dunne would raise money from family members, and Dlugasch would handle the administrative and financial duties, and raise money from his own business contacts.\\nFollowing this meeting, Dlugasch dived into the work needed to make this deal happen. Although it was approaching tax season, his busiest time of year, he devoted about half of his working hours in the latter part of January to the WEBM deal. In the first week of February, he devoted roughly 40 hours to the deal. In the second week of February, up through the IPO date of February II, working an 80 hour week, he devoted virtually all his working hours to the deal.\\nAfter his meeting with Dlugasch, Dunne spoke to family members about the WEBM IPO and the possibility of them investing in the IPO through him. Dlugasch spoke to colleagues, clients, and friends about the investment possibility. Both found many who were extremely interested in investing large sums of money in the deal.\\nOn January 27, 2000, Dunne and Finch met again, this time at Charlies' Restaurant in the Chestnut Hill Mall. At this luncheon, Finch told Dunne that the offering price for WEBM had gone up yet again, but the good news was that he now thought the after-market share price would be between five and eight times its initial offering price. Dunne reiterated his interest in purchasing these shares regardless of price. Dunne told Finch that he had formed an LLC as the investment vehicle to purchase the WEBM shares, and had raised more than one million dollars from family members and business associates, but was still not sure whether the name of the LLC would be Green Lake or Twin Fires, the latter being the name of his family's summer vacation home in the Adirondack Mountains. Dunne told Finch that he initially had not planned to bring in family members, but now that his cousins were investing, he needed to invite other family members to join. Finch told Dunne that he had written Merrick and requested a special allocation of 100,000 shares; he reminded Dunne that he needed to be flexible as to any additional shares beyond the initial 75,000. They arranged to meet again for lunch on February 1 with Dlugasch to work out the logistics.\\nOn February 1, Dunne called Finch in the morning to confirm their luncheon appointment. Finch told Dunne he could not make the meeting because he was too busy with matters involving the IPO. Finch mentioned that he needed to go to Virginia to resolve an IPO matter. Finch asked to reschedule the meeting, but Dunne said he could not meet again because he was leaving on February 3 for Florida to attend a family event. Dunne asked if Finch could meet with Dlugasch, and Finch agreed. During this telephone call, Dunne asked Finch to send him the forms necessary to open an investment account for the LLC Dunne had formed, which he informed Finch was to be called Twin Fires.\\nFinch sent Dlugasch the wrong form for Twin Fires to open an account at Morgan Stanley; he sent the form for a corporation rather than an LLC. Dlugasch called Finch to straighten out the problem, which Finch did on the morning of February 3. Dlugasch also asked Finch to e-mail him a preliminary prospectus, which Finch did on February 3, but Dlugasch could not read the attachment on his computer. Dunne met with Dlugasch on the afternoon of February 3 to sign the account opening form for Twin Fires, and then left at roughly 7:30 p.m. on an airplane for Florida. Dlugasch telephoned Finch on February 3 and arranged to see him the next morning, promising to bring the Twin Fires account form and a $100 check to invest in the new account. William Kams, a fellow shareholder of Dlugasch's at Waldron Rand and, through his wife, an investor in Twin Fires, asked to attend the meeting with Finch, and Dlugasch agreed.\\nFinch's Meeting with Dlugasch and Kams\\nOn February 4, at roughly 8:30 a.m., Dlugasch and Kams arrived at Finch's Wellesley office. The description of this meeting varied greatly between the version recalled by Dlugasch and Kams, and Finch's version. This Court finds Dlugasch's and Kams' version to be closer to the truth.\\nDlugasch and Kams arrived before Finch, and waited for him in the reception area. When Finch met them, Dlugasch handed him the Twin Fires account opening form, and the check for $100; Finch did not need the $100 check and later voided it. Shortly thereafter, they went into a nearby conference room and sat down. Finch then told them the story of how he had brought the IPO to Morgan Stanley. Dlugasch and Kams then asked a series of questions about the logistics of the IPO. They asked whether Morgan Stanley took any commission on the sale of IPO shares; Finch correctly told them that there was no commission. They asked whether cash in their investment account would receive any interest, and Finch said it would. They asked about the length of the settlement period and Finch, incorrectly, told them nine days. They asked about the opening price, and Finch said it would probably be between $25 and $28 per share. They asked if Twin Fires would get 75,000 shares, and Finch said it would, with the possibility of getting a lot more. Dlugasch asked for a preliminary prospectus, and Finch provided him with a copy. Dlugasch asked Finch for instructions to wire money into the Twin Fires account, and Finch said he would need to get back to him on that issue. They then discussed the possibility of referring clients to each other, and the meeting came to an end.\\nThis meeting is of critical importance because it is the only conversation in which Finch discussed with someone other than Dunne the likelihood that Twin Fires would receive 75,000 shares from the WEBM IPO. Finch insists that Dlugasch or Kams simply asked whether he was going to receive any shares in this IPO to sell and that Finch replied that he hoped so, but would not know until the day of the deal or just before. Finch said there was never any discussion of a specific amount of shares going to Twin Fires.\\nI do not credit Finch's version, for at least two reasons. First, I find both Dlugasch and Kams, despite their substantial financial stake in this litigation as major investors in Twin Fires, to be more credible witnesses than Finch. Second, given the amount of time, effort, and money that Dlugasch and Kams were investing in the purchase by Twin Fires of the WEBM IPO shares, it makes no sense that they would have been satisfied with Finch's response, since it was far more equivocal than what they had learned from Dunne. Kams went to this meeting precisely to learn for himself what was happening, since his wife had committed to investing $150,000 in Twin Fires, and this information would have markedly chilled his fervor. The evidence, however, shows that Kams was not merely satisfied with Finch's explanation, but was ecstatic over it. When he left the meeting, he told Dlugasch that he wanted to increase his wife's investment to $300,000, that he was going to take a margin loan to fund the investment (which he had never done before), and that he would even lend $50,000 to Dlugasch so that he could increase his investment. Kams spoke with his brother-in-law, Steven Weinstein, following the meeting and confirmed that 75,000 shares would be available to Twin Fires and possibly more. As a result of this conversation, Weinstein committed to invest $75,000 towards the purchase of the 75,000 shares, and another $75,000 if more shares came available. Kams, a rather somber gentleman who hardly appears to be a man prone to ecstasy, would not have increased his investment by this amount and said what he did to his brother-in-law if Finch had been as equivocal as he testified.\\nThe preliminary prospectus that Finch gave to Dlugasch on February 4 had been issued on January 24,2000 and contained on its first page, vertically and in red, the following declaration:\\nThe information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.\\nDlugasch reviewed the prospectus for roughly an hour after the meeting, but did not read this declaration carefully or consider whether or not the registration statement had become effective.\\nThe Days Before the Commencement of Public Trading in the WEBM IPO\\nOn Tuesday, February 8, Finch prepared the internal Morgan Stanley form needed to open a Twin Fires account, with a designated account number. This form was not reviewed by the branch compliance manager, Andra Sheinkopf, until February 9, so no account number was generated until then. As a result, when Finch first sent wire instructions to Dlugasch, the account number was not correct, and the wires sent on February 8 had to be retained in a suspense account until the correct account was opened on February 9. Finch later sent wire instructions with the correct account number.\\nBeginning on February 8, multiple wire transfers were sent to Morgan Stanley by Twin Fires' investors for deposit into the Twin Fires account. Because of the confusion over the account number, the wire transfers did not find their way into the Twin Fires account until February 9. On February 10, one day before the IPO was to commence, Finch confirmed in a telephone call with Dlugasch that roughly $1.5 million had been deposited into the Twin Fires account, and Dlugasch told Finch that more money was in transit. Through the computer at his desk, Finch had access to the amount of funds in each of his clients' accounts at Morgan Stanley, including Twin Fires, so he was able to monitor the growth in that account as funds were wired to it.\\nDuring this period, as a result of conversations that Dunne was having in Florida with family members and that Dlugasch was having in Massachusetts with colleagues, friends, and clients, Twin Fires obtained sufficient funds to purchase 75,000 WEBM IPO shares, and was in a position quickly to obtain additional funds to finance the purchase of additional shares if they became available. While in Florida, Dunne continued to telephone Finch to ask about changes in the initial offering price, to learn whether Finch had any news about the additional shares, and to reiterate his interest in obtaining as many shares as he could get. Finch told him that the share price was rising and that he still did not know anything more about additional shares.\\nFinch believed that Morgan Stanley would allocate shares in the IPO among its retail branches and institutional investors on February 10, because some time was needed before public trading began for Morgan Stanley's branches to allocate shares among the brokers within the branch and for brokers to confirm with their customers that they wished to purchase the IPO shares. To understand Finch's state of mind as February 10 approached, it is necessary to understand more about how IPO shares were sold at Morgan Stanley during this time period. After the \\\"pre-effective registration\\\" of an IPO and during the \\\"quiet period,\\\" a broker was permitted only to solicit GEIs regarding the purchase of IPO shares. During this \\\"quiet period,\\\" he could not promise to sell such shares, accept payment for such shares, or confirm any such sale. When an announcement was made that the final prospectus was to be issued (establishing the actual initial offering price) and the registration was to become effective, Morgan Stanley allocated the IPO shares among its branches, and the branches allocated their shares among their brokers. Each broker then allocated shares among his clients who had earlier given a GEI. The broker had to telephone each client designated to receive shares to confirm that the client wished to purchase the amount of shares made available to that client at the actual initial offering price.\\nMorgan Stanley's Compliance Guide recognized the danger that a client may be confused as to the meaning of a GEI, especially in a \\\"hot\\\" IPO:\\nIn obtaining GEIs, Financial Advisors should be careful not to use any terminology in discussions with clients which could be construed as an assurance, or even indicating the likelihood, that a specific number of shares will be allocated. It must be absolutely clear that allocations are subject to change or even cancellation until the offering becomes effective (the date of the final prospectus). Ordinaiy \\\"sales talk\\\" can be easily misinterpreted, especially if an issue is in heavy demand and a client is anxious to obtain shares.\\nMorgan Stanley's Compliance Guide, \\\"Syndicate Offerings,\\\" at 4.\\nBefore the registration became effective, a Morgan Stanley broker was required to submit his GEIs to the Syndicate Coordinator within his branch, who was then to pass on the totals to the Syndicate Desk at headquarters in New York. The theoretical purpose in providing aggregate data regarding the GEIs was to assist the investment brokers in evaluating the demand for IPO shares, which was helpful in advising as to the initial offering price, and to ensure that a branch was not allocated more shares than needed to fill its GEIs. In reality, it accomplished virtually no purpose because Morgan Stanley did not bar its brokers from taking GEIs from retail clients that exceeded the amount of shares Morgan Stanley would sell them\\u2014 1,000 shares for \\\"hot\\\" IPOs and 2,000 shares for all other IPOs. Therefore, Morgan Stanley had no policy that prevented a broker from taking a GEI of 75,000 shares from a retail customer on a \\\"hot\\\" IPO even though Morgan Stanley policy barred selling that customer more than 1,000 shares.\\nIn Finch's mind, he was simply soliciting a GEI from Dunne, much as he had solicited GEIs in other IPOs that had taken place earlier during his short stint at Morgan Stanley. In those IPOs, too, he had solicited GEIs beyond any realistic possibility that his allocation would allow him to sell shares in that amount. When the expected had happened and his allocation was far too small to permit him to sell the amounts offered in the GEIs, he had simply explained to his clients that his allocation had fallen short. In Finch's mind, if the special allocation did not come through or proved to be too low to meet the amounts in his clients' GEIs, he would offer the same explanation.\\nThe difference, of course, was that, in the WEBM IPO, he had puffed up his importance to his clients and led them to believe that he was going to receive so large a special allocation that he would be able to sell large quantities of IPO shares to them. In 1999, Finch expected that he would receive a large special allocation from Merrick, perhaps even an allocation as large as the 250,000 \\u2014 300,000 shares that Keller had told him he was promised by the CEO before his IPO collapsed. By January 5, 2000, however, when he wrote to Merrick asking for up to 100,000 shares, he could not reasonably have expected that he would receive more than 100,000 shares, and he needed more than that to meet what he said he could deliver to Dunne, Hall, LeFave, and Sekel alone. As each day passed without any response from Merrick to this letter, his expectation both as to the likelihood that he would receive a special allocation and the likely amount of any such allocation had to diminish. There appears to have been, however, a \\\"disconnect\\\" between this adjustment in his expectations and his boastful sales pitch, which remained essentially unchanged with Dunne, Dlugasch, and Kams in January and early February 2000 from the sales pitch he had given in Texas to Hall, LeFave, and Sekel in 1999. He somehow still believed he could parlay his success in bringing the WEBM IPO to Morgan Stanley to propel him into the top echelon of brokers, and, as long as he thought he still had a chance to obtain a special allocation from Merrick, he seemed willing to postpone thinking about what he would do with these unhappy clients if the special allocation never came.\\nTo be sure, as February 10 approached, Finch still believed there was a possibility that he would receive a large special allocation. While he would puff up his importance (and his probability of obtaining a special allocation) to his clients, he did not do so with his friends (at least to the same degree). Therefore, this Court views the e-mail Finch sent to Esposito, his friend and former mentor, at 2:35 p.m. on February 8, 2000 as best reflecting Finch's actual state of mind at that time. Esposito, in an e-mail sent at 2:19 p.m. that day, had told Finch that he had established two separate investment accounts. He wrote, \\\"dude, you gotta get me atleast [sic] 10,000 shs for each, i'm [sic] counting on it.\\\" Finch e-mailed back just fourteen minutes later:\\nChris, you know I can't promise something like that. I don't know h\\u00f3w much I'm getting and won't know until either tomorrow afternoon or Thursday morning. You know I'm going to get you as much as I can but I don't know what that's going to be. It may be 10,000, it may be 500 I have NO idea. I've asked for a ton and the guy said he would get some for me but other than that I can only guestimate. It's possible that anything can happen. I am crossing my fingers, toes, eyes, legs and arms. Also knocking on the closest piece of wood. I suggest you do the same.\\nFrom this e-mail, this Court infers that, as of the afternoon of February 8, Finch still believed there was a meaningful possibility that he would receive a large special allocation from Merrick, large enough perhaps to allow Finch to allocate as many as 10,000 shares to Esposito.\\nOn February 10, Dunne called Finch twice to ask him again if he knew more about the additional shares or the actual initial offering price. Finch was busy calling up sixty of the WEBM employees in the Directed Shares Program to confirm that they wanted to purchase the 800 shares that would certainly be available to each of them, and to learn whether they wanted to purchase any additional shares if any became available. Finch told him that the price had not been set, that he knew nothing more as to the allocation, and that he would know more later in the day.\\nAt roughly 6:30 p.m. on February 10, the WEBM IPO registration statement became effective, the initial offering price had been set at $35 per share, and public trading was scheduled to begin the next day. Finch had learned from Caswell earlier in the day that Finch's allocation of WEBM shares from the branch was only 225 shares. He had heard nothing about any special allocation.\\nDunne went to a play that evening and, after it ended, he telephoned Finch. Finch told Dunne that the WEBM IPO had been priced at $35 per share. When Dunne asked him if he knew anything more about share allocation, Finch said he did not and would learn the next day. Dunne, believing this referred to the allocation beyond the 75,000 shares he expected, was not alarmed by this statement. Dunne asked' Finch how much money had reached the Twin Fires account, and Finch gave him his best memory. They agreed to speak the next morning.\\nFebruary 11, 2000: The Commencement of Public Trading in WEBM IPO Shares\\nDunne awoke on February 11 believing that it would prove to be a momentous day for him. He began the day by driving to Roxbury to visit his late father's grave; he testified that he wished that his father were alive to enjoy the day with him. He then drove to Dlugasch's office at Waldron Rand to join Dlugasch, Kams, and many other Twin Fires investors to celebrate the beginning of public trading and execute the exit strategy that he and Dlugasch had devised.\\nFinch's day began quite differently on February 11. He arrived at Morgan Stanley at around 7:30 a.m., knowing that, if he had received a special allocation from Merrick, news of it would arrive early before public trading began. By roughly 9 a.m. that day, he recognized from the silence that Merrick had not delivered any special allocation to him. At 9:02 a.m., he wrote two e-mails to friends who had hoped to obtain shares in the IPO. He wrote Keane, \\\"It is going to suck big-time today.\\\" He wrote another friend, \\\"I got screwed. Sony bro. I'm not having a good day. \\\" Among the many reasons why Finch knew this was going to be a bad day was that he needed somehow to tell Dunne that Twin Fires was not going to receive any shares in the IPO.\\nIt appears that Finch decided to postpone giving this awful news to Dunne until public trading began and any remote possibility of a special allocation being given to Finch had expired. It also appears that Finch decided that, when he ultimately had to give the bad news to Dunne, he would blame Merrick for having misled him.\\nDunne called Finch around 10:40 a.m. that morning from Dlugasch's office, in anticipation of the beginning of public trading, which was scheduled to open at 11 a.m. Finch told him that the opening of trading had been delayed by a question of share allocation involving Goldman Sachs. Dunne asked whether that problem posed any threat to Twin Fires' 75,000 shares, and Finch said it did not. Finch said that public trading had simply been postponed until 2 p.m.\\nAs Dunne and Dlugasch waited for the commencement of public trading, they re-examined the amounts furnished by their investors to make sure they had the $2.625 million needed to purchase the 75,000 shares they were expecting at $35 per share. They also determined how they would allocate among their investors the additional 75,000 shares if those came through. Around 1 p.m., they learned from a Twin Fires investor who was monitoring stock trading on the Internet that public trading in WEBM had begun and that it was already trading at $200 per share.\\nDunne telephoned Morgan Stanley around 1:10 p.m. and attempted to reach Finch. Whoever answered the telephone told Dunne that Finch was very busy. Dunne became angry and said, \\\"What do you mean he is busy? I have 75,000 shares.\\\" Finch then answered the call, congratulated Dunne, and told him that the price was now $205 per share. Dunne put his hand over the receiver, told Dlugasch that they were in at $205, and suggested that they immediately sell 30,000 shares. Dlugasch agreed. Dunne then told Finch to sell 30,000 shares at \\\"market \\u2014 $205.\\\" Finch asked whether he wanted to wait until he learned about the additional allocation, but Dunne said he wanted to lock in the profit. Finch, trying to buy time to figure out what to say to Dunne, said he would call Dunne back in ten minutes with news about the additional allocation. When Dunne hung up the telephone, he was so happy about the money he had made for him and his family that he did a \\\"victory dance\\\" around Dlugasch's office.\\nThe ten minutes that Finch had spoken of came and passed without a telephone call. Dunne waited in vain for roughly seventy minutes, and then decided to call Finch himself. When he reached Finch, he asked him why he had not gotten back to him. Dlugasch and the others in his office watched as Dunne's face fell while Finch explained to him that there might be a problem with Twin Fires' shares in the WEBM IPO. Finch said he was checking to see if Merrick had written a letter authorizing the special allocation of shares to Finch. He said that \\\"Merrick may have screwed him.\\\" Dunne asked Finch what the market price was and when he was told that it was $211, he instructed Finch to sell the remaining 45,000 shares at $211. Finch told him that he had no shares. This time he added that he had spoken to Merrick and learned directly from him that Merrick had not authorized a special allocation of shares to him.\\nThis Court does not credit Finch's version of what was said that day. According to Finch, he received three telephone calls from Dunne after trading began. In the first, he told Dunne that he had not gotten his special allocation, and Dunne began this strange diatribe about having an informant at Morgan Stanley who knew that Finch had shares in a house account. Finch said that Dunne called back shortly thereafter and told him to sell 30,000 shares. Finch claims he told Dunne that there were no shares to sell, and he could not sell what he did not have. Dunne supposedly responded that CEO Merrick had sent a letter to Morgan Stanley saying that 75,000 shares of WEBM had been set aside for Dunne, and that Finch needed to get in touch with that person in order to get those shares into Dunne's account. In the third telephone call, Finch recalled that Dunne told him he wanted to sell 45,000 shares from his account. Finch told him that he had no idea what Dunne was talking about because there were no shares to sell. Dunne kept insisting that there was a letter from Merrick, so Finch finally lied to him about having spoken with Merrick that afternoon. According to Finch, Dunne was not \\\"acting like a rational person.\\\"\\nThere are three reasons why I do not credit Finch's version. First, Dlugasch was in the room when Dunne spoke with Finch, and would have heard Dunne's strange response. He testified that he did not hear Dunne say anything about an informant or a letter from Merrick. Second, Dunne may have been giddy at the prospect of having so quickly earned so much money, but he was rational enough for all to observe his face to have fallen when he heard Finch tell him that the shares were not there. This Court does not believe that Dunne would have danced around the office if, as Finch testified, Finch had told him before Dunne tried to sell the 30,000 shares that there were no shares to sell. Third, both Finch and Dunne agree that Dunne tried to sell 30,000 shares and then 45,000 shares, and that Finch lied about having spoken directly with Merrick about the absence of a special allocation. This Court's findings as to what transpired more reasonably explains how those three statements were made than Finch's explanation.\\nShortly after this exchange of telephone calls with Finch, Dunne telephoned the Wellesley office and tried to reach Caswell, the branch manager. He was instead transferred to Sheinkopf, the branch's compliance manager, and demanded that she rectify the situation and honor what he characterized as Morgan Stanley's commitment to sell 75,000 shares. Subsequently, more angry telephone calls were made, more demand letters were sent, and this litigation commenced.\\nConclusions of Law\\nThe plaintiffs have alleged eleven counts in their complaint but, stripped to their essence, there are only four legal theories that may warrant an award of damages:\\nBreach of contract or promissory estoppel;\\nIntentional or negligent misrepresentation;\\nViolation of the Massachusetts Blue Sky Law, c. 110A; and\\nViolation of G.L.c. 93A.\\nEach legal theory presents different legal issues, so this Court will consider each in turn.\\nBreach of Contract or Promissory Estoppel\\nThe plaintiffs contend that they entered into an enforceable oral contract with Morgan Stanley, through Finch, its agent, whereby Morgan Stanley promised to sell 75,000 shares of WEBM IPO shares and Twin Fires agreed to purchase them. Since Morgan Stanley failed to deliver those shares despite Twin Fires' demand and readiness to pay, Twin Fires contends that Morgan Stanley breached that contract and must pay the traditional measure of contract damages \\u2014 the benefit of the bargain that they had entered into. Stated differently, Twin Fires contends that, in view of Morgan Stanley's breach of this alleged contract, Twin Fires should be placed in the same position it would have been in had there been no breach, which would mean that Twin Fires would be awarded damages equal to the net profit it would have reaped had it purchased the 75,000 WEBM shares on February 11 and sold them as Dunne directed later that afternoon \\u2014 $ 12, 487,940.\\nCertainly, oral agreements, including oral agreements to sell securities, may be legally enforceable. See generally ESO, Inc. v. Kasparian, 32 Mass.App.Ct. 731, 733-34 (1992) (\\\"an agreement need not be in writing in order to be enforceable\\\"); George v. Coolidge Bank & Trust Co., 360 Mass. 635, 641 (1971). Morgan Stanley, however, contends that this alleged agreement cannot be enforceable because it lacked valid consideration. Morgan Stanley correctly observes that, under Section 5 of the Securities Act of 1933, 15 U.S.C. \\u00a777e(c), it is unlawful for any person, directly or indirectly, to sell a security before the registration statement has become effective. Morgan Stanley also correctly observes that, during the \\\"quiet period\\\" before the registration statement becomes effective, offers to sell the securities are permitted, as are offers to buy, but any offer of an investor to buy may be cancelled by the investor without penalty. See Offers and Sales of Securities by Underwriters and Dealers, S.E.C. Release No. 4697, 1964 WL 68261 (May 28, 1964); A.C. Frost & Co. v. Coeur D'Alene Mines, 312 U.S. 38 (1941). Since Twin Fires was permitted to cancel its offer to buy at any time before the registration statement became effective at roughly 6:30 p.m. on February 10, 2000, Morgan Stanley argues that any agreement prior to this date and time lacked mutuality of consideration and therefore was unenforceable as a matter of law.\\nThis Court does not adopt this argument. There is certainly nothing in federal law that requires this result. The Supreme Court in A.C. Frost & Co. made clear that the purpose of the Securities Act of 1933 was to protect the investment public. Id. at 43-44 & n. 2. There are two reasons why the law permits an investor to cancel any offer to buy before the registration statement becomes effective. First, Congress wanted \\\"investors to become acquainted with the information contained in the registration statement and to arrive at an unhurried decision concerning the merits of the securities.\\\" Offers and Sales of Securities by Underwriters and Dealers, S.E.C. Release No. 4697, 1964 WL 68261 (May 28, 1964). Second, until it becomes effective and the final prospectus is issued, the precise terms of the offer to sell, including the price, are subject to change. See id. There is nothing about Section 5 of the Securities Act of 1933 or its interpretation by the SEC that suggests that securities dealers were intended to be protected from improvident offers to sell during the \\\"quiet period.\\\" Indeed, in A.C. Frost & Co., the United States Supreme Court enforced against an issuing company an offer to sell that it had made without proper registration. A.C. Frost & Co. at 43-44 & n. 2. See also A.D.M. Corp. v. Thomson, 707 F.2d 25 (1st Cir. 1983).\\nWhile there are Massachusetts cases that state that mutuality of obligation is a prerequisite to a binding contract, see, e.g., Bernstein v. W.B. Mfg. Co., 238 Mass. 589, 591 (1921), the fact remains that Massachusetts law does not require mutuality of obligation when the law grants one party to a contract the right to declare it void. See Atwell v. Jenkins, 163 Mass. 362, 364 (1895) (voidable promise can constitute adequate consideration); Rothberg v. Schmiedeskamp, 334 Mass. 172, 175 (1956). Just as the Securities Act of 1933 seeks to protect investors before the registration statement becomes effective by granting them the right to void a promise to purchase securities, the common law seeks to protect minors \\\"from their own improvidence and want of sound judgment\\\" by granting them the right to void a contract. Frye v. Yasi, 327 Mass. 724, 728 (1951). The right of a minor to void a contract does not mean that the contract cannot be enforced by the minor against the adult. \\\" 'Voidable' imports a valid act which may be avoided, rather than an invalid act which may be confirmed (Williston on Contracts [Rev. ed.] \\u00a7231), and the contract of a minor is valid as to both parties until rescinded.\\\" Rothberg v. Schmiedeskamp, 334 Mass. at 176. Consequently, the fact that Twin Fires could cancel any promise to buy before the registration statement became effective does not render unenforceable any promise that Morgan Stanley may have made to sell securities during this \\\"quiet period.\\\"\\nThis Court, however, for a wholly different reason, does not find that Twin Fires and Morgan Stanley entered into an enforceable contract regarding the sale of the 75,000 WEBM IPO shares. The sale of IPO securities, as demonstrated here, is far different from a routine sale of securities in a publicly-traded stock. In a routine securities transaction, the investor offers to buy publicly-traded shares either at the market price or when the price drops to a limit price, and the securities dealer agrees to sell shares to the investor in accordance with those instructions. While the investor may choose to deal with a particular stockbroker in the employ of that securities dealer, the investor recognizes that any stockbroker could cany out this trade. Such a routine transaction involves no conditions precedent. Here, however, Dunne and Dlugasch (and indeed all the investors in Twin Fires) recognized that they were going to be able to purchase WEBM IPO shares only because they had found a stockbroker who had brought the IPO to Morgan Stanley and therefore was going to receive a large special allocation of shares to sell. They knew that they could not obtain 75,000 IPO shares in WEBM by simply walking into Morgan Stanley's Wellesley branch, opening an investment account in the name of Twin Fires, asking for a random broker, and directing that broker to purchase 75,000 shares of WEBM at the initial offering price. Consequently, central to the agreement between Dunne and Finch, and implicit in that agreement, were two conditions precedent that all parties understood had to occur before any right or obligation could mature under the contract:\\nThe IPO had to proceed to fruition with the sale of the IPO shares; and\\nFinch had to receive an allocation of shares at least as large as the amount he had said he would obtain for Twin Fires.\\nFor all practical purposes, if either of these conditions were not met, consummation of the contract would become impossible. If the IPO fell through, Finch could not be expected to deliver WEBM shares to Twin Fires because there would be no shares to sell. Similarly, if the allocation to Finch fell through, he could not be expected to deliver WEBM shares to Twin Fires because he would have no shares to sell. It is true that Morgan Stanley, as the lead underwriter, had WEBM shares to sell even if Finch did not, but the essence of this deal was always personal to Finch; these shares were only going to be available to Twin Fires because they were going to be available to Finch. The fact that Finch misrepresented the likelihood that this condition precedent would be satisfied does not change the fact that their agreement contained this implicit condition precedent, and that this condition precedent did not happen.\\nSince this Court finds that the receipt by Finch of a special allocation of at least 75,000 WEBM shares was a condition precedent to any agreement to sell Twin Fires these shares, it does not matter whether the contract claim is characterized as a breach of contract or as a claim of promissoiy estoppel premised on reliance. Certainly, reasonable reliance may render a promise enforceable as a contract to the extent needed to avoid injustice, see Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 760-61 (1978), but reliance may not create an enforceable contract when a condition precedent has not been satisfied. See City of Haverhill v. George Brox, Inc., 47 Mass. App. at 721 (\\\"estoppel or reliance presumes the existence of a contract\\\"). Therefore, this Court finds in favor of the defendants on the plaintiffs' claims of breach of contract and promissoiy estoppel.\\nIntentional or Negligent Misrepresentation\\nWhile the condition precedent of a special allocation to Finch defeats any claim based in contract, it does not defeat a claim based on either an intentional or negligent misrepresentation. Here, the plaintiffs allege that Finch materially misrepresented the likelihood that he would receive a special allocation large enough to provide Twin Fires with 75,000 WEBM shares by telling Dunne, Dlugasch, and Kams that he would receive the special allocation when he knew, or reasonably should have known, that he had only a possibility (and, indeed, a remote possibility) of obtaining so large an allocation. The plaintiffs contend that this misrepresentation was intentional and that they are entitled to \\\"benefit of the bargain\\\" damages as a result of this intentional misrepresentation, that is, the same amount of damages they would have obtained had their breach of contract claim prevailed.\\nTo prevail on a claim of intentional misrepresentation, sometimes referred to as a claim of fraudulent misrepresentation or deceit, \\\"the plaintiff must prove 'that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage.' \\\" Danca v. Taunton Savings Bank, 385 Mass. 1, 8 (1982), quoting Barrett Assocs. v. Aronson, 346 Mass. 150, 152 (1963), quoting from Kilroy v. Barron, 326 Mass. 464, 465 (1950). When the false representation was not made with knowledge of its falsity but the defendant \\\"failed to exercise reasonable care or competence in obtaining or communicating the information,\\\" a plaintiff may prevail on a claim of negligent misrepresentation. Golber v. BayBank Valley Trust Co., 46 Mass.App.Ct. 256, 257 (1999), quoting Fox v. F&J Gattozzi Corp., 41 Mass.App.Ct. 581, 587-88 (1996).\\nMorgan Stanley contends that, even if Finch had made a misrepresentation, that misrepresentation is not actionable because neither Dunne nor Twin Fires acted reasonably in relying on the misrepresentation. See, e.g., Golber, 46 Mass.App.Ct. at. 257 (reliance must be justifiable). Morgan Stanley argues that the plaintiffs knew or should have known from the declaration written in red on the preliminary prospectus that WEBM shares could not be sold until the registration statement became effective. This Court finds nothing in that declaration that reasonably should have prevented Twin Fires and Dunne from relying on Finch's statements regarding his receipt of a special allocation. As noted earlier, that declaration read:\\nThe information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.\\nFrom the second sentence in this declaration, a reader reasonably should understand that the actual sale of WEBM securities could not occur until the registration statement became effective; he would not know when that is to happen or whether it had already happened, and he would see nothing to bar a promise to sell shares provided the sale occurs after the registration statement becomes effective. From the third sentence, a reasonable reader should understand that WEBM is not yet offering to sell shares and is not soliciting offers to buy in those states where this is prohibited; he would not know if Massachusetts is one of those states. In short, there is nothing in this declaration that, even if carefully reviewed, would reasonably inform anyone that Finch could not promise to sell WEBM IPO shares prior to the effective date of the registration statement as long as the actual sale occurred after the effective date.\\nMorgan Stanley also contends that no claim of misrepresentation may prevail here because Finch's alleged misrepresentation was not one of fact. \\\"A statement on which liability for misrepresentation may be based must be one of fact, not of expectation, estimate, opinion, or judgment.\\\" Zimmerman v. Kent, 31 Mass.App.Ct. 72, 79 (1991). \\\"A fact is something 'susceptible of knowledge.' \\\" Id. Here, this Court finds that Finch knowingly misrepresented to Dunne, Dlugasch, and Kams the likelihood that he would obtain a special allocation by telling them that he would receive an allocation large enough to permit him to sell 75,000 shares to Twin Fires, when he knew (and reasonably should have known) that he had only a slim chance of receiving that large an allocation from Merrick. For all practical purposes, Finch communicated to Dunne, Dlugasch, and Kams by his words that he had been assured, either by Morgan Stanley or Merrick, that he would receive an allocation of at least 75,000 shares and that there remained the possibility, of even a larger allocation. His repeated emphasis to them that there was only a possibility that he could get them more than 75,000 shares encouraged them to believe that he had been assured an allocation at least this large but had only a possibility of a greater allocation. To be sure, Finch still retained the hope until 9 a.m. on February 11 that his special allocation from Merrick would still come through but, by the time he first spoke with Dunne about the WEBM IPO on January 17, he knew that it was not certain that he would receive a special allocation from Merrick and that it was unlikely that Merrick would give him the 100,000 shares he had asked for in his January 5 letter. Indeed, at trial, Finch was asked by his own attorney:\\nLet me focus on the part of the sentence where you indicate, again, I'll quote, thatyou \\\"would obviously have no trouble allocating up to 100,000 shares of webMethods.\\\" In writing that to Mr. Merrick, did you expect to receive that many shares from him?\\nNo, not at all.\\nWhy did you ask for that many shares?\\nI think I wanted to show him my interest level, and also I picked a number that anything obviously underneath that would be great.\\nTranscript at 764.\\nConsequently, Finch's misrepresentations were effectively misrepresentations of fact because, by telling the principals of Twin Fires that he could get them 75,000 shares, he essentially was misrepresenting to them that he had received assurance of an allocation at least that large when he knew he had received no such assurance. However, Finch's statements would still be actionable misrepresentations even if they were deemed representations as to future events, that is, representations regarding the likelihood that Finch would receive a special allocation for the February 11 IPO. \\\"Although as a general rule representations as to future events are not actionable . an exception has been recognized 'where the parties to the transaction are not on equal footing but where one has or is in a position where he should have superior knowledge concerning the matters to which the misrepresentations relate.' \\\" Cellucci v. Sun Oil Co., 2 Mass.App.Ct. 722, 730 (1974), quoting Williston, Contracts, \\u00a71496, at 373-374 (3d ed. 1970). See also Gopen v. American Supply Co., 10 Mass.App.Ct. 342, 345 (1980) (same).\\nThe facts in Celiucci bear closely on the instant case. There, the Appeals Court noted:\\nThe factual misrepresentations are found (1) in his repeated assurances that the deal was, in his words, \\\"all set,\\\" which we interpret as a prediction that Sunoco would accept the plaintiffs solicited offer; and (2) in his representations that the decision whether to accept the plaintiffs offer was to be made at the district and regional levels, where in fact approval was obtained, and that the signature by a vice president at the home office was a purely formal or perfunctory matter. In view of Patterson's own testimony, no contention is or could be made that these statements, if made, were not fraudulent in nature. Patterson's sole contention was that he did not make the statements, and the judge found to the contrary.\\nCellucci, 2 Mass.App.Ct. at 729-30. The Court added:\\n[A] prediction that Sunoco will sign a contract is not like a prediction as to the weather. It lies within the entire and exclusive control of Sunoco. Representations regarding the internal processes of Sunoco and the likelihood of its acceptance did not exceed any apparent limitations on Patterson's authority. Sunoco is liable for the fraudulent representations of Patterson in doing the business which Sunoco entrusted to him.\\nId. at 730. Here, Finch had knowledge far superior to Twin Fires as to whether he would obtain a special allocation since, he, not Dunne or Dlugasch, was in a position to communicate with the persons responsible for share allocation at Morgan Stanley and with Merrick. Moreover, a prediction as to share allocation was \\\"not like a prediction as to the weather.\\\" It was knowable through communication with Merrick and the appropriate officers at Morgan Stanley.\\nHaving found that the misrepresentations made by Finch were one of fact, this Court concludes that the plaintiffs have proven by a preponderance of the evidence that Finch (and, vicariously, Morgan Stanley) committed the tort of intentional misrepresentation. Finch made a false representation as to the likelihood of his obtaining a large allocation of WEBM shares; Finch knew his representation to be false; this fact was material to Dunne and Twin Fires; they reasonably relied on this representation to their detriment by organizing Twin Fires and obtaining more than $2.6 million in financing to purchase the anticipated 75,000 WEBM IPO shares; and Finch reasonably knew or should have known that his representations would be likely to induce reliance.\\nHaving found that Finch committed the tort of intentional misrepresentation, this Court must determine the appropriate remedy. \\\"The general rule on damages in cases . of intentional (versus negligent) misrepresentation is that the plaintiff is entitled to the benefit of his bargain or 'the difference between the value of what he has received and the actual value of what he would have received if the representations had been true.' \\\" GTE Prods. Corp. v. Broadway Elec. Supply Co., 42 Mass.App.Ct. 293, 296 (1997), quoting Rice v. Price, 340 Mass. 502, 507 (1960). See also Danca v. Taunton Savs. Bank, 385 Mass. at 8 (1982) (stating that Rice \\\"approved the 'benefit of the bargain' rule as the measure of damages in 'appropriate' actions based upon deceit, i.e., fraudulent misrepresentation\\\"); Restatement (Second) of Torts \\u00a7549(2) (1977). In contrast, the measure of damages in a negligent misrepresentation action is out-of-pocket damages, or reliance damages, not benefit of the bargain damages. Danca, 385 Mass. at 9; Anzalone v. Strand, 14 Mass.App.Ct. 45, 49 (1982); Restatement (Second) of Torts \\u00a7552B(1) (1977).\\nWhile benefit of the bargain is plainly the \\\"general rule\\\" of damages in cases of intentional misrepresentation, the Supreme Judicial Court in Rice stated that \\\"(t]he benefit of the bargain rule has not been rigidly followed in this Commonwealth, and this court has suggested that the rule may be modified or supplemented to prevent injustice.\\\" 340 Mass. at 509 and cases cited therein. This Court, in the interests of justice, shall not apply the general rule of benefit of the bargain damages to this intentional misrepresentation, but shall instead award damages only for the economic loss that Twin Fires suffered through its reasonable reliance on Finch's representations.\\nThis Court has four reasons for departing here from the general rule in the interests of justice. First, the benefit of the bargain rule is not an inflexible rule that means that eveiy victim of a fraudulent misrepresentation receives the benefit of what he was promised. It simply affords a recovery on a claim for deceit closely resembling that on a claim for breach of contract. Rice v. Price, 340 Mass. at 507. Section 549 in the Restatement (Second) of Torts, entitled \\\"Measure of Damages for Fraudulent Misrepresentation,\\\" accurately describes the measure of damages under Massachusetts law;\\nThe recipient of a fraudulent misrepresentation is entitled to recover as damages in an action of deceit against the maker the pecuniary loss to him of which the misrepresentation is a legal cause, including:\\nthe difference between the value of what he has received in the transaction and its purchase price or other value given for it; and\\npecuniary loss suffered otherwise as a consequence of the recipient's reliance upon the misrepresentation.\\nThe recipient of a fraudulent misrepresentation in a business transaction is also entitled to recover additional damages sufficient to give him the benefit of his contract with the maker, if these damages are proved with reasonable certainty.\\nRestatement (Second) of Torts, \\u00a7549. See GTE Prods. Corp. v. Broadway Elec. Supply Co., 42 Mass.App.Ct. at 296 (citing Restatement (Second) of Torts, \\u00a7549). See also Restatement (Second) of Torts, \\u00a7549, Reporters Notes (1981) (observing that Massachusetts supports the position taken by \\u00a7549). Here, where the IPO securities transaction never took place, the damages under subsection (1) would be limited to reliance damages. Under subsection (2), Twin Fires would receive the benefit of their contract with the makers of the fraudulent misrepresentations \\u2014 Finch and, vicariously, Morgan Stanley. See Rice v. Price, 340 Mass. at 507. However, this Court has already found that Twin Fires is not entitled to recovery under a breach of contract theory because of the failure of the condition precedent \\u2014 the allocation of 75,000 WEBM IPO shares to Finch. Twin Fires cannot recover the benefit of the bargain in tort when it cannot recover that benefit in contract.\\nIn other words, when Finch fraudulently misrepresents that he will obtain 75,000 WEBM shares for Twin Fires, and this representation is too good to be true, and the allocation of at least this amount of shares to Finch was a condition precedent of Finch's agreement to sell shares, this Court will not make that representation become true by awarding Twin Fires the net profit from such a sale when the failure of the condition precedent prevented that agreement from becoming legally binding. The equitable purposes of the benefit of the bargain rule are to prevent the defendant from being unjustly enriched by his fraud and to give the victim what he was entitled to as a matter of contract, not to give a gullible victim a windfall by enforcing an otherwise unenforceable agreement that proved too good to be true. See Restatement (Second) of Torts, \\u00a7549, Comments (g), (h), and (i); GTE Prods. Corp. v. Broadway Elec. Supply Co., 42 Mass.App.Ct. at 296-97 (giving plaintiff the benefit of the bargain where to do otherwise would allow the defendant to keep some benefits of his fraud).\\nIndeed, the Restatement observes that the victim of a fraudulent misrepresentation may choose to rescind the transaction induced by the false statement but, if he makes that choice, he is limited to reliance damages and cannot also seek to recover \\\"the difference of the value between the thing received and the price paid for it.\\\" Restatement (Second) ofTorts, \\u00a7549, Comment (e). Here, the WEBM securities transaction was never consummated so it could not be rescinded, but it stands in the same posture as if rescinded, i.e. it never happened. Since Twin Fires would be limited to reliance damages if it had purchased the 75,000 WEBM shares and, for some reason, chose to rescind the transaction based on Finch's misrepresentation, it must be limited to reliance damages when the transaction never occurred.\\nSecond, this Court frankly worries about a judicial precedent that permits an investor to obtain benefit of the bargain damages based on this type of misrepresentation. No party has cited any instance in which such damages have ever been awarded to a prospective investor who was shut out of an IPO, and this Court is reluctant to be the first. The normal practice in an IPO is for a broker to take GEIs from prospective investors during the \\\"quiet period.\\\" While, as noted in the Morgan Stanley Compliance Guide, the appropriate procedure is for the broker simply to learn from his clients whether they are interested in purchasing IPO shares if any become available and, if so, how many, it is easy for such conversations to venture into predictions as to the likelihood that a broker will receive a sufficient allocation and commitments to sell shares to favored customers if the allocation proves sufficient. As here, the difference between a misrepresentation and the expression of a hope may be a matter of a few words, as may the difference between a commitment to sell and a commitment to be fair. Substantial economic loss from reliance on such statements would be unusual, but every investor shut out of a \\\"hot\\\" IPO would be able to claim benefit of the bargain damages. The United States Supreme Court concluded that \\u00a7 10(b) of the Securities and Exchange Act of 1934 did not protect \\\"a person who did not actually buy securities, but who might have done so had the seller told the truth\\\" in part because of its concern \\\"about 'the abuse potential and proof problems inherent in suits by investors who neither bought nor sold, but asserted they would have traded absent fraudulent conduct by others.' \\\" The Wharf (Holdings) Limited v. United International Holdings, Inc., 532 U.S. 588, 594-95 (2001), quoting United States v. O'Hagan, 521 U.S. 642, 664 (1997). The common law of fraudulent misrepresentation does protect potential buyers of securities, but the measure of damages established under the common law for the commission of that tort needs to be respectful of the same pragmatic concern.\\nThird, even under the general rule, benefit of the bargain is the measure of damages for intentional misrepresentation only when they are \\\"proved with reasonable certainty.\\\" GTE Prods. Corp. v. Broadway Elec. Supply Co., 42 Mass.App.Ct. at 296, quoting Rice v. Price, 340 Mass. at 510. Here, benefit of the bargain damages have been proven with reasonable certainty only because Dunne issued sales orders for shares Twin Fires never owned. That bizarre circumstance is not likely to happen very often. It will happen far more often that the potential buyer will claim that he would have purchased IPO shares if not for the fraudulent misrepresentation, but there will be no evidence as to when he would have sold those shares. Since the recent bust in the stock market has demonstrated that the net profits that constitute the benefit of the bargain will depend a great deal on whether the prospective buyer would have held his shares or sold them, and on when he would have sold them, it will usually be difficult to ascertain with certainly what benefit of the bargain damages would be in this type of case.\\nFourth, looking at this case with even a modicum of perspective, it is plain that Twin Fires is a victim here only to the extent that it suffered reliance damages; it has no equitable entitlement to the 75,000 shares that it hoped to acquire from Finch. The only reason why Twin Fires had any possibility of acquiring 75,000 shares of a \\\"hot\\\" IPO was because Stephens Dunne, through his brother Dwight, was put in touch with Dwight's brother-in-law, Finch, who claimed that he would be given a huge allocation of shares in the IPO which he was willing to sell to Dunne to attract wealthy members of the John Deere family as clients. Twin Fires never \\\"earned\\\" this opportunity; it obtained it solely through family contacts and the wealth of its members, which made it an attractive client to Finch. While Finch certainly acted badly and, as will be discussed later, Morgan Stanley acted carelessly, the interests of justice are better served by a remedy that compensates Twin Fires for its reliance damages but does not give it the benefit of a bargain it never should have had.\\nThe evidence as to reliance damages is sparse and undocumented. There, however, was evidence that Dunne and Dlugasch retained the law firm of Holland & Knight, LLP to establish Twin Fires and perform the legal work necessary for this LLC to serve as the investment vehicle for the purchase of WEBM IPO shares. Dlugasch testified that those legal fees were roughly $16,000. In addition, Dlugasch testified that, in the early part of the busy tax season, he devoted at least 70 hours of work to Twin Fires, which at his hourly rate of $295 per hour had a value of $20,650. He also testified that Sharon Kams, another accountant at Waldron Rand, spent roughly 30 hours on Twin Fires matters, which at her hourly rate of $100 per hour had a value of $3,000. While Waldron Rand had not yet billed Twin Fires for this work in view of what transpired, it constitutes at least a prospective liability of Twin Fires and therefore qualifies as compensable reliance damages. Totaling these three figures, this Court awards reliance damages to the plaintiffs for the defendants' intentional misrepresentation in the amount of $39,650.\\n3. Violation of the Massachusetts Blue Sky Law, G.L.c. 110A\\nThe plaintiffs contend that Finch and Morgan Stanley are also liable to them under G.L.c. 110A, \\u00a7410(a) (2) for violation of what is formally known as the Uniform Securities Act and commonly known as the Massachusetts Blue Sky Law. That statutory provision declares that \\\"any person who . . . offers or sells a security by means of any untrue statement of a material fact..., the buyer not knowing of the untruth or omission, . is liable to the person buying the security from him . .\\\" G.L.c. 110A, \\u00a7410(a)(2). This Court finds, for two reasons, that neither Dunne nor Twin Fires have standing to sue for civil liability under this provision because neither actually bought WEBM IPO shares.\\nFirst, even if Finch and Morgan Stanley had offered these securities to Dunne and Twin Fires, any Blue Sky civil liability would be limited \\\"to the person buying the security from him\\\" and Dunne and Twin Fires never succeeded in buying the WEBM securities. See G.L.c. 110A, \\u00a7410(a)(2). While the plaintiffs contend that Twin Fires bought these securities by agreeing to purchase them, this Court has already found that no purchase of these shares could have occurred until the condition precedent of an allocation to Finch of at least 75,000 shares was satisfied, which it never was.\\nMoreover, the sole remedy provided in the Blue Sly statute is akin to rescission, and that remedy assumes a completed sale with the transfer of consideration. Under G.L. 110A, \\u00a7410(a) (2), the statutory remedy available to the buyer enables the buyer \\\"to recover the consideration paid for the security, together with interest at six per cent per year from the date of payment, costs, and reasonable attorneys fees, less the amount of any income received on the securiiy, upon the tender of the security . . .\\\" Where, as here, no consideration was paid, recovery of the consideration is impossible. If the Legislature had wished to provide a remedy for those who never paid consideration for the purchase of a security, it would have provided a remedy that granted more than recission damages. See generally Schinkel v. Maxi-Holding, Inc., 30 Mass.App.Ct. 41, 49 (1991) (\\\"The scheme of c. 110A, geared primarily to protecting securities buyers from fraudulent representations, probably offers no remedy to one whose chief complaint is nondelivery of shares promised\\\").\\nSecond, since the Massachusetts Blue Sky Laws were derived from federal securities laws, their interpretation must be guided by the interpretation of those federal laws and their application coordinated with the application of those federal laws. See Cabot Corp. v. Baddour, 394 Mass. 720, 723 (1985); In re Choinski, 214 B.R. 515, 523 (1st Cir. 1997), aff'd., 187 F.3d 621 (1998). It is well-settled that, under Section 12 of the Securities Act of 1933, 15 U.S.C. \\u00a7771, the federal counterpart to G.L.c. 110A, \\u00a7410(a)(2), \\\"(t]he purchase requirement clearly confines \\u00a712 liability to those situations in which a sale has taken place.\\\" Pinter v. Dahl, 486 U.S. 622, 644 (1988). See also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975). There is no reason to believe that the Massachusetts Legislature intended to extend \\u00a7410(a)(2) liability beyond the scope of \\u00a712 liability.\\nConsequently, since the Massachusetts Blue Sky Laws grant a statutory civil remedy for false misrepresentations only to those who have purchased securities, and since the plaintiffs never actually purchased the WEBM shares, the plaintiffs have no standing to sue to obtain this statutory civil remedy. Judgment on this claim must be awarded to the defendants.\\nViolation of G.L.c. 93A\\nThe plaintiffs' inability to obtain the remedies available under the Massachusetts Blue Sky Laws for Finch's misrepresentations has little practical consequence, since they plainly can seek an even more expansive remedy under G.L.c. 93A.\\nG.L.c. 93A, \\u00a72(a) makes unlawful any \\\"unfair or deceptive acts or practices in the conduct of any trade or commerce.\\\" G.L.c. 93A, \\u00a72(a). \\\"Trade and commerce\\\" includes the offering for sale of securities. G.L.c. 93A, \\u00a7 1 (b). The Supreme Judicial Court has stated \\\"that the following are 'considerations to be used in determining whether a practice is to be deemed unfair: (1) whether the practice . is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) . . . is immoral, unethical, oppressive, or unscrupulous; (3) . . . causes substantial injury [to] . . . competitors or other businessmen.' \\\" Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 778 (1986), quoting PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975), quoting 29 Fed.Reg. 8325, 8355 (1964).\\nThere can be no doubt that Finch's fraudulent misrepresentations regarding the likelihood of his obtaining a substantial special allocation of WEBM shares are sufficient alone to support a finding that he and, vicariously, Morgan Stanley engaged in unfair or deceptive acts in trade or commerce. Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. at 778. This Court, having already found in favor of the plaintiffs on their claim of common-law deceit based on these intentional misrepresentations, now finds that these same intentional misrepresentations constituted unfair and deceptive acts in trade and commerce. This Court, therefore, finds in favor of the plaintiffs on their G.L.c. 93A, \\u00a711 claim.\\nHaving found in favor of the plaintiffs on their G.L.c. 93A claim, the plaintiffs shall be awarded their reasonable attorneys fees and costs incurred in this action. No later than January 10, 2003, the plaintiffs shall serve upon defense counsel their application for attorneys fees and costs, with appropriate supporting documentation. The defendants shall file this application, with their response, no later than January 31, 2003.\\nThe damages under the G.L.c. 93A claim are the same reliance damages awarded on the common-law claim of fraudulent misrepresentation \\u2014 $39,650. This Court, however, finds that Finch's fraudulent misrepresentations were willful and knowing \\\"unfair and deceptive acts\\\" that require the damage award to be at least doubled and potentially trebled. See G.L.c. 93A, \\u00a711. In view of the circumstances of this case, this Court, for at least three reasons, believes that the interests of justice warrant the trebling of this damage award.\\nFirst, this Court recognizes that the amount awarded in reliance damages does not fully compensate the plaintiffs for the injuries they suffered from Finch's fraudulent misrepresentations. Finch knew or should have known that Dunne was speaking to many members of his family about the extraordinary investment opportunity that he had discovered, that he was obtaining large amounts of money from them to invest in this opportunity, and that, frankly, he would look like a fool if it turned out there was truly no meaningful chance of Twin Fires obtaining the 75,000 shares. Finch could monitor from his desktop computer the many wires from various individuals that were coming into Morgan Stanley in the days before the IPO transferring money into the Twin Fires account, and he knew or should have known that this money was corning in for one purpose \\u2014 to purchase the WEBM shares that Finch had said he would deliver to Twin Fires. Finch apparently was prepared to permit this terrible embarrassment in the hope that he could somehow retain these wealthy members of the Deere family as clients by blaming Merrick and Morgan Stanley for his failure to obtain the special allocation. His egregious disregard for the humiliation he would cause by failing to deliver on the expectations he had fostered through his intentional misrepresentations warrants trebling of the damages.\\nSecond, this Court is mindful that, in this and similar cases involving \\\"hot\\\" IPOs, reliance damages are likely to be trivial in comparison with expectation or benefit of the bargain damages, so the trebling of reliance damages is needed to deter fraudulent misrepresentations like those found here.\\nThird, treble damages are warranted here to punctuate the point that, while Finch alone made the fraudulent misrepresentations, Morgan Stanley's abysmal supervision of Finch and its pathetic failure to communicate its share limit for \\\"hot\\\" IPOs permitted this travesty to occur. This Court has not considered the plaintiffs' claim of negligent supervision against Morgan Stanley because such a claim would potentially be relevant only if there were a question as to whether Morgan Stanley was liable for Finch's misconduct. Since Morgan Stanley properly has conceded that it is vicariously liable for all that Finch did as a Morgan Stanley broker, its liability depends solely on whether Finch was acting within the scope of his employment (which he plainly was), not on whether Morgan Stanley negligently supervised him. Morgan Stanley's conduct, however, properly may be considered by this Court in deciding in its discretion the amount of punitive damages under G.L.c. 93A, so this Court makes findings on that issue only for this purpose.\\nThis Court finds that Morgan Stanley was negligent in its supervision of Finch in at least three fundamental ways. First, Morgan Stanley knew from past experience that, when a stockbroker was the originator of an IPO, the CEO of the issuing company sometimes requested a special allocation of IPO shares to the originating broker to reward him for his role in bringing the company public. It knew here that Finch was the originator of the WEBM IPO, that this would be a \\\"hot\\\" IPO, and that Finch had grandiose hopes for an allocation as large as the 250,000 \\u2014 300,000 shares that Keller had been promised by the CEO before his IPO collapsed. It knew or should have known that Finch would be taking GEIs from his clients for the WEBM IPO, and it certainly should have been concerned about what Finch was telling his clients when he took their GEIs about the likelihood of his obtaining a special allocation and the anticipated size of that allocation. Yet, no one at Morgan Stanley discussed these matters with him, furnished him with any guidance or guidelines, or even monitored his GEIs. When the possibility of a special allocation was discussed with him, the discussion had been initiated by Finch, and the only guidance he was given was to curry favor with the CEO. In short, Morgan Stanley knew or should have known:\\nthat it had a 28-year-old broker with less than three years experience as a stockbroker and less than two years as a Morgan Stanley broker;\\nthat this young broker hoped to obtain a special allocation of between 250,000 and 300,000 shares in a \\\"hot\\\" IPO that he had originated;\\nthat these IPO shares were expected to multiply in value within days of public trading (probably on the first day of public trading), and therefore were in great demand;\\nthat this young broker had a meager client base but, as Finch declared in his goals for 2000, hoped through this IPO to manage $400 million in assets by the end of 2000; and\\nthat the prospect-of receiving \\\"hot\\\" IPO shares was commonly used by Morgan Stanley brokers to attract new clients.\\nThis was foreseeably a situation laden with danger, yet Morgan Stanley did absolutely nothing either to furnish guidance to Finch, to supervise him, or even to monitor his conduct.\\nSecond, Morgan Stanley policy placed a 2,000-share cap on the amount of IPO shares that could be sold to any retail client and a 1,000 share-cap for \\\"hot\\\" IPOs. It had declared the WEBM IPO to be \\\"hot\\\" and therefore, in the absence of special authorization from the Retail Deal Captain, permitted no single retail customer to purchase more than 1,000 of these shares. If this policy had been effectively communicated to Finch and to prospective retail purchasers of WEBM shares, the misrepresentations here, or at least the misplaced reliance on them, may never have occurred. Yet, no one at Morgan Stanley ever told Finch, either orally on in writing, that there was a 1,000-share cap for the WEBM IPO, and he did not know either of this cap or of the more general 2,000-share cap that applied to all IPOs. In fact, even Caswell, the Wellesley branch manager, did not know of the 1,000-share cap on the WEBM IPO until the IPO was over. Certainly there was no reasonable way that prospective purchasers of these shares would learn of this Morgan Stanley policy except through their broker. Consequently, Morgan Stanley had a policy limiting retail sales of WEBM IPO shares but failed to tell its retail brokers (or even its retail branch managers) about such a policy. It specifically failed to mention this policy to Finch, its one retail broker who it knew was hoping for a special allocation of more than 250,000 shares and therefore would have been most likely to exceed this policy limit.\\nThird, Morgan Stanley's thoughtless policy and practice regarding the taking of GEIs unwittingly invited the dangers it warned against in its Compliance Guide. Even though Morgan Stanley's policy was to bar sales of more than 1,000 shares of a \\\"hot\\\" IPO to retail clients, it did not bar its brokers from taking GEIs of more than 1,000 shares (or, indeed, more than 2,000 shares) from retail clients. Consequently, a client could ask to buy 75,000 shares of a \\\"hot\\\" IPO and the broker could record it as a GEI from that client, even though the client would be barred from receiving that many shares. Neither policy nor practice at Morgan Stanley required its brokers to inform a client who sought to purchase a quantity of shares beyond the share cap of the existence of any such share cap. Indeed, the mere fact that a GEI would be accepted for more than 1,000 shares encouraged the retail customer to believe that there was no prohibition against such a sale. Nor did Morgan Stanley, in practice, require its brokers to submit a list of the names clients who gave GEIs and the amount of shares those clients hoped to purchase; brokers were permitted simply to submit the aggregate number of shares their clients hoped to purchase. As a result, no person responsible for compliance at Morgan Stanley had the information that would permit them to know that a broker was discussing with a retail client the possibilof purchasing more than 1,000 shares (indeed, 75,000 shares) in a \\\"hot\\\" IPO. In essence, while the Compliance Guide, in its discussion of IPOs, specific-warns that \\\" 'sales talk' can be easily misinterpreted, especially if an issue is in heavy demand and client is anxious to obtain shares,\\\" Morgan Stanley's practice regarding GEIs both invited misinterpretation clients and prevented effective compliance.\\nFor all these reasons, not only does Finch's conduct warrant \\\"condemnation and deterrence,\\\" but so, too, does Morgan Stanley's conduct. See Bain v. City of Springfield, 424 Mass. 758, 767 (1997). Especially since this Court has rejected the plaintiffs' call for benefit of the bargain damages, the award of treble reliance damages is a necessary \\\"wake-up call\\\" to Morgan Stanley (and perhaps the entire securities industry) that its policies, practices, compliance, and supervision regarding IPOs, especially \\\"hot\\\" IPOs, are seriously flawed.\\nORDER\\nFor the reasons stated above, it is hereby ORDERED that judgment enter in favor of the plaintiffs Dunne and Twin Fires and against the defendants Finch and Morgan Stanley, jointly and severally:\\nOn the claim alleging fraudulent misrepresentation, in the amount of $39,650; and\\nOn the claim alleging violation of G.L.c. 93A, in the amount of $118,950 ($39,650 trebled).\\nHaving found in favor of the plaintiffs on their G.L.c. 93A claim, the plaintiffs shall be awarded their reasonable attorneys fees and costs incurred in this action. No later than January 10, 2003, the plaintiffs shall serve upon defense counsel their application for attorneys fees and costs, with appropriate supporting documentation. The defendants shall file this application, with their response, no later than January 31, 2003.\\nStatutory costs shall be awarded to the plaintiffs.\\nAs branch syndicate coordinator, Curtis allocated among the brokers within the branch the IPO shares that were allocated to the branch by Morgan Stanley's Retail Equity Syndicate.\\nI credit Katharine Dunne's testimony, offered via her deposition, in part because her late husband was a stockbroker and she understood the importance of such an allocation. In fact, she recalled telling Finch at the time that she was surprised at the amount of shares he was being allocated.\\nFinch sent Merrick a bottle of wine to celebrate the filing.\\nWhen Morgan Stanley merged with Dean Witter, the Morgan Stanley retail brokers were assigned to Private Wealth Management, while the Dean Witter brokers handled their clients through the branches. Over time, even as the historical distinction eroded between the Morgan Stanley and the Dean Witter brokers, Private Wealth Management continued as a separate retail brokerage group.\\nAs noted earlier, this letter was mis-dated January 5, 1999.\\nAs will become clear later in this decision, Finch never did anything to assure himself that those who would receive WEBM IPO shares \\\"realized the long-term value\\\" of WEBM. Indeed, he expected that all who bought shares from him would sell them quickly for a profit, so he only discussed the anticipated value of these shares in the short mn after-market. EVen his fiancee, to whom he sold 25 WEBM IPO shares, sold them the same day for a handsome, quick profit.\\nMerrick also requested an increase in the allocation made to certain institutional investors, which Morgan Stanley also honored.\\nThis Court believes that Dunne added this vignette to explain why there was no writing memorializing an offer of this size, since Morgan Stanley has argued that this Court should infer the absence of such an offer by the absence of such a writing. While this Court does not find that Dunne's version has the ring of truth, it also does not find that the absence of any writing should reasonably reflect the absence the offer. There was abundant testimony that agreements in the securities industry are virtually always made orally, regardless of their size, and confirmed in writing only after the transaction has been completed. There is not a shred of evidence that deals of this size are routinely confirmed in writing before the transaction has taken place. Indeed, the weight of the evidence is that pre-transaction confirmations are rare and, indeed, discouraged by Morgan Stanley. All written communications that are transmitted by mail with clients regarding securities transactions at Morgan Stanley must first be reviewed by the Compliance Department, which naturally tends to discourage such communications. E-mail communications need not be sent to the Compliance Department for review but all recipients of e-mails from Morgan Stanley received a notice declaring:\\nIt is important that you do not use e-mail to request, authorize or effect the purchase or sale of any security or commodity, to send fund transfer instructions, or to effect any other transactions. Any such request, orders, or instructions that you send will not be accepted and will not be processed by Morgan Stanley Dean Witter.\\nHaving created a way of doing business that relied on oral agreements between a broker and his client and that discouraged the written memorialization of these oral agreements, Morgan Stanley cannot justly ask this Court to infer that the absence of a confirmatory writing means the absence of an agreement.\\nIt is important to note that Finch was not the only person at this January 19 meeting who was trying to impress. The only reason that Dunne brought Finch to see his real estate development projects on their way to lunch was to communicate to Finch that Dunne was more than a young man with a trust fund. Rather, he was a real estate developer in his own right, capable of obtaining financing and bringing such projects to fruition.\\nDunne understood that Finch was referring to a meeting with Merrick but Finch actually planned to go to resolve matters with Legg regarding the Directed Shares accounts. Finch never actually went to Virginia during this time period.\\nDunne also asked Finch for a form for Gilpin Sulky LLC, an existing investment vehicle he had been using for investments other than WEBM.\\nThere is a dispute as to whether the meeting with Finch, Dlugasch, and Kams occurred on the morning of February 3 or 4. This Court is persuaded by the date the account opening form was faxed to Dlugasch (the morning of February 3), and the date given on the $100 check (February 4), that this meeting was more likely than not held at 8:30 a.m. on February 4.\\nDunne testified that he spoke with Finch by telephone on February 9, and Finch told him that he had received his 300.000 share allocation. I do not credit Dunne's testimony as to this conversation. If Finch had truly said this, Dunne would have pressed even harder for additional shares beyond the 75,000.\\nFlnch prepared a handwritten GEI sheet but he never submitted it to anyone. According to his GEI list, Twin Fires' interest in purchasing WEBM shares was \\\"unlimited.\\\" Many of the GEIs on Finch's sheet would have greatly exceeded the 1.000 share limit that Morgan Stanley imposed on \\\"hot\\\" IPOs.\\nUnder the Directed Shares Program, if a WEBM employee chose not to purchase any or all of the 800 shares allocated to him, those shares returned to the Directed Share pool and the pool was later distributed equally among the employees who wished to buy additional shares.\\nThis Court does not find Dunne's version of this conversation to be credible. He testified that Finch directed him to have an amount sufficient to purchase 75,000 WEBM shares at $35 per share wired to the Twin Fires in the morning, and Dunne agreed to do this. Since Finch knew there was no actual need for this money to be wired into the account prior to the trade, it is unlikely that he made this demand, leather, this is an instance of Dunne trying to \\\"improve\\\" his memory to provide evidence of a promise by Finch to sell 75,000 shares after the registration became effective.\\nDwight Dunne had a wholly different vision of his brother's mood that morning. He testified that he spoke with Stephens before 10 a.m. and Stephens told him, \\\"Your worst fears have been realized.\\\" This Court is inclined to credit this testimony, but it does not adopt the inference that Morgan Stanley takes from this testimony \\u2014 that Stephens Dunne knew early that morning that Twin Fires would obtain no shares in the IPO. This Court credits the testimony of those who were present in Dlugasch's office on the afternoon of February 11 that Dunne was giddy with excitement when he watched the surge in the after-market price of WEBM and appeared stricken with grief when he learned that Twin Fires had not obtained any IPO shares. Dunne may not have been truthful in all his testimony, but he could not have been that good an actor that day. Therefore, this Court believes it more likely than not that what Stephens Dunne meant that morning was that he (Stephens) would be the hero of the family that day and, given the unhappy relationship between these brothers, Stephens' triumph would be the realization of Dwight's worst fear.\\nThis Court recognizes, as has the Appeals Court, that the distinction between a condition precedent and a condition subsequent is often hard to understand and \\\"the source of considerable confusion.\\\" City of Haverhill v. George Brox, Inc., 47 Mass. App. 717, 723 (1999). While this Court believes that the special allocation of at least 75,000 shares of WEBM was a condition precedent because it defined \\\"an event which must occur before a right or obligation matures under the contract, \\\" id. at 719, it would not affect this decision if it were viewed as a condition subsequent, since the only practical consequence of that distinction here concerns who bears the burden of proving the occurrence of the condition. See generally 14 Alperin and Shubow, Massachusetts Practice Summary of Basic Law \\u00a77.84 (3rd ed. 1996). Since there is no dispute that Finch did not receive a special allocation of 75,000shares, it matters little who has the burden of proving that undisputed fact.\\nThere was no evidence that Massachusetts is one of those states.\\nMorgan Stanley also contends that the plaintiffs' reliance was not reasonable because only large institutional investors could possibly have received an allocation of75,000 shares in this type of \\\"hot\\\" IPO. Certainly, anyone at Morgan Stanley with access to the list of persons and institutions receiving IPO shares should reasonably have recognized that it would have been extraordinary for an investment vehicle like Twin Fires to receive so large an allocation, but none of the plaintiffs had access to such information.\\nThis Court need not consider whether Finch's misrepresentations could also be deemed negligent misrepresentations because, as noted earlier, the measure of damages for negligent misrepresentation would also be limited to reliance damages.\\nThis statute permits an affirmative defense to liability when the seller of the security proves that he did not know, and could not have known in the exercise of reasonable care, of the untruth. G.L. 110A, \\u00a7410(a)(2). In view of this Court's legal conclusions, the existence of this affirmative defense is of no consequence in this case.\\nThe humiliation caused by Finch is most poignantly demonstrated by Dunne's choice to begin the day of February 11 with a visit to his father's grave, so that his father somehow could share in what Dunne believed was to be a great day for the Deere family.\"}"
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+"{\"id\": \"3625090\", \"name\": \"Eugene T. Lane, Executor of the Estate of Dolores Lane v. Commerce Insurance Co.\", \"name_abbreviation\": \"Lane v. Commerce Insurance\", \"decision_date\": \"2003-05-27\", \"docket_number\": \"No. CA010385A\", \"first_page\": \"295\", \"last_page\": \"302\", \"citations\": \"16 Mass. L. Rptr. 295\", \"volume\": \"16\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:54:29.705246+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eugene T. Lane, Executor of the Estate of Dolores Lane v. Commerce Insurance Co.\", \"head_matter\": \"Eugene T. Lane, Executor of the Estate of Dolores Lane v. Commerce Insurance Co.\\nSuperior Court, Plymouth, SS\\nNo. CA010385A\\nMemorandum Dated May 27, 2003\", \"word_count\": \"5773\", \"char_count\": \"34208\", \"text\": \"Hely, J.\\nI. INTRODUCTION\\nThe plaintiffs wife was killed in a two-vehicle accident involving her car and a pickup truck driven by an intoxicated driver. In this action under G.L.c. 93A, \\u00a79, the plaintiff is entitled to recover damages from the other driver's motor vehicle liability insurer because the insurer violated G.L.c. 176D, \\u00a73(9)(f). The defendant insurer failed to make a fair settlement offer after the pickup driver's liability had become reasonably clear. The plaintiff is entitled to actual damages in the amount of $25,417, plus his reasonable attorney fees and costs for the Chapter 93A claim. Multiple damages are not warranted because there was no willful or knowing violation.\\nThe case was tried before the court without a jury. The court's findings are based on the more credible evidence and the reasonable inferences that the court has drawn from the evidence.\\nII. REASONABLY CLEAR LIABILITY\\nOn April 5, 1997, at about 6:51 p.m., Dolores Lane and Robert B. Senior were in a two-vehicle accident in Plymouth. Mr. Senior was driving west on Route 44 in a pickup truck. Route 44 in this area has two westbound lanes and two eastbound lanes with no barrier between the westbound and eastbound lanes.\\nMrs. Lane was driving a Ford Tempo. The front of Mr. Senior's truck crashed into the driver's door of Mrs. Lane's car. Mrs. Lane was entering Route 44 from Pilgrim Trail, a small side street leading out of a mobile home park. After stopping at the stop sign at the end of Pilgrim Trail, Mrs. Lane was attempting to cross the two westbound lanes of Route 44 and make a left turn into the eastbound lanes.\\nMrs. Lane was employed as a visiting nurse. She had been visiting an elderly client in the mobile home park.\\nMr. Senior was operating under the influence of alcohol and speeding at the time of the accident. His headlights were on. Mrs. Lane had on her parking lights but not her headlights. Mrs. Lane sustained multiple injuries and showed no vital signs after the crash. She was pronounced dead upon her arrival at the hospital.\\nMr. Senior had a motor vehicle insurance policy with Commerce Insurance Co. with bodily injuiy liability coverage up to a limit of $100,000. Within a few days of the accident, Attorney Gerard F. Lane, Mrs. Lane's brother-in-law, agreed to represent her family regarding their claims arising from the accident. After some telephone discussions with Commerce representatives, Mr. Lane sent an April 23, 1997, letter to Commerce. This letter asked Commerce whether they would pay the $100,000 limit and, if not, how much would they pay in settlement of the Lane family's wrongful death claim. Commerce replied that they needed to fully investigate the case, and they made no settlement offer at that time. On June 17, 1997, Attorney Lane filed in Superior Court a wrongful death action against Mr. Senior. The plaintiff was Eugene T. Lane, Mrs. Lane's husband and the executor of her estate.\\nCommerce performed a prompt and thorough investigation of the claim. Their investigation began in April 1997, as soon as they learned of the accident involving their insured. The investigation made it reasonably clear that a fair settlement of the claim would require payment of the $100,000 policy amount. The problem is that Commerce failed to offer the policy amount promptly after it became reasonably clear that this amount would be necessary for a fair settlement. Commerce did not offer the $100,000 policy amount to the Lane family until January 14, 1999. Commerce waited until after Mr. Senior was convicted in Superior Court on his indictments for motor vehicle homicide, operating under the influence and operating to endanger based on the accident with Mrs. Lane. This delay in offering the policy amount was an unfair claim settlement practice in violation of G.L.c. 176D, \\u00a73(9)(f), and G.L.c. 93A, \\u00a72.\\nThe wrongful death damages of Mrs. Lane's family substantially exceeded $200,000. Even if negligence by Mrs. Lane had been as much as fifty percent of the cause of the accident, a fair settlement would still have required an offer of the $100,000 limit. This was reasonably clear by July 31, 1997. Commerce's argu ment at the trial properly recognized that any damages award would exceed the policy limit, even with a maximum fifty percent reduction of damages based on comparative negligence. Commerce's trial argument concentrated on the basic comparative negligence liability issue, not on the amount of damages. Commerce argued that basic liability did not become reasonably clear until much later.\\nThe court finds that liability for the policy amount became reasonably clear by July 31, 1997. It was reasonably clear that a trial jury would find that comparative negligence by Mrs. Lane was less of a cause of the accident than the negligence of the intoxicated Mr. Senior. Based on the information that Commerce had, this was reasonably clear by July 31,1997. Some of the more important evidence items that Commerce had by this date are summarized below.\\nIII. IMPORTANT ASPECTS OF THE EVIDENCE KNOWN TO COMMERCE BY THE END OF JULY\\nA. Police Reports: Observations and Arrest of Robert Senior\\nWithin a week or two of the accident, Commerce had obtained the Plymouth Police reports. The Plymouth Police officers concluded that Mr. Senior was intoxicated or at least operating under the influence, and they so charged him.\\nMr. Senior was arrested at the scene on April 5 for operating under the influence and motor vehicle homicide by operating under the influence. The arresting officer, Officer Kevin J. Furtado, reported that he had a strong odor of liquor on his breath, slurred speech and glassy eyes. He was unsteady on his feet. Officer Furtado reported that Mr. Senior spoke very softly and was very hard to understand as he would always turn his head away when the officer asked him about the accident.\\nMr. Senior failed field sobriety tests at the scene. He could not recite the alphabet past the letter L. He was unsteady on his feet. He could not perform the heel-to-toe walk on a ten-inch wide, painted white line. He strayed off the line several times. Officer Furtado formed the opinion at the scene that Mr. Senior was under the influence of alcohol.\\nA second officer, Clifton Brant III, observed Mr. Senior stepping off the painted line three times during the field sobriety tests. Officer Stephen A. Viella also observed that Mr. Senior had slurred speech and a strong odor of an alcoholic beverage emitting form his person.\\nAt 7:40 p.m., Mr. Senior was booked at the Plymouth Police station by Lieutenant Arthur W. Budge, Jr. Mr. Senior refused to take a breathalyzer test. Lieutenant Budge observed that Mr. Senior had a flushed face, slurred speech and a strong odor of alcohol on his breath. Mr. Senior was unsteady on his feet at the police station. Lieutenant Budge also noted that Mr. Senior's eyes were watery, bloodshot and glassy. Lieutenant Budge's opinion was that Mr. Senior was intoxicated, and he included this in his report.\\nB. Beth Forst and Diana Keating\\nThe police reports contained statements from Beth Forst and Diana Keating, two witnesses who observed crucial events at the scene at the time of the accident. Mrs. Forst was driving east on Route 44 approaching Pilgrim Trail. She noticed Mrs. Lane's car edging out of Pilgrim Trail, stopping, rolling slightly, stopping, rolling slightly and stopping. Mrs. Lane's car had only its parking lights on. Mrs. Forst continued east and saw the defendant's truck traveling west on Route 44 \\\"very fast\\\" at a speed she estimated to be fifty or fifty-five m.p.h. She thought they would crash and they did. She heard the crash but did not see it. She felt her own car shudder when she heard the crash. She immediately called the police on her cell phone.\\nCommerce adjuster Cheiyl DeMelo took a recorded statement from Beth Forst on April 14, 1997. This statement was basically consistent with her statement to the police, but she added some important details. Mrs. Forst stated that Mrs. Lane's car did not have a directional signal on and she did not know if she was going to go east or west. As she went by Mrs. Lane's car at Pilgrim Trail she looked at her mirror and screamed, \\\"put your lights on, put your lights on.\\\" She said that Mrs. Lane was edging out and edging out and then proceeded \\\"to come out into the lane.\\\" Mrs. Forst slowed down and noticed the Senior vehicle. She said he \\\"flew right by me,\\\" \\\"whipped right by me.\\\" She stated that he was \\\"at least doing 50 to 55 mph.\\\" Mrs. Forst said that Mr. Senior was in the right travel lane heading west. When she looked again in her mirror she could see that they had collided. She said that there was no squealing of wheels. When she looked back there were no brake lights on.\\nMrs. Forst's statement to Ms. DeMelo described the lighting conditions as \\\"very dim,\\\" \\\"pitch black,\\\" and \\\"very, very dark.\\\" The road was dry.\\nDiana Keating reported to the police that just before the accident she stopped at Mark Drive, just southeast of the collision point on Route 44. She intended to attend to her own flat tire. She heard the crash. She looked up and saw Mrs. Lane bounce up and down in her seat. She ran to Mrs. Lane and gave her first aid. She detected no vital signs. Mrs. Keating was performing CPR on Mrs. Lane when EMTs arrived.\\nMrs. Keating gave a recorded statement to Commerce adjuster Louis Sroczenski on June 27, 1997. Mrs. Keating said that it was \\\"just before dusk\\\" at the time of the accident and \\\"still light but people were putting on their headlights.\\\" This contradicted Mrs. Forst on the lighting and strengthened the liability case against Mr. Senior. When asked about skidmarks, she said it was dark by that time.\\nMrs. Keating said she was about one hundred feet from the accident site. Mrs. Keating stated that she heard a bang and saw the impact of the front of the truck into the driver's door. Mrs. Keating estimated the truck's speed before the accident at forty-five m.p.h.\\nMrs. Keating stated that she did not know exactly but she thought that the majority of Mrs. Lane's car was in the right westbound lane. She said that it may have been pushed more toward the middle and into both westbound lanes in the impact.\\nAfter the collision, Mrs. Keating checked on Mr. Senior. He said he thought he was okay, but he had a bang on his chin. He seemed \\\"stable\\\" to Mrs. Keating. Mrs. Lane was in her car with her seat belt on. The bottom part of her body was on the driver's side and the top half was pushed over toward the passenger side with her head kind of over the headrest. Mrs. Keating was trained in CPR and respiratory therapy. She observed no vital signs when she tried to aid Mrs. Lane. Mrs. Keating thought Mrs. Lane was dead upon the impact.\\nMrs. Keating stated that at the scene Mr. Senior said to her, \\\"I killed her,\\\" or \\\"I think I killed her,\\\" or \\\"did I kill her?\\\" Mrs. Keating did not smell any alcohol on either Mr. Senior or Mrs. Lane. She described Mr. Senior's condition as \\\"in a state of shock because he hit his head\\\" and \\\"amazed at what had happened.\\\"\\nC.Mr. Senior's Statements to the Police\\nAt the scene, Mr. Senior told Officer Viella in slurred speech that he was driving the truck and, \\\"I was driving west when this car pulled out in front of me.\\\"\\nMr. Senior told Officer Furtado that he had had a couple of beers about an hour earlier. When the officer asked where, Mr. Senior would not answer. Officer Furtado told Mr. Senior he could smell alcohol on his breath. Mr. Senior then turned his head away when the officer asked further questions. Mr. Senior said he was going the speed limit. When the officer asked him what the speed limit was, he did not know. Officer Furtado reported that the posted speed limit for this part of the road is forty-five m.p.h.\\nMr. Senior told Officer Furtado that he did not see the vehicle that came out of Pilgrim Trail. He repeated that he just did not see the vehicle that he struck. Mr. Senior said that his own headlights were on.\\nDuring the booking, Mr. Senior told Lieutenant Budge that he had had \\\"a few beers.\\\" He said he did not want to say anything more until he spoke with an attorney.\\nD.Accident Scene and Vehicles\\nThe accident occurred at about 6:51 p.m., the time of Mrs. Forst's cell phone call to the police. Sunset was at 6:15 p.m. The road conditions were diy.\\nThe end of Pilgrim Trail where it meets Route 44 was fairly well lit by a street light on the north edge of Route 44, twenty-five feet east of the east edge of Pilgrim Trail. Two globe lights on short pillars marked the entrance to Pilgrim Trail. The globe lights made some contribution to the artificial lighting.\\nAccording to Officer Furtado's report, following the collision Mr. Senior's truck came to a rest in the left of the two westbound lanes on Route 44. Mrs. Lane's Tempo was facing south in the same westbound lane. The pickup had a plow mount on the front. The plow mount and the front center of Mr. Senior's truck crashed into the driver's door of Mrs. Lane's Tempo. Officer O'Hara reported that the truck's plow mount had \\\"physically passed through the drivers side door of the Tempo and was partially within the drivers compartment of the Tempo.\\\" The two vehicles were still impacted together after they came to rest.\\nAccording to the parties' stipulation, the police reports stated that Mr. Senior's truck pushed Mrs. Lane's Tempo fifty-one feet from the point of impact. There was a skidmark ending at one of the truck's rear tires at its point of rest. The skidmark was forty feet and five inches long. The truck's skidmark thus did not begin until after the point of impact.\\nMr. Senior was traveling on a slight upgrade on Route 44 as he approached the intersection. Apart from the lighting issue, there was along, unobstructed view of the Route 44 westbound lanes for both Mrs. Lane as she exited Pilgrim Trail and for Mr. Senior as he approached the intersection.\\nE.Mr. Senior's Blood Alcohol Level\\nMr. Senior was released from Plymouth Police custody shortly before 11.30 p.m on the night of the accident. He went to Jordan Hospital and had a blood tested at his own request. This blood test showed that his blood alcohol level at 11:30 p.m. was .091. Four and a half hours after the accident, Mr. Senior's blood alcohol was above the amount that would permit an inference that he was under the influence of alcohol. G.L.c. 90, \\u00a724. The parties stipulated that Commerce knew of this blood alcohol level within one week of the accident. Commerce learned of this from the office of Jack Atwood, Mr. Senior's criminal defense attorney.\\nIt is common knowledge that a driver with a blood alcohol level of .091 at 11:30 p.m. and who did no drinking after the accident must have had a much higher blood alcohol level four and a half hours earlier at the time of the accident. With or without a toxicology expert, Commerce reasonably should have known from the blood alcohol test and the police report observations that Mr. Senior was intoxicated well beyond the level of \\\"under the influence\\\" at the time of the accident.\\nThe blood alcohol test along with the police observations of Mr. Senior at the scene and at the station prevent any reasonable reliance on Mrs. Keating's failure to notice an odor of alcohol while she provided emergency aid to Mr. Senior and Mrs. Lane. Similarly, the self-serving statements of the waitress and Mr. Senior's drinking companion that he did not seem intoxicated would have little objective weight in the face of the blood alcohol test and the police officers' observations at the scene and at the booking.\\nF. Court Action\\nAs noted earlier, Attorney Lane filed the plaintiffs wrongful death suit against Mr. Senior on June 17, 1997. Attorney Lane moved for a real estate attachment against Mr. Senior. OnJune25,1997, aSuperior Court judge granted a real estate attachment against Mr. Senior in the amount of $500,000. Commerce thus knew by July that after a contested preliminary hearing the court had determined that the plaintiff had a likelihood of success, despite the comparative negligence issue. Commerce also knew that the judge viewed the likely damages to be at least $500,000.\\nCommerce received another piece of court news in June or July. On June 17, Mr. Senior was indicted by a grand jury for motor vehicle homicide, operating under the influence, and operating to endanger in the accident with Mrs. Lane. This was a formal determination by the grand jury and by the District Attorney's Office that there was probable cause to support the charges. This confirmed the original arrest determination by the Plymouth Police Department.\\nAttorney Atwood sent Commerce the grand jury transcript and autopsy report on July 24, 1997.\\nG. Accident Reconstruction Report\\nCommerce decided to hire Northeast Collision Analyses, Inc., to do an accident reconstruction report regarding this case. The Northeast report was completed on July 10, 1997, and received by Commerce by a few days later. Relying on the police reports, the Northeast report stated that the collision occurred entirely in the left westbound lane of Route 44 as Mr. Senior was traveling west in that lane. The Northeast report gave an opinion that Mr. Senior's truck was going approximately foriy-five m.p.h. prior to the collision. Making a series of additional assumptions, the Northeast report stated an opinion that Mr. Senior's truck was about 141 feet away from the Tempo at the beginning of perception and reaction and that this was beyond the point of no escape. The point of no escape was defined as the place and time beyond which the collision cannot be avoided.\\nBy the end of July Commerce's investigation file was quite extensive. With the receipt of the grand jury transcript and the accident reconstruction report, Commerce had everything it could reasonably expect in the way of a complete investigation.\\nIV. FURTHER FINDINGS ON THE TIMING OF A PROMPT, FAIR SETTLEMENT OFFER\\nAs long as they acted promptly, it was reasonable for Commerce to obtain a reconstruction analysis by an engineering firm before offering the policy amount. In general, four months (AprilJuly) is not an unreasonably long time to offer a fair policy limit settlement in a death case. It was not an excessive time in this case. There was powerful liability evidence against the insured, Mr. Senior, but there was also evidence of some comparative negligence by Mrs. Lane, particularly regarding the darkness, her unlit headlights and her pulling out across the two westbound lanes of Route 44 with Mr. Senior approaching.\\nAn insurer must be given reasonable latitude to fully investigate a serious case before offering the policy limit. The police reports stated that a State Police expert, Trooper Pina, would be doing an accident reconstruction report. Trooper Pina's report was either not completed or not made available to Commerce by July. In these circumstances it was reasonable for Commerce to obtain its own accident reconstruction report as part of a complete investigation. The plaintiffs insurance expert, Robert Hall, was not convincing when he dismissed the need for this step in the insurer's investigation.\\nBy the end of July, however, there was nothing left to reasonably wait for. Commerce received the Northeast report in mid-July and the grand juiy transcript in late July. Attorney Atwood had told Commerce early on that \\\"Mr. Senior will exercise his right of silence until the completion of his trial, criminal proceedings and/or exposure to incarceration.\\\" Ex. 2, p. 65.\\nA criminal conviction would dispel any reasonable doubt about Mr. Senior's civil liability. G.L.c. 176D, \\u00a73 (9)(f), however, imposes a fairly strict standard on a liability insurer. Under this statute, the insurer had a duty to make a \\\"prompt\\\" offer of a fair and equitable settlement once \\\"liability has become reasonably clear.\\\" The \\\"reasonably clear\\\" standard requires the settlement offer when liability becomes objectively clear, not when liability becomes certain. See Bobick v. U.S. Fidelity & Guaranty Insurance Co., 57 Mass.App.Ct. 1, 7 n. 6 (2003); Demeo v. State Farm Mutual Auto Insurance Co., 38 Mass.App.Ct. 955, 955-56 (1995). Liability may be reasonably clear even though some triable liability issue may remain. This is an objective test. Id. A violation of G.L.c. 176D, \\u00a73 (9)(f) does not require a finding of bad faith.\\nAnother way of stating the Chapter 176D issue is: was it reasonably clear that a reasonable trial jury would find Mr. Senior liable? Commerce had all the information it needed to answer this question by mid-July.\\nOnce a thorough investigation had been completed (in this case by mid-July), the insurer had a duty to objectively assess whether liability was reasonably clear. It would be reasonable to also allow Commerce until the end of July, but not longer, to review and analyze the full investigation and to decide to offer the policy amount.\\nWhat about the comparative negligence evidence? The obj ectively reasonable answer is that it would have been overpowered in the eyes of a reasonable jury by the evidence of Mr. Senior's intoxication, his speeding, and his failure to recognize the danger and to stop or take evasive action. The high level of Mr. Senior's intoxication, as documented by the hospital blood test, would have had great weight with a reasonable jury. He drove his truck while in a physical condition that impaired his perception, judgment, reaction time and driving skills. Mr. Senior's intoxication substantially reduced his ability to recognize the danger presented by Mrs. Lane's Tempo. His intoxication cut down the opportunities for stopping or avoiding the collision.\\nA pickup has a greater mass and a lesser maneuverability than an ordinary car. These factors decreased the stopping and avoidance capabilities and increased the risk of severe injury to someone struck. Mr. Senior disregarded these problems when drove his pickup in an intoxicated condition. He made things worse by excessive speed. Jurors readily understand the compounding effects of intoxication. Commerce should have understood them as well.\\nThere was unquestionably some degree of comparative negligence by Mrs. Lane in not having her headlights on and in pulling out across the westbound lanes with Mr. Senior approaching. See G.L.c. 89, \\u00a79. But in a comparison with an intoxicated and speeding pickup driver, a jury would be highly unlikely to find that she was more than fifty percent of the cause of her own death.\\nThe Commerce claims people handling this case and the attorneys they consulted were competent and experienced professionals. They acted with good faith and with sound and careful procedures. Commerce did have some chance of obtaining a favorable liability verdict, but it was a longshot. By the end of July the Commerce professionals should have recognized that it was a longshot. An ordinary defendant in a civil case has the right to holdout and take a longshot case to trial. The Legislature, however, has imposed a special duty on insurance companies. The \\\"reasonably clear\\\" liability standard of G.L.c. 176D, \\u00a73(9)(f), required Commerce to make a \\\"prompt\\\" offer of a fair settlement as soon as a complete investigation showed a reasonably clear likelihood that Mrs. Lane's negligence would not exceed that of the intoxicated Mr. Senior. That point was reached by the end of July 1997.\\nCommerce did not offer the $100,000 policy amount to the Lane family until January 14, 1999, after Mr. Senior was convicted in Superior Court on the motor vehicle homicide indictment. The failure to offer the policy amount between July 31, 1997, and January 14, 1999, violated G.L.c. 176D, \\u00a73 (9)(f). A violation of G.L.c. 176D, \\u00a73 (9)(f), is an unfair act in the business of insurance and therefore a violation of G.L.c. 93A, \\u00a72. See Van Dyke v. Saint Paul Fire and Marine Insurance Co., 388 Mass. 671, 675 (1983).\\nV. THE THALER-LAZARIS ISSUE\\nThe case of Thaler v. American Insurance Co., 34 Mass.App.Ct. 634, 643 (1993), does not affect the Chapter 93A liability or damages in the present case. During the brief life of the Thaler rule, once liability was reasonably clear an insurer was precluded from conditioning a fair settlement offer on obtaining a release from the insured. The Thaler rule was rejected by the Supreme Judicial Court in Lazaris v. Metropolitan Property and Casualty Insurance Co., 428 Mass. 502, 504 (1998). In the present case, Commerce chose to make no offer of the policy amount, with or without a release condition, until January 14, 1999. By that time, the Lazaris case again made it legally permissible for an insurer to condition an offer on obtaining a release from the insured. If Commerce had offered the policy amount on July 31, 1999, without conditioning the offer on a release by Mr. Senior, the plaintiff would have accepted the policy amount from the insurer and would have still pursued an additional amount from Mr. Senior. The cause of the Chapter 93A damages in this case was Commerce's delay in making any offer of the policy amount until January 14, 1999.\\nVI. DAMAGES AND ATTORNEYS FEES AND COSTS\\nThe first element of the Lane family's Chapter 93A damages is the loss of use of the $100,000 fair insurance settlement amount from August 1, 1997, until Commerce's January 14, 1999, written offer of the policy amount. Hopkins v. Liberty Mutual Insurance Co., 434 Mass. 556, 567 (2001); Kapp v. Arbella Mutual Insurance Co., 426 Mass. 683, 686 (1998); Clegg v. Butler, 424 Mass. 413, 424-25 (1997). A low-risk investment would have paid approximately six percent in annual interest during this period. The plaintiffs damages for loss of use of the money are $8750 ($6000 for the first year and $2750 for the additional five and a half months).\\nThe plaintiff argues that his attorney fees in obtaining the $100,000 insurance offer to settle the wrongful death claim amounts to an additional component of fair Chapter 93A damages. Attorney fees for the underlying tort case are not normally part of the actual damages in a case against an insurer under Chapters 93A and 176D. The attorney fees for successfully pursuing the Chapter 93A claim are recoverable by statute as a separate item, but they are not treated as part of the plaintiffs actual damages.\\nThe plaintiffs brother, Attorney Gerard F. Lane, originally represented the plaintiff in the Lane family's claim against Mr. Senior and Commerce for wrongful death damages. Attorney Lane represented the plaintiff from early April until September 1997. Bletzer & Bletzer, P.C., represented the plaintiff from that point on. Bletzer & Bletzer, P.C. has a one-third contingency fee agreement with the plaintiff. The plaintiff contends that his brother was representing him for no fee. For this reason he argues that the Commerce's delayed settlement offer caused him additional actual damages in the form of the one-third fee that he must pay to Bletzer & Bletzer, P.C.\\nThe evidence is less than crystal clear on whether Attorney Lane was serving for no fee, a reduced fee, or the customary one-third. The plaintiff testified that his brother had provided the family legal services in the past for no fee and that he expected that his brother would not charge a fee for his services in this case.\\nAttorney Lane did not testify, but brief excerpts from his deposition were introduced in evidence. Attorney Lane testified at his deposition that his brother \\\"hired me\\\" to try to settle the case and that \\\"we brought a civil action\\\" for wrongful death. He said that he was also \\\"engaged to settle the estate\\\" of Mrs. Lane. Attorney Lane testified at the deposition that his brother \\\"had a nerve taking the case away from me after I did all the work.\\\"\\nAttorney Lane was expecting some fee for his services in the insurance claim for the policy amount and in the wrongful death action. The evidence does not persuade the court that Attorney Lane would have taken no fee if Commerce had offered the policy amount by July 31,1997. Instead, the court finds from all the circumstances that Attorney Lane would be likely to have taken a reduced fee of half of the traditional one-third if Commerce had offered the $100,000 by the end of July.\\nDue to the powerful liability and damages evidence, Attorney Lane was expecting a prompt settlement, at least with the insurer. Had he obtained a prompt and fair settlement, it is probable that he would have accepted only a reduced fee from his family. If the litigation were to become difficult, Attorney Lane would not have been suitable to remain on the case due to his age, poor health and emotional involvement. As it turned out, the extended litigation made it necessary for the family to retain attorneys with more appropriate litigation capabilities. The difference between Attorney Lane's probable reduced fee and Bletzer & Bletzer's one-third fee is a fair component of the plaintiffs actual damages caused by the insurer's delay in making a fair settlement offer in this case. This was a cost \\\"directly resulting from the insurer's conduct.\\\" Kapp v. Arbella, supra. The amount of this component is $16,667.\\nThe plaintiff also argues that Commerce's delay in offering the insurance proceeds caused further damages by delaying his settlement with Mr. Senior. Mr. Senior did eventually reach a settlement agreement with the plaintiff to pay an amount in addition to the insurance policy limit amount. The Commerce delay did not cause any additional damages regarding the Senior settlement. Mr. Senior, upon the advice of his criminal defense attorney, was determined to \\\"exercise his right of silence until the completion of his trial, criminal proceedings and/or exposure to incarceration.\\\" Ex. 2, p. 65. If Commerce had offered the policy amount on July 31, 1997, it would not have significantly affected the timing or the amount of the plaintiffs settlement with Mr. Senior for additional payments.\\nFinally on damages, this is not a multiple damages case. There was no willful or knowing violation of Chapter 93A. There was only a collective misjudgment about the clear likelihood of a plaintiffs verdict.\\nThe plaintiff is also entitled under G.L.c. 93A, \\u00a79 (4) to recover his reasonable attorney fees and costs that are fairly attributable to the Chapter 93A claim and proportionate to the Chapter 93A damages. Linthicum v. Archambault, 379 Mass. 381, 388-89 (1979).\\nVIL ORDER\\nA judgment will enter for the plaintiff with damages in the amount of $25,417 plus twelve percent interest on this amount from April 3, 2001, the date the complaint was entered. Chapter 93A attorney fees and costs will also be included in to the judgment.\\nPlaintiffs counsel may submit an affidavit of reasonable attorney fees and costs attributable to the successful Chapter 93A claim. If the defendant's counsel objects to the amounts sought for attorney fees and costs, he may file a brief written opposition and a hearing request within two weeks of receipt of plaintiffs counsel's affidavit.\\nThe court fully adopts the parties' Stipulation of Facts (Ex. 1) as part of its findings.\\nCounsel for both parties well served their clients and the court with their professional presentations throughout the trial.\\nThe Plymouth Police reports received by Commerce in April may not have been complete, but Commerce did have complete reports from the Plymouth Police well before the end of July 1997.\\nThe parking lights on Mrs. Lane's Tempo light up on the sides of the car's comers as well as the front. See Ex. 8. This is a common feature in today's automobiles.\\nOf course headlights, had they been lighted, would have made the Tempo more visible to Mr. Senior, even if the beams had been pointing perpendicular to his direction of travel.\\nThe parties stipulated that the average elimination rate of alcohol from a person's body is .015 percent per hour beginning approximately thirty minutes after the last drink. The alcohol elimination rate is discussed in Commonwealth v. Senior, 433 Mass. 453 (2001), the decision in the appeal of Mr. Senior's conviction. Commerce did not need an expert witness to realize that Mr. Senior's blood alcohol level would have been much higher than .091 four and a half hours before the blood test.\\nThe complaint also named as defendants the owner of the establishment where Mr. Senior had been drinking and a manager for the owner.\\nAn unfounded aura of scientific certainty often accompanies accident reconstructionists and other forensic experts. The Northeast speed estimate depended on many assumptions that may or may not conform to the actual events of the accident. Carefully prepared opinions on speed or \\\"point of no escape\\\" would likely have been admissible, but they would not necessarily carry more weight than the observations of witnesses at the scene.\\nThe Northeast diagram, Ex. 25, seems to have misinterpreted the location of the skidmark as beginning 40.5 feet before the point of impact. At the scene on April 5, Officer O'Hara measured the skidmark as forty feet and five inches ending at the \\\"rear point of this same [Senior truck] tire'' at its point of rest following the collision. Ex. 2, p. 78. As mentioned earlier in this decision, the police report identified the point of impact as fifty-one feet before the truck's point of rest. The skidmark therefore did not begin until after the point of impact.\\nA stop sign at the southwest curved end of Pilgrim Trail (Ex. 26) also seems to be missing from the Northeast diagram.\\nCommerce received the plaintiffs second Chapter 93A demand letter on December 21, 1998. See Ex. 27. Commerce offered the policy amount to the plaintiffs attorney in telephone calls around that date. Commerce put its offer in writing to the Lanes'attorney on January 14, 1999. The issue of a release from Mr. Senior, the pending 93A claim and other issues added some complications to the negotiations. For this reason, the court will treat Commerce's detailed written January 14, 1999, letter as the first definitive offer of the policy amount.\"}"
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+"{\"id\": \"3777777\", \"name\": \"Lyn-Ann Coombes, administratrix, vs. Roland J. Florio\", \"name_abbreviation\": \"Coombes v. Florio\", \"decision_date\": \"2007-12-10\", \"docket_number\": \"\", \"first_page\": \"182\", \"last_page\": \"214\", \"citations\": \"450 Mass. 182\", \"volume\": \"450\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T02:38:08.239296+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lyn-Ann Coombes, administratrix, vs. Roland J. Florio.\", \"head_matter\": \"Lyn-Ann Coombes, administratrix, vs. Roland J. Florio.\\nNorfolk.\\nMay 8, 2007.\\nDecember 10, 2007.\\nPresent: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ.\\nWilliam P. Rose (.Peter L. Eleey with him) for the plaintiff.\\nEdward F Mahoney for the defendant.\\nCarl Valvo & John R. Hitt, for Professional Liability Foundatian, amicus curiae, submitted a brief.\\nMarsha V. Kazarosian, J. Michael Conley, & Joseph C. Borsellino, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.\\nOf the estate of Kevin Coombes.\", \"word_count\": \"13176\", \"char_count\": \"80122\", \"text\": \"By the Court.\\nThe judgment of the Superior Court granting the defendant's motion for summary judgment is reversed. The case is remanded to the Superior Court for further proceedings.\\nSo ordered.\\nSeparate opinions of Justice Ireland, with whom Justice Spina and Justice Cowin join; Justice Greaney; Chief Justice Marshall; and Justice Cordy.\"}"
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diff --git a/mass/3796728.json b/mass/3796728.json
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+"{\"id\": \"3796728\", \"name\": \"ESTHER E. WOODS vs. LEO A. BARBORO & TRUSTEE\", \"name_abbreviation\": \"Woods v. Barboro\", \"decision_date\": \"1939-02-14\", \"docket_number\": \"\", \"first_page\": \"51\", \"last_page\": \"53\", \"citations\": \"4 Mass. App. Div. 51\", \"volume\": \"4\", \"reporter\": \"Reports of Massachusetts Appellate Division\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:14:51.458484+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ESTHER E. WOODS vs. LEO A. BARBORO & TRUSTEE\", \"head_matter\": \"ESTHER E. WOODS vs. LEO A. BARBORO & TRUSTEE\\nEssex, ss. District Court Northern District of Newburyport\\nArgued November 29, 1938\\nOpinion filed February 14, 1939.\\nPresent: Pettingell & Wilson, JJ.\\nBurke \\u00a3 Crawshaw, for the Plaintiff.\\nT. F. Kelleher, for the Defendant.\\nT. S. Murray, for the Trustee.\", \"word_count\": \"578\", \"char_count\": \"3318\", \"text\": \"Pettingell, J.\\nAction of contract begun by trustee process in which the City of Newburyport was summoned as trustee. The defendant is Chairman of the Board of Licensing Commissioners of that city, receiving as salary the amount of Four Hundred Dollars. By agreement with the city authorities this salary has been paid to him in instalments of $16.66 every other week. It was conceded by the plaintiff at the oral argument, that this arrangement is binding upon the plaintiff and that she is entitled to claim only the instalments due and unpaid at the time of service of the writ. The trial justice found that the trustee is chargeable. The report states that it contains all the material evidence.\\nNo requests for rulings were made and we take the only issue in the case to be whether the trial justice was right in ruling that the trustee is chargeable. No question of amount is involved. G. L. (Ter. Ed.) G. 246, \\u00a739.\\nThe defendant is undoubtedly a public officer. Cook v. Springfield, 184 Mass. 247, at 249; Crocker v. Deschesnes, 287 Mass. 202, at 207, 208; McDonald v. Justices of the Superior Court, Mass. Adv. Sh. (1938) 211, at 213, 214; and if his compensation were fixed by statute, Walker v. Cook, 129 Mass. 577, at 578, 579; Attorney General v. Pelletier, 240 Mass. 264, at 296; Campbell v. Boston, 290 Mass. 427, at 429, 430; or was payable by the Commonwealth, McCarthy Co. v. Rendle, 222 Mass. 405, at 406; it would not be subject to attachment by trustee process. His compensation, however, depends upon G. L. (Ter. Ed.) C. 138, \\u00a77, which provides that for this office \\\"each city shall pay such salaries as the city council, subject to the approval of the mayor, may from time to time establish\\\". The pay of the defendant therefore is salary, see Hooker v. McLennan, 236 Mass. 117 at 119; not fixed by statute, or paid by the Commonwealth, but fixed and paid by the city.\\nCities and towns can be summoned as trustees. Adams v. Tyler, 121 Mass. 380, at 381. \\\"The action of a municipality in fixing the compensation of an officer or employee by vote or other appropriate proceeding renders it liable on the obligation so created\\\", Hooker v. McLennan, 236 Mass. 117, at 120. This is so even if the obligation is one entered into under your statutory authority or direction\\\", Hooker v. McLennan, 236 Mass. 117, at 120.\\nOn the authority of the last case cited, we are of opinion that the decision of the trial judge that the trustee is chargeable is not prejudicial error.\\nThe question of the exemption, if any, to which the defendant is entitled, although vigorously argued at the oral argument, is not raised by any ruling requested by the parties or made by the trial judge, and, therefore, not being before us, we do not decide it, although, in passing, it may be pointed out that it is difficult to see in what manner that which the statute explicitly calls \\\"salary\\\" can be interpreted to be \\\"wages for personal labor and services\\\".\\nNo prejudicial error appearing, the report is to he dismissed.\"}"
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+"{\"id\": \"380016\", \"name\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company\", \"name_abbreviation\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance\", \"decision_date\": \"1998-04-24\", \"docket_number\": \"No. SUCV 9504165\", \"first_page\": \"370\", \"last_page\": \"372\", \"citations\": \"8 Mass. L. Rptr. 370\", \"volume\": \"8\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:33:51.483283+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company\", \"head_matter\": \"Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Company\\nSuperior Court, Suffolk, SS\\nNo. SUCV 9504165\\nMemorandum Dated April 24, 1998\", \"word_count\": \"1316\", \"char_count\": \"8652\", \"text\": \"Fremont-Smith, J.\\nThe above-captioned action arises out of a contract for errors and omissions insurance (hereinafter \\\"insurance contract\\\") provided by Utica Mutual Insurance Company (hereinafter \\\"defendant\\\") to Herbert A. Sullivan, Inc., J. Herbert Sullivan Insurance Agency, Inc., and Petroleum Insurance Agency, Inc. (hereinafter \\\"plaintiffs\\\"). In 1993, a customer of the plaintiffs commenced an action against them, alleging over-charges for premiums and negligent failure to procure environmental coverage. Defendant initially undertook a defense of this suit, but when an amended complaint was filed against the plaintiffs, defendant determined that the claims were not covered by the insurance policy, disclaimed coverage, and withdrew from the defense of the lawsuit.\\nThereafter, plaintiffs filed the instant suit against the defendant, alleging counts for a declaratory judgment (Count I), negligence (Count II), breach of contract (Count III), violation of G.L.c. 176D (Count IV), and violation of G.L.c. 93A, \\u00a79 and 11 (CountV).\\nFor the following reasons, defendant's motion is ALLOWED in part, and DENIED in part; plaintiffs' cross-motion is DENIED.\\nDISCUSSION\\nI. Breach of Contract (Count III)\\nPlaintiff claims that defendant breached its duty under the insurance contract by withdrawing its defense. However, it is well settled that the duty to defend is determined by a comparison of the allegations in the underlying complaint with the insurance contract. Liberty Mutual Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 331-32 (1992) (\\\"[T]he question of the . . . duly of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions . . .\\\").\\nIn the instant case, the insurance contract between the defendant and plaintiffs specifically limited coverage to losses arising out of \\\"negligent acts, errors, or omissions in the conduct of the insured's business . . .\\\" Moreover, the policy expressly excluded from coverage \\\"(a]ny dishonest, fraudulent, malicious, or criminal conduct committed or alleged to have been committed by . . . the insured,\\\" and \\\"(a]ny liability for money received by an insured for . . . premiums .\\\"\\nThe customer's amended complaint against the plaintiffs alleged premium overcharges, and fraudu lent acts of concealment by the plaintiffs, but did not allege negligence. As each of the allegations of the amended complaint was expressly excluded from coverage, defendant no longer had a duty to defend the lawsuit, and properly withdrew its defense. As such, defendant's motion for summary judgment concerning Count III is allowed, and plaintiffs' cross-motion as to this count is denied.\\nII.Negligence (Count II)\\nPlaintiffs also claim negligent representation by the attorneys appointed by the defendant to represent them before the filing of the amended complaint, and seek to impute this negligence to the defendant. Defendant counters by asserting that the retained attorney was an independent contractor, and, therefore, that any negligence by him is not attributable to the defendant.\\nMassachusetts case law has not directly addressed whether the negligence of an attorney who represents an insured may be attributed to the appointing carrier. However, in Attleboro Mfg. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 F. 573, 581 (1st Cir. 1917), the Circuit Court of Appeals held that because the carrier had the exclusive control of the defense, including the right to choose the defending attorney and to direct him in the management of the case, the chosen attorney was the carrier's agent for whose negligent conduct the carrier was responsible. Although decided in 1917, this case appears to be the last and only word construing Massachusetts law on this issue.\\nIn the instant case, the insurance contract defines \\\"litigation expense\\\" as \\\"fees and disbursements charged by any attorney retained by us, or hired by you with our written consent, to defend a suit against you.\\\" (Emphasis added.) Additionally, the contract provides that \\\"[i]t is a condition precedent to the application of the insurance afforded herein that you shall . . . [c]ooperate with us in effecting settlement and in the conduct of suits, including attending hearings, giving depositions, securing and giving evidence, obtaining the attendance of witnesses, and in giving written statements to our representatives and meeting with our representatives for the purposes of investigation and/or defense.\\\"\\nBased upon these provisions, which Eire analogous to the policy provisions in Attleboro, supra, it is evident that the defendant retained control over the defense until it withdrew from the case. As in Attleboro, this court finds, as a matter of law, that the attorney appointed by the defendant for the plaintiffs' defense in the underlying action against it, was the defendant's agent, so that any negligence of the appointed attorney acting within the scope of his employment may be attributed to the defendant. Thus the defendant's motion for summary judgment as to Count II is denied. Furthermore, since any alleged negligence of the appointed attorney is disputed, plaintiffs' cross-motion as to Count II is also denied.\\nIII.Violation of G.L.c. 176D (Count IV)\\nPlaintiffs also seeks to recover pursuant to G.L.c. 176D. However, there is no independent private right of action under this statute. Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 75 (1977) (\\\"176D provides no remedy for individuals injured by unfair or deceptive insurance practices . . .\\\"). Therefore, defendant's motion for summary judgment is allowed as to Count IV.\\nIV.Violation of G.L.c. 93A (Count V)\\nPlaintiffs also bring claims for alleged violations of G.L.c. 93A, \\u00a79 and 11. An action may not be brought under \\u00a79 of the statute unless a demand letter has been delivered to the prospective defendant at least thirty days prior to the tiling of any action. In the instant case, plaintiffs have failed to demonstrate, or even allege, that they fulfilled this requirement. As such, defendant's motion is allowed concerning plaintiffs' claim under this section of the statute, and plaintiffs' cross-motion is denied. See Spilios v. Cohen, 38 Mass.App.Ct. 338, 342 (1995).\\nPlaintiffs further claim that the defendant's failure to provide coverage under the insurance contract, failure to continue its defense of the plaintiff in the underlying action, failure to provide a nonnegligence defense to the underlying action, and failure to renew the insurance contract with plaintiffs, each violated \\u00a711 of the statute.\\nIt has already been determined, however, that the defendant was justified in not continuing coverage in the underlying action after the amended complaint was filed. See Part I, supra. As for defendant's non-renewal of the insurance contract, the contract between the parties expressly indicated that defendant reserved the right not to renew, so that defendant's exercise of this right cannot be deemed a violation of c. 93A. Finally, it is well settled that negligence, standing by itself, does not amount to a violation of c. 93A. Glickman v. Brown, 21 Mass.App.Ct 229, 235-36 (1985). Therefore, even if defendant's defense of the underlying action, prior to its justified withdrawal, was negligent, such negligence does not constitute a violation of c. 93A, \\u00a711. As such, defendant's motion concerning plaintiffs count under this section of the statute is allowed, and plaintiffs' cross-motion is denied.\\nV.Declaratory Judgment (Count I)\\nPlaintiff also seeks a declaratory judgment stating that an actionable and justiciable controversy exists between defendant and plaintiff concerning whether the insurance contract covered a judgment for damages in the underlying action against plaintiffs, and/or whether it provided for the continued defense of the plaintiffs in that action. For the reasons set forth in Part I, supra, defendant's motion concerning this count is allowed, and plaintiffs' cross-motion is denied.\\nORDER\\nFor all of the foregoing reasons, it is hereby ORDERED that defendant's motion for summary judgment is ALLOWED as to plaintiffs' claims for declaratoiy judgment (Count I), breach of contract (Count III), violation of G.L.c. 176D (Count IV), and violation of G.L.c. 93A, \\u00a79 and 11 (Count V), but defendant's motion for summary judgment is DENIED as to plaintiffs' claim for negligence (Count II). Plaintiffs' cross-motion for summary judgment is DENIED as to all counts.\"}"
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+"{\"id\": \"3813786\", \"name\": \"Nathan Fried vs. Jack Singer\", \"name_abbreviation\": \"Fried v. Singer\", \"decision_date\": \"1922-10-09\", \"docket_number\": \"\", \"first_page\": \"527\", \"last_page\": \"532\", \"citations\": \"242 Mass. 527\", \"volume\": \"242\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:17:45.169203+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nathan Fried vs. Jack Singer.\", \"head_matter\": \"Nathan Fried vs. Jack Singer.\\nSuffolk.\\nFebruary 16, 1922.\\nOctober 9, 1922.\\nPresent: Rugg, C.J., Braley, De Courcy, Crosby, Pierce, Carroll, & Jenney, JJ.\\nContract, Construction, Performance and breach, Of personal service. Evidence, Presumptions and burden of proof.\\nAt the trial of an action by an actor against one engaged in the theatrical business for damages alleged to have resulted from a discharge of the plaintiff in violation of a contract in writing, it appeared that the contract recited that the plaintiff, described as \\u201cthe Artist, \\u201d \\u201cstipulates that such services shall be rendered to the full and complete satisfaction of the C Amusement Company in its exclusive judgment in accordance with the terms and conditions of the franchise agreement granted by said C Amusement Company . . . with which conditions the Artist hereby agrees that he is familiar, and which it is agreed are to be regarded as a part hereof.\\u201d There was evidence that the C Amusement Company owned or controlled \\\"all the theatres in the eastern and western States where burlesque shows,\\u201d such as the plaintiff was engaged in, were given, and that the \\\"franchise agreement\\u201d of the defendant with it provided that the defendant\\u2019s production at all times should be produced in a manner satisfactory to the company \\u201cin its sole and exclusive judgment\\u201d and that the defendant would make such changes \\u201cin either the scenic production or equipment or the personnel\\u201d as the company might \\u201crequire from time to time, within twenty-one days after written notice of such requirements shall have been sent to him or his agent ... by registered mail or telegraph.\\u201d There also was evidence tending to show that the plaintiff worked in theatres controlled by the company and was paid therefor by the defendant until he was discharged, 'that his acting was well received by the audience, that no representative of the company or of the defendant expressed any dissatisfaction with his services, and that the company never gave written notice to the defendant to make any change in the personnel of the show as required by the franchise agreement. There was no contention of bad faith on the part of the defendant. Held, that\\n(1) The burden was upon the plaintiff to prove as a condition precedent to recovery that the services rendered by him were satisfactory to the C Amusement Company;\\n(2) Even if the services performed by the plaintiff were satisfactory to a reasonable man, if the C Amusement Company, acting in good faith, was dissatisfied with them, the plaintiff could not recover;\\n| (3) There was no evidence warranting a finding that the plaintiff\\u2019s services were rendered to the \\\"full and complete satisfaction of the . . . company in its exclusive judgment;\\u201d\\n(4) The general rule, that the burden is on an employer to allege and prove a justification for a dismissal, had no application to the contract in question.\\nContract for damages resulting from an alleged breach by the defendant of a contract in writing with the plaintiff for his employment as an actor. Writ dated September 26, 1919.\\nIn the Superior Court, the action was tried before Sanderson, J. There was evidence that the Columbia Amusement Company, referred to in the contract between the parties, owned or controlled \\u201call the theatres in the eastern and western States where burlesque shows are given,\\u201d and issued to producers what were called \\u201cfranchise agreements,\\u201d one of which was issued to the defendant and was referred to in the contract of the defendant with the plaintiff. Material provisions of the contracts between the plaintiff and the defendant and between the defendant and the Columbia Amusement Company, and other material evidence, are described in the opinion.\\nAt the close of the evidence, the defendant moved that a verdict be ordered in his favor, upon the grounds that, as a condition precedent to the plaintiff\\u2019s recovery, he must show that he performed the services contracted for to the satisfaction of the Columbia Amusement Company, and that he had offered no testimony which would warrant a verdict in his favor. The motion was denied. The judge gave to the jury, among other instructions, the following:\\n\\u201c1. As a condition precedent to the plaintiff\\u2019s recovery it is encumbent upon him to establish by competent evidence that the services rendered to the plaintiff were to the full and complete satisfaction of the Columbia Amusement Company.\\n\\u201c2. If the Columbia Amusement Company, acting in good faith, was not completely satisfied with the services rendered by the plaintiff to the defendant, the plaintiff cannot recover.\\n\\u201c3. The plaintiff was bound by the terms of the contract on which he relied to render his services to the entire satisfaction of the Columbia Amusement Company, and if the Columbia Amusement Company, acting in good faith, was not satisfied with the services rendered by the plaintiff, the defendant was not bound to keep him in his employ but could terminate the contract.\\n\\u201c4. The employment of the plaintiff by the defendant involves consideration of fitness, capacity, fancy, taste and sensibility, and judgment of the Columbia Amusement Company; and the exercise by the Columbia Amusement Company in good faith of its judgment is conclusive upon the plaintiff.\\n\\u201c5. When the contract provides that questions as to its performance shall be committed to a third person, his decision in case the contract provides that it shall be final, is binding on both of the contracting parties in the absence of fraud or such gross mistake as would imply fraud or a failure to exercise an honest judgment.\\u201d\\nThe jury found for the plaintiff in the sum of $2,180; and the defendant alleged exceptions.\\nThe case was argued at the bar in February, 1922, before Rugg, C. J., Braley, De Courcy, Crosby, & Carroll, JJ., and afterwards was submitted on briefs to all the Justices.\\nJ. H. Blanchard, for the defendant.\\nE. M. Dangel, (D. Lasker with him,) for the plaintiff.\", \"word_count\": \"1911\", \"char_count\": \"11594\", \"text\": \"Crosby, J.\\nThe plaintiff and the defendant executed an agree ment in writing under which the defendant (who was engaged in the theatrical business) was to employ the plaintiff (an actor) for the season of 1919-1920, which it could have been found, consisted of not less than forty successive weeks.\\nParagraph \\\"Second: (a)\\\" of the agreement is as follows: \\\"The Artist [the plaintiff] agrees to render his exclusive services to the Producer [the defendant] for all performances in each week in which he shall be required to appear and that may be lawfully given, and the Artist stipulates that such services shall be rendered to the full and complete satisfaction of the Columbia Amusement Company in its exclusive judgment in accordance with the terms and conditions of the franchise agreement granted by said Columbia Amusement Company hereinbefore mentioned, with which conditions the Artist hereby agrees that he is familiar, and which it is agreed are to be regarded as a part hereof.\\\" The \\\"franchise agreement\\\" so called, in substance provides that the defendant's show shall at all times be produced in a manner satisfactory to the Columbia Amusement Company \\\"in its sole and exclusive judgment,\\\" and that the defendant will make such changes \\\"in either the scenic production and equipment or the personnel of his show as the . . . (Columbia Amusement Company) may require from time to time, within twenty-one (21) days after written notice of such requirements shall have been sent to him or his agent . . . by registered mail or telegraph.\\\"\\nThe plaintiff began his employment under the contract on or about August 18,1919, and continued to render services until September 13 following, when he says he was wrongfully discharged by the defendant. The defendant testified that he never gave the plaintiff any notice and never discharged him, but that he left voluntarily. A copy of the contract is annexed to the plaintiff's declaration.\\nAs the plaintiff's services were to be rendered to \\\"the full and complete satisfaction of the Columbia Amusement Company,\\\" the defendant's liability is conditional. To recover the plaintiff must prove that the services rendered by him were satisfactory to the amusement company. We cannot agree with his contention that the burden rested upon the defendant to show that the company was not satisfied in order to avoid liability. Whelton v. Tompson, 121 Mass. 346. Newton Rubber Works v. Graham, 171 Mass. 352. Farmer v. Golde Clothes Shop, Inc. 225 Mass. 260.\\nA contract like the one here in question where the employee is to render personal services and where considerations of the fancy, taste, sensibility and judgment of another are involved, must be performed in accordance with its terms; and if the amusement company or its representative, acting in good faith, was not satisfied with the services of the plaintiff, he cannot recover, and the judge so instructed the jury. McCarren v. McNulty, 7 Gray, 139. White v. Randall, 153 Mass. 394. Whittemore v. New York, New Haven & Hartford Railroad, 191 Mass. 392.\\nEven if the work performed would be satisfactory to a reasonable man, if the amusement company, acting in good faith, was dissatisfied with it, the plaintiff cannot recover. Williams Manuf. Co. v. Standard Brass Co. 173 Mass. 356. Farmer v. Golde Clothes Shop, Inc., supra.\\nIt is the contention of the plaintiff that he was wrongfully discharged by the defendant, and the jury undoubtedly so found, having returned a verdict in his favor.\\nThe question is whether there was any evidence to warrant a finding that the plaintiff's services were satisfactory to the amusement company. In the absence of such evidence, he would be barred from recovery for a breach of the contract, assuming that the defendant acted in good faith and was not actuated by some ulterior motive, of which there is no evidence. Williams Manuf. Co. v. Standard Brass Co., supra. Farmer v. Golde Clothes Shop, Inc., supra.\\nThe facts which could have been found from the plaintiff's testimony, that he worked in theatres controlled by the company and was paid therefor by the defendant until he was discharged, that his acting was well received by the audiences, that no representative of the company or of the defendant expressed any dissatisfaction with his services, that the company never gave written notice to the defendant to make any change in the personnel of the show as required by the franchise agreement, do not warrant an inference that the company was satisfied with the plaintiff's services. Although the burden rested upon the plaintiff to prove that the services were rendered to the \\\"full and complete satisfaction of the . . . Company in its exclusive judgment,\\\" we are unable to find any evidence to that effect.\\nThe rule that the burden is on the employer to allege and prove a justification for a dismissal, has no application to cases like the present, where the liability imposed by the contract is ^conditional and performance of it must be averred and proved or the want of performance . excused. Whelton v. Tompson, supra. Barker v. Metropolitan Life Ins. Co. 188 Mass. 542. Lee v. Prudential Life Ins. Co. 203 Mass. 299, 301. Fondi v. Boston Mutual Life Ins. Co. 224 Mass. 6. Marsch v. Southern New England Railroad, 230 Mass. 483, 490. Ballard v. Glohe & Rutgers Fire Ins. Co. 237 Mass. 34.\\nIn the opinion of a majority of the court, as the plaintiff failed to prove that he performed the services contracted for to the satisfaction of the amusement company, the motion of the defendant that a verdict be directed in his favor should have been granted.\\nExceptions sustained.\"}"
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+"{\"id\": \"3828311\", \"name\": \"John Glendon vs. Edward G. Pyne & others\", \"name_abbreviation\": \"Glendon v. Pyne\", \"decision_date\": \"1931-06-01\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"531\", \"citations\": \"275 Mass. 528\", \"volume\": \"275\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:30:58.042557+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Glendon vs. Edward G. Pyne & others.\", \"head_matter\": \"John Glendon vs. Edward G. Pyne & others.\\nMiddlesex.\\nJanuary 19, 1931.. \\u2014\\nJune 1, 1931.\\nPresent: Rugg, C.J., Crosby, Pierce, Wait, & Sanderson, JJ.\\nJ. A. Daly, for the defendants.\\nJ. D. Graham, for the plaintiff.\", \"word_count\": \"694\", \"char_count\": \"3932\", \"text\": \"Wait, J.\\nAn enforceable contract between a real estate broker and his employer comes into existence when an agreement for employment is made between them and a consideration is paid; or. when an offer of employment is accepted by complete fulfilment of the terms of the offer on the part of the broker. The law requires as requisite to recovery that the broker either perform fully what he has been hired to do where a binding contract on present consideration has been made, or that he be the efficient cause of a completed sale when the contract is the outcome of an offer and acceptance by service. A liability to pay the broker's commission may also exist in consequence of unethical conduct of the employer which results in preventing full performance by the broker although the benefit which the employer sought from the broker's exertion is obtained by him. Elliott v. Kazajian, 255 Mass. 459, and cases there cited.\\nIn the case before us there is no evidence to support a finding of a binding contract upon a present consideration, nor of unethical conduct of the employer. The broker's right to recover turns upon whether the evidence, as matter of law, will support a finding that he was the efficient cause of a completed sale. The evidence taken most strongly in his favor would support findings as follows: The plaintiff, a real estate broker, was offered the chance of earning a commission of five per cent of the price obtained on the sale of a tract of land in whole or part, and was assured: \\\"you will get your commission if your customer buys the property, as we always take care of our brokers.\\\" The offer was not exclusive. His right to a commission was subject \\\"at all times to prior sale.\\\" No definite price was fixed for sale by him. He brought the attention of the party who eventually purchased to a part of the land and went upon that part with his prospective buyers and with one of the owners in an effort to make a sale. The prospective buyers then refused to purchase. They were not then shown the remainder of the land and no discussion of a purchase of the tract later sold to them took place. The plaintiff never obtained an offer from this customer, and did nothing further in the matter with the customer after this break in negotiations. He was advised by the defendants not to hurry his customers who needed time to raise money. Months afterward another broker, who testified that he had not known of the plaintiff's action, interested the same customer in a purchase of another part of the entire tract, a price was agreed upon with the owners, and a sale of that part was completed. A commission was paid in part to this second broker, and in part to an employee in the office of the owners.\\nThe mere fact that the ultimate purchasers were persons first interested in the owners' land by the plaintiff is not controlling. Ward v. Fletcher, 124 Mass. 224. Smith v. Kimball, 193 Mass. 582. Whitcomb v. Bacon, 170 Mass. 479. If they absolutely abandoned the original purpose to negotiate for the land and in good faith no longer dealt with the plaintiff but took up the matter afresh with another broker as an independent negotiation, the plaintiff, as matter of law, was not the efficient cause of the completed sale. Nichols v. Atherton, 250 Mass. 215. Delaney v. Doyle, 267 Mass. 171. The evidence does not go far enough to warrant finding the plaintiff to have been the efficient cause of the sale. The defendants' motion for a directed verdict in their favor should, therefore, have been granted. The ex ception to the refusal is sustained. The case has been fully tried, no injustice appears, and pursuant to G. L. c. 231, \\u00a7 122, the order will be\\nJudgment for the defendants.\"}"
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+"{\"id\": \"3837453\", \"name\": \"Assessors of Quincy vs. Cunningham Foundation\", \"name_abbreviation\": \"Assessors of Quincy v. Cunningham Foundation\", \"decision_date\": \"1940-03-25\", \"docket_number\": \"\", \"first_page\": \"411\", \"last_page\": \"420\", \"citations\": \"305 Mass. 411\", \"volume\": \"305\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:12:47.932849+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Assessors of Quincy vs. Cunningham Foundation.\", \"head_matter\": \"Assessors of Quincy vs. Cunningham Foundation.\\nSuffolk,\\nNovember 5, 1937.\\nMarch 25, 1940.\\nPresent: Field, C.J., Lummus, Qua, & Dolan, JJ.\\nF. D. Coffman, for the Assessors of Quincy.\\nW. F. Farr, (E. D. Hanify with him,) for the taxpayer.\", \"word_count\": \"3261\", \"char_count\": \"19142\", \"text\": \"Field, C.J.\\nThis is an appeal by the board of assessors of the city of Quincy from a decision of the Board of Tax Appeals \\u2014 now succeeded by the Appellate Tax Board, St. 1937, c. 400 \\u2014 abating a local property tax assessed for the year 1935 upon certain real estate in the city of Quincy owned by the Cunningham Foundation \\u2014 herein referred to as the taxpayer \\u2014 on the ground that such real estate was exempt from taxation under G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third. By this statute \\\"real estate owned and occupied\\\" by \\\"literary, benevolent, charitable and scientific institutions . . . for the purposes for which they are incorporated\\\" is exempt from local taxation.\\nThe taxpayer in 1933 was incorporated as a charitable corporation under G. L. (Ter. Ed.) c. 180, which authorizes the formation of a corporation \\\"for any civic, educational, charitable, benevolent or religious purpose.\\\" See \\u00a7 2. By \\u00a7 9 of that chapter a corporation organized for any of the purposes mentioned in the chapter \\\"may hold real and personal estate . . . which estate . . . shall be devoted to the purposes set forth in its charter or agreement of association.\\\"\\nPertinent findings of fact made by the Board of Tax Appeals are as follows: The taxpayer's \\\"charter\\\" \\u2014 meaning its certificate of incorporation embodying the purposes set forth in its agreement of association, G. L. (Ter. Ed.) c. 180, \\u00a7 3 \\u2014 contained the following provisions: \\\"The purposes for which the corporation is formed are the following charitable objects: \\u2014 To improve and beautify the Town of Milton in this Commonwealth; to improve the libraries and schools of said town; to promote the teaching in said schools of sewing and other industrial arts; to promote the health of the inhabitants of said town by aiding parks, playgrounds and hospitals within said town and by making provision for the said inhabitants in the hospitals of other places; and in furtherance and not in limitation of the foregoing: . To pursue any of the above objects and to exercise any of the corporation's powers from time to time to the exclusion of the other objects and powers, all as in the opinion of the corporation or its Board of Managers may be beneficial in the accomplishment of its general purposes. . To join or cooperate with others in carrying out the above charitable objects and to aid, support or maintain the work of others in furtherance of said objects. . To acquire and hold real estate, buildings and personal property of all kinds, and to construct buildings.\\\"\\nThe real estate upon which the tax was assessed consisted of \\\"five contiguous parcels of unimproved real estate\\\" amounting \\\"in area to a little over forty-two acres. They are a portion of a single undivided tract of real estate of about one hundred ten acres, the remaining portion of which tract lies in the town of Milton. . . . [The taxpayer] acquired title to the entire tract as a single unit in February, 1933. Continuously from that date it has operated and used the entire tract as a unit. . . . The entire tract is open to the citizens of the town of Milton as a public park and recreation ground and is used and enjoyed by them in great numbers. . . . [The taxpayer] makes an effort to limit the use of the tract to the citizens of that town and has erected signs thereon to the effect that the land is private property restricted to the use of citizens of the town of Milton.\\\" On the portion of the tract lying in Milton there are several buildings including a gymnasium, a large stable and a hospital. \\\"The hospital is located within about five hundred feet of the Quincy portion of the tract. On the Milton portion of the tract, there are also two baseball fields, tennis courts, a swimming pool and a skating pond. . . . The rest of the entire tract, including the whole portion lying in the city of Quincy, is rough and rocky and is covered with pine trees. The underbrush is kept cleared away and there are paths thereon suitable for walking and for horseback riding, which are used for such purposes by those taking advantage of the facilities of the park. These paths are kept in good condition and repair. . In its present condition the portion of the tract lying in the city of Quincy serves also as a screen for the more developed portions of the tract lying in the town of Milton thus preventing the too close proximity of buildings and commercial uses, such as quarryings, which might be deleterious to the park itself and to the hospital.\\\"\\nThe assessors properly make no contention that the taxpayer is not a charitable corporation within the meaning of G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third, or that the real estate in question, if properly held by the taxpayer, was not occupied by it for the purposes for which it was incorporated within the meaning of that statute. See Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 384-386. See also Burbank v. Burbank, 152 Mass. 254, 255-256; Bartlett, petitioner, 163 Mass. 509, 514; Ware v. Fitchburg; 200 Mass. 61, 66; Richardson v. Essex Institute, 208 Mass. 311, 318. And see Wesleyan Academy v. Wilbraham, 99 Mass. 599; Massachusetts General Hospital v. Somerville, 101 Mass. 319; Emerson v. Milton Academy, 185 Mass. 414; Amherst College v. Assessors of Amherst, 193 Mass. 168; Wheaton College v. Norton, 232 Mass. 141.\\nThe assessors, however, contend that the real estate in question was not exempt under the provisions of G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third, (a) on the ground that ownership by the taxpayer of such real estate in the city of Quincy was not within the taxpayer's corporate power, and (b) on the further ground that the inhabitants of the city of Quincy derived no benefit from the use of such real estate, and that consequently the exempting statute, if construed to apply to such real estate, would violate the provisions of art. 10 of the Declaration of Rights, and of c. 1, \\u00a7 1, art. 4 of the Constitution of the Commonwealth. Neither of these contentions can be sustained.\\nFirst. It has been held that a \\\"corporation, which as against the State has no right to hold . . . [certain] property, is not in a position to claim a statutory exemption which is intended only; for a holding fully authorized by law.\\\" Evangelical Baptist Benevolent & Missionary Society v. Boston, 204 Mass. 28, 33. But in our opinion the holding by the taxpayer of the real estate in question was fully authorized by law. The provision in the \\\"charter\\\" of the taxpayer authorizing it to \\\"acquire and hold real estate\\\" is not in terms limited to real estate in the town of Milton or exclusive of real estate in the city of Quincy. Nor is there any such restriction in terms in G. L. (Ter. Ed.) c. 180, \\u00a7 9. The express limitation in the \\\"charter\\\" to the town of Milton is a limitation upon the charitable objects of the corporation, not upon the means by which such objects are to be accomplished. And the statutory limitation upon holding real estate is merely that the real estate \\\"be devoted to\\\" the purposes stated in the \\\"charter,\\\" that is, to the accomplishment of the charitable objects therein described. It cannot rightly be said, on the facts found by the Board of Tax Appeals, that the real estate in question was not devoted to these purposes or that it did not serve to promote them to such a degree that it was reasonable and proper for the taxpayer to hold such real estate. The facts found disclose that ownership by. the taxpayer of the real estate in question was fairly incidental to the taxpayer's main purpose in view of the benefits resulting to the park and hospital in the town of Milton from the ownership and occupation by the taxpayer of the real estate situated in the city of Quincy. See Richardson v. Massachusetts Charitable Mechanic Association, 131 Mass. 174, 176; Bradbury v. Boston Canoe Club, 153 Mass. 77, 78; Wheaton College v. Norton, 232 Mass. 141, 148-149, and cases cited. See also Old Colony Railroad v. Evans, 6 Gray, 25, 39; MacRea v. Selectmen of Concord, 296 Mass. 394, 398.\\nSecond. The stated purposes of the taxpayer's incorporation and the actual operations of the taxpayer (see Little v. Newburyport, 210 Mass. 414, 415; Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 384-385) are primarily, if not exclusively, for the benefit of the inhabitants of the town of Milton. Other persons benefit indirectly, if at all. This fact, however, is not fatal to the exemption.\\nWhile the exemption granted by G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third, is from the local property tax, it is not granted by the city or town in which the property is situated, but by the General Court as the representative of the Commonwealth, which alone has the power to tax. \\\"Cities and towns have no inherent power to levy taxes. They can exercise only those powers to tax which have been delegated to them by the General Court as the representative of the Commonwealth. They can levy taxes only on the property and for the purposes established by the General Court acting within its constitutional limitations.\\\" Duffy v. Treasurer & Receiver General, 234 Mass. 42, 47. See also West Boylston Manuf. Co. v. Assessors of Easthampton, 277 Mass. 180, 190; County of Middlesex v. Waltham, 278 Mass. 514, 517. The General Court has not delegated to the city of Quincy any authority to tax real estate owned and occupied by a charitable corporation for the purposes for which it was incorporated within the meaning of G. L. (Ter. Ed.) c. 59, \\u00a7 5, Third. That statute, providing a rule of State wide application of exemption from local taxation contains no express limitation of the exemption to real estate owned and used by a charitable corporation in such a manner that a benefit results to the inhabitants of the city or town in which such real estate is situated. And no such limitation can be implied unless without it the exempting statute would be unconstitutional.\\nThere is, however, nothing in the Constitution which requires such an implied limitation of the exemption. By c. 1, \\u00a7 1, art. 4, of the Constitution of the Commonwealth taxes on property must be \\\"proportional and reasonable\\\" within a taxing district which, with respect to local taxation is ordinarily a city or town. See Oliver v. Washington Mills, 11 Allen, 268, 274; Opinion of the Justices, 208 Mass. 616, 618; Duffy v. Treasurer & Receiver General, 234 Mass. 42, 47. See also Opinion of the Justices, 220 Mass. 613, 620-621. But neither this constitutional provision nor the more general provisions of art. 10 of the Declaration of Rights precludes reasonable exemptions. Compare Opinion of the Justices, 270 Mass. 593, 599. Exemptions from the local property tax have been granted on various grounds, though the constitutionality of some of them has not been affirmed. Opinions of the Justices, 195 Mass. 607, 608-612; 270 Mass. 593, 599. Exemptions from the local property tax to avoid double taxation doubtless are constitutionally within reasonable limits, even though the inhabitants of the municipality in which the property is situated derive less immediate benefit from the substituted tax or excise than they would have derived from a local tax upon such property. See Opinions of the Justices, 195 Mass. 607, 611; 261 Mass. 523, 545. This has been held expressly with respect to the exemption from the local property tax of intangible property the income of which is subject to the State income tax, though in this instance there is specific constitutional authority under the income tax amendment (Amendment 44) to the Constitution of the Commonwealth for the income tax and for the exemption of such property from the local tax. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 51.\\nMoreover, by implication rather than by express statutory provision, real estate \\\"taken or held for a public use by one municipality within the territorial limits of another, or within its own boundaries, is not subject to taxation so long as it is actually devoted to a public use. The reason is that property held and used for the benefit of the public ought not to be made to share the burden of paying the public expenses.\\\" Collector of Taxes of Milton v. Boston, 278 Mass. 274, 277. See also Wayland v. County Commissioners, 4 Gray, 500; Somerville v. Waltham, 170 Mass. 160; Miller v. Fitchburg, 180 Mass. 32; County of Middlesex v. Waltham, 278 Mass. 514. The same result follows where the real estate is held by the municipality upon a trust for a public charitable purpose for the reason that such property \\\"supplies funds for a purpose which otherwise must be provided for by taxation, and so far tends to lighten the public burdens.\\\" Burr v. Boston, 208 Mass. 537, 539. And this implied exemption extends to real estate held by a public service corporation having the right to take such real estate by eminent domain for public purposes and using it for such purposes. \\\"It is the character of the use to which the property is put, and not of the party who uses it, that settles the question of exemption from taxation.\\\" Milford Water Co. v. Hopkinton, 192 Mass. 491, 495-497. See also Worcester v. Western Rail Road, 4 Met. 564. Compare Connecticut Valley Street Railway v. Northampton, 213 Mass. 54; Collector of Taxes of Boston v. Rising Sun Street Lighting Co. 229 Mass. 494. In some of the cases herein cited (see, for example, Miller v. Fitchburg, 180 Mass. 32) it is not apparent that any direct benefit would result from the use of the real estate to the inhabitants of the municipality in which it is situated. And any indirect benefit to them would be extremely remote, scarcely going beyond the benefit resulting to them from the greater welfare of other inhabitants of the Commonwealth. Wayland v. County Commissioners, 4 Gray, 500, 501. Yet exemption has not been denied on this ground.\\nThe exemption which the taxpayer seeks is not an implied exemption, as in the case of real estate held by a municipality or by a public service corporation for public purposes, but is an exemption expressly granted by statute. Its constitutional basis, however, is closely similar. The ground of the exemption is that the use of the exempted property alleviates \\\"some burden of government, by conferring benefits which would advance the public interest.\\\" Boston Symphony Orchestra, Inc. v. Assessors of Boston, 294 Mass. 248, 256. As was pointed out in the Opinion of the Justices, 195 Mass. 607, 609, since \\\"taxation of the people may be imposed\\\" for objects for which corporations described in the exempting statute are incorporated, the property of such corporations \\\"may well be exempted from taxation.\\\" See also Massachusetts General Hospital v. Belmont, 233 Mass. 190, 203. Whether there are purposes for which such corporations could be incorporated, but for which taxation could not rightly be imposed need not be decided. Clearly this is not true of the taxpayer's purposes. These purposes as stated in its \\\"charter\\\" and as actually carried out are for the benefit of \\\"the public at large or some part thereof, or an indefinite class of persons\\\" \\u2014 an essential element of a public charity. Old South Society in Boston v. Crocker, 119 Mass. 1, 23. Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 387. They are charitable in nature even though limited to benefiting the inhabitants of a single municipality (see Burbank v. Burbank, 152 Mass. 254, 256), and are within the scope of legitimate governmental activity. Real estate used for these purposes may, therefore, be treated as property used for public purposes and may be relieved, for that reason, of the burden of local taxation.\\nThe power of the General Court to exempt from the local property tax property used for public purposes clearly is not limited to cases where the benefit resulting to the public from such use is an exact equivalent of the burden imposed upon a taxing district or taxing districts by such exemption through increasing the rate of taxation upon other properties therein. Ordinarily the determination whether there was or was not such equivalence would be difficult, if not impossible. It would frequently, if not usually, be a matter upon which men of sound judgment would differ. Such a limitation upon the exemption, however, is not essential to its reasonableness. Similarly an exact equivalence between the benefits resulting to the inhabitants of a taxing district from such a public use and the burden imposed upon that district by the exemption is not essential. It has been said in other connections that \\\"Benefits conferred by government upon individuals or territorial subdivisions cannot be adjusted with precise equality in relation to the amounts exacted in way of taxation and the resources to meet such exactions\\\" (Duffy v. Treasurer & Receiver General, 234 Mass. 42, 53), and that \\\"it is not essential to a valid scheme of taxation that all the people benefit from it in precisely the same degree. No tax system has been devised whereby a perfect equalization of its burdens or an exact distribution of the benefits of expenditure of money raised by taxation can be accomplished.\\\" County of Essex v. Newburyport, 254 Mass. 232, 236. A State wide rule of exemption such as is laid down by the statute in question that is reasonable in its general application is not rendered unconstitutional as applied to a particular case by the fact that no substantial benefit from the use for public purposes of specific real estate results to the inhabitants of the municipality in which such real estate is situated as distinguished from other members of the public. It does not follow from the fact that in a single instance the burden imposed upon a municipality by the exemption from local taxation of specific real estate therein used for public purposes may be greater than the benefit resulting from such use to the inhabitants of that municipality that the operation of the general rule of exemption, as applied to all cases within its terms, does not result in a fair distribution of the burden of exemption of property used for public purposes, considered in its relation to the benefits resulting from the use for public purposes of property generally.\\nThe reference in the opinion in Boston Symphony Orches tra, Inc. v. Assessors of Boston, 294 Mass. 248 \\u2014 a case involving the question whether certain real estate in the city of Boston was exempt from local taxation \\u2014 to the absence of \\\"an equivalent or recompense to the city of Boston\\\" in the way of \\\"benefits which would advance the public interest\\\" (page 256) is not to be regarded as recognizing the limitation upon exemption for which the assessors contend in the present case.\\nIt follows that the real estate in question was exempt from local taxation, and that the taxpayer is entitled to an abatement of the tax assessed thereon. Abatement must be granted in the sum of $490.20.\\nSo ordered.\"}"
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+"{\"id\": \"3839989\", \"name\": \"Norma Banna vs. Jeffrey Banna\", \"name_abbreviation\": \"Banna v. Banna\", \"decision_date\": \"2010-10-07\", \"docket_number\": \"No. 10-P-29\", \"first_page\": \"34\", \"last_page\": \"36\", \"citations\": \"78 Mass. App. Ct. 34\", \"volume\": \"78\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:11:36.767693+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norma Banna vs. Jeffrey Banna.\", \"head_matter\": \"Norma Banna vs. Jeffrey Banna.\\nNo. 10-P-29.\\nBristol.\\nJune 7, 2010.\\nOctober 7, 2010.\\nPresent: Lenk, Graham, & Wolohojian, JJ.\\nKatherine Godin for the defendant.\", \"word_count\": \"746\", \"char_count\": \"4385\", \"text\": \"Graham, J.\\nThe defendant argued, unsuccessfully, in the District Court against the extension of an ex parte abuse prevention order issued pursuant to G. L. c. 209A, which required him to refrain from abusing the plaintiff, his sister. On appeal, he contends that the evidence was insufficient to support a finding of abuse as contemplated by the statute, and that the judge below deprived him of his constitutional right to due process and his statutory right to a hearing pursuant to G. L. c. 209A, \\u00a7 4, by extending the order for one year without conducting an eviden-tiary hearing.\\nBackground. On September 25, 2009, the plaintiff was granted an ex parte restraining order against the defendant, her brother and roommate. The plaintiff's affidavit in support of her application for the order provides, in full:\\n\\\"On or about Feb., 2009, the Defendant Jeffrey Banna, brother, [h]as been living in my parents ['] home. He has been very very verbally abusive and intimidating, slams doors continuously and through the night between 12:00 a.m. \\u2014 5:00 a.m. Swears in my facet,] calls me and my sister all kind of names. The last 2 days he exposed himself and terrorized me[,] slamming my mother's door and taking his towel off to show he had nothing on. I have to leave my home constantly because I'm afraid of him. He listens when I'm having a private conversation and turns up the volume of his TV and I can't speak or hear a thing.\\\"\\nOn this basis, she was granted an ex parte c. 209A order against the defendant.\\nOn October 8, 2009, a hearing was scheduled before the same judge to determine whether the order should be extended. At the hearing (both parties present), the judge simply asked the plaintiff if she wanted him to extend the order, and she said, \\\"Yes.\\\" This exchange with the defendant's counsel followed:\\nJudge: \\\"Counsel?\\\"\\nDefense attorney: \\\"Judge, . I had a chance to review the affidavit. In my opinion it's legally insufficient to sustain a 209A. It doesn't amount to physical abuse or imminent fear of serious physical harm. There's no allegation of sexual relations of any kind and based on the affidavit, I don't think the allegations are sufficient to sustain a 209A.\\\"\\nJudge: \\\"Thank you, counsel, I appreciate your argument. I disagree with you. One year date.\\\"\\nDiscussion. Pursuant to G. L. c. 209A, \\u00a7 3 and 4, a judge may impose certain orders, among others, requiring that a defendant refrain from abusing, refrain from contacting, or merely stay away from a plaintiff, upon a showing by a preponderance of the evidence that she is \\\"suffering from abuse.\\\" Iamele v. Asselin, 444 Mass. 734, 736 (2005). The alleged victim must establish facts that justify the issuance of an order. Ibid., citing Frizado v. Frizado, 420 Mass. 592, 596 (1995).\\nTo extend an abuse prevention order, the plaintiff must \\\"make a showing similar to that of a plaintiff seeking an initial order \\u2014 most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief, whether in the form of an original order or an extension of an order, is sought.\\\" Iamele v. Asselin, supra at 735. See G. L. c. 209A, \\u00a7 3; Frizado v. Frizado, supra. No presumption arises from the fact that a prior order has issued ; it is a plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief. See Jones v. Gallagher, 54 Mass. App. Ct. 883, 889 (2002) (an initial order \\\"expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from 'abuse' \\\").\\nThere was no evidence other than the affidavit before the judge at the extension hearing. The judge did not ascertain the current state of affairs as of the time of that hearing. Simply asking the complainant whether she wanted to extend the order was not enough. Because there was thus no basis on which the judge could determine whether the extension of the restraining order should be granted, the order must be vacated.\\nSo ordered.\\nhowever, \\\"[t]he judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire.\\\" Iamele v. Asselin, supra at 740.\"}"
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+"{\"id\": \"3845689\", \"name\": \"Zucio A. Rothenberg, trustee, & others vs. Boston Housing Authority & others\", \"name_abbreviation\": \"Rothenberg v. Boston Housing Authority\", \"decision_date\": \"1957-03-28\", \"docket_number\": \"\", \"first_page\": \"597\", \"last_page\": \"601\", \"citations\": \"335 Mass. 597\", \"volume\": \"335\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:41:02.903676+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Zucio A. Rothenberg, trustee, & others vs. Boston Housing Authority & others.\", \"head_matter\": \"Zucio A. Rothenberg, trustee, & others vs. Boston Housing Authority & others.\\nSuffolk.\\nMarch 4, 1957.\\nMarch 28, 1957.\\nPresent: Wilkins, C.J., Ronan, Spalding, & Whittemore, JJ.\\nIsrael Bernstein, for the petitioners.\\nJohn C. Conley, for the respondents.\", \"word_count\": \"1253\", \"char_count\": \"6995\", \"text\": \"Wilkins, C.J.\\nThe trustees under two declarations of trust, who are now the petitioners, brought a proceeding in the Superior Court against the respondent Boston Housing Authority for the assessment of damages on account of the taking of certain land and buildings by eminent domain on July 28, 1955. Before trial the parties entered into a written agreement for judgment in the sum of $84,500, of which $25,000 was to be paid to a mortgagee and the balance of $59,500 to the petitioners. In the meantime the collector of taxes of the city of Boston notified the authority that the city held a lien on the premises for $5,624 for taxes and water rates computed to the date of the taking. G. L. (Ter. Ed.) c. 79, \\u00a7 44A, inserted by St. 1935, c. 189, as amended by St. 1936, c. 137. On April 20, 1956, execution in the sum of $59,500 issued in favor of the petitioners.\\nOn May 14, 1956, there was entered in the Supreme Judicial Court for Suffolk County this petition for a writ of mandamus against the authority and its members seeking an order for the payment of the judgment. G. L. (Ter. Ed.) c. 121, \\u00a7 26V, as appearing in St. 1946, c. 574, \\u00a7 l. On May 17,1956, the authority, after deducting $5,624, paid the petitioners $53,876; and counsel for the petitioners indorsed on the execution, \\\"The within execution never having been in the hands of an officer for service, the within execution is satisfied in full and may so be returned to court.\\\" The single justice ruled that the authority was entitled to deduct the $5,624, and ordered that judgment be entered dismissing the petition. From such a final judgment the petitioners appealed. G. L. (Ter. Ed.) c. 213, \\u00a7 ID, inserted by St. 1943, c. 374, \\u00a7 4.\\nAn appeal under c. 213, \\u00a7 ID, from final judgment in mandamus or certiorari is subject to the practice in equity. See, as to mandamus, Henderson v. Mayor of Medford, 321 Mass. 732; Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 392; Caires v. Building Commissioner of Hingham, 323 Mass. 589, 590; as to certiorari, Lawrence v. Commissioners of Public Works, 319 Mass. 700, 702; Feener Business Schools, Inc. v. Board of Collegiate Authority, 329 Mass. 170, 171-172. There is no report of the evidence, but there is a report of the material facts under G. L. (Ter. Ed.) c. 214, \\u00a7 23, as appearing in St. 1947, c. 365, \\u00a7 2. Hence, the report of material facts must be accepted as true where containing no inconsistent findings, and the question is whether the judgment was rightly entered on the facts found. Kennedy v. Shain, 288 Mass. 458, 459. Estey v. Gardner, 291 Mass. 303, 306. Macklin v. Macklin, 315 Mass. 451, 452, 454. Harpel v. Craig, 327 Mass. 229, 232. The requests for rulings were unnecessary and have no standing as such on appeal. Estey v. Gardner, 291 Mass. 303, 307-308. Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 393. National Radiator Corp. v. Parad, 297 Mass. 314, 319. Boston v. Dolan, 298 Mass. 346, 349. Gulesian v. Newton Trust Co. 302 Mass. 369, 372.\\nThe amount of the agreed judgment, making no reference to interest, must be taken to be the full amount of damages. This means that there can be added no interest for the interval between the date of the taking and the date of the judgment. King v. Springfield, 233 Mass. 592. Albrecht v. United States, 329 U. S. 599. United States v. Certain Land, 58 Fed. Sup. 305 (D. C. E. D. Mo.). United States v. 71,500 Square Feet, 69 Fed. Sup. 810 (D. C. S. D. N. Y.). Matter of Ittleman, 286 N. Y. 150. 36 A. L. R. (2d) 423. See First Baptist Society v. Fall River, 119 Mass. 95; Minot v. Boston, 201 Mass. 10.\\nWe perceive no reason, however, why there should not be interest from the date of the judgment, April 20, 1956, to the date of payment. The petitioners are claiming under G. L. (Ter. Ed.) c. 121, \\u00a7 26V, as appearing in St. 1946, c. 574, \\u00a7 1. The fact that the respondent is not the Commonwealth is a sufficient distinction of General Electric Co. v. Commonwealth, 329 Mass. 661. Compare C. & R. Construction Co. v. Commonwealth, 334 Mass. 232.\\nWe now consider the alleged error in the deduction of taxes. The petitioners are not precluded by the indorsement of payment in full on the execution from showing the actual amount received. Brown v. South Boston Savings Bank, 148 Mass. 300, 306. And an acknowledgment of satisfaction of a judgment indorsed upon an execution has been held to be invalid where made in consideration of the payment of a smaller sum than the amount due. Weber v. Couch, 134 Mass. 26. Smith v. Johnson, 224 Mass. 50. Lait v. Sears, 226 Mass. 119, 125. There was, however, no error, The collector gave notice pursuant to G. L. (Ter. Ed.) c. 79, \\u00a7 44A, inserted by St. 1935, c. 189, as amended by St. 1936, c. 137, and it then became mandatory that the taxes \\\"be deducted from the amount of such damages otherwise payable.\\\" Likewise there was no error in the amount. There could be no apportionment under G. L. (Ter. Ed.) c. 79, \\u00a7 12, as amended by St. 1953, c. 634, \\u00a7 l which provides that in certain circumstances \\\"the damages for the taking shall include an amount separately determined\\\" for taxes to be apportioned. As previously pointed out, the agreed judgment covered all the damages.\\nThe judgment is reversed. A new judgment is to be entered for the payment of interest on $53,876 from April 20, 1956, the date of the judgment, to May 17, 1956, and on that amount of interest from May 17, 1956, until payment is made. G. L. (Ter. Ed.) c. 79, \\u00a7 37.\\nSo ordered.\\n\\\"If real estate taken in whole or in part by eminent domain was at the time of said taking subject to any lien for taxes, assessments or other charges, which is extinguished by such taking, and if the collector of taxes of the town in which such real estate is located gives written notice of a claim of the amount covered by such lien to the body politic or corporate, on behalf of which such taking was made, prior to the payment of any award of damages for such taking or to the entry of judgment therefor, said collector shall be entitled, to be paid such amount before any payment of damages for such taking is made to any other party; and any amount so payable on account of such taxes, assessments or other charges shall be deducted from the amount of such damages otherwise payable.\\\"\\nSection 26V reads in part: \\\"The property or funds of a housing authority shall not be subject to attachment, or to levy and sale on execution, but if a housing authority refuses to pay a judgment entered against it in any court of competent jurisdiction, the supreme judicial court, sitting within and for the county in which the authority is situated, may, by writ of mandamus, direct the treasurer of such authority to pay such judgment. . . .\\\"\"}"
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+"{\"id\": \"3848440\", \"name\": \"Myer L. Orlov & others vs. Angus M. MacNeil & others\", \"name_abbreviation\": \"Orlov v. MacNeil\", \"decision_date\": \"1958-02-27\", \"docket_number\": \"\", \"first_page\": \"767\", \"last_page\": \"767\", \"citations\": \"337 Mass. 767\", \"volume\": \"337\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:12:12.226860+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Myer L. Orlov & others vs. Angus M. MacNeil & others.\", \"head_matter\": \"Myer L. Orlov & others vs. Angus M. MacNeil & others.\\nFebruary 27, 1958.\\nAngus M. MacNeil, pro se.\\nPhilip Cowin, for the plaintiffs.\", \"word_count\": \"223\", \"char_count\": \"1326\", \"text\": \"Appeal dismissed. Exceptions overruled. This is an action of contract in which the plaintiffs recovered judgment against the defendant Mac-Neil in the sum of $10,079.12, on which an indorsement of satisfaction in the sum of $7,959.40 was made. The defendant MacNeil filed a motion for orders for compliance with G. L. (Ter. Ed.) c. 235, \\u00a7 17, as amended by St. 1948, c. 113, which was denied. At the hearing on the motion no evidence as such was presented except an affidavit and the execution and papers in prior cases. The trial judge made the statement: \\\"Counsel for the defendant referred to proceedings in the instant case and another case in the Superior Court and a decision of the Supreme Judicial Court and argued therefrom that the judgment and judgment entered were satisfied in full; examination of the records referred to, in my opinion, does not warrant a finding or ruling that the judgment has been satisfied in full or the execution issued thereon. In consequence thereof, I deny the motion.\\\" The defendant MacNeil excepted and appealed. His bill of exceptions has been allowed. We shall dismiss the appeal. We consider the exceptions which on this record fail to show error.\"}"
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+"{\"id\": \"385142\", \"name\": \"New England Memorial Hospital & another vs. Rate Setting Commission & others\", \"name_abbreviation\": \"New England Memorial Hospital v. Rate Setting Commission\", \"decision_date\": \"1985-03-15\", \"docket_number\": \"\", \"first_page\": \"296\", \"last_page\": \"305\", \"citations\": \"394 Mass. 296\", \"volume\": \"394\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:56:27.932225+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"New England Memorial Hospital & another vs. Rate Setting Commission & others.\", \"head_matter\": \"New England Memorial Hospital & another vs. Rate Setting Commission & others.\\nSuffolk.\\nNovember 8, 1984.\\nMarch 15, 1985.\\nPresent: Hennessey, C.J., Wilkins, Liacos, Abrams, & Lynch, JJ.\\nWilliam L. Pardee, Assistant Attorney General, for the defendants.\\nDavid S. Szabo (Eric E. Mulloy with him) for the plaintiffs.\\nRichard P. Ward & Wayne H. Scott for Brockton Hospital, Inc., & others, amici curiae, submitted a brief.\\nQuincy City Hospital.\\nThe chairman of the Rate Setting Commission, the Commissioner of Public Welfare, the Department of Public Welfare, and the Commonwealth.\", \"word_count\": \"3188\", \"char_count\": \"19552\", \"text\": \"Liacos, J.\\nThe plaintiffs (hospitals) challenge the validity of 114.1 Code Mass. Regs. \\u00a7 3.06 (1981) (the amended regulation), promulgated by the defendant Rate Setting Commission (commission), which established a reimbursement rate to hospitals under the Medicaid program. The hospitals sought to have the amended regulation declared void and to obtain Medicaid payments of which the regulation allegedly deprived them. A Superior Court judge granted the hospitals' motion for partial summary judgment on the issue of liability. Another Superior Court judge then entered a judgment declaring the amended regulation null and void, and ordered that new rates be established by the commission to grant reimbursement to the plaintiffs. We granted the commission's application for direct appellate review.\\nWe summarize the statutory framework within which the challenged amended regulation was enacted. The Medicaid program is a cooperative Federal-State program designed to provide medical services to the indigent. While participation in the program is voluntary, once a State chooses to participate, it has to comply with Federal statutory requirements. Harris v. McRae, 448 U.S. 297, 301 (1980). Participating States were allowed to set rates of reimbursement to Medicaid providers, but, prior to August 13, 1981, the rate methodology used was not effective unless approved by the Secretary of Health and Human Services (Secretary). In addition, approval by the Secretary of the State plan for medical assistance, which incorporated the rate methodologies, was required before the State would be eligible to receive any Federal funds. 42 U.S.C. \\u00a7 1396a (1976 & Supp. III 1979). The State plan had to meet various conditions as set forth in 42 U.S.C. \\u00a7 1396a(a)(l) et seq.; if the plan conformed, the Secretary, with certain exceptions, had to approve the plan. 42 U.S.C. \\u00a7 1396a(b).\\nUnder the Massachusetts regulatory structure, the commission establishes rates for payment to Medicaid providers, which include hospitals, G. L. c. 6A, \\u00a7 32; the Department of Public Welfare (DPW) sees that the program is administered in accordance with Federal law. See G. L. c. 118E, \\u00a7 4, 6. The contested amended regulation, 114.1 Code Mass. Regs. \\u00a7 3.06, was to be effective February 1, 1981. It changed the method by which the Commonwealth, under the Medicaid program, reimbursed the hospitals for patients who were on \\\"administratively necessary day\\\" (AND) status. An AND is a day that a Medicaid patient occupies an acute care hospital bed pending transfer to a different facility after a Professional Standards Review Organization has determined that the patient is no longer ill enough to require hospitalization in the acute care facility. See 106 Code Mass. Regs. \\u00a7 452.007 (1978). The patient requires only those medical services that can be administered in a lower level facility, such as a nursing home, but often no beds in such facilities are available. Hence, the acute care hospital continues to care for the patient and is reimbursed at the AND rate. The AND rate promulgated by the commission in 114.1 Code Mass. Regs. \\u00a7 3.06 contemplated reimbursement from February 1, 1981, at a flat rate of $70, representing the average rate for care rendered in skilled nursing facilities based in hospitals. This amended regulation was promulgated without prior approval by the Secretary because the DPW's position was that such prior approval was not required. The Secretary disagreed.\\nWhile this case was pending in the Superior Court, we were called on to give our views as to whether prior approval by the Secretary of the amended regulation was required under Federal law as it existed in February, 1981. In Addison Gilbert Hosp. v. Rate Setting Comm'n, 390 Mass. 17, 21 (1983), we held that, under the former statute, 42 U.S.C. \\u00a7 1396a(a)(13) (D), the disputed regulation was invalid for the period February 1, 1981, to August 13, 1981, for lack of approval by the Secretary. We did not reach the question of the validity of the amended regulation subsequent to August 13, 1981 (the date the Federal statute was changed), as that issue was not before us. In this case, the motion judge, following the court's suggestion in Addison Gilbert, ordered damages for the period February 1, 1981, to August 13, 1981, to be set by determining the difference between the reimbursement rate of the amended regulation ($70 an AND) and the previous rate reimbursement formula. The commission does not challenge the judgment as it pertains to the period February 1,1981, to August 13,1981.\\nThe commission contends that its failure to obtain Federal approval of the contested AND rate under the previous Federal statute does not render the rate invalid from August 13, 1981, until a new system of hospital payment was instituted as of October 1, 1982. See St. 1982, c. 372. Prior to August 13, 1981, Federal law stated that a State plan for medical assistance must provide \\\"for payment of the reasonable cost of inpatient hospital services provided under the plan, as determined in accordance with methods and standards, . . . which shall be developed by the State and reviewed and approved by the Sec retary and (after notice of approval by the Secretary) included in the plan.\\\" 42 U.S.C. \\u00a7 1396a(a)(13)(D) (1976 & Supp. III 1979).\\nOn August 13, 1981, the section governing hospital reimbursement was replaced by a new section which required, in pertinent part, that a State plan for medical reimbursement must provide \\\"for payment . of the hospital . . . services provided under the plan through the use of rates . . . which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities.\\\" 42 U.S.C. \\u00a7 1396a(a)(13)(A), as amended by \\u00a7 2173(a)(1) of the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357, 808 (1981). The commission argues that this change in Federal law eliminated any requirement of prior approval by the Secretary. While this is true, it is irrelevant to this appeal for the reason, as we explain, that the new Federal law substituted one process of Federal regulation for another, albeit more flexible, form of Federal regulation, and the defendant failed to comply with the new requirements.\\nThe legislative history indicates that the 1981 Federal amendment was intended to reduce the Secretary's regulatory role and to give the States greater flexibility in developing methods of payment. S. Rep. No. 139, 97th Cong., 1st Sess. 478, reprinted in 1981 U.S. Code Cong. & Ad. News 396, 744. Nevertheless, by its own terms, the statute still requires that participating States provide assurances to the Secretary, and that the Secretary find these satisfactory.\\nThe regulations promulgated by the Secretary, which implement the foregoing requirements as they were in effect in 1981, provide that the Medicaid agency must submit assurances \\\"whenever the agency wishes to make a significant change in its methods and standards for determining the rate.\\\" 42 C.F.R. \\u00a7 447.255(a) (1981). The agency must assure in part that (1) rates are reasonable and adequate to meet the costs of an efficient and economically operated provider, (2) rates are adequate to assure recipients access to inpatient hospital services of adequate quality, (3) the agency has made findings of (1) and (2) above, and (4) there is a provision for uniform cost reporting and periodic audits. 42 C.F.R. \\u00a7 447.252(c) (1981). In addition to the assurances, the agency must submit detailed information concerning the impact of any changes on different types of services. 42 C.F.R. \\u00a7 447.255(b) (1981). The Secretary has sixty days in which to act on these assurances, but, if no action is taken within that time period, the assurances are deemed to be accepted. 42 C.F.R. \\u00a7 447.256(a) (1981). A proposed change is effective on the date specified by the State agency in its assurances submitted to the Secretary, but in no event earlier than the first day of the calendar quarter in which the assurances are submitted. 42 C.F.R. \\u00a7 447.256(b) (1981).&*\\nThe judge found that the Department of Public Welfare never filed the formal \\\"assurances and related information\\\" required by the new Federal statute. The commission does not dispute this finding but argues, without citation of authority, that it was in \\\"substantial compliance\\\" with the new requirement of filing \\\"assurances and related information.\\\" We hold the commission's argument that it substantially complied with the regulations to be without merit. Our reading of the record, in particular the letter of October 28, 1981, from the Associate Regional Administrator, Division of Financial Operations, Health Care Financing Administration, United States Department of Health and Human Services, indicates that approval of the AND rate was conditioned on the submission of assurances and related information. These were never submitted; 42 U.S.C. \\u00a7 1396a(a)(13)(A) clearly requires that Medicaid agencies submit assurances for the Secretary's approval. The implementing regulations require such assurances in addition to requiring related information. The commission's failure to comply with the applicable statutory and regulatory scheme renders the disputed amended regulation invalid. The commission's failure to comply with these requirements defeated the purposes of the new Federal law.\\nWe turn now to the question of remedy. The commission has suggested, should we agree with the judge's conclusion on liability, that it now establish a new rate, meeting Federal criteria, for the period August 13, 1981, to October 1, 1982. Such an approach presents serious problems with respect to the current Federal statute discussed above and the regulations now in effect. Any substitute regulation promulgated by the commission would be subject to the assurances requirement of 42 U.S.C. \\u00a7 1396a(a)(13)(A). More important, 42 C.F.R. \\u00a7 447.256(c) (1983) limits the retroactive effect of a rate to the first day of the calendar quarter in which the agency submits assurances and related information. Thus, it would appear that this remedy is precluded by Federal law.\\nThe commission argues that continued use of the routine rate effective on January 31, 1981, would violate current Federal and State law. First, it contends that the routine rate fails to meet the provision of \\u00a7 1396a(a)(13)(A) that payment must be made through the use of rates \\\"which the State finds . . . are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities\\\" (emphasis supplied). The routine rates were never formally \\\"found\\\" by the State to meet the \\\"efficient cost\\\" standard of \\u00a7 1396a(a)(13)(A). Under the former statute, \\u00a7 1396a(a)(13) (D), the Secretary, however, did approve the routine rate as meeting the higher \\\"reasonable cost\\\" standard. \\\"Because the new 'efficient cost' standard is designed to lower the threshold of permissible reimbursement rates, rates properly approved under the reasonable cost standard will satisfy the new efficient cost standard.\\\" Alabama Hosp. Ass'n v. Beasley, 702 F.2d 955, 958 (11th Cir. 1983).\\nThe commission argues that the routine rate fails to satisfy another provision of \\u00a7 1396a(a)(13)(A): That rates provide, for AND patients, \\\"for lower reimbursement rates reflecting the level of care actually received (in a manner consistent with section 1395x(v)(l)(G) of [Title 42]).\\\" Section 1395x(v)(l)(G) (ii)(I) of 42 U.S.C. (a Medicare provision) provides that the rate for AND patients shall be the \\\"State-wide average rate per patient-day paid for services provided in skilled nursing facilities.\\\" The commission contends that the routine rate, based on the average cost of routine care in a hospital, is not consistent with the Medicare standard because it is unrelated to the Statewide average cost of care in nursing facilities.\\nThe language of \\u00a7 1396a(a)(13)(A) requires only \\\"consistency\\\" with the Medicare provision, not strict conformity. Moreover, the 1981 amendment reflects an effort to establish an AND rate which is lower than the acute care hospital rate, since prior to the 1981 amendments there was no Federal provision for a separate AND rate for Medicaid recipients. The routine rate, based on routine costs only (see note 6, supra), is lower than the usual acute care hospital rate and thus fulfils the statutory mandate. See 114.1 Code Mass. Regs. \\u00a7 3.06, 3.07 (1979). Accordingly, use of the routine rate does not violate Federal law.\\nAs to State law, the remedy is clear. In Addison Gilbert Hosp. v. Rate Setting Comm'n, 390 Mass. 17, 26-27 n.13 (1983), we stated: \\\"Since the issue of the appropriate rate of reimbursement for the administratively necessary day patients has not yet been heard, and was not reported to us, we merely note that in an analogous New York case, the defendants were 'directed to recalculate the amounts owed to members of the plaintiff class under the previously approved reimbursement formula, and to pay the hospitals any additional money that was owing. ' Hospital Ass'n of N.Y. State, Inc. v. Toia, 577 F.2d 790, 793 (2d Cir. 1978), referring to Hospital Ass'n v. Toia, Medicare & Medicaid Guide (CCH) par. 27, 941 (S.D.N.Y. 1976).\\\" The motion judge ordered this formula to be adopted. This ruling is consistent with Addison Gilbert and our prior cases. Where no effective new rate has been established, the old rate remains in effect. See Massachusetts Gen. Hosp. v. Commissioner of Admin., 353 Mass. 369, 375-376 (1967). See also Senn Park Nursing Center v. Miller, 118 Ill. App. 3d 733 (1983).*\\nAccordingly, the judgment entered is to be modified to declare that the plaintiffs are entitled to reimbursement for the period commencing August 13, 1981, to October 1, 1982, on the basis of the difference between the $70 a day AND rate declared invalid and the routine care rate effective as of January 31, 1981, as though the latter rate remained in effect for the period in dispute. No \\\"new\\\" rate for this period need be promul gated by the commission. As modified, the partial summary judgment is affirmed. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.\\nSo ordered.\\nRegulation 114.1 Code Mass. Regs. \\u00a7 3.06 was published in Mass. Reg. 248, at 2-4 (February 12, 1981), and was subsequently codified in 114.1 Code Mass. Regs. (1981).\\nThe hospitals brought their action for declaratory relief under G. L. c. 231A and G. L. c. 30A, \\u00a7 7, and under G. L. c. 249, \\u00a7 5 (mandamus). They also sought the assessment of damages. Since their complaint challenges the validity of a regulation, the relief properly could be sought under G. L. c. 231A and G. L. c. 30A. See Addison Gilbert Hosp. v. Rate Setting Comm'n, 390 Mass. 17, 25 (1983); Massachusetts State Pharmaceutical Ass'n v. Rate Setting Comm'n, 387 Mass. 122, 125-127 (1982).\\nThe motion for partial summary judgment related to counts I and VIII of the plaintiffs' amended complaint. Somewhat inconsistently, the motion sought a partial summary judgment as to liability on those counts with damages to be determined later, but then went on to seek declaration of a fixed rate of reimbursement based on the difference between the reimbursement rate of the allegedly invalid regulation ($70 a day) and the prior rate under which each hospital was reimbursed for the same services prior to the date of the amended regulation (February 1, 1981). The motion judge's memorandum of decision accepted the hospitals' views on both points, and a partial declaratory judgment was entered in accordance with the memorandum of decision. The defendants have appealed from that judgment. As will be shown, the prior rates remain in effect until October 1, 1982, and no \\\"new\\\" rates need be set.\\nPrior to the promulgation of the disputed regulation, hospitals were paid for ANDs at the so called \\\"routine rate,\\\" the average cost of routine care, i.e., bed, board, and nursing care, in a hospital. The routine rate in 1981 was $151.66 a day for New England Memorial Hospital and $131.37 a day for Quincy City Hospital.\\nPrior to 1980, skilled nursing facilities were reimbursed on a reasonable cost basis. See 42 U.S.C. \\u00a7 1396a(a)(13)(E) (Supp. III 1979). Effective October 1, 1980, 42 U.S.C. \\u00a7 1396a(a)(13)(E) was revised to require reimbursement on the basis of \\\"costs which must be incurred by efficiently and economically operated facilities\\\" and a requirement that States submit \\\"assurances, satisfactory to the Secretary\\\" that their rates met the statutory standard was added. See Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, \\u00a7 962, 94 Stat. 2599, 2650-2651 (1980). In 1981, this new standard (known as the Boren Amendment) was expanded to include hospitals under the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, \\u00a7 2173(a)(1), 95 Stat. 357, 808 (1981). Section 1396a(a)(13)(E) was redesignated \\u00a7 1396a(a)(13)(A). While the Boren Amendment reflects a desire to reduce Secretarial oversight and paperwork, it also assumes that the Secretary retains \\\"final authority to review the rates and to disapprove those rates if they do not meet the requirements of the statute.\\\" H. Conf. Rep. No. 96-1479, 96th Cong., 2d Sess. 154, reprinted in 1980 U.S. Code Cong. & Ad. News 5903, 5944. For discussion of the change in Federal Medicaid law wrought by the Boren Amendment, see Nebraska Health Care Ass'n v. Dunning, 575 F. Supp. 176, 178-179 (D. Neb. 1983).\\nAfter devising the disputed rate, the commission developed another methodology for rate setting to be effective October 1, 1982. The Secretary signified satisfaction with the assurances as to this methodology on July 15, 1982; this new methodology was superseded, however, by St. 1982, c. 372.\\nWe find unfounded the commission's reliance on the \\\"outside sections\\\" of the 1980, 1981, and 1982 budgets. St. 1980, c. 329, \\u00a7 82. St. 1981, c. 351, \\u00a7 35. St. 1982, c. 191, \\u00a7 14. \\\"We need not and do not answer the question whether such separable provisions may properly be included in a budget bill in the first instance.\\\" Opinion of the Justices, 384 Mass. 820, 826 (1981). The sections merely reflect a desire that AMDs be reimbursed at an appropriate rate to be set by the commission in accordance with Federal and State law. These sections add nothing to the commission's case.\\nWe note that the commission submitted to the Secretary assurances that a later proposed AND rate, made on a hospital-specific basis at rates derived from each hospital's routine per diem costs, conformed with Federal requirements. The Secretary found those assurances acceptable.\\nWe find the commission's argument, that the remedy is unsupported by evidence of injury, to be without merit. This contention is merely another attempt to set forth the commission's substantial compliance theory, which we have rejected.\"}"
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+"{\"id\": \"3861920\", \"name\": \"Norman B. A'Hearne & others vs. City of Chelsea\", \"name_abbreviation\": \"A'Hearne v. City of Chelsea\", \"decision_date\": \"1966-06-10\", \"docket_number\": \"\", \"first_page\": \"105\", \"last_page\": \"107\", \"citations\": \"351 Mass. 105\", \"volume\": \"351\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:07:22.560487+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norman B. A\\u2019Hearne & others vs. City of Chelsea.\", \"head_matter\": \"Norman B. A\\u2019Hearne & others vs. City of Chelsea.\\nSuffolk.\\nApril 7, 1966.\\nJune 10, 1966.\\n' Present: Wilkins, C.J., Spalding, Cutter, Kirk, & Spiegel, JJ.\\nJoseph G. Crane for the plaintiffs.\\nAlexander E. Finger, City Solicitor, for the defendant.\", \"word_count\": \"736\", \"char_count\": \"4655\", \"text\": \"Spiegel, J.\\nIn this action of contract thirteen teachers in the public schools in the city of Chelsea seek to recover for loss of salary resulting from their reclassification by the school committee. The judge of the Superior Court sitting without, a jury made a finding for the defendant, and filed a \\\"memorandum of law in connection with . . . [his] finding.\\\" The case, is here on exceptions to the \\\"rulings and finding\\\" of the judge.\\nThe action was tried on a statement of agreed facts. In 1947 the committee established salary schedules differentiating between the teachers not having a bachelor's degree; those having a bachelor's degree, and those having a master's degree. In 1951 the committee voted to increase the salary of \\\"those persons who.possess a doctorate de- grec.\\\" Six plaintiffs have doctorate degrees from unaccredited institutions. Four of these six plaintiffs hold master's degrees from accredited colleges, and two have master's degrees from unaccredited schools. The other seven plaintiffs have master's degrees from unaccredited institutions. For at least three years prior to 1962, the plaintiffs had been included in the salary schedule for their highest degrees. On May 31, 1962, the committee voted to increase the salary schedule for teachers by $500 effective January 1, 1963, and by $400 effective January 1, 1964. The committee also adopted a recommendation ' that the salary schedule pertaining to Master's and Doctorate Degrees shall apply only to those individuals who have obtained their Degrees from Colleges or Universities accredited by the New England Association of Colleges and Secondary Schools or the 5 other accrediting institutions. ' '\\nThe plaintiffs contend that \\\"to apply the, vote of the Chelsea School Committee . to those already having tenure on the salary schedules applicable to Masters and Doctors was to impair the obligations of contracts and was therefore invalid and void.\\\"\\nThe plaintiffs' contracts, however, were subject to the power of the school committee to reduce salaries as part of a general salary revision affecting equally all teachers of the same salary grade. Sweeney v. School Comm. of Revere, 249 Mass. 525, 531. Paquette v. Fall River, 278 Mass. 172. Downey v. School Comm. of Lowell, 305 Mass. 329. Watt v. Chelmsford, 328 Mass. 430.\\nThus, the basic issue is whether the reclassification of the plaintiffs is in violation of G-. L. c. 71, \\u00a7 43, which provides that \\\" [t]he salary of no teacher employed in any town . . . shall be reduced without his consent except by a general salary revision affecting equally all teachers of the same salary grade in the town.\\\"\\n' ' Salary is only one factor in determining whether specified teachers are ' of the same salary grade. ' ' ' Paquette v. Fall River, 278 Mass. 172,177. Other factors include \\\"tenure of service\\\" (Paquette v. Fall River, supra) and position held (McCartin v. School Comm. of Lowell, 322 Mass. 624, 628). We note the language of G. L. c. 71, \\u00a7 40, which provides that ' ' [w] omen teachers employed in the same grades and doing the same type of work with the same preparation and training as men teachers shall be paid at the same rate as men teachers\\\" (emphasis supplied). We believe that \\\"preparation and training\\\" are also factors in determining whether specified teachers are \\\"of the same salary grade.\\\" The school committee, it seems to us, acted reasonably in differentiating between persons with degrees from accredited and unaccredited institutions. There was no differentiation between those having \\\"the same preparation and training.\\\" The result of the committee's action was a \\\"general salary revision affecting equally all teachers of the same salary grade,\\\" i.e., all persons with advanced degrees from unaccredited institutions.\\nFurther, we are of opinion that the committee had authority to establish a new classification at an increased salary for persons with advanced degrees from accredited schools, since, in our view, such a classification bears a \\\"rational relation to the furthering of the objects for which the board exists.\\\" Cotter v. Chelsea, 329 Mass. 314, 317. The persons remaining in the 'old classification would be the only ones in that salary grade, and, therefore, their salaries could be reduced because this would constitute a general salary revision affecting equally all teachers of the same salary grade.\\nExceptions overruled.\"}"
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+"{\"id\": \"3869911\", \"name\": \"Lorraine E. Wolf vs. Commissioner of Public Welfare\", \"name_abbreviation\": \"Wolf v. Commissioner of Public Welfare\", \"decision_date\": \"1975-04-03\", \"docket_number\": \"\", \"first_page\": \"293\", \"last_page\": \"300\", \"citations\": \"367 Mass. 293\", \"volume\": \"367\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:44:58.296229+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lorraine E. Wolf vs. Commissioner of Public Welfare.\", \"head_matter\": \"Lorraine E. Wolf vs. Commissioner of Public Welfare.\\nSuffolk.\\nDecember 4, 1974.\\nApril 3, 1975.\\nPresent: Tauro, C.J., Reardon, Braucher, Kaplan, & Wilkins, JJ.\\nJeffrey W. Kobrick & Richard A. Cohen for the plaintiff.\\nNicholas P. Arenella, Assistant Attorney General, for the defendant.\", \"word_count\": \"2113\", \"char_count\": \"12507\", \"text\": \"Wilkins, J.\\nThe plaintiff filed a bill for injunctive and declaratory relief against the Commissioner (Commissioner) of the Department of Public Welfare (Department) on behalf of herself and her children and on behalf of certain other persons who received public assistance in the form of aid to families with dependent children (AFDC).\\nThe plaintiff alleged the following facts. She did not receive her bimonthly assistance check on or about March 31, 1973, and properly gave notice of that fact to a representative of the Department. The Department has a regulation concerning lost or stolen checks (State Letter 272) which provides in part that \\\"every effort is to be made to avoid delays in order that the replacement check will be received by the recipient on the fourth day after the original mailing date.\\\" Additionally, the Social Security Act (42 U. S. C. \\u00a7 601 [1970] et seq.) and Federal regulations require that the Department promptly replace assistance checks when it learns that they have not been received. The plaintiff unsuccessfully attempted to obtain a replacement check; the Department generally delays in furnishing replacement checks; and the receipt of such a check is of considerable importance to the plaintiff and her children. The plaintiff alleged that this proceeding was appropriately brought on behalf of other recipients of AFDC \\\"who have failed or will have failed during the pendency of this action to receive an assistance check issued by the . . . [Department] and who have or will have been denied a prompt replacement of the check by the Department.\\\"\\nThe bill, filed on April 9, 1973, sought (a) an injunction ordering replacement of all reportedly unreceived AFDC checks \\\"within four days of the mailing of the original assistance checks\\\" and (b) a declaration that (i) the Social Security Act and certain Federal regulations require immediate replacement of public assistance checks and (ii) State Letter 272 requires the Commissioner to replace reportedly unreceived AFDC checks within four days of the mailing of the original check.\\nThe defendant filed a plea in abatement which was sustained. The plea set forth three grounds: (1) the case was moot because the plaintiff had received her replacement check; (2) there was no actual controversy justifying declaratory relief under G. L. c. 231 A; and (3) there was no factual basis presenting a common controversy justifying certification of the class. The Superior Court judge heard the plea on the arguments of counsel and sustained the plea on the ground of mootness. The other two grounds were not considered by the judge and, therefore, no evidence with respect to them was received.\\nThe plaintiff appealed from a final decree dismissing the bill. The Appeals Court did not discuss the mootness question but, with one judge dissenting, affirmed the final decree with a minor modification. Wolf v. Commissioner of Pub. Welfare, 2 Mass. App. Ct. 812 (1974). The Appeals Court rested its decision on the plaintiff's failure (1) to allege an \\\"actual controversy\\\"; (2) \\\"to suggest how a grant of the declaratory relief prayed for would 'remove an uncertainty' within the meaning of G. L. c. 231 A, \\u00a7 2\\\"; and (3) to include an allegation which would require the court to grant injunctive relief against a public officer. We granted the plaintiff's request for further appellate review.\\nThe reasons advanced by the Appeals Court do not justify the dismissal of the bill.\\n(1) The existence of an actual controversy never was litigated in the Superior Court. We do not know the Department's position in response to the allegations that it disregarded State and Federal requirements for prompt replacement of assistance checks. Even if the Commissioner admits the plaintiff's allegations, a dispute may remain over whether the Commissioner properly may continue to disregard his own regulations or Federal requirements, or both. See Woods v. Newton, 349 Mass. 373, 378-379 (1965). This issue cannot be resolved on the defendant's unsupported allegation that there is no actual controversy when the plaintiff has made factual allegations indic\\u00e1ting that a controversy of some sort is inevitable.\\n(2) The Appeals Court's conclusion that the bill did not suggest how declaratory relief would \\\"remove an uncer tainty\\\" (see G. L. c. 231 A, \\u00a7 2) is not an adequate ground to dismiss the bill. The plea in abatement assigned no such ground. If a court refuses to grant declaratory relief because it would not \\\"terminate the uncertainty,\\\" the reasons for that refusal must appear in the record. G. L. c. 231A, \\u00a7 3. The allegations of the bill do not show that a declaratory decree would not remove or terminate an uncertainty or controversy. Thus the bill should not have been dismissed on this ground. See Ciszewski v. Industrial Acc. Bd., ante, 135, 139 (1975).\\n(3) Likewise, the bill should not have been dismissed for failing to show that an injunction was required against a public official. This ground also was not raised by the plea in abatement. In any event, even if the appropriateness of injunctive relief against a public official was not made out in the pleadings, the facts established at trial might justify such an order and declaratory relief might still be appropriate.\\nWe come, then, to the question whether this bill should have been dismissed as moot, as the Commissioner alleged and the Superior Court held. This issue has been the subject of considerable attention in the Federal courts, which have held generally that a class action is not mooted by the settlement or termination of the named plaintiffs individual claim.\\nPolicies underlying the doctrine of mootness do not require the dismissal of this bill. Rather, they indicate that the judge should have passed on the existence of a proper class before considering the question of mootness. See Sosna v. Iowa, 419 U. S. 393, 399 (1975); Quevedo v. Collins, 414 F. 2d 796 (5th Cir. 1969). During the interim between the plaintiffs assertion that she brought the suit in a representative capacity and the court's certification or refusal to certify the class, the judge should have treated the suit as a class suit for the purposes of dismissal or compromise. Gaddis v. Wyman, 304 F. Supp. 713, 715 (S. D. N. Y. 1969), affd. sub nom. Wyman v. Bowens, 397 U. S. 49 (1970). Gatling v. Butler, 52 F. R. D. 389, 395 (D. Conn. 1971). Washington v. Wyman, 54 F. R. D. 266, 271 (S. D. N. Y. 1971).\\nCourts decline to hear moot cases because (a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake, (c) the adjudication of hypothetical disputes would encroach on the legislative domain, and (d) judicial economy requires that insubstantial controversies not be litigated. These concerns would have been met here if an actual controversy existed between the plaintiff class and the Department, if the case were appropriate for class treatment and if the plaintiff were an adequate representative of the class. See Spear v. H. V. Greene Co. 246 Mass. 259, 266-267 (1923). See now Mass. R. Civ. P. 23, 365 Mass. 767 (1974).\\nSeveral independent considerations militate against holding this case moot. This is a case of asserted importance, \\\"capable of repetition, yet evading review,\\\" because the claim of any named plaintiff is likely to be mooted by the mere passage of time during the appeal process. See Dunn v. Blumstein, 405 U. S. 330, 333, fn. 2 (1972); Roe v. Wade, 410 U. S. 113, 125 (1973), reh. den. 410 U. S. 959 (1973); Sosna v. Iowa, 419 U. S. 393, 400-402 (1975). In such a case, a court should take particular care that judicial review not be foreclosed on the basis of technical \\\"mootness.\\\" If the underlying controversy continues, a court will not allow a defendant's voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class. United States v. W. T. Grant Co. 345 U. S. 629, 632 (1953). United States v. Concentrated Phosphate Export Assn. Inc. 393 U. S. 199, 203 (1968). Anderson v. Albany, 321 F. 2d 649, 657 (5th Cir. 1963). Cypress v. Newport News Gen. & Nonsectarian Hosp. Assn. Inc. 375 F. 2d 648, 658 (4th Cir. 1967). Vaughan v. Bower, 313 F. Supp. 37, 40 (D. Ariz. 1970, affd. 400 U. S. 884 (1970). Smith v. Young Men's Christian Assn. of Montgomery, Inc. 316 F. Supp. 899, 903 (M. D. Ala. 1970), modified on other grounds 462 F. 2d 634 (5th Cir. 1972). Rakes v. Coleman, 318 F. Supp. 181, 191 (E. D. Va. 1970). Crow v. California Dept. of Human Resources, 325 F. Supp. 1314, 1316 (N. D. Cal. 1970), revd. on other grounds 490 F. 2d 580 (9th Cir. 1973), cert, before judgment den. 408 U. S. 924 (1972). Cantrell v. Folsom, 332 F. Supp. 767 (M. D. Fla. 1971). In fact, to establish mootness in such circumstances, a defendant bears a heavy burden of showing that there is no reasonable expectation that the wrong will be repeated; and a defendant's mere assurances on this point may well not be sufficient. United States v. W. T. Grant Co., supra, at 633. United States v. Concentrated Phosphate Export Assn. Inc., supra. Lankford v. Gelston, 364 F. 2d 197, 203 (4th Cir. 1966). Pullum v. Greene, 396 F. 2d 251, 256 (5th Cir. 1968). Thus, even after the named plaintiff's individual claim is satisfied and technically she no longer is a member of the class, she properly might continue to represent the class in vindicating the asserted, rights. Sosna v. Iowa, supra. Rivera v. Freeman, 469 F. 2d 1159, 1163 (9th Cir. 1972). Moss v. Lane Co. Inc. 471 F. 2d 853, 855 (4th Cir. 1973). Conover v. Montemuro, 477 F. 2d 1073, 1082 (3d Cir. 1972). Roberts v. Union Co. 487 F. 2d 387, 389 (6th Cir. 1973). Stokes v. Bonin, 366 F. Supp. 485, 488 (E. D. La. 1973). Davis v. Caldwell, 53 F. R. D. 373, 376 (N. D. Ga. 1971). Thomas v. Clarke, 54 F. R. D. 245, 252 (D. Minn. 1971).\\nIn light of these considerations, we hold that this case should not have been dismissed for mootness. The interlocutory decree sustaining the plea in abatement is reversed; the decree dismissing the bill is reversed; and the case is remanded to the Superior Court for proceedings consistent with this opinion.\\nSo ordered.\\nThe parties agreed that the plaintiff had received her replacement check.\\nThe Appeals Court ordered that the decree be modified to provide for dismissal xyithout prejudice.\\nMrs. Wolf died subsequent to the Appeals Court decision. We have allowed a motion to substitute her oldest child (an adult), to whom the public assistance grant for the support of the minor children allegedly has been transferred. There is no suggestion that this circumstance in any way affects the issues in this case.\\nThe defendant was allowed to file a plea in abatement, reserving his answer.\\nOf course, if the defendant alleged the absence of an actual controversy because the plaintiff had received her replacement check, the issue is the same as the question of mootness, which we consider below.\\nSeveral of these cases, involving disputes over the speedy processing of public assistance checks, hold that the named plaintiff's receipt of the desired relief does not moot the class action. Like v. Carter, 448 F. 2d 798, 802 (8th Cir. 1\\u00a771), cert. den. 405 U. S. 1045 (1972). Adens v. Sailer, 312 F. Supp. 923, 926 (E. D. Pa. 1970). Copeland v. Parham, 330 F. Supp. 383, 385 (N. D. Ga. 1971), affd. sub nom. Copeland v. Saucier, 475 F. 2d 1127 (5th Cir. 1973).\\nSouthern Pac. Terminal Co. v. Interstate Commerce Commn. 219 U. S. 498, 515 (1911). See Tsongas v. Secretary of the Commonwealth, 362 Mass. 708, 713-714 (1972); Gas & Elec. Commrs. of Middleborough v. Department of Pub. Util. 363 Mass. 433, 436 (1973); Karchmar v. Worcester, 364 Mass. 124, 136 (1973); Storer v. Brown, 415 U. S. 724, 737, fn. 8 (1974); Super Tire Engr. Co. v. McCorkle, 416 U. S. 155 (1974).\\nThe Department issued Mrs. Wolf's replacement check shortly after the commencement of this suit.\\nWe note that the Commissioner has made no such assurances in this case, as the pleadings did not advance to a stage requiring him to admit or deny the plaintiff's allegations.\"}"
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+"{\"id\": \"3871086\", \"name\": \"Stephen H. Farley vs. P. Shaw Sprague\", \"name_abbreviation\": \"Farley v. Sprague\", \"decision_date\": \"1978-02-16\", \"docket_number\": \"\", \"first_page\": \"419\", \"last_page\": \"426\", \"citations\": \"374 Mass. 419\", \"volume\": \"374\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:17:49.851470+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Stephen H. Farley vs. P. Shaw Sprague.\", \"head_matter\": \"Stephen H. Farley vs. P. Shaw Sprague.\\nMiddlesex.\\nOctober 6, 1977.\\nFebruary 16, 1978.\\nPresent: Hennessey, C.J., Quirico, Kaplan, Liacos, & Abrams, JJ.\\nThayer Fremont-Smith (John W. Burgess with him) for the defendant.\\nEdward F. Novick for the plaintiff.\", \"word_count\": \"2222\", \"char_count\": \"13037\", \"text\": \"Quirico, J.\\nThis is an appeal from the denial of the defendant's motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to vacate a default judgment obtained against him by the plaintiff in the Superior Court. The defendant challenges the action of the Superior Court judge in denying the motion and argues that because he was not a resident of this Commonwealth and the attempted service of process on him was improper the court acquired no jurisdiction over him and that therefore the default judgment is void.\\nThe procedural background of the case is as follows. The plaintiff began this action in contract by a writ dated February 11, 1974, and returnable to the Superior Court on April 1, 1974, seeking recovery in the sum of $3,815 for work, labor, and materials allegedly furnished by him on a building of the defendant at 14 Otis Place in Boston. The return on the writ indicated that service was made on February 16, 1974, by leaving a summons at the defendant's \\\"last and usual place of abode to wit; 14 Otis Street, Boston.\\\" Both parties agree that the service was in fact made at 14 Otis Place, in a building owned by the defendant and on which the work by the plaintiff was apparently done, and not at 14 Otis Street, which is in another part of Boston.\\nOn March 25, 1974, plaintiff's counsel was informed by letter from Frederick B. Taylor, the defendant's financial adviser, that the summons had been brought to his office by the caretaker of 14 Otis Place, that he was enclosing and returning it therewith, and that since the defendant was a legal resident of Florida he should be contacted there.\\nThe plaintiff, nevertheless, proceeded to obtain a default judgment against the defendant in the Superior Court on April 23, 1974, due to the defendant's failure to appear and answer. Notice of the default was mailed by the clerk to the defendant at 14 Otis Street, Boston, and, because such address had no connection with the defendant, the notice was returned to the court by the postal service undelivered. On July 18, 1975, pursuant to Mass. R. Civ. P. 55 (b) (4), 365 Mass. 822 (1974), the plaintiff filed a military affidavit stating that the defendant was not in the military service and was presently residing at 442 Seaspray Avenue, Palm Beach, Florida 33480. On October 3, 1975, the plaintiff filed a request for a default judgment and included therewith another affidavit that the defendant was not in the military service and was then residing at the above Florida address. Final judgment was entered on November 4, 1975, for $3,898.51 plus costs of $28.50. An execution was issued on November 7, 1975.\\nOn November 17, 1975, counsel for the plaintiff notified the defendant of the default judgment by mailing such notification to him at the Florida address given in the military affidavits. On January 28, 1976, the defendant, appearing specially and without submitting to the court's jurisdiction, moved to vacate and set aside the judgment on the grounds of lack of proper service and lack of jurisdiction. After a hearing on February 6, 1976, a judge of the Superior Court denied the defendant's motion, from which denial the defendant appealed to the Appeals Court. The Appeals Court affirmed the default judgment. Farley v. Sprague, 5 Mass. App. Ct. 799 (1977). The defendant applied for further appellate review by this court and we granted the request. For the reasons stated below, we order that the default judgment be vacated.\\nThe defendant's motion to set aside the judgment was filed pursuant to Mass. R. Civ. P. 60 (b), which provides in pertinent part that \\\"[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . (4) the judgment is void; . or (6) any other reason justifying relief from the operation of the judgment.\\\" In support of his motion the defendant filed two affidavits, one by him and the other by Frederick B. Taylor, to the effect that the defendant had not lived at 14 Otis Place, Boston, or been a resident of Massachusetts, since 1933. The plaintiff filed no counter affidavit as to the defendant's residence or any other issue. The motion was heard on the basis of the two affidavits filed by the defendant, a memorandum by him with accompanying copies of correspondence between the parties, and the various pleadings and documents theretofore filed with the clerk in the case. The pleadings and documents included the writ with the return of service thereon and the two military affidavits filed by the plaintiff. No testimony was presented at the hearing on the motion and the judge made no findings of fact.\\nIt is the contention of the defendant that the judgment against him is void because the court never obtained jurisdiction over him as prescribed under G. L. c. 227, \\u00a7 1, and c. 223, \\u00a729 and 31, in effect prior to St. 1973, c. 1114, \\u00a7 124 and 90, and applicable to the case at bar. General Laws c. 227, \\u00a7 1, as it read at the time of the filing of the action against the defendant, provided that in cases where there had been no attachment of property, \\\"[a] personal action shall not be maintained against a person not an inhabitant of the commonwealth unless he . . . has been served with process in the commonwealth . . . .\\\" General Laws c. 223, \\u00a729 and 31, provided that, in the absence of personal service on a defendant, a copy of the summons \\\"shall be left at his last and usual place of abode, if he has any within the commonwealth known to the officer.\\\" Although the sheriff's return here described the address of 14 Otis Street, Boston, as the defendant's \\\"last and usual place of abode,\\\" the defendant contends that such statement is not binding on him and that he is entitled to show he did not then reside in the Commonwealth. Atlantic Nat'l Bank v. Hupp Motor Car Corp., 298 Mass. 200, 202 (1937). Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188, 194 (1932).\\nThe Appeals Court denied the defendant's motion for relief from the default judgment by a rescript opinion which concluded as follows: \\\"The bare denial of the motion does not permit us to assume the truth of any of the evidence in the affidavits or correspondence (Macera v. Mancini, 327 Mass. 616, 621 [1951]), and the case is left in the posture that the denial of the motion can be explained on the ground that the judge was not bound to and did not believe that any of the defendant's evidence was credible. 'For this reason alone the denial of the motion cannot be pronounced erroneous.' DeLuca v. Boston Elev. Ry. 312 Mass. 495, 500 (1942).\\\" Farley v. Sprague, 5 Mass. App. Ct. 799, 800 (1977). The two cases thus cited by the Appeals Court are typical of numerous cases decided by this court in which we have applied the rule that a judge is not bound by or required to believe allegations in affidavits accompanying motions, notwithstanding the fact that the allegations are not controverted by the opposing party. We have often applied that rule as to affidavits accompanying motions for a new trial, but we have not limited the application to motions of that type. Without suggesting any change in the types of cases to which that rule has been applied, we must consider now whether it should be applied to the present and other similar situations arising under the Massachusetts Rules of Civil Procedure, 365 Mass. 730 (1974). We conclude that it is not to be applied to such cases.\\nThe Massachusetts Rules of Civil Procedure contain two provisions by which a defendant can contest the jurisdiction of the court over his person or the sufficiency of the service of process on him. Under rule 12 (b), 365 Mass. 754 (1974), he may raise the issue by a motion to dismiss the action, and under rule 60 (b), 365 Mass. 828 (1974), he may raise it after judgment by a motion for relief from the judgment. The language of these two rules is substantially the same as that of the earlier Federal Rules of Civil Procedure similarly numbered. The adjudged construction theretofore given to those Federal rules is to be given to our rules, absent compelling reasons to the contrary. Rollins Environmental Servs., Inc, v. Superior Court, 368 Mass. 174, 179-180 (1975) . Nichols Assocs. v. Starr, 4 Mass. App. Ct. 91, 93 (1976) . While neither these two rules nor their Federal counterparts mandate the filing of affidavits or counter affidavits, it is the common practice for the moving party thereunder to support his motion by an affidavit and for the other party to file a counter affidavit if he so desires. The Federal courts have uniformly interpreted Fed. R. Civ. P. 12 and 60 as requiring the acceptance of the allegations in the uncontroverted affidavits of the moving party as true for the purposes of the particular motion. See Burchett v. Bardahl Oil Co., 470 F.2d 793, 797 (10th Cir. 1972); Grantham v. Challenge-Cook Bros., 420 F.2d 1182, 1186 (7th Cir. 1969); Cohen v. Newsweek, Inc., 312 F.2d 76, 78 (8th Cir. 1963); Thomas v. Furness (Pac.) Ltd., 171 F.2d 434, 435 (9th Cir. 1948), cert, denied, 337 U.S. 960 (1949); Bucholz v. Hutton, 153 F. Supp. 62, 66 (D. Mont. 1957); Shires v. Magnavox Co., 74 F.R.D. 373, 376-377 (E.D. Tenn. 1977); McDavid v. James, 64 F.R.D. 182, 183 (E.D. Tenn. 1973); Shore v. Cornell-Dubilier Elec. Corp., 33 F.R.D. 5, 7 (D. Mass. 1963); Poliak Bros. v. Leo-Tex Co., 20 F.R.D. 396, 397 (S.D.N.Y. 1957); 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure \\u00a7 1353 (1969), and cases cited at 583 n.3.\\nIt is apparent from the few appellate decisions in this Commonwealth on this subject that the Massachusetts Rules of Civil Procedure are being interpreted and applied in accordance with the Federal court precedents on the force and effect of uncontroverted affidavits of the moving party. In Nichols Assocs. v. Starr, supra at 93, the Appeals Court upheld the allowance of a motion under rule 12 (b) (2) to dismiss an action in which the defendant's affidavit alleging that he was not a resident of the Commonwealth and that the court had not in any way acquired jurisdiction over him in the matter was not controverted by the plaintiff. In Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Comm'n, 372 Mass. 152, 154-155 (1977), this court reached a similar result with respect to the defendant's motion for summary judgment under rule 56, the plaintiff having failed to controvert the allegations in the defendant's affidavit accompanying his motion. Although the result in the latter case was based in part on the fact that rule 56 expressly authorizes both supporting and opposing affidavits in connection with such motions, the decision nevertheless illustrates the importance, and in some cases the necessity, for opposing affidavits. The party failing to file an opposing affidavit in such a situation cannot rely on the hope that the judge may draw \\\"contradictory inferences\\\" in his favor from the apparently undisputed facts alleged in the affidavit of the moving party. Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976). Nichols Assocs. v. Starr, supra at 94.\\nOn the basis of the numerous Federal precedents under the Federal Rules of Civil Procedure, and the several precedents in this Commonwealth under the Massachusetts Rules of Civil Procedure, we hold that in the circumstances of this case, since the plaintiff failed to controvert the allegations of the defendant's affidavit concerning his alleged residence and the insufficiency of the attempted service of process on him, the defendant was entitled to relief from the default judgment entered against him. The defendant's motion asks only that the default judgment entered against him on November 4, 1975, be vacated and set aside. It includes no request that the action be dismissed. We therefore need not consider or speculate whether the plaintiff's conduct demonstrated something short of good faith in prosecuting this action to the point of obtaining a default judgment against the defendant who he may have had reasonable cause to know did not reside in the Commonwealth. See 10 C.A. Wright & A.R. Miller, Federal Practice and Procedure \\u00a7 2693, at 314-316 (1973).\\nWe reverse the order of the Superior Court denying the defendant's motion for relief from the judgment.\\nSo ordered.\\nRule 56 (e), 365 Mass. 824 (1974), regarding motions for summary judgment, provides that where a motion for summary judgment is supported by affidavit, \\\"an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\\\"\"}"
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+"{\"id\": \"3880467\", \"name\": \"Robert A. Anzalone & others vs. Massachusetts Bay Transportation Authority & another\", \"name_abbreviation\": \"Anzalone v. Massachusetts Bay Transportation Authority\", \"decision_date\": \"1988-08-01\", \"docket_number\": \"\", \"first_page\": \"119\", \"last_page\": \"125\", \"citations\": \"403 Mass. 119\", \"volume\": \"403\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:15:29.388160+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert A. Anzalone & others vs. Massachusetts Bay Transportation Authority & another .\", \"head_matter\": \"Robert A. Anzalone & others vs. Massachusetts Bay Transportation Authority & another .\\nSuffolk.\\nApril 5, 1988.\\nAugust 1, 1988.\\nPresent: Hennessey, C.J., Liacos, Abrams, Nolan, & Lynch, JJ.\\nFrederick T. Golder for the plaintiffs.\\nDavid D. Patterson ( Jonathan P. Feltner with him) for the defendants.\\nDiane Anzalone (wife), Robert L. Anzalone (son), Sandra J. Anzalone (daughter), Dawn M. Anzalone (daughter), and Michael J. Odierno (stepson).\\nJohn O\\u2019Loughlin, a lieutenant with the police force of the Massachusetts Bay Transportation Authority.\", \"word_count\": \"2128\", \"char_count\": \"12935\", \"text\": \"Liacos, J.\\nRobert Anzalone, a police officer employed by the Massachusetts Bay Transportation Authority (MBTA), filed suit against the MBTA. Count 1, brought by Anzalone under G. L. c. 93A (1986 ed.), alleged that the MBTA engaged in unfair or deceptive acts in the handling of his workmen's compensation claim. Anzalone's wife and children were plaintiffs in the remaining five counts, also brought under G. L. c. 93A. These five counts state claims for loss of consortium by An-zalone's wife and children \\\"as a result of the unfair and deceptive trade practices committed against\\\" Anzalone. The plaintiffs later amended their complaint, adding a count against John O'Loughlin, Anzalone's supervisor, for intentionally harassing Anzalone and interfering with his employment, The MBTA and O'Loughlin filed a motion to dismiss the complaint for failure to state a claim on which relief could be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The defendants' motion was allowed, and the plaintiffs appeal. We transferred this case on our own motion and affirm the dismissal of the complaint as to the MBTA and O'Loughlin.\\nWe deal first with the plaintiffs' claims against the MBTA. The plaintiffs' complaint alleges that, in 1968, Anzalone began his employment with the MBTA as a police officer. On November 9, 1979, while acting in the line of duty, Anzalone rescued a person from a dangerous place and, in so doing, inhaled a substantial amount of smoke. As a result, Anzalone was disabled and did not return to work until November 3, 1983, when the MBTA ordered Anzalone to return to work for light duty, or be terminated.\\nOn the day Anzalone returned to work, he suffered an anxiety attack which caused him to be disabled from November 3, 1983, to April 20, 1984. Anzalone returned to work on April 20, 1984, and on June 6, 1984, was ordered to work in a room with no ventilation and a temperature of 105 degrees. He again was disabled until June 8, 1984, at which time he returned to work. From June 19, 1984, until June 26, 1984, Anzalone was hospitalized for a cardiac catheterization. Thereafter, he returned to work until December 12, 1984, at which time he sustained a personal injury \\\"which caused him to become totally disabled.\\\"\\nAnzalone filed for workmen's compensation payments pursuant to G. L. c. 152 (1986 ed.) (Workmen's Compensation Act), which the MBTA refused to pay. During the course of compensation proceedings before the Industrial Accident Board, the MBTA sent Anzalone to a number of physicians for examinations and evaluations. The MBTA has refused to supply Anzalone with copies of the medical reports.\\nA. Claim against employer. Anzalone contends that he has alleged sufficient facts to state a claim under G. L. c. 93A and that the judge erroneously dismissed the complaint. In reviewing the dismissal oFa complaint pursuant to Mass. R. Civ. P. 12 (b) (6), we take the facts alleged in the complaint to be true, and consider whether those allegations reveal that there is no set of facts which, if proven, would entitle the complainant to relief. Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 491 (1981). Nader v. Citron, 372 Mass. 96, 98 (1977).\\nIn Manning v. Zuckerman, 388 Mass. 8 (1983), we held that the Legislature did not intend to grant the protection of c. 93A to a former employee against his former employer in a dispute arising out of the employment relationship. Id. at 12. Anzalone asserts that Manning is inapposite because it was decided pursuant to G. L. c. 93A, \\u00a7 11, and Anzalone's action is brought under G. L. c. 93A, \\u00a7 9. In Manning we discussed the operative portion of G. L. c. 93A, \\u00a7 2 (a), which makes unlawful \\\"[ujnfair methods of competition and unfair or decep- live acts or practices in the conduct of any trade or commerce . . . ,\\\" We stated that \\\"we believe that the Legislature did not intend [c. 93A] to cover employment contract disputes between employers and the employees who work in the employer's organization, nor . . . disputes between members of that organization arising out of the employment relationship.\\\" Id. Nothing stated in the complaint makes this case anything other than a dispute arising out of an employment relationship.\\nAnzalone argues, however, that this is not an employment dispute, but rather a dispute between him and an insurer. According to Anzalone, at the time the MBTA, a self-insurer under G. L. c. 152, committed the alleged unlawful trade practices, it was acting as an insurance company, not as An-zalone's employer, and thus violated G. L. c. 176D (1986 ed.). Even if we assume the truth of Anzalone's allegations, G. L. c. 176D does not apply to the MBTA. General Laws c. 176D, \\u00a7 1 (a), states that it applies to any self-insurer \\\"which is engaged in the business of insurance.\\\" A self-insuring employer under the workmen's compensation law does not become an insurance company. See Bertrand v. Quincy Mkt. Cold Storage & Warehouse Co., 728 F.2d 568, 571 (1st Cir. 1984). The judge correctly dismissed Anzalone's count against the MBTA and the loss of consortium claims, all of which are based on alleged violations of G. L. c. 93A.\\nB. Claim against co-employee. In his count against O'Loughlin, Anzalone alleged that, when he returned to work, O'Loughlin ordered him to be in full uniform but not to carry a gun. The plaintiff alleged that O'Loughlin criticized An-zalone's performance, ordered him to wash an automobile, in violation of the terms of light duty work, ordered Anzalone to perform dirty and menial jobs, and, when he had appointments with his physicians, required Anzalone to bring a note stating the time he arrived at his appointment, the time he left, and what was done. Anzalone further alleged that O'Loughlin, in order to exacerbate Anzalone's physical condition, sent people smoking cigarettes into the office in which Anzalone was working, had people paint outside Anzalone's office, and placed Anzalone in a room with no ventilation and temperatures in excess of 100 degrees. At the end of his complaint, Anzalone concludes that O'Loughlin \\\"intentionally and maliciously interfered with . . . Anzalone's employment with the M.B.T.A.\\\"\\nThe defendants contend that the judge properly dismissed the complaint against O'Loughlin because the complaint failed to set forth a claim of interference with contractual relations. The elements of the tort of interference with contractual relations were set out in Walker v. Cronin, 107 Mass. 555, 562 (1871): \\\"(1) intentional and wilful acts (2) calculated to cause damage to the plaintiffs in their lawful business, (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendant, (which constitutes malice,) and (4) actual damage and loss resulting.\\\"\\nAnzalone's complaint does not allege that he was terminated, or that he separated from, or resigned from the MBTA. There is no allegation of any \\\"loss of advantages, either of property or of personal benefit, which, but for [O'Loughlin's] interference, the plaintiff would have been able to attain or enjoy.\\\" Walker v. Cronin, supra at 565. Because Anzalone's complaint failed to allege any actual damages or loss, the judge properly dismissed the claim against O'Loughlin.\\nAnzalone argues, however, that his complaint alleges an intentional tort by O'Loughlin and that it was error for the judge to dismiss his claim against O'Loughlin because intentional torts are not subject to the exclusivity bar in the workmen's compensation law. This is so, he says, because O'Loughlin's conduct did not arise out of, and in the course of, O'Loughlin's employment. Assuming, under this argument, that the essence of Anzalone's claim is the intentional infliction of emotional distress, we consider, on the facts alleged, whether an employee can bring such a common law claim against his employer.\\nGeneral Laws c. 152, \\u00a7 15, provides in part: \\\"Nothing in this section, or in section eighteen or twenty-four shall be construed to bar an action at law for damages for personal injuries . by an employee against any person other than the insured person employing such employee . . . and said insured person's employees\\\" (emphasis added). In previous cases, we have concluded that the Workmen's Compensation Act bars an employee injured in the course of his or her employment by the negligence of a fellow employee from recovering from that fellow employee if the fellow employee also was acting in the course of employment. Mendes v. Tin Kee Ng, 400 Mass. 131 (1987). See Saharceski v. Marcure, 373 Mass. 304, 306 (1977). We also have held that an employee is not barred from bringing an action against a fellow employee who commits an intentional tort which \\\"was in no way within the scope of employment furthering the interests of the employer.\\\" O'Connell v. Chasdi, 400 Mass. 686, 690 (1987). However, a suit for an intentional tort in the course of the employment relationship is barred by the exclusivity provision of the Workmen's Compensation Act, unless the employee has reserved a right of action pursuant to G. L. c. 152, \\u00a7 24. Anzalone does not assert that he reserved his right under \\u00a7 24. Foley v. Polaroid Corp., 381 Mass. 545, 550 (1980) (claim for intentional infliction of emotional distress covered by c. 152; tort claim barred). The question, then, is whether O'Loughlin's alleged actions occurred during the employment relationship; specifically, whether O'Loughlin's conduct was \\\"within the scope of employment furthering the interests of the [MBTA].\\\" O'Connell v. Chasdi, supra.\\nO'Loughlin's complained-of conduct related wholly to his position as Anzalone's supervisor and to the manner in which O'Loughlin exercised his supervisory duties. The conduct complained of arose in the course of employment by the MBTA of Anzalone and O'Loughlin. Thus, these claims are covered exclusively by c. 152. See Albanese's Case, 378 Mass. 14 (1979) (claim for emotional distress covered by G. L. c. 152); Fitzgibbons's Case, 374 Mass. 633 (1978) (same). The judge correctly dismissed Anzalone's count against O'Loughlin.\\nJudgment affirmed.\\nThe complaint was amended a third time in a manner not pertinent to this appeal.\\nThe status of the compensation claim before the Industrial Accident Board is hot before us. We note, however, that Anzalone's right to obtain copies of medical reports is adequately provided for by G. L. c. 152. See, e.g., G. L. c. 152, \\u00a7 20, 20A, and 30A.\\n\\\"Trade\\\" and \\\"commerce\\\" are defined in G. L. c. 93A, \\u00a7 1 (b), as: \\\" 'Trade' and 'commerce' shall include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this commonwealth.\\\"\\nA violation of G. L. c. 176D, \\u00a7 3 (9), is deemed, by virtue of G. L. c. 93A, \\u00a7 9 (1), to give rise to a c. 93A claim.\\nPrior to the 1985 amendment, G. L. c. 152, \\u00a7 24, provided in part: \\\"An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury therein occurring, to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right, or, if the contract of hire was made before the employer became an insured person or self-insurer, if the employee shall not have given the said notice within thirty days of the time said employer became an insured person or a self-insurer.\\\" The subsequent amendments to this statute do not affect this case.\\nWe note that redress for Anzalone's claims against O'Loughlin is provided for in the Workmen's Compensation Act. Section 28 of G. L. c. 152 provides for double damages in cases of \\\"serious and wilful misconduct\\\" by an employer, a fellow employee, or a supervisor.\\nThe complaint against O'Loughlin asserts no consortium claim as against him. Thus, we do not reach the issue of exclusivity in this regard. Additionally, although the plaintiff states that the motion to dismiss was \\\"too late,\\\" he makes no argument on this point. Thus, we consider the claim waived. Mass. R. A. P. 16, as amended through 386 Mass. 1247 (1982).\"}"
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+"{\"id\": \"3882436\", \"name\": \"Commonwealth vs. Joseph Dockham\", \"name_abbreviation\": \"Commonwealth v. Dockham\", \"decision_date\": \"1989-08-21\", \"docket_number\": \"\", \"first_page\": \"618\", \"last_page\": \"633\", \"citations\": \"405 Mass. 618\", \"volume\": \"405\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:04:48.314113+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Joseph Dockham.\", \"head_matter\": \"Commonwealth vs. Joseph Dockham.\\nNorfolk.\\nMay 3, 1989. \\u2014\\nAugust 21, 1989.\\nPresent: Liacos, C.J., Abrams, Nolan, Lynch, & O\\u2019Connor, JJ.\\nStephen T. Cunningham for the defendant.\\nStephanie Martin Glennon, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"5213\", \"char_count\": \"31886\", \"text\": \"Liacos, C.J.\\nThe defendant, Joseph Dockham, was convicted of several indictments charging rape, assault with intent to rape, child pornography, and indecent assault and battery of two minor children. The defendant appeals from his convictions, as well as the denial of his motion for a new trial. We transferred the case to this court on our own motion.\\nThe defendant was tried together with the codefendant, Laura Tufts, for the sexual abuse of a four year old boy and an eighteen month old girl. The defendant is the father of the eighteen month old girl; the codefendant is the mother of both children. We have already addressed the codefendant's appeal from the denial of her motion for a new trial. Commonwealth v. Tufts, ante 610 (1989).\\nWe summarize the evidence before the jury. The four year old boy gave videotaped testimony about the alleged sexual abuse. He testified that the defendant tried to put his penis into the boy's rectum and that there was some penetration. According to the child witness, the defendant touched the boy ' s buttocks and penis with his hand. He also sodomized the boy. The boy testified that \\\"stuff came out.\\\" The boy testified to further acts of sexual abuse by the defendant. Additionally, the boy testified that the defendant also touched the girl's vagina with his mouth, and that the codefendant touched his penis with her mouth and fingers and touched the girl's vagina with her mouth and fingers. Both defendants told the boy that he had to touch the codefendant's vagina with his mouth and made the boy touch his sister's vagina. The boy testified that the defendant bit him on the buttocks, that he was hit by the defendant with belts, and that the defendants took pictures while the sexual abuse occurred.\\nA social worker from the Department of Social Services (department) testified at trial that she had removed the two children from the defendants' home on June 16, 1986, after the four year old boy made allegations of physical and sexual abuse by the defendant and the codefendant. On June 27,1986, the department placed the two children with a foster family with which the children remained until the time of trial.\\nThe boy's foster mother testified at trial that, on the day the children arrived at her home, the boy told her that his dad had put his finger in the boy's \\\"bum.\\\" The foster mother further testified that when it was time for the children to take a bath, the boy started screaming, crying, grabbing at his genital area, and appeared fearful. The child slept in his clothes that night because he would not take off his clothes.\\nThe next day, the boy told his foster mother that \\\"daddy Joe\\\" had touched his penis, and that he was afraid to tell because he would have to go home and would be hit. That night at bath time, the boy began trembling; his eyes popped open, his body and face were rigid, and he was grabbing his genital area. Later, when he calmed down a bit and undressed himself, his foster mother noticed that he was wearing several layers of underpants. The foster mother testified that the boy made further extensive and detailed disclosures to her over the next few days. Her recount of his disclosures was admitted at trial as fresh complaint testimony.\\nOn the fourth day the children were with their foster mother, she took them to the emergency room at Children's Hospital. The boy met with child psychiatrist Dr. Luis Rodriguez. Dr. Rodriguez testified, under the fresh complaint doctrine, that the boy reported that \\\"Joe\\\" had played with his genital area, and put his penis in the boy's rectal area, and that \\\"mommy\\\" (Tufts) played with him and took pictures.\\nDr. Kimberly Davies testified that she examined the children at the hospital and made no unusual findings at that time. The girl had a normal gynecological examination showing no tears, bruises, or trauma. The boy would not take off his pants. When the nurse and the physician tried to take his pants off, he started screaming, kicking, fighting, and trying to get off the table. The child's foster mother described him as having veins bulging out of his face, as being \\\"beet red,\\\" screaming, \\\"Stop, stop, stop. Leave me alone.\\\" Dr. Davies did not complete the examination.\\nA social worker with the department subsequently interviewed the boy as part of an investigation. Her conversation with him was admitted at trial as fresh complaint testimony. The boy told her that his \\\"daddy\\\" had hurt him and that he had put his penis in the child's mouth. Later that day, the boy told the social worker that he wanted to tell her about his \\\"mommy,\\\" saying that his mother had touched his penis with her hands and mouth, that she made the child touch his sister, and that the codefendants took pictures with a camera.\\nDr. Rene\\u00e9 Brant, a child psychiatrist, testified as an expert witness. She described the language and communication skills of a child as he or she progresses from infancy to age six, as well as the commonly recognized clinical phenomena related to child sexual abuse \\u2014 secrecy, delayed or gradual disclosure, retraction \\u2014 and behavioral signs and symptoms sexually abused children frequently exhibit. Dr. Jan Paradise, a pediatric gynecologist, also testified as an expert witness. She testified, in response to a hypothetical question, that it was not inconsistent for a sixteen month old girl who had been touched in the genital area by an adult's mouth or fingers two weeks prior to a physical examination not to have physical signs of trauma to her genital area. She also testified that it was not inconsistent for a four year old boy to show no injury or physical trauma after having had an adult penis placed in his rectal opening, or an adult penis inserted into his mouth, or having had his penis touched by an adult's hands.\\nBoth defendants testified in their own defense. The defendant Dockham testified that he once hit the boy on the buttocks with a belt because he thought the boy had broken a window, that he bit the boy's buttocks as a form of play, and that he once touched the boy's penis when he was drying him off after a bath. He denied inserting his penis into the boy's mouth or engaging in any sexual activity with the boy or girl.\\nThe codefendant, Laura Tufts, testified that she hit the boy \\\"on the butt\\\" if he disobeyed her, but not with a belt. She denied putting her mouth on the boy's penis, or doing anything of that nature. She testified that she occasionally did \\\"raspberries\\\" on the boy's and girl's bellies, which made the children giggle. She also said she would bite the boy on the buttocks when playing with him. She admitted that she at one time owned a Polaroid camera but said that it had been lost in a fire. She testified that she had to touch the boy's penis to keep it clean and to apply ointment he needed because of a problem with the foreskin of his penis. Dr. John J. McHugh, the boy's pediatrician, also testified for the defense, that the boy had a problem with the foreskin of his penis which required the application of lubricants.\\nThe defendant raises eight issues on appeal: (1) the violation of his confrontation right because of impaired eye contact between the defendant and child witness during videotaping; (2) the quality of the videotape; (3) the lack of expert testimony on the issue of emotional trauma to the child if he testified in open court; (4) the introduction of fresh complaint testimony; (5) the admission of expert testimony on the general characteristics of sexually abused children; (6) the exclusion of an opinion that the child witness in this case \\\"lies a lot\\\"; (7) the constitutionality of the child pornography statute, G. L. c. 272, \\u00a7 29A (1988 ed.); and (8) the constitutionality of the videotaping statute, G. L. c. 278, \\u00a7 16D (1988 ed.), as a denial of the right to a public trial.\\nWe have addressed previously the issue of the codefendant's confrontation rights, as well as the quality of these videotapes. See Commonwealth v. Tufts, supra. The defendants' challenges are identical, and our decision in Tufts is equally applicable to the defendant in this case. We now address the defendant's remaining challenges.\\n1. Expert testimony regarding the psychological or emotional trauma to the child if he testified in open court. General Laws c. 278, \\u00a7 16D, provides that a child can give videotaped testimony if \\\"the court finds by a preponderance of the evidence at the time of the order that the child witness is likely to suffer psychological or emotional trauma as a result of testifying in open court, as a result of testifying in front of the defendant, or as a result of both.\\\" We held in Commonwealth v. Bergstrom, 402 Mass. 534, 550-551 (1988), that \\\"the Commonwealth must show, by more than a mere preponderance of evidence, a compelling need for use of such a procedure. Such a compelling need could be shown where, by proof beyond a reasonable doubt, the recording of the testimony of a child witness outside the courtroom (but in the presence of the defendant) is shown to be necessary so as to avoid severe and long lasting emotional trauma to the child.\\\"\\nThe judge in this case made a finding that the behavior exhibited by the boy in the courtroom, contrasted with his appearance and behavior in the lobby, satisfied him \\\"beyond a reasonable doubt that it was necessary to record [the boy's] testimony outside the courtroom in order to prevent [the boy] from suffering psychological or emotional trauma.\\\" The defendant argued below and argues now on appeal that the judge could not make this finding without relying on expert testimony. We disagree. See, e.g., Blaisdell v. Commonwealth, 372 Mass. 753, 765 (1977) (nonexpert evidence including defendant's history of mental illness, medical records, facts of crime, and aberrant conduct or statements defeats presumption of sanity); Commonwealth v. Tatisos, 238 Mass. 322, 325-326 (1921) (within judge's wise discretion to determine child's competency after evaluating child's appearance and manner, her capacity to observe, remember, and express herself).\\nThis case, perhaps uniquely so, presented the judge with ample evidence on which to base his finding. No medical evidence was required to sustain the judge's conclusion that the child witness in this case would suffer emotional or psychological trauma if he testified in open court. See Commonwealth v. Monico, 396 Mass. 793, 798 (1986) (experttestimony is not necessary to raise issue of insanity defense); Common wealth v. Laliberty, 373 Mass. 238, 245 (1977). Rather than repeat all the facts relevant to the videotaping procedure presented in lengthy detail in Commonwealth v. Tufts, supra, we will summarize the factors upon which the judge could rely properly in making his decision.\\nThe judge had questioned the child witness and had for three days observed him during voir dire conferences in the judge's lobby as well as in the courtroom in the jury's presence. The judge made an unchallenged finding that the four year old boy was competent to testify, after the boy explained the difference between the truth and a lie and showed an understanding of the importance of taking an oath. See Commonwealth v. Reid, 400 Mass. 534, 542-543 (1987); Commonwealth v. Brusgulis, 398 Mass. 325, 329-330 (1986). When the child was asked general background questions in open court, in the presence of the jury and the defendants, he had no difficulty answering. When the child was asked in open court about what had happened at his old house, he kicked, turned around in his chair, bit his shirt, could not speak, put his head on the railing, had difficulty sitting up in his chair, and was unresponsive to questions. He reacted to questions about the sexual abuse by saying that he \\\"didn't know it anymore,\\\" that he didn't \\\"remember any of it,\\\" that \\\"enough's enough,\\\" and that he had \\\"already said it.\\\" In contrast, while in the judge's lobby, the child was able to give a detailed description, without much prompting, of the alleged physical and sexual abuse.\\nWe conclude that the judge properly found, in his discretion, that, \\\"at a minimum, [the boy] . . . had a story to tell, but would not tell it in the presence of the jury [and] defendants,\\\" and that \\\"it was necessary to record [the child's] testimony outside the courtroom in order to prevent [the child] from . suffering psychological or emotional trauma.\\\" See Commonwealth v. Goulet, 402 Mass. 299, 309 (1988) (trier of fact can reject insanity defense even in absence of expert opinion from Commonwealth); Commonwealth v. Cullen, 395 Mass. 225, 229-230 (1985) (judge entitled to infer sanity from facts underlying crime and evidence of defendant's actions before and after crime and to reject expert testimony of two psychiatrists that defendant was insane); Commonwealth v. Tarver, 369 Mass. 302, 310 (1975) (determination of expert witness's qualifications and competence within judge's discretion); Commonwealth v. Tatisos, supra at 325-326 (determination of child's competence to testify within judge's discretion).\\nGeneral Laws c. 278, \\u00a7 16D, imposes no requirement that a judge's finding of psychological or emotional trauma be based on expert testimony. See also People v. Johnson, 146 Ill. App. 3d 640, 651 (1986) (judge's observation of five year old witness's reticence to testify in defendant's presence and the improvement in her testimony upon the defendant's removal \\\"better demonstrated the necessity of the procedure than could the opinion of any expert\\\"); McGuire v. State, 288 Ark. 388, 391-394 (1986) (judge properly allowed videotaping of eleven year old girl who, according to grandparents' testimony, was bashful and embarrassed about rape and easily upset).\\n2. Fresh complaint witnesses. The defendant argues that the testimony of three fresh complaint witnesses should have been excluded at trial because the complaints were not fresh and were offered to rehabilitate the witness rather than to corroborate his testimony. The boy's foster mother, a social worker from the Department of Social Services, and a psychiatrist who interviewed the child, all testified as fresh complaint witnesses. Each recounted the content of the boy's disclosures to her or him.\\nWe recently stated that there is no absolute rule as to the time frame within which a sexual assault victim must make a first complaint for that complaint to be admissible in evidence as a fresh complaint. Commonwealth v. Amirault, 404 Mass. 221, 228 (1989), citing Commonwealth v. Comtois, 399 Mass. 668, 673 (1987). The time frame is especially flexible in the context of fresh complaints by young, sexually abused children. Commonwealth v. Amirault, supra at 229 (upholding admission of fresh complaint, made by four year old child, eighteen months after the child last attended abusive day care center); Commonwealth v. Comtois, supra at 672-673 n.9 (ruling admissible fresh complaint made by fourteen year old victim approximately nine months after last incident of abuse); Commonwealth v. Densten, 23 Mass. App. Ct. 981, 981-982 (1987) (statements of nine year old special needs boy made seventeen days after incident held admissible as fresh complaint). Child sexual abuse cases \\\"constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child's make-up.\\\" Commonwealth v. Amirault, supra at 229. \\\" 'The determination whether statements are sufficiently prompt to constitute fresh complaints rests within the sound discretion of the trial judge. See Commonwealth v. Sherry, 386 Mass. 682, 691 (1982). The test is whether the victim's actions were reasonable in the particular circumstances of the case' \\\" (citations omitted). Commonwealth v. Amirault, supra at 228. We have considered relevant the child's age, the length of time the child has been away from an abusive setting, whether the perpetrator used threats or coercion, and whether the perpetrator is a relative or close friend of the child. See Commonwealth v. Comtois, supra at 672 n.9 (when young victim has been under control of, and in reasonable fear of, defendant who is a close relative, promptness of complaint usually measured from date victim leaves defendant's control).\\nThe victim in this case is a four year old boy who made allegations of physical and sexual abuse against his mother and a man he thought of as his father. The victim made his first disclosure of abuse eleven days after he left the abusive setting. He told his foster mother that he was afraid to tell because he would have to go home and would be hit. See Commonwealth v. Comtois, supra at 672-673 (where defendant warned daughter that she would get in trouble if she told anyone, victim made initial disclosure two months later). The child's first complaint eleven days after he was out of the defendants' control and later gradual disclosures were reasonably delayed, given the exceptional circumstances of this case. See Commonwealth v. Amirault, supra at 229; Commonwealth v. King, 387 Mass. 464, 473 (1982).\\nFurthermore, the judge instructed the jury to evaluate the promptness of the complaints to determine whether they were fresh complaints. He instructed the jury that a fresh complaint \\\"must be made reasonably prompt after the event as may be expected in light of all the circumstances\\\" and that a fresh complaint must be made voluntarily. He further instructed the jury to disregard any fresh complaint testimony they found was not in fact a fresh complaint. See Commonwealth v. Amirault, supra at 230 (judge gave proper limiting instructions that jury should question whether complaint was \\\"fresh\\\"); Commonwealth v. Densten, 23 Mass. App. Ct. 981, 982 (1987) (judge gave limiting instructions to the jury that it was for jury to decide whether fresh complaint evidence should be accepted).\\nThe defendant also argues that the complaints were offered to rehabilitate the witness rather than to corroborate his testimony. The judge, however, gave limiting instructions to the jury regarding the limited purpose for which fresh complaint testimony could be used. He stated: \\\"The fresh complaint testimony can only be considered for corroboration; that is, that the alleged victim complained to another person . . . .\\\" We are unwilling to assume that the jury did not heed these instructions. See Commonwealth v. Errington, 390 Mass. 875, 882 (1984), citing Commonwealth v. Jackson, 384 Mass. 572, 579 (1981); Commonwealth v. Leno, 374 Mass. 716, 719 (1978). The judge, within his discretion, properly admitted the testimony of three witnesses as evidence of fresh complaint and gave appropriate accompanying limiting instructions. There was no error.\\n3. Expert testimony on the general characteristics of sexually abused children. The defendant challenges the admission in evidence of Dr. Brant's expert testimony on the general behavioral characteristics of sexually abused children. He argues that such testimony should have been in response to a hypothetical question related to the facts of the case, whether assumed or in evidence. We disagree.\\nA trial judge has broad discretion with respect to the admission of expert testimony. Commonwealth v. Ianello, 401 Mass. 197, 200 (1987), citing Commonwealth v. Gaulden, 383 Mass. 543, 549 (1981). See Commonwealth v. Lewandowski, 22 Mass. App. Ct. 148, 150-151 (1986) (judge properly allowed expert witness to testify within his special expertise that victim's level of sexual knowledge was very sophisticated for her age). We have stated that testimony \\\"on matters within the witness's field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide.\\\" Simon v. Solomon, 385 Mass. 91, 105 (1982). Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). See, e.g., Commonwealth v. Chapin, 333 Mass. 610, 625-626, cert. denied, 352 U.S. 857 (1956) (expert testimony on defendant's sanity admissible although sanity to be determined by jury). See also Proposed Mass. R. Evid. 702 (\\\"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise\\\").\\nDr. Brant testified that sexually abused children often delay disclosure of sexual abuse or make gradual disclosures, retract their statements, and repress the abuse. The behavioral signs and symptoms she described include sexualized play, knowledge of adult sexual functions, fears and anxieties related to body parts, people, and places involved in the sexual abuse. She stated that sexually abused children exhibit impaired trust, withdrawal, depression, guilt, shame, anxiety, and hypervigilance (being on guard and ill at ease). Dr. Brant made no references or comparison to the child witness. See Terrio v. McDonough, 16 Mass. App. Ct. 163, 175-176 (1983) (expert testimony about rape trauma syndrome held admissible where expert witness did not testify that victim in case had been raped or that she displayed behavior consistent with syndrome).\\nThe judge carefully explained to the jury the proper function of this expert testimony: \\\"Ordinarily, a court does not permit people to give their opinions in a court of law. . . . However, under certain circumstances, courts permit people to give their opinions on certain matters if those opinions are helpful to a jury. . In this case, I have permitted certain doctors to give their opinions for whatever help or for whatever consideration you as jurors wish to give to that opinion. . . . [Y]ou can give to their opinions whatever weight or whatever consideration you want to give it. You can ignore their opinion completely. You can give it great weight or you can give it little weight. Having in mind what the issues are in this case, you are permitted to give to these opinions whatever consideration you deem that it is advisable and helpful to you. . . . It's merely to help you, if it does, in analyzing any of the issues in this case. If it doesn't help you at all, you can easily ignore it.\\\" Later, in his final instructions to the jury, he explained: \\\"[Ejxpert witnesses do not decide cases; jurors do. So expert witnesses cannot usurp your role as finders of the facts. They can assist a jury, if they do, by providing information to help you better understand and better explain the testimony that you hear and then have to weigh and consider in your deliberations. These expert witnesses cannot determine those issues of fact for you that you alone have the responsibility to make. You are not bound by the testimony of an expert witness. You are entitled to accept the testimony of an expert witness, you can reject it, you can give to it whatever weight you think it's entitled to.\\\" Such limiting instructions safeguarded the jury's proper use of Dr. Brant's expert testimony. See Commonwealth v. Amirault, 404 Mass. 221, 231-232 (1989).\\nOther courts have uniformly allowed expert testimony on the typical symptoms of sexually abused children because the information is beyond the common knowledge of jurors and of assistance in assessing a victim witness's testimony and credibility. See State v. Lindsey, 149 Ariz. 472 (1986) (behavior patterns of young incest victims beyond common sense, experience, and education of average juror); State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984) (child sexual abuse places jurors at disadvantage); Smith v. State, 100 Nev. 570, 572-573 (1984) (expert testimony would help jury understand seemingly unusual behavior of victim and mother). \\\"While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibilty accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert's testimony demonstrates the routine indicia of witness reliability \\u2014 consistency, willingness to aid the prosecution, straightforward rendition of the facts \\u2014 may, for good reason, be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.\\\" State v. Middleton, 294 Or. 427, 440 (1983) (Roberts, J., concurring). See also State v. Lindsey, supra at 474 (jurors benefit from expert testimony explaining behavior they might otherwise \\\"attribute to inaccuracy or prevarication, but which may be merely the result of immaturity, psychological stress, [or] societal pressures\\\"); People v. Benjamin R., 103 A.D.2d 663, 669 (N.Y. 1984) (average juror lacks general awareness of young victim's reaction to sodomy or sexual abuse).\\nWe conclude that Dr. Brant's expert testimony in this case about the general behavioral characteristics of sexually abused children was admissible within the judge's sound discretion and properly limited by the judge's instructions to the jury.\\n4. Exclusion of statement that child witness \\\"lies a lot.\\\" At trial, the defendant sought to introduce the statement of the child witness's first foster mother that the boy \\\"lies a lot,\\\" as evidence of general reputation and character. According to defense counsel's offer of proof, the boy's foster mother at the time of trial had taken notes during a telephone conversation with the child's first foster mother. The notes included reference to the first foster mother's statement that the boy \\\"lies a lot.\\\" The defendant argues that, although a five year old boy cannot have a general reputation in a community, the statement that the boy \\\"lies a lot\\\" was admissible because it suggests a poor reputation for truth and veracity within his foster family. We disagree.\\nA witness can testify as to another witness's general reputation for truthfulness and veracity among those who know him. See G. L. c. 233, \\u00a7 21A (1986 ed.). Competent evidence of reputation must reflect \\\"a uniform and concurrent sentiment [in the public mind].\\\" Commonwealth v. Baxter, 267 Mass. 591, 593 (1929). A witness's character \\\"could be shown only by evidence of [his] general reputation as disclosed by the common speech of [his] neighbors and members of the community.\\\" Id. See Commonwealth v. Edmonds, 365 Mass. 496, 503-504 (1974) (character evidence is by evidence of reputation in community); Commonwealth v. Porter, 237 Mass. 1, 4 (1921). \\\"General reputation\\\" is the \\\"uniform and concurrent sentiment\\\" in the \\\"public mind.\\\" Commonwealth v. Baxter, 267 Mass. 591, 593 (1929).\\nThe defendant concedes that the out-of-court statement that the boy \\\"lies a lot\\\" was made by one person who had known the child for only ten days. We conclude that the statement was inadmissible as evidence of reputation. See F.W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506 (1914) (impeaching evidence must be of general reputation, not private opinions of a few); Commonwealth v. Baxter, supra at 593 (upholding exclusion of personal impressions of five individuals regarding person's character); Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933-934 (1981) (opinion of reputation cannot be based on comments of five people); Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980) (opinion of three fellow workers that witness \\\"wouldn't know the truth if it hit her in the face\\\" properly excluded). \\\"Personal opinions and isolated acts are not evidence of general reputation.\\\" Commonwealth v. Roberts, 378 Mass. 116, 129 (1979), and cases cited therein. Evidence of specific or particular acts of lying or similar misconduct is not admissible; nor is the opinion of a witness as to the character of the witness being impeached. Commonwealth v. Binkiewicz, 342 Mass. 740, 755-756 (1961). Eastman v. Boston Elev. Ry., 200 Mass. 412, 413 (1909). Contrast Proposed Mass. R. Evid. 405 (a) (allowing, in some circumstances, opinion testimony or evidence of specific instances of conduct).\\n5. The constitutionality of the child pornography statute, G. L. c. 272, \\u00a7 29A. The defendant argues on appeal that, because we held the child pornography statute, G. L. c. 272, \\u00a7 29A (1986 ed.), unconstitutionally overbroad in Commonwealth v. Oakes, 401 Mass. 602 (1988), his convictions on two indictments charging child pornography should be reversed. Our decision in Oakes was released in February, 1988, long after the June, 1987, trial in this case. At no time prior to, or during, trial did the defendant challenge either the constitutionality of G. L. c. 272, \\u00a7 29A, or the application of that statute to him. We need not consider an issue not raised below. Commonwealth v. Haas, 398 Mass. 806, 816 n.10 (1986). Commonwealth v. Helfant, 398 Mass. 214, 232 (1986), citing Commonwealth v. Lam Hue To, 391 Mass. 301, 308 (1984).\\n6. The constitutionality of G. L. c. 278, \\u00a7 16D, as a denial of the defendant's right to a public trial. The defendant argues, on appeal, for the first time, that his right to a public trial was abridged by G. L. c. 278, \\u00a7 16D, which permits a child witness to give videotaped testimony. The defendant makes no reference to any objection at trial on the basis of a right to a public trial. Having reviewed the record, we conclude that the defendant did not preserve his right to raise this issue on appeal. \\\"An issue not fairly raised before the trial judge will not be con sidered for the first time on appeal.\\\" Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982). Commonwealth v. Lewis, 346 Mass. 373, 383 (1963), cert. denied, 376 U.S. 933 (1964).\\nJudgments affirmed.\\nOther facts relevant to the boy's videotaped testimony are presented in Commonwealth v. Tufts, supra.\\nThe defendant does not argue the issue whether the judge's finding is deficient in that it does not find the emotional trauma to be \\\"severe and long lasting.\\\"\\nThe defendant did not move to strike any portion of the fresh complaint testimony as exceeding its proper function. See Commonwealth v. Salim, 399 Mass. 227, 237 (1987); Commonwealth v. Stewart, 398 Mass. 535, 543 (1986); Commonwealth v. Cifizzari, 397 Mass. 560, 575 n.19 (1986). Nor does the defendant identify any aspect of the fresh complaint testimony which was more than cumulative of the victim's testimony. See Commonwealth v. Thomas, 401 Mass. 109, 114 (1987); Commonwealth v. Blow, 370 Mass. 401, 404 (1976); Commonwealth v. Izzo, 359 Mass. 39, 43 (1971).\\nThe United States Supreme Court reversed our decision in Oakes, and remanded the case to our court. Massachusetts v. Oakes, U.S. (1989) (109 S.Ct. 2633 [1989]). Even if the issue were properly before us, the defendant here does not contend that the statute is vague as applied to the facts of this case.\\nWe suggested in Commonwealth v. Bergstrom, 402 Mass. 534 (1988), that the videotaping of a child witness's testimony should be \\\"structured so as to be in compliance with the constitutional requirements of a public trial.\\\" Bergstrom, supra at 551. The United States Supreme Court has struck down a statute excluding the press from the courtroom during the testimony of a child rape victim. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). The Supreme Court emphasized that its holding in Globe Newspaper Co. was narrow, stating that \\\"a rule of mandatory closure respecting the testimony of minor sex victims is constitutionally infirm.\\\" Id. at 611 n.2. General Laws c. 278, \\u00a7 16D, has no similar provision which would require exclusion of the press during a child victim's testimony.\"}"
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+"{\"id\": \"3886738\", \"name\": \"STEPHEN O'FLANAGAN vs. HAROLD W. SMITH\", \"name_abbreviation\": \"O'Flanagan v. Smith\", \"decision_date\": \"1944-06-01\", \"docket_number\": \"\", \"first_page\": \"187\", \"last_page\": \"188\", \"citations\": \"9 Mass. App. Div. 187\", \"volume\": \"9\", \"reporter\": \"Reports of Massachusetts Appellate Division\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:40:09.437880+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STEPHEN O\\u2019FLANAGAN vs. HAROLD W. SMITH\", \"head_matter\": \"APPELLATE DIVISION OF THE MUNICIPAL COURT OF THE CITY OF BOSTON.\\nSTEPHEN O\\u2019FLANAGAN vs. HAROLD W. SMITH\\nSuffolk, ss. Municipal Court of the City of Boston\\nArgued April 24, 1944\\nOpinion filed June 1, 1944.\\nPresent: Keniston, G. J., Carr & Adlow, JJ.\\nB. A. Sugarman, for the Plaintiff.\\nF. G. Bauer, for the Defendant.\", \"word_count\": \"459\", \"char_count\": \"2595\", \"text\": \"Keniston, G. J.\\nThis is a petition to establish a report. The petition is verified by affidavit, signed and sworn to, in the following form: \\\"I, Frederic Gilbert Bauer, attorney for the above-named, make oath that I have read the foregoing petition and am acquainted with the contents thereof and that the facts therein stated are true except in so far as stated to be upon belief and that as to such facts I believe them to be true. ' ' This affidavit does not comply with the provisions of rule 30 of this court, that the petition be \\\"verified by affidavit.\\\" Dubois v. Boston & Maine Railroad, Supreme Judicial Court, Rescript January 11, 1944 (No opinion). Hadley v. Watson, 143 Mass. 27. That portion of the affidavit which is qualified in the following words \\\"except in so far as stated to be upon belief and that as to such facts I believe them to be true\\\" refers to the second paragraph of page 11 of the petition which reads as follows: \\\"The plaintiff verily believes and therefor alleges that the evidence set forth in paragraphs 13, 14 and 15 of the draft report was all the evidence material to the status of the plaintiff at the time he was bitten and all the evidence on any issue material to the plaintiff's 17th request for rulings and to the claim of report on said 17th request set forth in paragraphs 1 and 2 of the claim of report.\\\" Paragraphs 13, 14 and 15 of the draft report are the only paragraphs in the draft report that contain any of the evidence introduced at the trial and on the basis of which the petitioner seeks to establish his report.\\nIf every part of a petition to establish a report should be verified by affidavit, Fuller, Petitioner, 219 Mass. 209, then certainly the most essential part of the report -should be so verified.\\n\\\"The truth of all facts which the petitioner thinks sufficiently material to be in the petition must be supported by oath. . . . Justice does not demand an investigation of the subject unless some one is willing to assume the burden of making oath to the truth of all the facts on which action is sought.\\\" Fuller, Petitioner, supra at pages 210 and 211.\\nIt seems unnecessary to consider whether there was any error in disallowing the defendant's claim of report.\\nThe petition to establish the report is dismissed.\"}"
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+"{\"id\": \"3969243\", \"name\": \"R. D. Matthews Construction Co., Inc. vs. Planning Board of Hingham\", \"name_abbreviation\": \"R. D. Matthews Construction Co. v. Planning Board\", \"decision_date\": \"1982-05-05\", \"docket_number\": \"\", \"first_page\": \"497\", \"last_page\": \"500\", \"citations\": \"13 Mass. App. Ct. 497\", \"volume\": \"13\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:08:58.194108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"R. D. Matthews Construction Co., Inc. vs. Planning Board of Hingham.\", \"head_matter\": \"R. D. Matthews Construction Co., Inc. vs. Planning Board of Hingham.\\nPlymouth.\\nDecember 17, 1981.\\nMay 5, 1982.\\nPresent: Goodman, Perretta, & Kass, JJ.\\nRichard L. Wainwright for the plaintiff.\\nChester A. Janiak (George M. Ford with him) for the defendant.\", \"word_count\": \"1151\", \"char_count\": \"6772\", \"text\": \"Kass, J.\\nAt issue is whether a misbegotten jury claim and a consequently mistaken order of reference to a master permanently governs the \\\"facts final\\\" or \\\"facts not final\\\" status of a master's report.\\nAlthough not so described by caption or text, the complaint in this action was one brought under G. L. c. 41, \\u00a7 81BB, as appearing in St. 1957, c. 199, \\u00a7 2, in that it sought review of a decision of a planning board. That decision was a refusal to release a covenant imposed under authority of G. L. c. 41, \\u00a7 81U, as amended through St. 1972, c. 749, \\u00a7 1 & 2. Section 81BB provides for appeals from adverse decisions of a planning board to \\\"the Superior Court sitting in equity\\\" and that \\\"[t]he court shall hear all pertinent evidence and determine the facts.\\\" The statutory remedy is exclusive. Nantucket Land Council, Inc. v. Plan ning Bd. of Nantucket, 5 Mass. App. Ct. 206, 212 (1977). So much of the complaint as sought declaratory and equitable relief was, therefore, surplusage.\\nIt is readily apparent that the case was not one which could be tried to a jury. The planning board, no doubt acting upon reflex rather than deliberation, filed a form demand for \\\"trial by jury of all issues.\\\" After a year's inactivity on the docket, the case, notwithstanding the absence of jury issues, was dispatched to a master to be heard as if it were a jury action, i.e., \\\"facts not final.\\\" A printed order of reference labelled \\\"Jury Action\\\" was employed. This aggravated the earlier misstep and compounded it in that appeals from boards of appeal and planning boards should not, except in unusual situations (none are here present), be referred to a master. See Salah v. Board of Appeals of Canton, 2 Mass. App. Ct. 488, 495 n. 10 (1974); Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 2 n.2 (1981).\\nThe master's report was adverse to the plaintiff. A curious motion to recommit by the plaintiff followed. It raised general objections to the facts found, accompanied by an \\\"affidavit\\\" of counsel which perhaps was intended by plaintiff's counsel (who was a lawyer other than appellate counsel) to satisfy the requirement, discussed in Miller v. Winshall, 9 Mass. App. Ct. 312, 316-317 (1980), for an affidavit as to what a fair summary of the evidence would be. This the affidavit failed to do. It did not summarize evidence, nor did it relate any evidence to the particular finding of the master which the affidavit purportedly contradicts. Rather, the affidavit states the view of counsel as to the facts he wishes the master had found. The plaintiff filed no objection to the master's report nor a request to the master to summarize the evidence. Id. at 315-317. See Rule 49(7) of the Superior Court, as amended (1976).\\nIt was the ultimate finding of the master that the planning board had not acted arbitrarily or unlawfully in refusing to release certain covenants recorded in connection with the plaintiff's subdivision until the plaintiff should comply with certain specifications for the subdivision's drainage system. Those specifications, notably one which required that an outflow pipe be six inches above the surface of the pond into which it would drain, had been established at the time (in 1968) that the planning board approved the subdivision plan. The subsidiary findings of the master were consistent with this conclusion, certainly not clearly erroneous, and, if the action was nonjury, are controlling. Mass.R.Civ.P. 53(e)(2), 365 Mass. 820 (1974). Selectmen of Hatfield v. Garvey, 362 Mass. 821, 825 (1973). Covich v. Chambers, 8 Mass. App. Ct. 740, 743 (1979).\\nFaced with a master's report which amply supported the judgment dismissing the complaint, the plaintiff falls back on the argument that the master's report ought not to have been adopted in the first place because the order of reference to the master was \\\"facts not final.\\\" The plaintiff relies upon Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498 (1979), in which we said (at 500), that if a master heard a case \\\"facts not final\\\" the status of the master's report would be no more than prima facie evidence in the ensuing jury trial. See Mass.R.Civ.P. 53(e)(3), 365 Mass. 820 (1974). If the case were subsequently tried jury-waived, the status of the master's report would not change, i.e., it would retain its \\\"facts not final\\\" status. Levings, supra at 500. In Levings, however, there were, in the first instance, jury questions to be tried. In such circumstances there is a risk that a party anticipating a jury trial might try a case differently before the master and would be prejudiced were the master's report later to take on unexpected significance. See also Cesco Mfg. Corp. v. Norcross, Inc., 7 Mass. App. Ct. 837, 838 (1979).\\nNeither party in Levings moved for adoption of the master's report, thus reflecting their understanding at the time that the report had only prima facie status. Here the parties could not reasonably have expected at any stage of the litigation that there would be jury proceedings. The text of Mass.R.Civ.P. 53(e)(2), 365 Mass. 820 (1974), by requiring that the court in a nonjury case \\\"shall accept the master's findings of fact unless clearly erroneous\\\" leaves no room for a wholly fresh evidentiary proceeding. See Smith & Zobel, Rules Practice \\u00a7 53.11 n.96 (Supp. 1981). In these circumstances we conclude that the parties were not prejudiced by treating the report as it would ordinarily be treated in a nonjury case. The procedural course upon which the plaintiff embarked when the master issued his report and the planning board moved to adopt the report bears this out. At no time did the plaintiff urge that the report could not be adopted because it had a \\\"facts not final\\\" status. Rather the plaintiff appears to have recognized the report's \\\"final\\\" status and contented itself with a motion to recommit and an attack on the findings. Although the plaintiff filed a general objection to the planning board's motion to waive its demand for a jury trial, the claim that the plaintiff was prejudiced by giving the report \\\"facts final\\\" standing was never raised. See Michelson v. Aronson, 4 Mass. App. Ct. 182, 192-193 (1976).\\nJudgment affirmed.\\nThe case was heard by the master in February, 1976, and, therefore, before certain changes made in rule 49 in 1976 had become effective on May 8, 1976. The master's report was filed May 18, 1976, at which time the revised rule applied. The plaintiff's motion and affidavit would have been insufficient under either version.\"}"
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+"{\"id\": \"3993650\", \"name\": \"Gwen Kotler vs. Howard E. Spaulding\", \"name_abbreviation\": \"Kotler v. Spaulding\", \"decision_date\": \"1987-07-22\", \"docket_number\": \"\", \"first_page\": \"515\", \"last_page\": \"520\", \"citations\": \"24 Mass. App. Ct. 515\", \"volume\": \"24\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T20:33:53.991321+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gwen Kotler vs. Howard E. Spaulding.\", \"head_matter\": \"Gwen Kotler vs. Howard E. Spaulding.\\nMiddlesex.\\nMarch 13, 1987.\\nJuly 22, 1987.\\nPresent: Brown, Quirico, & Kass, JJ.\\nJack N. Sarkisian for the defendant.\\nRobyn L. Frye (GerardR. LaFlamme, Jr., with her) for the plaintiff.\", \"word_count\": \"1683\", \"char_count\": \"10121\", \"text\": \"Brown, J.\\nThe father appeals from a judgment of a Probate Court (entered April 1, 1986) on a complaint for contempt brought by the mother. The judge held that the father's failure to pay for the college education of his son once the son had attained twenty-one years of age violated a judgment of divorce nisi which incorporated a separation agreement and a modification of that agreement.\\nThe parties were granted a divorce on the ground of irretrievable breakdown of the marriage under G. L. c. 208, \\u00a7 1A. The judgment nisi, entered on October 14, 1980, provided that the separation agreement entered into by the parties be incorporated and merged into the judgment and \\\"by agreement of the parties may also remain as an independent contract.\\\"\\nAt the time of divorce, there were three minor children of the marriage. The separation agreement in its original form provided for alimony and child support and for contribution to the children's college educations. On June 7, 1983, the parties entered into an agreement for modification of the contract. Under the \\\"Modified Agreement\\\", the father's responsibility for the continuing support of his children included the revised provision regarding his obligation for college educations. Note 1, supra. The modified agreement was incorporated in the judgment on June 14, 1983.\\nI. Contract Interpretation.\\nThe father contends that the judge's construction of the modified college education provision was erroneous. He argues that the intent of the parties was that his contribution to the college education of his children would cease when they had reached the age of twenty-one.\\nWhere the language of a written contract is plain and unambiguous it must be construed in accordance with its ordinary and usual sense. Fried v. Fried, 5 Mass. App. Ct. 660, 662-663 (1977). Justice, common sense and the probable intent of the parties guide the court's construction of the agreement. Fried at 664. See Pavluvcik v. Sullivan, 22 Mass. App. Ct. 581, 584 (1986).\\nWe think, reading paragraph 8 of the modified agreement in the context of other provisions in the instrument, that the intent of the parties was that the obligation to pay for the respective college educations would not terminate as each child attained the age of twenty-one. The college provision expressly and unambiguously provides for the equal contribution on the part of both parents for the \\\"college education\\\" of their children. No age limit is mentioned; there is no basis for implying a limit of twenty-one years. Common sense dictates that the obligation for payments would not stop at age twenty-one since many students who attend four-year colleges are at least twenty-two years of age upon completion.\\nThe absence of an express time limitation in the college education provision also contrasts with the modified support provision which establishes limitations relative to the ages of the children. Nothing in the contract suggests that the parties similarly intended that limitation to apply to the college education obligation provided in a separate paragraph of the contract.\\nII. Jurisdiction.\\nThe father argues that the court did not have jurisdiction to enforce the order requiring him to pay for college education past the age of twenty-one because of the limits imposed by G. L. c. 208, \\u00a7 28. We are of opinion that there is a significant difference between a provision for education rendered by a judge pursuant to \\u00a7 28 following litigation, and a judgment or order which incorporates and requires compliance with the provisions of a bargained-for agreement. See Cappello v. Cappello, 23 Mass. App. Ct. 941 (1986). Cf. Gottsegen v. Gottsegen, 397 Mass. 617, 624-625 & n.8 (1986). Compare Feinberg v. Diamant, 378 Mass. 131, 135 (1979). Under \\u00a7 28, when the judge is acting on his or her own initiative to make an order for maintenance, support, or education, the judge is limited by the strictures of that section. But where the parties have, through mutual agreement, made provision for their children past age twenty-one, and desire that the agreement (after approval by the judge), be incorporated in the judgment, we think the incorporated agreement may be enforced by means of a contempt proceeding.\\nThe language of G. L. c. 208, \\u00a7 1A (statutory language, as always, serving as the principal source of insight into the legislative purpose, Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 [1984]), lends some support to the trial judge's ruling that under \\u00a7 1A the court may incorporate in a judgment agreements of the parties making provision for children of greater duration that would be allowed under G. L. c. 208, \\u00a7 28. A separation agreement drafted by the parties is required by \\u00a7 1 A, as amended through St. 1979, c. 362, \\u00a7 1 & 2. Under that provision the court does not accept blindly the terms of the agreement but reviews the contract to determine whether fair and reasonable provisions have been made \\\"for custody, for support and maintenance, for alimony, and for the disposition of marital property.\\\" See Lavin v. Lavin, post 929, 930 (1987). In making its findings, the court is required by \\u00a7 1A to \\\"apply the provisions of section thirty-four [of G. L. c. 208].\\\" We find it of consequence that \\u00a7 1A makes no reference to \\u00a7 28 in general or to the age limitation in particular. If the Legislature had intended that the limitations expressed in \\u00a7 28 apply to a \\u00a7 1A agreement, it could have stated so expressly. See Stansel v. Stansel, 385 Mass. 510, 512 (1982). See also Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liability Policies & Bonds, 382 Mass. 580, 586 (1981) (limitations of principle of implied repeal); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 479 (1986).\\nFinally, we think that enforcement of the parent's greater support obligation by a contempt proceeding does not conflict with the policy that parents cannot by agreement deny the Probate Court its statutory powers under G. L. c. 208, \\u00a7 28, concerning support for children, Ryan v. Ryan, 371 Mass. 430, 432 (1976), and cannot bargain away the rights of their children to support from either one of them. See Knox v. Remick, 371 Mass. 433, 437 (1976); Randall v. Randall, 17 Mass. App. Ct. 24 (1983). See also DeCristofaro v. DeCristofaro, ante 231, 236 & n.7 (1987).\\nIn light of the foregoing discussion, we perceive nothing in cases such as Feinberg v. Diamant, 378 Mass. at 135, or Gottsegen v. Gottsegen, 397 Mass. at 624-625, which would require a different result.\\nJudgment affirmed.\\nThe relevant provision of the modified agreement and judgment states: \\\"Paragraph 8 \\u2014 Children's College Education. The parties hereby agree to contribute equally to the college education of each of the children.\\\"\\n\\\"8. Children's College Education \\u2014 The parties hereby agree to contribute to the college education of each of their children. The ratio of the contribution to such education of the Husband and the Wife shall equal the ratio of the gross income of the Husband and the Wife for the year in which such educational expenses are incurred.\\\"\\nNeither party has argued that anything of significance turns on the question whether the modified agreement survived the modified judgment of divorce. See discussion and authorities cited in DeCristofaro v. DeCristofaro, ante 231, 237-239 (1987).\\nThat the parties anticipated that not all of their children would complete college by age twenty-one is further supported by the modified child support provision, paragraph 6B, which contemplates the possibility of a child's taking a year off between high school and college.\\nParagraph 6B provides: \\\"The parties agree that the sum paid to the wife shall be reduced by 25% when any such child shall reach the age of eighteen (18) years, unless such child is enrolled as a full-time college student or in a full-time post high school training program; and in that event, support payments for that child shall continue until said child reaches the age of twenty-one (21). Further, if a child takes a year off after high school and then decides to go to college on a full-time basis, or enroll in a full-time post high school training program, then support payments for that child shall be resumed by the husband.\\\"\\nGeneral Laws c. 208, \\u00a7 28, as amended through St. 1985, c. 490, \\u00a7 1, provides in relevant part: \\\"The court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of aparent, and is principally dependent upon said parent for maintenance.\\\"\\nWe note that courts of other jurisdictions have held that where a judgment incorporates an agreement of the parties which stipulates that a spouse shall contribute to the children's education past the statutory limit, the judgment has been deemed enforceable by contempt proceedings. One such court reasoned that the enforcement rested not so much on an extension of the jurisdiction of the court as it did on a recognition that a person who agrees that something be included in a court order is estopped from challenging the validity of that order. Bliwas v. Bliwas, 47 Wis.2d 635, 639-640 (1970). See Scott v. Scott, 401 So.2d 92, 95 (Ala. Civ. App. 1981); Kern v. Kern, 360 So.2d 482 (Fla. Dist. Ct. App. 1978); McClain v. McClain, 235 Ga. 659, 661 (1975); Carey v. Carey, 132 Ind. App. 30, 34 (1961); LaBelle v. LaBelle, 302 Minn. 98, 115-116 (1974); White v. White, 25 N.C. App. 150, 154-155 (1975), aff'd, 289 N.C. 592 (1976); Weber v. Weber, 51 Misc.2d 1042, 1044-1045 (N.Y. Fam. Ct. 1966). But see Campbell v. Campbell, 178 Cal. App. 2d 77, 82 (1960). See generally Washburn, Post-Majority Support: Oh Dad, Poor Dad, 44 Temple Law Q. 319 (1971); Vernon, Parental Support of Post Majority Children in College: Changes and Challenges, 17 Journal of Family Law 645 (1978-79).\"}"
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+"{\"id\": \"4000001\", \"name\": \"Edward E. Leavitt & another vs. McLean Hospital Corporation & others\", \"name_abbreviation\": \"Leavitt v. McLean Hospital Corp.\", \"decision_date\": \"1990-05-23\", \"docket_number\": \"\", \"first_page\": \"598\", \"last_page\": \"602\", \"citations\": \"28 Mass. App. Ct. 598\", \"volume\": \"28\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:38:55.407906+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward E. Leavitt & another vs. McLean Hospital Corporation & others.\", \"head_matter\": \"Edward E. Leavitt & another vs. McLean Hospital Corporation & others.\\nWorcester.\\nApril 10, 1990.\\nMay 23, 1990.\\nPresent: Brown, Kass, & Jacobs, JJ.\\nSandra L. Hautanen, Assistant Attorney General, for the Commonwealth.\\nJoseph J. Wadland for the defendant.\\nRegina Leavitt.\\nCommonwealth of Massachusetts, Blue Cross of Massachusetts, Inc,, and Blue Shield of Massachusetts, Inc.\", \"word_count\": \"1710\", \"char_count\": \"10153\", \"text\": \"Brown, J.\\nAfter conviction of certain criminal offenses (see 17 Mass. App. Ct. 585 [1984]), Regina Leavitt fled the jurisdiction prior to sentencing. She was later apprehended at McLean Hospital, a private mental hospital in the Commonwealth, where on March 29, 1982, she had voluntarily committed herself. See G. L. c. 123, \\u00a7 10. Following a hearing before a Superior Court judge, she was committed to McLean Hospital for twenty days. Regina stayed at McLean Hospital for a total of 110 days. The hospital sought and received reimbursement from Regina's insurer for sixty days \\u2014 the maximum benefit payable under the policy. Regina's husband, Edward, also made a partial payment. After the hospital obtained an execution against them for the balance due, the Leavitts brought this action, seeking a declaration that the costs attributable to the commitment should be paid for by the Commonwealth. The Commonwealth has taken an appeal from the judgment of a second Superior Court judge ordering the Commonwealth to pay McLean Hospital an amount of money representing the costs associated with Regina's stay and treatment at that facility during the period April 1, 1982, to April 22, 1982.\\nThe Commonwealth denies liability, asserting instead that the obligation is Regina's. Resolution of that issue requires a rather detailed examination of the proceedings. The record indicates that the Commonwealth initially sought to have Regina held without bail until the sentence could be imposed. Regina's attorney, on the other hand, argued for continuation of commitment to McLean Hospital. Representing that Regina was suicidal and in need of \\\"intensive ongoing treatment,\\\" the attorney requested of the judge, \\\"just cutting through the legalities for one moment, . to regard this case as an emergency situation, to recognize the fact that she is in a locked ward under a ten-day order of commitment, [ ] allow that to continue undisturbed.\\\" Responding to the Commonwealth's position that she be in a \\\"secure facility,\\\" Regina's attorney pointed out that under G. L. c. 123, \\u00a7 1, McLean Hospital was such a facility, and he reiterated the concern that she be in McLean Hospital. \\\"We take no position as to whose custody she need be under, so long as the result is that she be in McLean Hospital. . All we're asking is a ten-day preservation of the status quo.\\\" Regina's at torney also pointed out that, if the judge preferred, she could be committed pursuant to G. L. c. 123, \\u00a7 15(e), since \\\"her medical condition . . . renders her incompetent for purposes of sentencing.\\\"\\nWhen the judge indicated a willingness to order a twenty-day commitment under \\u00a7 15, however, Regina's attorney indicated that it was \\\"unclear at this point whether McLean can accept a patient solely on a \\u00a7 15. I think it would avoid problems if we could have, in effect, a double commitment; that is, the pink paper [\\u00a7 12] commitment, which would result in McLean accepting her, and then the order that she be examined while under the pink paper commitment at McLean.\\\" The judge agreed to the double commitment and arranged for the commitment papers to be drawn up. The psychiatrist in charge of the short-term treatment unit at McLean Hospital was present at the hearing and was thus privy to the arrangements. Typed on the commitment form, presumably to explain the reason for the commitment, was the following: \\\"Further evaluation and treatment for suicidal tendencies and depression needed.\\\"\\nRelying on G. L. c. 123, \\u00a7 33, the second judge concluded that the Commonwealth was liable for the expenses incurred during the twenty-day commitment at McLean Hospital. In his memorandum of decision, the second judge stated that, \\\"[w]hile the statute [\\u00a7 33] acknowledges that certain commitments will not be paid for by the Commonwealth, this does not apply to a commitment made pursuant to G. L. c. 123, \\u00a7 15(e). . . . Such commitments forward the administration of public justice and any benefit to the person committed is only incidental. The commitment. . . clearly represents a commitment designed to aid the court in sentencing Leavitt. Until her alleged suicidal behavior could be more fully evaluated and, if found to exist, stabilized, she was in no condition to be sentenced.\\\"\\nTo a certain extent, our reading of the statute comports with that of the second judge: \\u00a7 33 merely sets forth the procedures to be followed when payment is to be made by the Commonwealth and does not impose an obligation to pay the expenses in every case. This is made clear by the fourth sentence of \\u00a7 33, which provides: \\\"If application is made for the commitment of a person whose expenses and support are not to be paid by the commonwealth, said expenses shall be paid by the applicant or by a person in his behalf.\\\" See also G. L. c. 123, \\u00a7 32.\\nIt does not necessarily follow, however, that the Commonwealth should pay for every commitment that has a \\u00a7 15(e) component. Recall that this was supposedly a \\\"double commitment.\\\" The record shows that, as a result of the first judge's order, Regina was able to avoid being incarcerated or transferred to a less costly State institution and was able to continue receiving psychiatric treatment for her depression and suicidal tendencies. The commitment also had the effect of postponing sentencing. These results all benefited Regina, and any aid to the court for purposes of sentencing under G. L. c. 123, \\u00a7 15(e), was, at best, secondary. *7\\nWe think it implicit in \\u00a7 33 that those costs directed primarily to the immediate benefit of the individual patient, rather than to the public interest, should be charged to the patient. As we have indicated, it fairly may be said that Regina's commitment to McLean Hospital, rather than to a less costly State institution, was effected at the behest of Regina's attorney as an accommodation to her and may even have been a strategy to avoid incarceration. It follows that the commitment was primarily for the benefit of the patient rather than for any public interest, and no liability accordingly may attach to the Commonwealth. The judgment on Count I of the second substitute complaint is vacated, and a new judgment is to enter declaring the parties' rights in accordance with this opinion.\\nSo ordered.\\nSee G. L. c. 123, \\u00a7 12. Apparently, the initial voluntary (\\u00a7 10) commitment was superseded by an involuntary (\\u00a7 12) commitment prior to the time of the hearing.\\nG. L. c. 123, \\u00a7 15(e), as inserted by St. 1970, c. 888, \\u00a7 4, provides in relevant part as follows: \\\"After a finding of guilty on a criminal charge and prior to sentencing, the court may order a psychiatric or other clinical examination and, after such examination, it may also order a period of observation in a facility. . . . The purpose of such observation or examination shall be to aid the court in sentencing.\\\"\\nIf a G. L. c. 123, \\u00a7 15(e), commitment was intended, the form used should have been better chosen. There was no mention on the form \\u2014 either blank or as completed \\u2014 of \\u00a7 15(e). Entitled \\\"ORDER OF COMMITMENT OF A DEFENDANT FOR OBSERVATION (Under Section 15(b), Chapter 123, General Laws),\\\" the form purported to invoke \\u00a7 15(6). That section did not apply to this case since it does not deal with issues presented by a defendant awaiting sentencing but instead provides for commitment \\\"in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial or not criminally responsible for the crime or crimes with which he has been charged.\\\" G. L. c. 123, \\u00a7 15(b), as appearing in St. 1971, c. 760, \\u00a7 12. Perhaps for this reason, virtually all of the provisions that tied the form to the statutory language of \\u00a7 15 were struck as inapplicable, leaving the statutory ground for the commitment unclear. It should also be noted that there was no explicit indication on the form that the commitment was to be a double commitment.\\nGeneral Laws c. 123, \\u00a7 33, as amended by St. 1978, c. 478, \\u00a7 71, provides in part as follows: \\\"All necessary expenses attending the apprehension, examination, hearing, commitment or delivery of a mentally ill person . . . shall be allowed and certified by the judge, if said person is committed pursuant to this chapter, and presented as often as once a year to the comptroller, who shall examine and audit the same. Necessary expenses attending the apprehension, examination or hearing of any person sought to be committed pursuant to this chapter but not so committed shall be so presented, examined, and audited if they have been allowed in the discretion of the judge and certified by him. All expenses certified, examined and audited as provided in this section shall be paid by the commonwealth. If application is made for the commitment of a person whose expenses and support are not to be paid by the commonwealth, said expenses shall be paid by the applicant or by a person in his behalf.\\\"\\nAlthough it is not necessary to our decision, we observe that it is questionable whether resort to \\u00a7 15 was appropriate in this case. Surely judges are not without authority to fashion relief where a defendant is (to quote Regina's attorney and the second judge) \\\"incompetent for purposes of sentencing\\\" or \\\"in no condition to be sentenced,\\\" but \\u00a7 15(e) speaks to \\\"observation or examination . to aid the court in sentencing.\\\" It is difficult to see how such a postponement aids anyone other than the defendant. Perhaps this dispute could have been avoided if the first judge had not used such an ill-fitting hook on which to hang his order.\\nWe do not read Northampton State Hosp. v. Moore, 369 Mass. 957 (1975), as indicating anything to the contrary. See generally Note, Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1365-1372 (1974).\"}"
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+"{\"id\": \"4006196\", \"name\": \"Commonwealth vs. Robert F. Rivers\", \"name_abbreviation\": \"Commonwealth v. Rivers\", \"decision_date\": \"1991-12-17\", \"docket_number\": \"No. 91-P-35\", \"first_page\": \"669\", \"last_page\": \"671\", \"citations\": \"31 Mass. App. Ct. 669\", \"volume\": \"31\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:09:40.850619+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Robert F. Rivers.\", \"head_matter\": \"Commonwealth vs. Robert F. Rivers.\\nNo. 91-P-35.\\nWorcester.\\nSeptember 16, 1991.\\nDecember 17, 1991.\\nPresent: Dreben, Fine, & Jacobs. JJ.\\nGeoffrey E. Spofford for the defendant.\\nClaudia R. Sullivan, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"893\", \"char_count\": \"5448\", \"text\": \"Dreben, J.\\nThe town of Leicester operated a landfill site where commercial haulers could deposit materials for a price which was determined by the composition and quantity of the material to be deposited. A jury of six, presented with evidence from which they could find that the defendant intentionally used the landfill for dumping without paying the town the amounts due, found the defendant guilty on a complaint charging him with larceny of property over S250. The question raised by this appeal is whether the use of the landfill without sufficient payment is \\\"property\\\" which may be the subject of larceny.\\nOther than property which could be the subject of larceny at common law, such property is defined in G. L. c. 266, \\u00a7 30. See Commonwealth v. Engleman, 336 Mass. 66, 69 (1957) (trade secrets not property within the statute); Commonwealth v. Yourawski, 384 Mass. 386 (1981) (intellectual property on cassette tapes not property within the statute). The Commonwealth argues that here the \\\"property involved was the money owed to the town\\\" for the use of the landfill. To consider the price or value of what is taken or used as \\\"money\\\" would be a substantial departure from the concept of common law larceny which was limited to the taking of tangible personal property. See 4 Blackstone Commentaries *232. See generally 2 LaFave & Scott, Substantive Criminal Law \\u00a7 8.4, at 349 (1986); 3 Wharton's Criminal Law, \\u00a7 383-387, at 371-380 (Torcia, 14th ed. 1980). See also Commonwealth v. Baker, 368 Mass. 58, 66-71 (1975). It would also render unnecessary the incremental inclusion by legislative enactment of other kinds of property which may be the subject of larceny.\\nThe theft of services or the unauthorized use of property was not ordinarily considered a criminal offense in the absence of special legislation. See 2 Model Penal Code and Commentaries \\u00a7 223.7 comment 1 at 250 (rev. ed. 1980). Not only would the all-inclusive interpretation of the Commonwealth ignore the historical development of larceny from its common law origins to its ever-widening statutory base, but its definition would also defy our traditional policy of construing criminal statutes narrowly against the Commonwealth. See Commonwealth v. Green, 408 Mass. 48, 50 (1990). The Commonwealth points to no case in Massachusetts or elsewhere which adopts its interpretation, and it points to no language within G. L. c. 266, \\u00a7 30, to support its alternative claim that the subject of the larceny was \\\"the value of the part of the landfill filled by the defendant.\\\" The motion of the defendant for a required finding of not guilty of larceny should have been allowed.\\nJudgment reversed.\\nVerdict set aside.\\nJudgment for the defendant.\\nThe defendant was found not guilty of conspiracy to commit larceny. Contrary to the requirement of Mass.R.Crim.P. 9(e), 378 Mass. 861 (1979), the complaint for conspiracy to commit larceny and the complaint for larceny were tried together without, it appears, the defendant's consent. The problem arises because certain hearsay statements attributed to a deceased town official which were admitted solely on the conspiracy charge, may, despite the judge's instructions, have contributed to the verdict on the larceny complaint. In view of our decision, we need not con sider whether the error in this case created a substantial risk of a miscarriage of justice.\\nGeneral Laws c. 266, \\u00a7 30 (1988 ed.), provides in relevant part:\\n\\\"(1) Whoever steals, or with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another as defined in this section . . . shall be guilty of larceny .\\n\\\"(2) The term 'property,' as used in the section, shall include money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or intangible, data while in transit and any domesticated animal, including dogs, or a beast or bird which is ordinarily kept in confinement.\\n\\\"(3) The stealing of real property may be a larceny from one or more tenants, sole, joint or in common, in fee, for life or years, at will or sufferance, mortgagors or mortgagees, in possession of the same, or who may have an action of tort against the offender for trespass upon the property, but not from one having only the use or custody thereof. . . .\\\"\\nSee, e.g., G. L. c. 266, \\u00a7 30, third par., covering real estate, and fourth par., covering trade secrets, an obvious response to Commonwealth v. Engleman, supra. See as to services or use of property other provisions in G. L. c. 266; e.g., \\u00a7 63, 64, 67A.\"}"
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+"{\"id\": \"4013800\", \"name\": \"Commonwealth vs. Ann L. Towers\", \"name_abbreviation\": \"Commonwealth v. Towers\", \"decision_date\": \"1993-12-01\", \"docket_number\": \"No. 92-P-1178\", \"first_page\": \"557\", \"last_page\": \"562\", \"citations\": \"35 Mass. App. Ct. 557\", \"volume\": \"35\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:37:48.944157+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Ann L. Towers.\", \"head_matter\": \"Commonwealth vs. Ann L. Towers.\\nNo. 92-P-1178.\\nPlymouth.\\nSeptember 21, 1993.\\nDecember 1, 1993.\\nPresent: Smith. Kaplan. & Ireland, JJ.\\nWilliam T. Walsh, Jr., for the defendant.\\nKathleen A. Reagan, Assistant District Attorney, for the Commonwealth.\", \"word_count\": \"1870\", \"char_count\": \"10987\", \"text\": \"Kaplan, J.\\nTried, jury-waived, in a so-called jury-of-six proceeding in District Court, Ann Towers was convicted of the crime of operating a motor vehicle while under the influence of alcohol (G. L. c. 90, \\u00a7 24). In her appeal to this court, she claims that her waiver of the right to trial by jury should be voided because she is not shown to have made it freely and upon adequate knowledge. She claims also that, on the substantive evidence of the alleged crime, she was entitled to, but was denied, a required finding of not guilty, and that the court improperly considered extraneous matter in ruling on that issue. We hold that the first claim is justified, the others are not, and so the conviction must be reversed for a new trial.\\n1. To be constitutionally effective, a defendant's waiver of jury trial must have been made voluntarily and intelligently. See Patton v. United States, 281 U.S. 276, 312 (1930). But to act intelligently, the defendant (assuming mental competency) needs at least a general understanding of the nature of the election and its consequences. See United States v. Scott, 583 F.2d 362, 364 (7th Cir. 1978).\\nIn the case of Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979), the Supreme Judicial Court, in order to provide a modicum of assurance that defendants did in fact recognize what was involved in the choice before making it, directed trial judges to engage in an appropriate colloquy with them. Later, in Commonwealth v. Schofield, 391 Mass. 772, 775 (1984) , the court found occasion to remind the judges and the bar that the colloquy need not follow a fixed formula; it may vary from case to case, differ in this or that detail, provided the essentials of the procedure are maintained. Cf. Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 496 n.9 (1985) . Otherwise stated, the record \\u2014 the colloquy together with any other relevant record material \\u2014 must be such as to support a finding by the judge that the defendant acted without coercion and with fair understanding. See Commonwealth v. Schofield, 391 Mass. at 776.\\nIn the present case, any support for the finding rests on the colloquy alone. It was as follows:\\nThe Judge: \\\"Do ypu wish to go jury waived in this case?\\\"\\nMs. Towers: \\\"Yah.\\\"\\nThe Judge: \\\"Do you understand what you're doing?\\\" Ms. Towers: \\\"Yah.\\\"\\nThe Judge: \\\"I just want to make sure you understand all rights, that's all. You have a right to a jury trial by constitution [sic] and it would be up to the jury, not me, to determine if you are guilty or not guilty. The only function that I would have, in the event that you were found guilty, to sentence you. Do you understand that?\\\" Ms. Towers: \\\"Yah.\\\"\\nThe Judge: \\\"Have you discussed it with your attorney?\\\"\\nMs. Towers: \\\"Yes.\\\"\\nThe Judge: \\\"Okay.\\\"\\nAlthough the judge refers to jury trial, there is no description here of what such trial consists of, so as to put it in any meaningful apposition to trial by judge, which also goes undescribed. The colloquy is instinct with the erroneous suggestion that the judge's only function in a jury trial is to pronounce sentence if guilt is found. The defendant said yes to having discussed the matter with her attorney, who was present, but the content was not of record, see Commonwealth v. Abreu, 391 Mass. 777, 780 (1984). An inquiry about the defendant's level of education seems a common and significant element of a colloquy but was absent here, and, especially as the crime to be tried involved alcohol, one might have expected the judge to inquire whether the defendant imbibed that day and thus compromised voluntariness. The colloquy has little of the formality or solemnity that should attach to such a procedure. The reference to the constitution appears garbled, as the Commonwealth acknowledges by interpolating \\\"[sz'c].\\\"\\nIt should be emphasized that we do not aim, nor did the Supreme Judicial Court, to describe or hint at a specific form of words that will comprise a minimally adequate colloquy. Rather the question in each instance is whether, on the whole, the record made supports the required finding.\\nThe Commonwealth refers to the colloquy in the Schofield case. A majority of our court thought it was inadequate, but the Supreme Judicial Court found it sufficient. See Commonwealth v. Schofield, 16 Mass. App. Ct. 199 (1983), S.C., 391 Mass. 772 (1984). We reproduce it in an appendix hereto. The Commonwealth suggests that, as the Schofield colloquy finally passed as adequate, so, on comparison, should the-present colloquy. We think comparison heads in the opposite direction.\\nHere is the court's comment on the Schofield colloquy in ruling on a companion case, Commonwealth v. Abreu, 391 Mass. at 780: \\\"In Schofield we found the colloquy adequate although the trial judge there did not describe in detail all elements of trial by jury. Nonetheless, the judge told the defendant that a jury consists of twelve persons, that the right to trial by jury is a 'fundamental right' and that if the right was waived the judge would decide his guilt or innocence. The judge also inquired into the defendant's educational background and asked whether the defendant's waiver was based on any offers or promises. This colloquy on the record, occurring contemporaneously with the defendant's waiver of his right to a jury trial, was sufficient to sustain the judge's finding that the waiver was voluntary and intelligent.\\\" (Footnote omitted.) No such passport to validity could be issued to the present colloquy. It more nearly resembles Abreu, supra at 778-780, where the judge asked whether the defendant waived jury trial and wanted the case to be heard by a single justice: that colloquy was found insufficient.\\nWhere a judge tries a case and convicts fairly on the merits, there is a natural temptation to palliate the judge's earlier carelessness in carrying out a threshold procedural protection; but if this is indulged, there will be a progressive lowering or debasing of the protection actually accorded defendants. The temptation should be resisted, lest we suffer the reproach (paraphrasing Macbeth) that we keep the word of promise to the ear and break it to the hope.\\n2. The defendant contends that the Commonwealth did not prove illicit \\\"operation\\\" of the vehicle by her to the point where a trier could rationally find guilt, cf. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), and so she is entitled to judgment.\\nThe judge could accept the following as a summary of the evidence. When officers arrived at Montello and East Nielson Streets, Brockton, in the early morning of December 10, 1988, they found the defendant beside her car, which stood off the road on a sidewalk area in a construction site; the keys were in the ignition and the engine was running. The car showed front end damage. Nearby, parked on Montello Street, was a car with rear end damage; the owner lived across the street and appeared on the scene and spoke to the officers. The defendant \\\"told [one of the officers] she was driving the vehicle \\u2014 she was operating.\\\" From observation and sobriety tests on the spot, the defendant appeared to be intoxicated. We think a trier could infer with reason that the defendant had driven while drunk on Montello Street and struck the parked car.\\n3. At the close of the evidence, the judge said there was enough to convict, then inquired why the trial came so late, and was told that it was due to sundry defaults. The defendant suggests that the judge's view of the evidence may have been colored by his reaction to the defaults. We need say no more than that this overlooks the temporal sequence.\\nJudgment reversed.\\nFinding set aside.\\nAppendix\\nThe Judge: \\\"Mr. Schofield, my name is Zobel and I'm the Justice of the Superior Court who's going to be trying this case. And I understand that you want to waive your right to a jury.\\\"\\nThe Defendant: \\\"Yes, your Honor.\\\"\\nThe Judge: \\\"Now, before I can approve of your request to waive your right to a jury, I have to be persuaded that you understand all your rights and are giving them up voluntarily. You understand?\\\"\\nThe Defendant: \\\"Yes.\\\"\\nThe Judge: \\\"Now, I'm going to ask you some questions. If any of my questions are not clear, you just tell me, okay?\\\"\\nThe Defendant: \\\"Yes.\\\" [Then followed preliminary questions concerning Schofield's age (twenty-seven, at the time of trial), education (ninth grade), occupation (cook), and military service (none)].\\nThe Judge: \\\"You understand that a jury trial means that the twelve people in a jury box decide whether or not you are guilty?\\\"\\nThe Defendant: \\\"Yes, I do.\\\"\\nThe Judge: \\\"And if you give up that right to a jury trial, it means that a judge, in this case, me, I will decide_\\\"\\nThe Defendant: \\\"Yes, I understand.\\\"\\nThe Judge: \\\" \\u2014 the case? A jury trial is a very fundamental right. You understand that?\\\"\\nThe Defendant: \\\"Yes, I do.\\\"\\nThe Judge: \\\"That's why I have to be very sure that you are willing to give up that right and are doing it freely and voluntarily. You understand that?\\\"\\nThe Defendant: \\\"Yes.\\\"\\nThe Judge: \\\"Has anyone promised you or offered you anything to make you give up your right to a jury trial?\\\"\\nThe Defendant: \\\"No, I have done it on my own. I volunteered.\\\"\\nThe Judge: \\\"Have you discussed this with Mr. Gorman, your lawyer?\\\"\\nThe Defendant: \\\"Yes, I have.\\\"\\nThe Judge: \\\"Okay. And you are satisfied with the advice which Mr. Gorman has given you?\\\"\\nThe Defendant: \\\"Yes. I am.\\\"\\nThe Judge: \\\"All right. I find that Mr. Schofield is fully aware of his right and that he has knowingly and purposefully and intelligently waived his right to a trial by a jury and I accept the waiver.\\\"\\nFor a connected Federal case, see Ciummei v. Amaral, 493 F.Supp. 938 (D. Mass. 1980).\\nThis cannot be dispensed with in our practice. See Commonwealth v. Thetonia, 27 Mass. App. Ct. 783, 783 (1989).\\nAs to the latter, see Commonwealth v. Schofield, 16 Mass. App. Ct. 199, 203 n.4 (1983) (majority opinion), S.C., 391 Mass. 772, 776 (1984).\\nTalk in appellate decisions of what is or is not minimally sufficient is not the best guide to practice. Although judges, need not follow verbatim any \\\"model\\\" colloquy, they can take inspiration from the models. See Jury Trial Manual for Criminal Offenses Tried in District Court, Appendix II, Jury Waiver Colloquy (1987); Smith, Criminal Practice and Procedure \\u00a7 1654 (2d ed. 1983).\\nIn negating the suggestion of a possibility that the defendant's admission was a figment of her intoxicated state, the Commonwealth is able to distinguish Commonwealth v. Leonard, 401 Mass. 470 (1988), and to find support in Commonwealth v. Hilton, 398 Mass. 63 (1986), Commonwealth v. Otmishi, 398 Mass. 69 (1986), and Commonwealth v. McNelley, 28 Mass. App. Ct. 985 (1990).\\nCommonwealth v. Schofield, 391 Mass. 772, 773 n.1 (1984).\"}"
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+"{\"id\": \"4024078\", \"name\": \"Albre Marble & Tile Company, Inc. vs. John Bowen Co., Inc.\", \"name_abbreviation\": \"Albre Marble & Tile Co. v. John Bowen Co.\", \"decision_date\": \"1962-01-04\", \"docket_number\": \"\", \"first_page\": \"777\", \"last_page\": \"777\", \"citations\": \"343 Mass. 777\", \"volume\": \"343\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:09:21.547487+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Albre Marble & Tile Company, Inc. vs. John Bowen Co., Inc.\", \"head_matter\": \"Albre Marble & Tile Company, Inc. vs. John Bowen Co., Inc.\\nJanuary 4, 1962.\\nDaniel 0. Mahoney, for the defendant.\\nBenjamin Goldman, for the plaintiff.\", \"word_count\": \"248\", \"char_count\": \"1406\", \"text\": \"The question presented by the defendant's exceptions to the judge's rulings on evidence is whether the rule as to damages stated in Albre Marble & Tile Co. Inc. v. John Bowen Co. Inc. 338 Mass. 394, 399-401, has been correctly applied. We adopt the numerical designations used in the record and briefs to refer to the controverted items. We do not disturb item 4 because the defendant has not argued it, nor items 7 and 8 because there was no objection to the evidence and no request for, or exception to, instructions to the jury regarding them. Exceptions as to items 1, 2, and 3 are overruled because the items relate to work which the jury could say was undertaken by the plaintiff in conformity with the specific request of the defendant as provided in the contract. Exceptions as to items 5, 6, 9, 10,11, and 12 are sustained because they relate to work which the jury could not say was so undertaken. The motion to amend the plaintiff's declaration is denied. The defendant's exception to the denial of its motion for a new trial is overruled. Judgment is to be entered for the plaintiff in the sum of $2,006.60 with appropriate interest. G. L. (Ter. Ed.) c. 231, \\u00a7 124. Flower v. Billerica, 320 Mass. 193, 198. See Simmons v. Fish, 210 Mass. 563.\"}"
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+"{\"id\": \"4045417\", \"name\": \"FIRST FINANCE CORP. OF MATTAPAN, Plaintiff v. JOHN R. & EVELYN HARRIGAN, Defendants and NORFOLK COUNTY TRUST CO., Trustee\", \"name_abbreviation\": \"First Finance Corp. v. John R.\", \"decision_date\": \"1966\", \"docket_number\": \"No. 52474\", \"first_page\": \"26\", \"last_page\": \"35\", \"citations\": \"36 Mass. App. Dec. 26\", \"volume\": \"36\", \"reporter\": \"Massachusetts Appellate Decisions\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:37:55.727338+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FIRST FINANCE CORP. OF MATTAPAN, Plaintiff v. JOHN R. & EVELYN HARRIGAN, Defendants and NORFOLK COUNTY TRUST CO., Trustee.\", \"head_matter\": \"District Court of Northern Norfolk Southern District\\nNo. 52474\\nFIRST FINANCE CORP. OF MATTAPAN, Plaintiff v. JOHN R. & EVELYN HARRIGAN, Defendants and NORFOLK COUNTY TRUST CO., Trustee.\\nPresent: Nash, P.J. Murphy, J.\\nCase tried to Cox, J. in the District Court of Northern Norfolk,\\nNo. 52474\", \"word_count\": \"1934\", \"char_count\": \"11556\", \"text\": \"Murphy, J.\\nThis is an action of contract in which the plaintiff seeks to recover the sum of $1,157.29 plus interest under the conditional sales contract of a colored television set. The plaintiff is a holder for value of said contract having purchased it from the Universal Industries, Inc., one of the original parties to the contract. The plaintiff's declaration names both John R. Harrigan and Evelyn Harrigan as party defendants. The defendants answered a general denial; that the contracts were illegal and void as against public policy and were in violation of the General Laws of Massachusetts; and that there was fraud in the indictment and execution of the contract.\\nThe judge found generally for the plaintiff in the sum of $1,157.29 with interest from the date of the writ and made certain special findings as follows: \\\"This is an action to recover from the defendants the balance due under a written contract of conditional sale. On or about August 19, 1964, the defendants signed a conditional sales contract to buy from Universal Industries, Inc. (Universal and Admiral color television set, including an outdoor antenna and a one-year service policy). The price of the set was $895. The finance charges were $295.35, payable in thirty-five consecutive monthly installments of $33.06 each, except the last which is $33.25. There is an acceleration clause. The total time price was $1,190.35.\\nOn August 25, 1964 Universal assigned the contract to the plaintiff without recourse. Before the plaintiff bought the paper, its manager called the male defendant, told him that the plaintiff intended to buy the contract, asked if the defendant had received the television set and if it was satisfactory, and went over the terms of the contract. The defendant, no stranger to conditional sales transactions, said he understood the contract terms, that he had received the set and that it was satisfactory. The plaintiff then purchased the contract and sent the defendants a payments book. On October 13, 1964, the defendants made the first and only payment of $33.06 to the plaintiff. In November, 1964, the male defendant promised the plaintiff's manager to resume monthly payments, but failed to do so. The set is still in the defendant's undisturbed possession.\\nThe plaintiff paid Universal $895 for the assignment of the contract. The contract contained the following clause: \\\"This contract may be assigned by seller (Universal) without notice to the purchaser (Harrigans) and when assigned shall be free from any defense, counterclaim or cross-complaint by purchaser\\\". I find that before purchasing the contract, the plaintiff in fact notified the defendants of its intention to do so as hereinbefore established, that it was 'an assignee of the contract for value, in good faith and without notice of any claim or defense whatever. See G.L. c. 106, \\u00a7 9-206 (I). (Secured Transactions)\\nThe defendants claim that there has been a violation of G.L., c. 271, \\u00a7 6A, which they con tend makes the conditional sales contract null and void and unenforceable against them by the plaintiff. G.L., c. 271, \\u00a7 6A is, as follows :\\n\\\"Plans under which purchasers agree to obtain more purchasers; injunction; receivers. Whoever sets up or promotes a plan by which goods or anything o\\u00a3 value is sold to a person for a consideration and upon the further consideration that the purchaser agrees to secure one or more persons to participate in the plan by respectively making a similar purchase or purchases and in turn agreeing to secure one or more persons likewise to join him in the said plan, each purchaser being given the right to secure money, credits, goods or something of value, depending upon the number of persons joining in the plan, shall be held to have setup and promoted a lottery, shall be punished as provided by Section 7. The Supreme Judicial Court shall have jurisdiction in equity upon a petition filed by the Attorney General to enjoin the further prosecution of any such plan and to appoint receivers to secure and distribute the assets received thereunder. '\\nThe Uniform Commercial Code, so far as applicable, provides that a holder in due course takes instruments free from all defenses of any party to the instrument with whom the holder (Mattapan) has not dealt except such\\u2014illegality of the transaction, as renders the obligation of the party a nullity. G.L., c. 106, \\u00a73-305 (II) (b).\\nThe question must consequently be decided whether there was a violation of law which made the conditional sales contract a nullity, and therefore unenforceable. The judge on this question found that the defendant Evelyn Harrigan and Universal signed a separate contract in writing which, however, was part and parcel of the conditional sale of the television set. Under this contract, the defendant was, on becoming the purchaser of the television set, to receive fifty dollars from Universal for any person obtained who should in turn buy a television set from Universal and in turn find other customers under a similar arrangement. The defendant was also to receive twenty-five dollars for finding an ordinary customer for a color television. There was no compulsion upon the defendants or others to procure such customers. The defendants were obliged in any event to make the payments due under the conditional sales contract. \\\"I find the plaintiff had no knowledge of the promotional agreement. I hold that no violation of G.L., c. 271, \\u00a7 6A has been shown, and that the defense of an illegal lottery is not available to the defendants against the plaintiff in any event, the plaintiff having had no knowledge of the promotional agreement. See: G.L., c. 137, \\u00a73\\\"\\nFinally, the court found that no fraud or deceit for which the plaintiff is in any way legally responsible was practiced upon the defendants.\\nThe judge reported this case of his own volition deeming that there were important questions of law involved with all of his findings, and including his action on all the requests for rulings. There was a stipulation that if the findings of the judge were right in law, judgment should be entered for the plaintiff in accordance with the decision, otherwise, such order should be entered by the Appellate Division as justice might require.\\nA judge's general and special findings import a finding of all the subsidiary facts and the drawing of all rational inferences essential to that conclusion. Such findings must be sustained unless plainly wrong. Moss v. Old Colony Tr. Co., 246 Mass. 139-143, Kennedy Brothers v. Bird, 287 Mass. 477-484, Griffin v. Rudnick, 298 Mass. 82 and Hall v. Creditors National Clearing House, 289 Mass. 437.\\nThe contract contained a clause \\\"This contract may be assigned by the seller (Universal) without notice to the purchaser and when assigned, shall be free from any defense, counterclaim, or cross complaint by the purchaser\\\". The defendant has argued extensively that such a clause without more, is against public policy and void. This may be so, but in the instant case, the contract was not assigned without notice, on the contrary, the plaintiff made every effort to ascertain that there were no defenses or defects in the existing contract by directly asking the male defendant concerning this. This is tantamount to a waiver as there was direct notice which negates the appli cation of this clause and renders it immaterial for the reasons hereinafter set forth.\\nThe plaintiff was an assignee of the contract for value, in good faith and without notice of any claim or defect whatsoever. G.L., c. 106, \\u00a79-206(1)\\nThe charge of fraud in the inducement of the contract cannot be sustained. The record discloses nothing to indicate that the defendants were induced to sign the conditional sales contract upon agreeing further to procure other customers, and that any payment for the customers procured would be offset or credited against the amount that they were obliged to pay on the original television set. True, upon the purchase of the television set, the female defendant was to be paid twenty-five and fifty dollars respectfully for any customers that she procured or who were sold a television set by the plaintiff through any efforts of hers. We see nothing fraudulent in this arrangement. It may have been an inducement in the narrow sense, but certainly cannot be construed as fraudulent. She (the female defendant) was not obligated to procure any customers at all. She could not be forced to do so, and her right to the television set and her obligation to make payments on it were in no way affected whether she did or did not make a sale or procure a customer. This would appear to he a separate arrangement on her part. The female defendant was given an opportunity to procure other cus tamers for the plaintiff for which she was to be paid, that's all.\\nThe defendants further claim that there was a violation of G.L., c. 271, \\u00a7 6A. And, therefore, the contract is null, void and unenforceable. This chapter and section certainly is not applicable to the male defendant, since he was not a party to the arrangement at all. He is obligated on the contract without question. The only question, therefore, is whether or not the female Defendant is entitled to the benefit of this statute and, therefore, not liable on the conditional sales contract. We think not.\\nThe record is almost bare of any evidence sufficient to justify a finding that this was a lottery in the ordinary sense, that is, a scheme in which lots or chances are sold. The element of chance, which is the essence or basis of any lottery, is completely lacking here. Commonwealth v. Rivers, 323 Mass. 379.\\nWe cannot conceive this arrangement to be a lottery as defined in this statute and we think the judge was right in so finding. See: A. A. Murphy v. Taylor, 383 P. 2nd 648 (Okla., 1963) and Krehbiel v. State, 378 P. 2nd 768-769 (Okla., 1963). The Oklahoma Statute is similar to our G.L. c. 271, \\u00a76A, and the court said in the Krehbiel case, \\\"A selling plan whereby a seller grants to the purchaser the privilege of securing one or more persons to make a similar purchase for each of which additional sales the original purchaser receives a specified sum of money, does not constitute a lottery under the statute cited\\\". We agree with this reasoning. As said before, there was no compulsion on the female Defendant to procure other customers, and none whatsoever on the male defendant. If she voluntarily did find other customers, she was to be paid for her services, otherwise not, but beyond that, we fail to see any relevancy between this arrangement and her obligation to make the payments under the conditional sales contract, and even if such an arrangement could be said to be relevant, the Plaintiff had no acknowledge of the so called promotional agreement. G.L. c. 137, \\u00a7 3.\\nSamuel E. Kaufman, of Boston for the Plaintiff\\nJoseph W. MacDonald, of Dorchester for the Defendants\\nWe have examined all of the other contentions raised by the defendants and find nothing to merit further discussion.\\nThe defendant filed ten requests for rulings all of which became immaterial or were rendered inapplicable by the special findings of the judge.\\nJudgment for the plaintiff should be entered in accordance with Ms decision.\"}"
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+"{\"id\": \"411809\", \"name\": \"Yuri Kraytsberg vs. Yevgenya Kraytsberg & another\", \"name_abbreviation\": \"Kraytsberg v. Kraytsberg\", \"decision_date\": \"2004-05-26\", \"docket_number\": \"No. 1\", \"first_page\": \"1020\", \"last_page\": \"1021\", \"citations\": \"441 Mass. 1020\", \"volume\": \"441\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:32:30.054515+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Yuri Kraytsberg vs. Yevgenya Kraytsberg & another\", \"head_matter\": \"Yuri Kraytsberg vs. Yevgenya Kraytsberg & another\\n(No. 1).\\nMay 26, 2004.\\nSupreme Judicial Court,\\nNewton Division of the District Court Department, a nominal party.\", \"word_count\": \"306\", \"char_count\": \"1822\", \"text\": \"While his appeal from an order of the Newton Division of the District Court Department was pending in the Appeals Court, Yuri Kraytsberg filed a petition in the county court, pursuant to G. L. c. 211, \\u00a7 3, challenging an order of a single justice of the Appeals Court that denied him access to memoranda discussing his case that were prepared by the Appeals Court's staff for its Justices. He claims that he has a right to review such memoranda and to respond to them, and that the Appeals Court's \\\"operating procedures\\\" should not apply to bar his access to those materials. A single justice of this court denied the petition. We affirm.\\nKraytsberg is not entitled to relief for any of a number of reasons: (1) the requested materials would be of little, if any, utility to him now, given that his appeal from the District Court order has been fully decided, see, e.g., Cepulonis v. Superintendent, Mass. Correctional Inst., Shirley, 437 Mass. 1012 (2002); (2) he failed to avail himself of an adequate alternative remedy, i.e., to appeal from the Appeals Court's single justice's decision to a panel of the Appeals Court, see Kordis v. Appeals Court, 434 Mass. 662, 664 (2001), citing Mass. R. A. P. 15 (c), 365 Mass. 859 (1974); (3) we fully agree with the conclusion of the single justice of this court that the petitioner \\\"failed to show how the operating procedures of the Appeals Court are facially unconstitutional, or unconstitutional as applied to his case\\\"; and (4) the Appeals Court's internal memoranda are not public records, see Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 546 (1977).\\nYuri Kraytsberg, pro se.\\nJudgment affirmed.\"}"
\ No newline at end of file
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+"{\"id\": \"4360438\", \"name\": \"Ian Feldberg et al. v. Harold Coxall\", \"name_abbreviation\": \"Feldberg v. Coxall\", \"decision_date\": \"2012-05-22\", \"docket_number\": \"No. MICV201201649A\", \"first_page\": \"150\", \"last_page\": \"153\", \"citations\": \"30 Mass. L. Rptr. 150\", \"volume\": \"30\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T02:15:27.646620+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ian Feldberg et al. v. Harold Coxall\", \"head_matter\": \"Ian Feldberg et al. v. Harold Coxall\\nSuperior Court, Middlesex, SS\\nNo. MICV201201649A\\nMemorandum Dated May 22, 2012\", \"word_count\": \"3517\", \"char_count\": \"21181\", \"text\": \"Wilkins, Douglas H., J.\\nAfter hearing on Plaintiffs Emergency Motion for Endorsement of Memorandum of Lis Pendens (\\\"Motion\\\") on April 30, 2012, at which both Plaintiffs and Defendant were represented by counsel and heard, the Court entered a temporary restraining order, as later extended by the parties. The Court also allowed further briefing. On May 15, 2012, the defendant, Harold Coxall (\\\"Coxall\\\") submitted his Memorandum in Opposition to Plaintiffs' Emergency Motion for Endorsement of Memorandum of Lis Pen-dens (\\\"Memorandum\\\"), which included a Special Motion to Dismiss. After review of all written and oral arguments and evidence, the Court ALLOWS the Motion and DENLES the Special Motion to Dismiss.\\nThe Complaint in this case alleges that Coxall owns vacant undeveloped land shown as Lots 2 and 3 on the Plan of Land titled \\\"Plan of Land in Sudbuiy, MA,\\\" prepared by Thomas Dipersio, P.L.S., recorded in the Middlesex South Registry of Deeds as Plan No. 66 of 2010 (\\\"Property\\\"). It also alleges that, through a series of emails, Coxall and the plaintiffs entered into an agreement for the plaintiffs to purchase the Property for $475,000. The parties dispute whether the emails attached to the complaint amount to a written agreement for the purchase of the Property. Coxall denies that the emails reflect an offer and acceptance sufficient to show a present intent to be bound to the purchase and sale. He also denies that the emails constitute a sufficient writing to satisfy the statute of frauds.\\nI.\\nThe Lis Pendens Statute, G.L.c. 194, \\u00a715(b), provides in relevant part:\\n(b) Any party seeking a memorandum of lis pendens under this section shall commence the underlying proceeding by means of a verified complaint or other complaint as is required under the rules of court to include a certification by the claimant made under the penalties of peijuiy that the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom. The complaint shall name as defendants all owners of record and any party in occupation under a written lease. Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum. Notwithstanding the preceding sentence, the court on its own motion may decline to endorse the memorandum of lis pendens, if the court does order the temporary equitable relief as will preserve the status quo pending further proceedings.\\nThe complaint in this case meets the procedural prerequisites of the first two sentences of this section. The plaintiffs have made the necessary motion. They have commenced this action by means of a verified complaint, signed under penalties of perjury by plaintiffs Ian Feldberg and Michael Rogers on April 30, 2012.\\nThe Court finds that the subj ect matter of the action constitutes a claim of a right to title to real properly. In particular, the complaint claims that Coxall must convey title to the Property to the plaintiffs. Despite the dispute over whether a binding, written contract for purchase and sale of the Property exists, there is no question that the \\\"(p)laintiffs seek a declaratory judgment that Coxall is contractually bound to sell the Property to the Plaintiffs on the terms agreed upon.\\\" Complaint, \\u00b640.\\nThat claim may or may not be valid and may be vulnerable on a motion to dismiss or motion for summary judgment, but those issue are not before the Court on a motion for endorsement of a memorandum of lis pendens.\\nWe reject [defendant's] argument that, in deciding whether to endorse a memorandum of lis pendens so as to make it properly recordable, a judge must determine that the complaint would survive a motion to dismiss under Mass.R.Civ.P. 12(b)(6) . . .\\nRather than stating that the judge must rule whether the complaint states a valid claim, \\u00a715 speaks of a finding (presumably of fact) and permits an aggrieved pariy to challenge any finding in the judge's order, if leave to record the memorandum was obtained ex parte. Section 15 does not state what \\\"finding\\\" a judge properly could make beyond the one the statute recites (\\\"the subject matter of the action constitutes a claim of a right\\\" to an interest in real property). . . The issues are what is \\\"the subject matter of the action,\\\" and does it consist of a claim of a right to title or use and occupation of real property. The question whether the complaint would survive a rule 12(b)(6) motion to dismiss, without leave to amend, and questions concerning the discharge of the memorandum of lis pendens come at a later stage in the proceedings.\\nWith the mandate that the judge \\\"shall\\\" find and endorse, \\u00a715 gives little discretion to the judge once the judge determines that the subject matter of the action concerns an interest in real estate.\\nSutherland v. Aolean Development Corp., 399 Mass. 36, 40 (1987).\\nCoxall's Memorandum does not address this highly restrictive standard. His arguments about the alleged insufficiency of the parties' email communications to meet the statute of frauds and to show an intent to be bound are substantial and may well prevail. But that is not the test by which the Court must measure the Motion.\\nWhile \\u00a715 appears to allow the Court discretion to decline to endorse the memorandum of lis pendens if it enters temporary equitable relief that will preserve the status quo, the Court declines to do so in this case. No one has requested that temporary relief extend beyond the time needed to rule on the Motion. As argued at the hearing, the real harm to Coxall would flow from an inability to convey the property to a third party. A temporary equitable order preserving the status quo would inflict at least as much harm upon Coxall as a lis pendens in these circumstances. At least with a lis pendens, Coxall would violate no court order by selling to a third party who decides to consummate the purchase after evaluating this litigation. Moreover, temporary relief would presumably require a finding of likelihood of success. At this stage of the proceedings, a memorandum of Us pendens is the simpler approach and appropriately allows postponing consideration of the merits, including the adequacy of the complaint or likelihood of success, to a later stage.\\nAccordingly, the Court has endorsed the Memorandum of Lis Pendens. Coxall's arguments must be decided on the merits at a later stage in this case.\\nII.\\nCoxall's Memorandum also contains a special motion to dismiss the plaintiffs' Verified Complaint pursuant to G.L.c. 184, \\u00a7 15(c), which states that the \\\"special motion to dismiss shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds.\\\" See generally McMann v. McGowan, 71 Mass.App.Ct. 513 (2008).\\nCoxall argues first that the complaint fails to include all material facts, in violation of the requirement of G.L.c. 184, \\u00a715(b) that the complaint include a certification that \\\"no material facts have been omitted therefrom.\\\" \\\"A party's failure to include all material facts may result in the dismissal of that party's claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law.\\\" McMann, 71 Mass.App.Ct. 719-20 (dismissing case where the complaint misleadingly failed to disclose that a crucial notice was not placed \\\"in hand\\\" as required by the contract, but was left on a desk when no one was in the office); Galipault v. Wash Rock Invs., LLC, 65 Mass.App.Ct 73, 81 (2005).\\nIn this case, the allegedly omitted materials concern preliminary discussions that predated the email exchange claimed to constitute the binding agreement, as well as some later, relatively inconsequential emails that add nothing to the legal or factual analysis. Those documents may be relevant as evidence at trial, but they do not rise to the level of materiality that the statute requires before the Court may allow a special motion to dismiss on this basis. See McMann, 71 Mass.App.Ct. at 520 (A \\\"material fact\\\" is one that is \\\"significant or essential to the issue or matter at hand,\\\" Black's Law Dictionary 629 (8th ed. 2004)). See Dagan v. Jewish Community Hous. for the Elderly, 45 Mass.App.Ct. 511, 513-14 (1998) (in summary judgment context, a material fact is one that is essential to an element in the plaintiffs case).\\nOn the merits of the special motion to dismiss, Coxall falls short of proving that the plaintiffs' claims lack any arguable support and basis in fact or law or are subject to dismissal because of a valid defense such as statute of frauds.\\nThe parties do not seriously dispute the legal test to be applied to the plaintiffs' affirmative case. The question is whether the parties intended to be bound. McCarthy v. Tobin, 429 Mass. 84, 87 (1999). \\\"An enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms.\\\" Targus Group Int'l., Inc. v. Sherman, 76 Mass.App.Ct. 421, 428 (2010). \\\"If. . . the parties have agreed upon all material terms [of the sale], it may be inferred that the purpose of a final document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.\\\" McCarthy, 429 Mass. at 87. The plaintiffs' legal arguments conform to these legal principles and therefore have an ample basis in law.\\nThe parties do strenuously dispute whether the complaint \\\"is devoid of any reasonable factual support.\\\" G.L.c. 184, \\u00a715(c) (emphasis added). For purposes of evaluating that question, the key exchanges are Attorney Vaughn's email to Coxall and Attorney Lallos dated April 19, 2012 at 8:53 P.M. (\\\"April 19 email\\\") and Coxall's response on Friday, April 20, 2012 (\\\"April 20 email\\\").\\nThe April 19 email attached a \\\"revised offer, with changes to reflect the conversations we have had today.\\\" It reserved the plaintiffs' \\\"rights to comment on it.\\\" It also suggested that the attorneys work \\\"to have the offer form finalized in time for my clients to sign it and get deposit checks to you before the end of the day tomorrow.\\\" Among other things, the draft attached to the April 19 email contained a purchase price, described the property and called for a closing on or before noon on June 1, 2012. In response, Coxall's April 20 email contained some initial information on an \\\"fyi\\\" basis, before concluding that: \\\"[w]e must have a written approval letter from the bank today by 5pm and I think we are ready to go (I assume they will provide a closing date with the approval). We are almost there.\\\" Both emails end with what may be described as a standard e-mail \\\"signature block,\\\" showing the author (either Donald E. Vaughan, Bums & Levinson, LLP or N.E. Air, Inc., which was Coxall's company), followed by street address and phone numbers.\\nAt 2:18 PM on April 20, the plaintiffs' attorney provided a copy of the commitment letter from the Village Bank. The letter had a number of conditions, including submission of 2011 tax returns, 2012 profit and loss statements and consulting contracts, and a satisfactory appraisal establishing an 80% loan to value ratio. For present purposes, those conditions appear sufficiently within the reasonable expectations of the parties for a commitment letter to be delivered by a bank within such a short time. That is important because of the emphasis Coxall now places upon the requirement in his April 20 email for a bank commitment letter, without specifying what would be acceptable in such a letter. Where the parties have agreed upon terms (such as a commitment letter) but have not defined those terms, the Court infers that they intended a \\\"reasonable\\\" construction of those terms. Cf. Town of Sudbury v. Scott, 439 Mass. 288, (2003) (discussing G.L.c. 61A and common law), citing Stone v. W.E. Aubuchon Co., 29 Mass.App.Ct. 523, 526-27 (1990). The plaintiffs have a basis in fact and law to argue that they complied with the demand for a bank commitment letter, because it was reasonable to expect that any quickly-issued commitment letter would contain some conditions (such as documentation of the representations made in the application). They obtained and provided a letter that contained only reasonable and foreseeable conditions.\\nCoxall also claims that his April 20 email required a closing date. The email itself was much less definite on this point than Coxall's Memorandum claims. It contained only the parenthetical: \\\"(I assume they will provide a closing date with the approval).\\\" The plaintiffs have a basis in law and fact to argue that (1) this was a side observation, and not a condition and (2) Coxall's \\\"assum[ption]\\\" did not relate to a closing date for the sale (which was already included in the plaintiffs' April 19 draft document), but for the mortgage transaction to which Coxall was not a party.\\nCoxall (Memo at 8) claims that the \\\"Appeals Court's ruling in Germagian [v. Berrini, 60 Mass.App.Ct. 456, 459-60 (2004)] is directly on point and controlling.\\\" The Court disagrees. The facts here differ from Germagian in ways that may be material, including, in that case, the purchaser's post-agreement failure to apply for a mortgage and to seek zoning variances. Considering the parties' post-offer conduct, Germagian concluded that \\\"the parties intended the offer to be merely a preliminary step,\\\" rather than \\\"a valid, enforceable contract.\\\" Id. at 457-58. Here, there is no such post-offer conduct as might lead a fact-finder to conclude that the parties never intended to be bound. There is only what a fact-finder might conclude was Coxall's repudiation of the deal. Coxall cites no other case to demonstrate \\\"that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law . .\\\"\\nThat leaves the question whether the complaint \\\"is frivolous because . (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds.\\\" Clause (3) of G.L.c. 184, \\u00a715(c) does not contain language similar to the phrases, \\\"devoid of any reasonable . . . support\\\" or \\\"devoid of any arguable basis\\\" in clauses (1) and (2). Different language often signifies a different meaning. See, e.g. Souza v. Board of Appeals of Motor Vehicle Liability Bonds & Policies, SJC No. 11123 (May 17, 2012). However, clause (3) follows the phrase \\\"is frivolous\\\" and therefore must be construed to address situations where the defense is so strong as to render the plaintiffs' claim frivolous. That construction effectuates the legislature's intent to provide notice of pending litigation that might result in a judgment for the plaintiff and thereby affect third parties persons dealing with a specific real estate parcel. See Wolfe v. Gormally, 440 Mass. 699, 702-03, 704 (2004). That purpose applies fully to claims that arguably may survive a defense. If notified of such a claim, \\\"a prospective third-parly transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction.'' Id., 440 Mass. at 706, quoting Debral Realty, Inc. v. DiChiara, 383 Mass. 559, 562 (1981).\\nThat raises the most difficult legal question in the case: whether an email exchange can satisfy the statute of frauds, G.L.c. 259, \\u00a71. Neither side cites conclusive authority on this point. That, by itself, may weigh in favor of denying the special motion to dismiss; the plaintiffs' response to the defense has an arguable basis as long as they can mount a good faith argument, which is not difficult on this issue of first impression.\\nExisting authority, such as it is, suggests that the plaintiffs have a plausible position. See Shattuck v. Klotzbach, 14 Mass. L. Rptr. 360 (Super.Ct. 2001) (fact finder \\\"could conclude that the e-mails sent by the defendant were 'signed' with the intent to authenticate the information contained therein as his act\\\"). One Appeals Court case mentions the role of an email exchange in a plaintiffs successful opposition to a motion to dismiss based upon a statute of frauds defense in a related federal case, although the Court's acknowledgement falls well short of a holding (and perhaps falls short of dictum, as well). Munshani v. Signal Lake Venture Fund II, LP, 60 Mass.App.Ct. 714, 715-16 (2004) (\\\"The federal judge concluded that the e-mail sufficed, at least for purposes of a motion to dismiss, to take the case out of the Statute of Frauds\\\"). There is some authority treating, as open, the question whether e-mails, coupled with an unsigned draft agreement, can satisfy the UCC requirement of a signed writing, although the Court in that case found that the particular e-mails from the defendant evidenced no intent to be bound to a contract with the plaintiff. See May Trucking Co. v. Northwest Volvo Trucks, Inc., 238 Or.App. 21, 241 P.3d 727 (2010), review denied, 350 Or. 130, 250 P.3d 922 (2011). The fact that it takes two documents to create a complete contract \\u2014 or even that the documents \\\"indicated a dispute as to one of the terms of that contract\\\" \\u2014 is not fatal to a successful opposition to a statute of frauds defense. Waltham Truck Equipment Corp. v. Massachusetts Equipment Company, 7 Mass.App.Ct. 580, 583-84 (1979) (UCC case).\\nIn truth, the Courts have not yet set forth rules of the road for \\\"the intersection between the seventeenth-century statute of frauds and twenty-first century electronic mail.\\\" May Trucking, 241 P.3d at 731. The Uniform Electronic Transactions Act, G.L.c. 110G, is one attempt to do so. It applies \\\"to transactions between parties each of which has agreed to conduct transactions by electronic means.\\\" G.L.c. 110G, \\u00a75. Whether the parties have agreed \\\"is determined from the context and surrounding circumstances, including the parties' conduct.\\\" Id. The parties' conduct here in using e-mail to conduct the negotiations in this case arguably constitutes an agreement to conduct transactions by electronic means. It is also true that they contemplated a traditional signed, hard-copy offer at the end of their electronic negotiations. That may not be fatal because G.L.c. 110G recognizes that the parties may choose to conduct transactions by electronic means up to a certain point, thereafter switching to hard copy. See G.L.c. 110G, \\u00a75(c) (\\\"A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means .\\\").\\nUnder G.L.c. 110G, \\u00a77(d), \\\"(i]f a law requires a signature, an electronic signature satisfies the law.\\\" An electronic signature is \\\"an electronic . . . symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.\\\" The parties' email \\\"signature block\\\" may well meet that test. So may the \\\"from\\\" portion of the email. See May Trucking, 238 Or.App. at 738 (noting the issue). All of these possible arguments provide a reasonable and supportable response to the defense of the statute of frauds in this case.\\nIt follows that Coxall has not met his burden on the special motion to dismiss. The letter and purpose of the lis pendens statute dictate endorsement of the memorandum of Us pendens, to notify third parties of pending litigation in which the plaintiffs have a reasonable basis in fact in law for their claim and a non-frivolous response to Coxall's defense. Any other conclusion would allow \\\"a buyer without notice of the [pending] litigation\\\" to \\\"nonetheless [be] 'bound by the judgment.' \\\" Wolfe, 440 Mass. at 702, quoting J.L. Bennett, Lis Pendens 65 (1887).\\nORDER\\nFor the above reasons, the Plaintiffs Emergency Motion for Endorsement of Memorandum of Lis Pen-dens is ALLOWED, the Defendant Harold Coxall's Special Motion to Dismiss (Docket No. 7) is DENIED.\\nBecause G.L.c. 184, \\u00a715(b) contains no requirement for a finding of good faith, I make no such finding and have deleted the \\\"good faith\\\" language from the draft Memorandum of Lis Pendens submitted by the plaintiffs.\\nIn adopting this shorthand reference, and the April 20 email reference, the Court has not overlooked the other emails sent on those days.\\nIn relevant part, the statute provides: \\\"No action shall be brought:... Fourth, Upon a contract for the sale of lands... or of any interest in or concerning them . . . Unless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.\\\"\\nThe e-mail later proved fraudulent, which presented the \\\"fraud on the court\\\" issues addressed in Munshani\"}"
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+"{\"id\": \"44328\", \"name\": \"George M. Rosen & others vs. Louis B. Mayer & another\", \"name_abbreviation\": \"Rosen v. Mayer\", \"decision_date\": \"1916-06-21\", \"docket_number\": \"\", \"first_page\": \"494\", \"last_page\": \"496\", \"citations\": \"224 Mass. 494\", \"volume\": \"224\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:22:19.632290+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George M. Rosen & others vs. Louis B. Mayer & another.\", \"head_matter\": \"George M. Rosen & others vs. Louis B. Mayer & another.\\nSuffolk.\\nMarch 29, 1916.\\nJune 21, 1916.\\nPresent: Rugg, C. J., Loeing, Braley, De Couecy, & Pierce, JJ.\\nEquity Jurisdiction, Retention of suit for damages only. Damages, In equity.\\nA bill in equity by the purchaser of all of the shares of the capital stock of a corporation operating a theatre alleged that the sale was induced by fraud of the seller in various respects and sought a rescission of the sale, repayment of the purchase price, an injunction restraining negotiation of notes given for part of the price and their cancellation, and the assessment of damages. The defendant opposed rescission when the suit was brought. During ten months while the suit was pending, the plaintiff carried on the business of the corporation and made the enterprise successful. The judge who heard the suit found that the sale was induced by fraud of the defendant in a certain particular, and, at the request of the plaintiff, who elected to waive the prayers of the bill relating to rescission, retained the suit for the awarding of damages only and found for the plaintiff in the sum of $1,000. Held, that, the court having had jurisdiction in equity when the suit was brought, the judge in a proper exercise of his discretion might retain it solely for the assessment of damages, and that his discretion was not exercised improperly.\", \"word_count\": \"975\", \"char_count\": \"5779\", \"text\": \"De Courcy, J.\\nThe plaintiffs, on April 4, 1914, purchased from the defendant, Louis B. Mayer (herein called the defendant), all the shares of capital stock in the Orpheum Theatre Company, and paid therefor $2,750 in cash and $4,000 in promissory notes secured by the stock as collateral and maturing apparently on November 5,1914, January 5,1915, and April 5,1915. The bill of complaint was filed on July 1,1914. It alleged that the plaintiffs had been induced to purchase the shares by means of certain false and fraudulent representations of the defendant; and prayed, among other things, for a rescission of- the sale, repayment of the purchase price, cancellation of the notes, assessment of damages, and a temporary injunction to restrain the negotiation of the promissory notes and stock certificates. The trial judge on April 28, 1915, found that the defendant did fraudulently misrepresent what the income of the business was during some months before the sale, and that this constituted an inducement to the plaintiffs to purchase. As they had carried on the business pending the litigation, and had made the enterprise a successful one, the plaintiffs, at the hearing, disclaimed a desire to have the transaction rescinded; and the judge found for them in damages.\\nThe defendant has waived his right to have a report of the evidence made part of the record, and the only question raised by his appeal is whether the final decree is warranted by the pleadings and the facts found by the trial judge. Huntress v. Allen, 195 Mass. 226, 233. E. W. Burt & Co. Inc. v. Coes & Young Co. 212 Mass. 134. His sole contention before us is that the court did not have power to retain the bill merely for the assessment of damages, after the plaintiffs had abandoned their claim for relief by way of rescission.\\nThe bill, as originally filed, admittedly presented a proper claim for equitable relief; and upon the court's findings of fact a rescission properly could have been granted. The plaintiffs had a right to relief in equity if only to prevent the negotiation of the notes to a bona fide holder. Brown v. Statter, 206 Mass. 119. Jurisdiction in equity was fixed when they brought their bill in good faith seeking the equitable relief to which they were entitled. Lexington Print Works v. Canton, 171 Mass. 414. That jurisdiction was not lost when the court proceeded to award damages as the remedy adapted to the case under the circumstances then existing. It is the general practice of our courts, where a plaintiff without fault on his own part, fails of specific equitable relief to which originally he was entitled, to retain jurisdiction of the cause in equity for the purpose of assessing damages. Milkman v. Ordway, 106 Mass. 232. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 47, and cases cited. This practice is not confined to cases where the relief sought is prevented by act of the defendant, as in Stewart v. Joyce, 201 Mass. 301. In many instances the change of circumstances arising from the lapse of time, renders the specific relief unsuitable or inequitable. Brande v. Grace, 154 Mass. 210. Case v. Minot, 158 Mass. 577. Lexington Print Works v. Canton, ubi supra. DeMinico v. Craig, 207 Mass. 593. Wentworth v. Manhattan Market Co. 216 Mass. 374.\\nThe fact that the plaintiffs waived their prayer for rescission did not prevent the court from awarding damages in the exercise of a sound discretion. See Hanson v. Innis, 211 Mass. 301; Nickerson v. Bridges, 216 Mass. 416, 421. Plainly there was no abuse of discretion on the part of the judge in retaining the bill for that purpose. The last note admittedly was not paid until after the hearing on the merits. The defendant had opposed rescission when the bill was brought, and when that remedy presumably would have been adequate. Months later, when the efforts of the plaintiffs had resulted in increasing the value of the stock, the judge well might believe that in the interest of justice they and not the defendant should reap the profit of their enterprise, and that they should recover the damages resulting from the defendant's fraudulent misrepresentation without the delay and expense of another action.\\nA. Berenson, for the defendant Mayer.\\nLee M. Friedman, M. M. Horblit & J. Wasserman, for the plaintiffs, were not called upon.\\nDecree affirmed with costs.\\nMcLaughlin, J.\\nIn the sum of $1,000.\"}"
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+"{\"id\": \"46379\", \"name\": \"Morris H. Barnett vs. Edward R. Clark\", \"name_abbreviation\": \"Barnett v. Clark\", \"decision_date\": \"1916-11-27\", \"docket_number\": \"\", \"first_page\": \"185\", \"last_page\": \"189\", \"citations\": \"225 Mass. 185\", \"volume\": \"225\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:17:38.650418+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Morris H. Barnett vs. Edward R. Clark.\", \"head_matter\": \"Morris H. Barnett vs. Edward R. Clark.\\nHampden.\\nOctober 24,1916.\\nNovember 27, 1916.\\nPresent: Rugg, C. J., Losing, Braley, & Pierce, JJ.\\nLandlord and Tenant. Garage.\\nWhere a lease of a certain building, after using the words \\u201clease\\u201d and \\\"demise,\\u201d describes the leased premises as \\\"the garage\\u201d at a certain number on a street named, the lessee covenants to \\u201cpay for all gas, electricity, heat and water used by him in conducting the said garage\\u201d and the right is given to the lessee \\u201cto sublet or sublease the aforesaid premises to [a. certain corporation] for garage purposes,\\u201d these words and phrases do not by implication or otherwise restrict the right of the lessee to use the premises for any lawful purpose, and there is no implied warranty that the premises when leased were or that they will continue to be fit or usable for the purposes of a garage. In an action on the covenant to pay rent contained in the lease above described it was held that the presiding judge rightly excluded evidence offered by the defendant of police regulations that went into effect about two and a half years after the date of the lease, which made it unlawful to use the leased building for a garage without changes and alterations that would cost between two and three thousand dollars, which the plaintiff refused to make.\\nContract on a covenant to pay rent contained in a lease of the premises numbered 457 on Worthington Street in Springfield. Writ dated December 14, 1914.\\nThe answer, among other things, alleged \\u201cthat said demised premises were at the time of the execution of said lease solely fitted for use as a garage and were not adapted for other purposes and had no value under said lease except for use as a garage; and that defendant has not paid the rent for the month of November, 1914, but he has otherwise fully complied with and performed all the covenants and agreements that said lease contained on his part to be performed; that some time in 1914, under and by virtue of St. 1904, c. 370, and amendments thereto, certain rules and regulations were made by the Massachusetts District Police, to become effective on the first day of October, 1914, . . . that by reason of said rules and regulations certain changes and altera-' tians were necessitated in said building; that by reason of said rules and regulations said building was rendered untenantable for the purpose to which its use was limited in the lease unless such changes and alterations were made; that said changes and alterations in said building would necessitate the expenditure of a large sum of money; that the defendant, owing to the refusal of the plaintiff to make such changes and alterations, gave notice in writing to the plaintiff that he surrendered said lease, . . . that the defendant vacated said premises on or about the thirtieth day of October, 1914, and has not since occupied the same.\\u201d\\n\\u2022 A copy of the lease was annexed to the answer. The lease began as follows:\\n\\u201cThis indenture made the second day of March in the year of our Lord, one thousand, nine hundred and twelve.\\n\\u201cWitnesseth, That I, Morris H. Barnett, of Springfield, in the County of Hampden and Commonwealth of Massachusetts, do hereby lease, demise and let unto Edward It. Clark of said Springfield The Garage, located at 457 Worthington street in said Springfield.\\n\\u201cIt is hereby agreed that the lessee will assume and pay all damages, demands and liabilities which may arise or be incurred by reason of any injury or damage to person or to property, and all other damages whatsoever resulting from or growing out of the maintenance, repair and operation of all elevators in said building.\\n\\u201cIt is further agreed that the said lessee shall pay for all gas, electricity, heat and water used by him in conducting the said garage.\\n\\u201cThe right is hereby given to the said Edward R. Clark to sublet or sublease the aforesaid premises to the Western Massachusetts Cadillac Co. for garage purposes.\\n\\u201cTo hold for the term of five (5) years from the first day of March, nineteen hundred and twelve, yielding and paying therefor the rent of twenty-six hundred (2600) dollars per annum. . . .\\u201d Here followed the usual covenants and provisions.\\nIn the Superior Court the case was tried before Irwin, J. It appeared that on October 28, 1914, the defendant wrote to the plaintiff as follows: \\u201cThis is to notify you that owing to the fact that your building, of which I am the lessee, is not in a condition required by the rules and regulations of the district police, which were effective Oct. 1, I hereby surrender the lease.\\u201d\\nThere was further correspondence and the keys of the building were sent by the defendant to the plaintiff and were returned by the plaintiff to the defendant. The plaintiff at all times refused to accept the defendant\\u2019s attempted surrender of the lease.\\nThe defendant offered in evidence extracts from the regulations of the Massachusetts district police mentioned above. The judge excluded all evidence of these regulations and the defendant excepted.\\nThe defendant further offered to prove by one Hearn, an architect and engineer, that the cost of making the changes and alterations in the leased premises required by the rules and regulations would amount to $2,692. This also was excluded, subject to the defendant\\u2019s exception.\\nThe judge found that the plaintiff was entitled to recover from the defendant the sum of $216.66, with interest at the rate of six per cent per annum from December 1, 1914, to September 28, 1915, the date of the entry of the judge\\u2019s finding, amounting to the sum of $10.72, making a total of $227.38.\\nAt the request of the defendant the judge reported the case, with all questions of law arising therein, for determination by this court. If the evidence excluded should have been admitted, and, if admitted, would have constituted a defence to the plaintiff\\u2019s claim, the finding was to be set aside; otherwise, the finding was to stand and judgment was to be entered for the plaintiff in the above mentioned sum of $227.38, with interest from September 28, 1915.\\nThe case was submitted on briefs.\\nW. H. Brooks, T. C. Maher & C. Brooks, for the defendant.\\nW. H. McClintock, E. A. McClintock & J. F. Jennings, for the plaintiff.\", \"word_count\": \"1448\", \"char_count\": \"8473\", \"text\": \"Pierce, J.\\nThe question presented on the report is whether in an action to recover unpaid rent due on a covenant contained in an indenture of lease, evidence should have been admitted that, after the lessee had entered under the lease, the Massachusetts district police under authority of law adopted certain regulations governing the construction and maintenance of garages, compliance with which \\\"necessitated the expenditure of considerable sums of money in the making of changes and alterations to make the demised premises conform thereto.\\\"\\nThe contention that the evidence was admissible rests on the assumption that the demise was limited to garage purposes, because it speaks of the leased premises as \\\"The Garage\\\" and because there is excepted from the covenant of the lease not to sublet the right \\\"to sublet or sublease the aforesaid premises to the Western Massachusetts Cadillac Co. for garage purposes.\\\" We are of opinion that the partial and restricted release of the covenant of the defendant not to lease or underlet did not by implication destroy or cut down the right (otherwise created by the words \\\"lease\\\" and \\\"demise\\\") to use \\\"The Garage\\\" for any lawful purpose, and that the use of the descriptive words \\\"The Garage\\\" did not raise an implied warranty that the premises were when leased or would continue to be fit or usable for garage or any other purpose. Dutton v. Gerrish, 9 Cush. 89. Taylor v. Finnigan, 189 Mass. 568. Lumiansky v. Tessier, 213 Mass. 182.\\nThe case at bar presents no fact to warrant a finding of actual or constructive expulsion of the lessee from the use and enjoyment of the whole or of any part of the premises by any intentional or wrongful act of the lessor. Bartlett v. Farrington, 120 Mass. 284. Skally v. Shute, 132 Mass. 367. Voss v. Sylvester, 203 Mass. 233, 240. The fact that the premises have remained unoccupied by the lessee since the order of the district police went into effect, does not distinguish the case at bar from the case of Taylor v. Finnigan, supra.\\nIt follows that the evidence was excluded rightly, and that in accordance with the terms of the report judgment is to be entered for the plaintiff in the sum of $227.38 with interest from September 28, 1915.\\nSo ordered.\\nI\"}"
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+"{\"id\": \"48017\", \"name\": \"Opinion of the Justices to the House of Representatives\", \"name_abbreviation\": \"Opinion of the Justices to the House of Representatives\", \"decision_date\": \"1963\", \"docket_number\": \"\", \"first_page\": \"780\", \"last_page\": \"785\", \"citations\": \"345 Mass. 780\", \"volume\": \"345\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:44:08.083654+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Opinion of the Justices to the House of Representatives.\", \"head_matter\": \"Opinion of the Justices to the House of Representatives.\", \"word_count\": \"1803\", \"char_count\": \"10773\", \"text\": \"To the Honorable the House of Representatives of the Commonwealth of Massachusetts:\\nThe Justices of the Supreme Judicial Court respectfully submit this answer to the question in an order adopted by the House of Representatives on April 9, 1963, and transmitted to us on April 10,1963. The order recites the pend-ency before the General Court of a bill, House No. 436, a copy of which was transmitted with the order. The bill is entitled, \\\"An Act prohibiting savings banks from denying insurance coverage to blind persons who are otherwise insurable,\\\" and reads: \\\"Section 16 of chapter 178 of the General Laws, as amended by section 4 of chapter 260 of the acts of 1947, is hereby further amended by adding at the end the following sentence: \\u2014 Such rules shall provide that no applicant otherwise insurable shall be denied coverage for the sole reason that he is a blind person.\\\"\\nThe question is: \\\"Is it constitutionally competent for the General Court under the equal protection clause of the 14th Amendment of the Constitution of the United States or under Article X of Part the First of the Constitution of Massachusetts to provide that no applicant for savings hank life insurance, otherwise insurable, shall be denied coverage for the sole reason that he is a blind person, substantially as provided in said bill, without extending such provisions to all insurance companies writing life insurance within the Commonwealth ? ' '\\nIt is to be noted that the bill merely undertakes to prohibit the denial of the benefits of savings bank life insurance solely on the ground of blindness. Nothing is said about premiums. If a higher premium would be warranted for the insuring of an insurable blind person, there is nothing in the bill to preclude it. If there were, there would be a question as to due process which pertinently might be asked. The stated ground of constitutional doubt is limited to whether the omission to extend the proposed provision to all insurance companies writing life insurance within the Commonwealth renders the bill repugnant to that portion of the Fourteenth Amendment to the Constitution of the United States which provides that no State shall \\\"deny to any person within its jurisdiction the equal protection of the laws,\\\" or to its counterpart, art. 10 of the Declaration of Rights. See Universal Adjustment Corp. v. Midland Bank, Ltd. 281 Mass. 303, 320.\\nThe statute, which the bill would amend, as it presently stands, G. L. c. 178, \\u00a7 16 (as amended through St. 1947, c. 260, \\u00a7 4), reads, \\\"The state medical director, appointed under section twelve of chapter twenty-six, shall be subject to the supervision and control of the trustees of the General Insurance Guaranty Fund and shall prescribe the rules relating to health or acceptability of the applicant for insurance, and shall act as supervising and advising physician for the medical department of all the savings and insurance banks.\\\"\\nNot enough appears in the order to reveal any ground why the bill should apply only to savings bank life insurance. Surely there are no facts in the realm of general knowledge upon which we may draw as an aid. There is no presumption of validity when we consider a proposed statute in an advisory opinion. Opinion of the Justices, 337 Mass. 777, 781-782. If there are reasons for a valid legislative distinctive treatment, they must be found in the origin, history, and characteristics of savings bank life insurance.\\nSavings bank life insurance, as it exists under G. L. c. 178, was first enacted in St. 1907, c. 561. It was intended primarily for wage earners, and had its origin in studies initiated in 1905 by Louis D. Brand\\u00e9is, who himself called it \\\"wage earners' life insurance\\\" in a magazine article. See Mason, \\\"Brand\\u00e9is A Free Man's Life,\\\" pp. 157 et seq. (N. Y. 1946); Berman, \\\"Massachusetts System of Savings Bank Life Insurance,\\\" U. S. Dept. of Labor, Bur. Labor Stat. Bull. No. 615 (1935), and supplement Bull. No. 688 (1941) \\\"Operation of Savings Bank Life Insurance in Massachusetts and New York\\\"; 1939 House Doc. No. 2124.\\n\\\"The division of savings bank life insurance shall consist of the body corporate known as the General Insurance Guaranty Fund.\\\" G. L. c. 26, \\u00a7 9 (as amended through St. 1947, c. 260, \\u00a7 1). There are seven trustees of the fund, including the commissioner of savings bank life insurance, appointed one each year for a seven year term by the Governor with the advice and consent of the Council. The trustees serve without compensation and are selected from persons who are trustees of savings banks or of savings and insurance banks. Id. G. L. c. 26, \\u00a7 10 (as amended through St. 1947, c. 260, \\u00a7 2). The trustees with the approval of the Governor and Council appoint an insurance actuary, called the State actuary, and a physician, called the State medical director, whose salaries are paid by the Commonwealth. G. L. (Ter. Ed.) c. 26, \\u00a7 11,12.\\nVarious provisions of G. L. c. 178 should be noticed. Any savings bank may establish an insurance department (\\u00a7 2), \\\"in which the business of issuing life insurance and the granting of annuities is conducted,\\\" and is then known as a savings and insurance bank (\\u00a71). As prerequisites such a bank must establish certain funds (\\u00a73). After obtaining a license under \\u00a7 7, a savings and insurance bank may make and issue life policies \\\"with all the rights, powers and privileges and subject to all the duties, liabilities and restrictions in respect to the conduct of the business of life insurance conferred or imposed by general laws relating to domestic legal reserve life insurance companies, so far as the same are applicable and except as is otherwise provided herein. The insurance department shall in all respects, except as is otherwise provided herein, be managed as savings banks are managed under general laws relating to savings banks. Such insurance department may decline particular classes of risks or reject any particular application\\\" (\\u00a76). No bank shall write a policy, with minor exceptions, for more than $5,000 on the life of any one person. The aggregate amount of all such policies in all banks upon any one life shall not exceed a total which would be equal to $1,000 in each savings and insurance bank, exclusive of group insurance, payor insurance, dividends and profits (\\u00a7 10, as amended through St. 1958, c. 117). \\\"No policy . . . shall be issued except upon the life . of a resident of the commonwealth or of a person regularly employed therein.\\\" There are provisions as to the effect of a holder becoming a resident of another State or country (\\u00a7 12). Savings and insurance banks may not employ solicitors (\\u00a713).\\nThe State actuary prepares standard forms for all savings and insurance banks. \\\"He shall also, consistently with the law governing domestic legal reserve life insurance companies, determine and prepare the table of premium rates for all kinds of life insurance policies, . . . the surrender and any proof of death charges, and the premium rates for reinsurance. The rates . so fixed shall be adopted as the uniform and exclusive premiums, . . . the surrender, and the proof of death charges. He shall also determine and prepare tables showing the amounts which may be loaned on insurance policies . . . and the guaranty charges to be made by the General Insurance Guaranty Fund, but the loan value shall in no event exceed the reserve on any policy. He shall also prepare or procure tables for computing the legal reserve to be held under insurance . . . contracts, and for this purpose may, with the approval of the commissioner of insurance, adopt a table of mortality which may be deemed more suitable than the American Experience Table for policies of insurance of the character and amounts to which the risks of the banks are limited; and shall in all other respects, except as otherwise provided, perform the duties of insurance actuary for all the savings and insurance banks and the General Insurance Guaranty Fund\\\" (\\u00a7 15, as amended through St. 1935, c. 330, \\u00a7 4).\\nThe general provisions concerning life insurance companies are to be found in G. L. c. 175, which relates to many kinds of insurance. The citations which we have made of sections of c. 178 amply demonstrate that the Legislature from the beginning has treated savings and insurance banks as a separate and distinct classification. See 8 Op. Atty. Gen. 544. Fundamentally, they are to be managed under the general laws relating to savings banks. But there are important differences in the field of insurance. Among these are the detailed extent of State participation in the establishment of the General Insurance Guaranty Fund, the appointment of its trustees, the State actuary, and the State medical director. There is a relatively low maximum for which a savings bank policy may be written. The employment of solicitors is forbidden. The intent is that the policyholders are to be residents of the Commonwealth or regularly employed here. The applicable table of mortality may be made more suitable for policies of the character and amounts to which the risks are limited.\\nIn view of the control long exercised and the distinctions long provided in the classification of savings bank life insurance, we are of opinion that the Commonwealth may show its social interest in the welfare of the blind living or regularly employed here, as proposed in the bill, without denying equal protection of the laws in the respect asked in the question. As we have already intimated, it is unsatisfactory to try to answer a question of this sort without adequate factual background. The mere fact that the bill has been filed indicates that there may be some disadvantage in the minds of writers of insurance as to issuing policies to the blind. We perceive no reason for imposing any such disadvantage exclusively upon the \\\"wage earners' life insurance,\\\" even though any such disadvantage may be offset by appropriate premium adjustments. On our present inadequate information that is a matter of policy for the Legislature.\\nOf course, if litigation should follow enactment of the bill, facts may appear that establish the existence of a substantial discrimination against savings and insurance banks as a consequence of the enactment. In that event, it will be \\\"the duty of the court to consider . . . [the question] anew, unaffected by the ' ' advice now given. Opinion of the Justices, 341 Mass. 738, 748.\\nIf the bill should be enacted in its present form, there is a possible inconsistency with the last sentence of G. L. c. 178, \\u00a7 6, quoted above.\\nWe answer the question, \\\"Yes.\\\"\\nRaymond S. Wilkins\\nJohn V. Spalding\\nArthur E. Whittemore\\nR. Ammi Cutter\\nPaul G. Kirk\\nJacob J. Spiegel\\nPaul C. Reardon\"}"
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+"{\"id\": \"484603\", \"name\": \"White Fuel Corporation vs. Liberty Mutual Insurance Company\", \"name_abbreviation\": \"White Fuel Corp. v. Liberty Mutual Insurance\", \"decision_date\": \"1943-02-01\", \"docket_number\": \"\", \"first_page\": \"165\", \"last_page\": \"170\", \"citations\": \"313 Mass. 165\", \"volume\": \"313\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:04:56.112768+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"White Fuel Corporation vs. Liberty Mutual Insurance Company.\", \"head_matter\": \"White Fuel Corporation vs. Liberty Mutual Insurance Company.\\nSuffolk.\\nOctober 6, 1942. \\u2014\\nFebruary 1, 1943.\\nPresent: Field, C.J., Lummus, Qua, & Dolan, JJ.\\nE. C. Park, for the plaintiff.\\nD. E. Hall, (P. N. Jones & J. P. Allen, Jr., with him,) for the defendant.\", \"word_count\": \"1672\", \"char_count\": \"10121\", \"text\": \"Qua, J.\\nThe bill alleges that between January 1, 1934, and May 1, 1939, the plaintiff was the holder of various policies of insurance in the defendant mutual insurance company. These policies were of the types known as workmen's compensation, public liability, products liability, and automobile public liability and property damage. The plaintiff paid premiums on these policies to the total amount of $70,899.39 and received dividends at the rate of twenty per cent of the premiums, amounting to $14,179.87. It is alleged that the amounts paid by the defendant in dividends to policyholders on policies expiring during the foregoing period were \\\"very much less than the net earnings of the defendant after setting up all reserves required or permitted by law\\\"; that during approximately that period the defendant increased its surplus in various surplus funds by an amount aggregating $13,017,514, representing accumulated profits not distributed to policyholders; and that the purpose of this accumulation was to provide for the benefit of future policyholders a capital fund or funds which might be used to pay losses, expenses, and dividends and to relieve against assessments. The bill seeks an accounting and payment to the plaintiff of the plaintiff's pro rata share of the defendant's profits accumulated during the period while the plaintiff was a policyholder of the defendant, calculated upon the ratio of the premiums paid by the plaintiff to the total net premiums earned by the defendant.\\nIt is the contention of the plaintiff that a mutual insurance company is a strictly cooperative enterprise established for the mutual benefit of its existing policyholders; that all profits earned belong to the policyholders for the time being and must be paid to them as dividends or otherwise reserved to them; and that a mutual company cannot, consistently with its very nature, accumulate out of premiums paid in by policyholders a general surplus which will redound to their benefit only if they continue to be policyholders, and otherwise will benefit only subsequent policyholders who may have contributed little or nothing to the fund. See Commonwealth v. Massachusetts Mutual Fire Ins. Co. 112 Mass. 116, 120-121; Baxter v. Chelsea Mutual Fire Ins. Co. 1 Allen, 294, 296-297; Smith v. Hunterdon County Mutual Fire Ins. Co. 14 Stew. (N. J.) 473; Penn Mutual Life Ins. Co. v. Lederer, 252 U. S. 523, 525. Compare Huber v. Martin, 127 Wis. 412, 437-438.\\nIt is the contention of the defendant, on the other hand, that the statutes now in force recognize the policy of the accumulation of surpluses by mutual casualty companies and permit such accumulation beyond the calculated policy reserves, even though subsequent policyholders may largely benefit therefrom; and that the by-laws of the defendant and the policies themselves, all of which by stipulation have been treated as set forth in the bill, expressly provide for the accumulation of such surplus.\\nThe question decisive of the case is whether a mutual insurance company doing business of the kinds indicated by the policies here involved can accumulate, in addition to the calculated policy reserves, surplus funds for the general strengthening of the company, for which funds it is not obliged to account to those who were policyholders during the period of accumulation. An examination of the statutes shows that this question must be answered in the affirmative.\\nGeneral Laws (Ter. Ed.) c. 175, \\u00a7 90, provides that mutual companies, other than life, transacting business of the kinds here involved, and their officers, directors, agents and members, shall, with exceptions not now material, \\\"be subject to all the provisions of this chapter relating to mutual fire companies and their officers, directors, agents and members, so far as applicable.\\\" Turning to the provisions relating to mutual fire companies, we find in \\u00a7 80, among other things, provisions that \\\"From time to time the directors of a mutual fire company may by vote fix and determine the percentages of dividend or expiration return of premium to be paid on expiring or cancelled policies,\\\" which may in their discretion be different for the different kinds of risks against which the companies are authorized to insure; that \\\"any such company may accumulate and hold profits, but only until such profits equal four per cent of its insurance in force\\\"; and that \\\"Such accumulation may be used from time to time in the payment of losses, dividends and expenses.\\\" In our opinion \\u00a7 80 was intended to subject the payment of dividends in mutual fire companies to the sound discretion of the directors. The word \\\"may\\\" is appropriate to this purpose. Brennan v. Election Commissioners of Boston, 310 Mass. 784, 785-787. Section 80 also expressly permits mutual fire companies to \\\"accumulate and hold profits,\\\" within the limitation there laid down, \\u2014 in other words, to establish a permanent general surplus. There is nothing to the contrary in the statutory provisions for different rates of dividends upon different classifications of risks such as are found in \\u00a7 80 and in G. L. (Ter. Ed.) c. 152, \\u00a7 53.\\nBoth parties in their carefully prepared briefs have traced the interesting history of the provisions now appearing in \\u00a7 80. That history is too long for repetition here. In our opinion it shows that if allowing a mutual insurance company to accumulate a general surplus which may at some future,time of stress be used to the advantage of policyholders other than those from whose premiums it was accumulated, or in proportions different from those in which it was contributed, constitutes, as the plaintiff says it does, a departure in some degree from the original conception of mutual insurance as simple cooperative self insurance strictly at cost, that departure was intentional and deliberate. The defendant suggests that it came about as an ultimate consequence of the disastrous experience of mutual fire companies in the Chicago fire of 1871 and in the Boston fire of 1872. Whether this is true or not, the change may well have been thought necessary in order to give financial stability and continuity to mutual companies equivalent to that given to stock companies by their capital stock and thus to assist the mutual principle as a whole to survive in the insurance business.\\nThe plaintiff argues that the provisions of \\u00a7 80 to which attention has been called above are not \\\"applicable\\\" under \\u00a7 90 to a company like the defendant, since the accumulation of profits under \\u00a7 80 is to be limited to \\\"four per cent of its insurance in force,\\\" and it is impossible in workmen's compensation and liability insurance to fix upon any sum as the amount of insurance in force, as can be done in fire insurance. We do not accede to this argument. The provisions of \\u00a7 80 relative to dividends and accumulations are so important in the scheme of powers and obligations of mutual companies that if such companies doing a workmen's compensation and liability business would not, apart from \\u00a7 80, have the powers in these matters there set forth (which we do not decide), only the strongest reasons would persuade us that these provisions were not intended to be made applicable to such companies. Evidence that they were intended to be so made applicable is furnished by the provision in \\u00a7 54 (e) that any mutual company transacting the kinds of business there mentioned may accumulate the net cash assets required thereunder \\\"in addition to the amount permitted by section eighty,\\\" and by the provision of \\u00a7 93F, inserted by St. 1941, c. 716, \\u00a7 3, that any mutual fire company or \\\"any company specified in the first paragraph of section ninety, which has and maintains a surplus to policyholders\\\" of an amount set forth may issue nonassessable policies. We need not determine whether there exists any method of ascertaining the amount of insurance in force or its equivalent in workmen's compensation and liability policies, since we are of opinion that even if no method exists the result will be only to render the particular limitation clause inapplicable and not to render inapplicable the general scheme by which mutual companies may exercise a reasonable control over their dividends and may retain a reasonable surplus to meet contingencies that may arise.\\nWe may add that the discretion of the directors in these matters is, of course, not an absolute one, but is subject to the requirements of good faith and obedience to law established as generally controlling the decisions of directors of corporations in like situations. Morse v. Boston & Maine Railroad, 263 Mass. 308, 311. Anderson v. Bean, 272 Mass. 432, 444. Joslin v. Boston & Maine Railroad, 274 Mass. 551, 555. There are in the present bill no sufficient allegations of fact to show bad faith or abuse of discretion by the directors.\\nSince in our opinion the applicable statutes gave the defendant power, acting in good faith, to accumulate a surplus and to withhold distribution from the plaintiff of any part of it, we are not called upon to decide whether such power has been created or could be created by the terms of the defendant's by-laws and of the several contracts of insurance. It is enough to say that the by-laws and the policies recognize the existence of the power and contain no qualifications limiting its exercise.\\nNo such question is here presented as was involved in the tontine provisions of the policy passed upon in Pierce v. Equitable Life Assurance Society, 145 Mass. 56. See Peters v. Equitable Life Assurance Society, 200 Mass. 579, 587. See generally New York Life Ins. Co. v. Burbank, 209 Iowa, 199; Greeff v. Equitable Life Assurance Society, 160 N. Y. 19; White v. Provident Life & Trust Co. 237 Penn. St. 375; Equitable Life Assurance Society v. Brown, 213 U. S. 25.\\nInterlocutory decree sustaining\\ndemurrer affirmed.\"}"
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+"{\"id\": \"501951\", \"name\": \"Ernest Morley vs. Raymond Holdsworth & another, executors\", \"name_abbreviation\": \"Morley v. Holdsworth\", \"decision_date\": \"1947-11-28\", \"docket_number\": \"\", \"first_page\": \"742\", \"last_page\": \"742\", \"citations\": \"322 Mass. 742\", \"volume\": \"322\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T20:07:41.761346+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ernest Morley vs. Raymond Holdsworth & another, executors.\", \"head_matter\": \"Ernest Morley vs. Raymond Holdsworth & another, executors.\\nNovember 28, 1947.\\nH. F. Collins, for the plaintiff.\\nA S. Allen, (J. M. Joslin with him,) for the defendants.\", \"word_count\": \"82\", \"char_count\": \"512\", \"text\": \"Order sustaining demurrer affirmed. Judgment for the defend-\\nants. From an order sustaining a demurrer in this action of contract the plaintiff appealed. No recital or analysis of the agreement declared on is required. Palpably it was a corrupt bargain, to enforce which the courts will not lend their aid. The demurrer was rightly sustained.\"}"
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diff --git a/mass/506428.json b/mass/506428.json
new file mode 100644
index 0000000000000000000000000000000000000000..57a1721b60437cac36d5a7bc5c9ab8e2c94e4266
--- /dev/null
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+"{\"id\": \"506428\", \"name\": \"Elizabeth A. Bingham vs. Wendell B. Colson\", \"name_abbreviation\": \"Bingham v. Colson\", \"decision_date\": \"1950-02-03\", \"docket_number\": \"\", \"first_page\": \"761\", \"last_page\": \"761\", \"citations\": \"325 Mass. 761\", \"volume\": \"325\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:48:40.525711+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elizabeth A. Bingham vs. Wendell B. Colson.\", \"head_matter\": \"Elizabeth A. Bingham vs. Wendell B. Colson.\\nFebruary 3, 1950.\\nR. S. McCabe, for the defendant.\\nL. K of sky, for the plaintiff.\", \"word_count\": \"321\", \"char_count\": \"1765\", \"text\": \"Exceptions overruled. This is an action of contract to recover three months' rent under a written lease of a furnished house in South Lincoln. The answer pleaded a general denial and eviction. Other defences set up in the answer were waived at the trial or in the defendant's brief. The jury found for the plaintiff, and the action is here on an exception to the denial of the defendant's motion for a directed verdict. The only issue for us to consider is whether as matter of law there was an eviction. The controversy arose over an attic room of this furnished house the use of which the plaintiff claimed she, through her agent, had reserved for the storage of some skis, sleds and beds. There was no padlock on the door of this attic room but it had a \\\"closing device.\\\" The defendant admitted that when he leased the premises there was some building material in the garage and some furniture to go into the attic. The defendant denied that he consented to a reservation of a part of the house by the plaintiff or her agent. He admitted that he learned of this attic room for the first time at the trial. There was no error in denying the defendant's motion for a directed verdict. The defence of an eviction is an affirmative one with the burden of proof resting on the defendant. Rome v. Johnson, 274 Mass. 444, 450, and cases there cited. See Stone v. Sullivan, 300 Mass. 450, 452-453. See also Westland Housing Corp. v. Scott, 312 Mass. 375. It can seldom be ruled that the burden of proof resting on oral testimony has been sustained. Zawacki v. Finn, 307 Mass. 86, 88. The issue of eviction was clearly a question for the jury.\"}"
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+"{\"id\": \"508746\", \"name\": \"Henry F. Cygan vs. Earle Megathlin & another\", \"name_abbreviation\": \"Cygan v. Megathlin\", \"decision_date\": \"1951-02-05\", \"docket_number\": \"\", \"first_page\": \"732\", \"last_page\": \"736\", \"citations\": \"326 Mass. 732\", \"volume\": \"326\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:58:55.651925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry F. Cygan vs. Earle Megathlin & another.\", \"head_matter\": \"Henry F. Cygan vs. Earle Megathlin & another.\\nBristol.\\nOctober 23, 1950.\\nFebruary 5, 1951.\\nPresent: Qua, C.J., Lummus, Ronan, Spalding, & Williams, JJ.\\nE. D. Hicks, (W. B. Perry, Jr., with him,) for the plaintiff.\\nJ. Lipsitt, for the defendants.\", \"word_count\": \"1589\", \"char_count\": \"9205\", \"text\": \"Ronan, J.\\nThis is a suit in equity to recover compensation for services rendered to the defendants. The judge construed the oral agreement of employment, in so far as it referred to any compensation in addition to $1 an hour, as too indefinite to be enforced, confirmed the master's reports as so construed, and entered a final decree for the plaintiff in the amount of $981.31, which was computed at the rate of $1 an hour, less payments made by the defendants, plus interest. The plaintiff appealed from the interlocutory and final decrees.\\nIt appears from the master's reports that the defendants in the early part of 1946 were desirous of manufacturing marine hardware parts. They had limited financial means and desired to avoid paying a high cost for tool making. They made an oral agreement on or about April 15, 1946, with the plaintiff, an experienced tool maker, by which he was to produce the tools in the cellar of his home, using his own hand tools and other equipment located therein, together with the materials, light, power, and other equipment to be furnished by the defendants. The plaintiff was to do this work outside of the time he was regularly employed in another plant. With reference to the matter of compensation, the master reported that the parties entered into an oral contract whereby the plaintiff undertook to perform services with the understanding that, if his charges for tool making were reasonable, he was to receive initially $1 an hour and some additional compensation at a later date when the defendants \\\"got on their feet.\\\" The exact nature and amount of this additional compensation were not agreed upon at the inception of the contract or at any time thereafter, although the parties before the termination of the plaintiff's services in February, 1948, and when the defendants were able to pay, attempted unsuccessfully to fix the amount of the additional compensation. The master found that the fair and reasonable rate for the plaintiff's services was $2 an hour, and upon this basis he found for the plaintiff for $2,573.35 together with interest.\\nThe master found against the plaintiff on his original contention that he was to be paid the additional compensation in the capital stock of the new company which the defendants incorporated. The bill, however, is one to establish an indebtedness and to reach and apply shares of stock owned by the defendants and the suit was tried before the master, without objection, as a common count to recover for services rendered. The defendants raise no question of variance. The question presented is whether the oral contract of employment is so vague and indefinite that the plaintiff is not entitled to recover any compensation in excess of $1 an hour.\\nAll the essential terms of a contract must be definite and certain so that the intention of the parties may be discovered, the nature and extent of their obligations ascertained, and their rights determined. Read v. McKeague, 252 Mass. 162. Thall v. Berkowitz, 265 Mass. 335. Geo. W. Wilcox, Inc. v. Shell Eastern Petroleum Products, Inc. 283 Mass. 383, 390. Michael Chevrolet, Inc. v. Institution for Savings, 321 Mass. 215, 218.\\nA contract is not to be struck down because one of its material provisions is stated in broad and general terms if, when applied to the transaction and construed in the light of the attending circumstances, the meaning to be attributed to it can be interpreted with reasonable certainty so that the rights and obligations of the parties can be fixed and determined. This court has gone far in enforcing contracts where the consideration to be paid by one party to the other was expressed as a fair and equitable share of the profits, Noble v. Joseph Burnett Co. 208 Mass. 75; to pay a sum which would be right and satisfactory, Silver v. Graves, 210 Mass. 26; to \\\"make it right\\\" with an injured employee by the payment of some compensation in addition to the sum paid for a release, Brennan v. Employers Liability Assurance Corp. Ltd. 213 Mass. 365, or to treat him right by the payment of some additional compensation until he was able to return to work, Ferris v. Boston & Maine Railroad, 291 Mass. 529; to pay an employee well and to satisfy him, Leverone v. Leverone, 220 Mass. 149; or to. pay for services the value of which was to be left to future determination, Evers v. Gilfoil, 247 Mass. 219, Weiner v. Pictorial Paper Package Corp. 303 Mass. 123. See Greene v. Boston Safe Deposit & Trust Co. 255 Mass. 519, 524; Fenton v. Federal Street Building Trust, 310 Mass. 609; Eno v. Prime Manuf. Co. 314 Mass. 686, 691.\\nThe defendants agreed to pay additional compensation if and when their business became sufficiently profitable to permit it and if the charges to be submitted by the plaintiff were fair and reasonable. The question is whether the contract carries with it, either expressly or impliedly, the measure of compensation. The defendants were embarking upon a new venture for which it would be necessary to have a supply of tools, but their finances were too meager at the beginning of the venture to pay the usual and regular prices for the tools. They secured a tool maker to produce the tools in his spare time and agreed to pay at a rate which in fact was one half the ordinary rate for his services and something in addition if the venture became successful and his charges were reasonable. The tool maker took the risk that he might not eventually receive any more than the initial rate because the business might not prove to be successful, but if it turned out to be profitable he was to be paid such an additional amount as would give him a reasonable compensation for the services which he had rendered. A reference in the agreement to the reasonableness of the charges to be submitted by the plaintiff is significant and is plainly indicative that the parties had in mind that the measure of compensation was to be fair and reasonable. A promise to pay for services if the charges therefor are reasonable is equivalent to a promise to pay fair compensation. The whole arrangement was for the benefit of the defendants in that it postponed the payment of fair and reasonable compensation until they \\\"got on their feet.\\\"\\nThe plaintiff is not seeking damages for breach of an executory contract but is seeking to recover reasonable compensation for services which he rendered at the request of the defendants and for their benefit, and for which he was to be paid in addition to that actually received under certain conditions with which there was a compliance. It was said in Silver v. Graves, 210 Mass. 26, 30, where the only element in the contract left undetermined was that of price, that \\\"When a contract has been executed on one side, the law will not permit the injustice of the other party retaining the benefit without paying unless compelled by some inexorable rule.\\\" We do not think that the promise to pay additional compensation was void on the ground that it was too indefinite. There are instances where recovery was allowed even where the promise was held to be too indefinite. In Von Reitzenstein v. Tomlinson, 249 N. Y. 60, where the promise to pay \\\"an appropriate percentage\\\" of the benefit derived from the plaintiff's services in addition to a fixed daily wage was held to be too indefinite to be enforced, it was said by Cardozo, Ch.J., at pages 64-65, \\\"It is, however, significant as rebutting an agreement that value was liquidated by the liquidation of the daily wage. As to what the work was worth, the door is still wide open. Whatever it was worth in excess of payments made, the plaintiff should receive . The case is to be disposed of as founded on a common count for service rendered at request.\\\" Lorang v. Flathead Commercial Co. 112 Mont. 146. Williston, Contracts (Rev. ed.) \\u00a7 49. We need not decide here whether the plaintiff would be precluded from recovery for the fair value of the services rendered because the promise to pay was too indefinite to be enforced. Our own decisions already cited have gone far in permitting recovery for services rendered in accordance with a contract when it has been contended that the rate of payment fixed by the contract was too indefinite to be enforced. To them may be added Pillois v. Billingsley, 179 Fed. (2d) 205, Hunter v. Ryan, 109 Cal. App. 736, Olson v. Shuler, 203 Iowa, 518, Brunner v. Stix, Baer & Fuller Co. 352 Mo. 1225, Plattenburg v. Briggs, 166 App. Div. (N. Y.) 326, Jeffs v. Stephenson, 9 Wash. (2d) 335, Restatement: Contracts, \\u00a7 32, illustration 10, Williston, Contracts (Rev. ed.) \\u00a7 41, 92 A. L. R. 1391, and 6 R. C. L. 648-649.\\nThe interlocutory decree confirming the reports of the master as modified by the findings and rulings of the judge is reversed, and a decree is to be entered confirming the reports. The final decree is reversed, and a final decree is to be entered ordering the defendants to pay the amount found due by the master.\\nSo ordered.\"}"
\ No newline at end of file
diff --git a/mass/520564.json b/mass/520564.json
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index 0000000000000000000000000000000000000000..2decd6f503848776cd36d3f319532a9a4762b8d4
--- /dev/null
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+"{\"id\": \"520564\", \"name\": \"E. M. Loews, Inc. vs. Tobe C. Deutschmann & another\", \"name_abbreviation\": \"E. M. Loews, Inc. v. Deutschmann\", \"decision_date\": \"1962-07-02\", \"docket_number\": \"\", \"first_page\": \"765\", \"last_page\": \"765\", \"citations\": \"344 Mass. 765\", \"volume\": \"344\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:48:59.613140+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"E. M. Loews, Inc. vs. Tobe C. Deutschmann & another.\", \"head_matter\": \"E. M. Loews, Inc. vs. Tobe C. Deutschmann & another.\\nJuly 2, 1962.\\nClaude B. Cross (John M. Reed with him) for the plaintiff.\\nGeorge H. Foley for the defendants.\", \"word_count\": \"216\", \"char_count\": \"1332\", \"text\": \"Decree affirmed with costs of this appeal. This suit for specific performance was considered in 337 Mass. 42 on an appeal from a final decree following interlocutory decrees taking the bill for confessed. There has been a trial on the merits. The pleadings are not substantially changed. The judge made a statutory report of material facts. The plaintiff had substantial assets. Neither the plaintiff nor its nominee had obtained a license to operate an outdoor theatre on the premises. Under the contract this failure excused the plaintiff and its nominee from taking title. The plaintiff had the \\\"exclusive option,\\\" nevertheless, to purchase the premises notwithstanding such failure. The option provision, properly construed, required the plaintiff to give its own mortgage note with prescribed terms for $160,000. The plaintiff was unwilling to give its own note. The alleged tender of a note -with different terms by its corporate nominee, organized to operate a theatre but having no license to do so and having assets of only $1,000, was insufficient to put the defendant in default. For this reason, and for others not discussed, the bill was rightly dismissed.\"}"
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diff --git a/mass/5609064.json b/mass/5609064.json
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index 0000000000000000000000000000000000000000..fb5e7b263af568afecda2b9bfbca43226dcc0289
--- /dev/null
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+"{\"id\": \"5609064\", \"name\": \"COMMONWEALTH vs. Guy H. LEVIA\", \"name_abbreviation\": \"Commonwealth v. Levia\", \"decision_date\": \"1981-02-06\", \"docket_number\": \"No. 88459, 88460\", \"first_page\": \"186\", \"last_page\": \"188\", \"citations\": \"2 Mass. Supp. 186\", \"volume\": \"2\", \"reporter\": \"Massachusetts Reports Supplement\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:20:10.889867+00:00\", \"provenance\": \"CAP\", \"judges\": \"Robert J. Hallisey\", \"parties\": \"COMMONWEALTH vs. Guy H. LEVIA\", \"head_matter\": \"COMMONWEALTH vs. Guy H. LEVIA\\nNo. 88459, 88460\\nSuperior Court Department Trial Court of the Commonwealth of Massachusetts Worcester County\\nFebruary 6, 1981\\nMichael Monopli for the plaintiff.\\nMartin Zajac, Joyce Wheeler Poulin for the defendant.\", \"word_count\": \"1607\", \"char_count\": \"9546\", \"text\": \"MEMORANDUM DECISION AND REPORT\\nHALLISEY, J.\\nOn or about November '21, 1980, defendant filed a motion to correct sentence imposed upon him on June 19, 1979, consisting of two consecutive ten-year sentences based on an episode of armed robbery of the Cumberland Farms Store in Northbridge on February 24; 1979, in which money of Cumberland Farms was taken from two employees, some from the pocket of the attendant of the gas pumps, and some from the cash register of the salesperson in the store.\\nPassing the timeliness of the motion as a motion to revise and revoke and the possibility of raising the'same question by habeas corpus or otherwise, defendant asserts that consecutive sentences were illegal, since there was but one robbery of the property of one entity.\\nIssue:\\nThe issue here is whether a criminal defendant, who in the process of robbing a store takes money from two different store employees, can be consecutively sentenced on two counts of armed robbery.\\nDecision:\\nThis appears to be a case of first impression ^.Massachusetts. Cases in other jurisdictions reach conflicting results in addressing this issue. The majority view is that offenses committed against more than one person during a single criminal transaction may be separately charged. An emerging trend, however, treats the robbery of an employer's property from mbre than one employee as a single criminal act. The' undersigned is of the opinion that the majority view is correct, and denies the motion.\\nDiscussion:\\nThe defendant submits that since the taking of money from two store employees constituted a single criminal impulse, and all of the money belonged to one entity (the store), only one crime has been committed. The Commonwealth, on the other hand, contends that the central element of the crime of robbery is not the taking of property but the exertion of force against the victim. Since two victims were put in fear, the Commonwealth argues that each has been robbed, regardless of who had title to the property taken. - \\u2022\\nGeneral Laws c. 265, \\u00a7 17 defines armed robbery as follows:\\nWhoever being armed with a dangerous weapon assaults another and robs, steals or takes from his person money or other property which may be the subject of a larceny shall be punished by imprisonment in a state prison. .\\nIt should be noted that this definition is found under the heading of the General Laws entitled \\\"Crimes against the person\\\".\\nGeneral Laws c. 277, \\u00a7 39 defines robbery as \\\"the taking and carrying away of the personal property of. another from his person, against his will, by violence or by assault and putting in fear, with the intent to steal.\\\"\\nThus, robbery has elements which liken it to other crimes against property such as larceny, but it also contains elements similar to those found in crimes against people, such as assault.\\nThis perhaps explains the difficulty that courts have had in determining whether the view in the majority of jurisdictions, that \\\"in crimes of violence, or against a person, a'single act has been held to constitute a separate offense against each person injured by the act, although there may be one intent,\\\" C. J.S., \\u00a7 9(2), applies to robbery.\\nThe states which adhere to this principle, that where crimes against the person are concerned there are as many crimes as there are persons involved, include California, the District of Columbia, Arizona, Missouri, Illinois, Kansas, Kentucky, New Jersey, Ohio, Oklahoma, and Oregon. This issue was raised in some cases as a double jeopardy argument, and in other instances as a challenge to consecutive sentences on separate indictments.\\nA review of some of the cases involving robbery specifically, reveals the inconsistency in this area. In People v. Pond, 337 P.2d 877 (CA. 1959), the defendant ordered three men to take out their wallets and throw them on the floor, and the Court held that three robberies occurred. In People v. Longomarsino, 217 P.2d 124 (1950), another California case, a defendant who robbed three customers of one establishment was found to have committed three crimes despite his argument that there was but one criminal intent. The Court observed that the law in this area is fraught with confusion, stating that \\\"an examination of the cases and pertinent authorities indicates that on the general question the states of the United States are in hopeless conflict\\\", 217 P.2d 124, 128.\\nIn State v. Hoag, 122 A.2d 628 (N.Y. 1956),'the robbery of two customers at a bar were separate offenses, as they were in State v. Miller, 190 S.E. 2d 722 (1972), where two persons were robbed in one house. In Barranger v. United States, 399 F.2d 557 (1968), cert. denied, 393 U.S. 1056 (1969), the Court indicates that the key to an analysis of how many crimes have been committed in the course of a single criminal transaction is to look at the legislative purpose of the specific statute under question. In that case, the Court held that the robbery statute was intended to protect individual citizens from being robbed, so that logically there should be as many crimes as there are victims. Coming down on the other side of this issue are the states of Alabama, Iowa, Tennessee and Texas. There are also many states which, like Massachusetts, have yet to make a definitive statement in this area.\\nA recent line of federal cases decided under the Federal Bank Robbery Act, 18 U.S.C. 2113, has held that where a bank robber takes money from a number of individual tellers, this is but one robbery. The rationale for this holding is based upon the legislative intent of the Act, which was to punish bank robbery, rather than the robbery of persons employed by the bank. United States v. Fleming, 504 F.2d 1045 (7th Cir. 1974); United States v. Canty, 469 F.2d 114 (D.D.C. 1972); See, dicta in United States v. Marzano, 537 F.2d 257 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1976).\\nPerhaps in response to this series of cases under the Bank Robbery Act, some jurisdictions have held that in situations such as the one presented by the instant case, wherein a defendant robs the property of a store from more than one store employee, a single robbery has occured. In Rogers v. State, 369 N.E.2d 348 (Ind. 1979), the defendant and an accomplice entered a market and took money belonging to the store from each of two employees. The Court held that one count of robbery, and not two, was appropriate. A similar result was reached by the Indiana court in Williams v. State, 395 N.E. 2d 348 (1979), a case involving individual bank tellers but not decided under the Federal Bank Robbery Act. In State v. Potter, 204 S.E. 2d 649 (N.C. 1974), the North Carolina Court found that where a defendant entered a market and forced two cashiers to empty their cash registers, this constituted a single robbery not withstanding the fact that the statute was drafted in terms of endangering the life of a person. See also, State v. Ballard, 186 S.E. 2d 372 (N.C. 1972). In People v. Nicks, 319 N.E.2d 5 31 (1974), the Illinois Court reached the same result on similar facts. However in this case, the Court based its finding not upon the language of the Illinois statute but upon the fact that the goods taken belonged to a single employer. Illinois continues to hold that where more than one individual is robbed of his or her own property, this constitutes more than one crime.\\nThe only federal cases not involving the Federal Bank Robbery Act which has reached this result is United States v. Alexander, 471 F.2d 923 (D.D.C. 1972), a case involving an assault collectively directed at a large group of people.\\nMassachusetts has set forth certain guidelines which may be somewhat helpful in analyzing whether more than one crime has been committed. For example, it has been settled that a single act may give rise to prosecutions under more than one criminal statute. Silverman v. United States, 59 F.2d 636 (1932); Commonwealth v. Catania, 1979 Mass. Adv. Sh. 233. Other tests look to whether the same evidence would prove each offense, Commonwealth v. Stewart, 1978 Mass. Adv. Sh. 1521, or whether the acts in question were the -product of a single intent, Commonwealth v. Pina, 298 Mass. 83 (1966). In Commonwealth v. Berryman, 359 Mass. 127 (1971), the Supreme Judicial Court was confronted with a situation wherein a defendant had been indicted on seventeen separate counts of bank robbery for robbing each of seventeen different tellers, but deferred the question since the sentences were concurrent, rendering any error in the sentencing harmless. Compare, Commonwealth v. Winters, 1980 Mass. Adv. Sh. 685, 402 N.E.2d 1372; Richard v. Commonwealth, 1981 Mass. Adv. Sh. 127.\\nThe question of whether the sentences imposed in the instant case are correct is an open one. In fact, some commentary has indicated that \\\"no question has given rise to more difficulties or conflict.\\\" 22 C.J.S., \\u00a7298.\\nConclusion:\\nThe undersigned is of the opinion that the majority rule is best, and that the critical factor is the putting of two people in fear.\\nDecision:\\nThe motion is DENIED.\\nReport:\\nThe question is novel, important, and determinative of the legality of defendant's second consecutive sentence. Consequently, I report it to the Appeals Court pursuant to Mass. R. Civ. P. 64 and G.L. c. 231, \\u00a7111.\\nRobert J. Hallisey\"}"
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+"{\"id\": \"5679143\", \"name\": \"Herbert M. Federhen vs. Mary G. Kibbey & others\", \"name_abbreviation\": \"Federhen v. Kibbey\", \"decision_date\": \"1910-01-07\", \"docket_number\": \"\", \"first_page\": \"291\", \"last_page\": \"294\", \"citations\": \"204 Mass. 291\", \"volume\": \"204\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T19:06:10.699652+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Herbert M. Federhen vs. Mary G. Kibbey & others.\", \"head_matter\": \"Herbert M. Federhen vs. Mary G. Kibbey & others.\\nSuffolk.\\nNovember 29, 30, 1909.\\nJanuary 7, 1910.\\nPresent: Knowlton, C. J., Morton, Loring, Sheldon, & R\\u00fcgg, JJ.\\nDevise and Legacy.\\nA testator at the time of making his will had five children, all of whom were married except a son named Henry. By his will he left all his real estate to a trustee for the term of ten years, the net income to be distributed during that term in certain proportions among his five children. Then came the following provision: \\u201cAt the expiration of said trust at the end of,said ten years, I give and devise one undivided fifth part thereof in fee simple to each of my following four children, John, Herbert, Augusta and Frances, and I give and devise the other undivided fifth to my son Henry for the term of his life, and at his death to be equally divided among my other four children, the issue of any deceased child to take what would have been its parent\\u2019s share if living.\\u201d The testator\\u2019s son John died testate one year before the expiration of the ten years, leaving children, and by his will undertook to dispose of all the property that would come to him under the will of his father \\u201c at the termination of the trust therein.\\u201d The trustee brought a suit in equity for instructions as to whether the accumulated income in his hands derived from the share of John should be paid to the executor of John\\u2019s will or to John\\u2019s issue under the last clause of the provision quoted above. Held, that such accumulated income was disposed of by the will of John, because the shares of the first named four children of the original testator mentioned in the provision quoted were given to them absolutely as tenants in common with a postponement of their right of possession for ten years, and the provision for the issue of any deceased child applied only to the disposition of the share of Henry at the termination of his life estate.\\nBill in equity, filed in the Supreme Judicial Court on February 23, 1909, by Herbert M. Federhen, trustee under the will of John Federhen, for instructions as to the proper disposition, under the provisions of that will which are quoted in the opinion, of certain accumulated income in his hands as such trustee derived from the share of John Federhen, 3d, a son of John Federhen and mentioned in such provision as his son John.\\nThe case came on to be heard before Braley, J., who reserved it upon the pleadings for determination by the full court.\\nJohn Ghipman Gray, for Mary Gr. Kibbey.\\nA. A. Gleason, for Rebecca L. Federhen.\\nW. A. Rollins, for the Old Colony Trust Company as guardian for Dorothy L. Petersen.\\nR. Ernst, guardian for Clarence H. Federhen.\", \"word_count\": \"1416\", \"char_count\": \"7804\", \"text\": \"Morton, J.\\nJohn Federhen, senior, died on July 30, 1898, leaving a will dated December 16, 1895, which was duly admitted to probate. At the time of the making of the will the testator had five children, all of whom were married and had children except the son Henry. The will left all of the testator's real estate to his son Herbert, in trust, for the term of ten years, the income remaining after the payment of charges and expenses to be divided during said term in certain proportions amongst the five children. Then follows the clause which has led to the bringing of this bill, namely: \\\"At the expiration of said trust at the end of said ten years, I give and devise one undivided fifth part thereof in fee simple to each of my following four children, John, Herbert, Augusta and Frances, and I give and devise the other undivided fifth to my son Henry for the term of his life, and at his death to be equally divided among my other four children, the issue of any deceased child to take what would have been its parent's share if living.\\\" The son John Federhen 3d died August 28, 1907, one year before the expiration of the ten years, leaving a will that was duly admitted to probate, by which he undertook to dispose of all the property that would come to him under the will of his father \\\"at the termination of the trust therein.\\\"\\nThe question before us relates to the construction to be given to the clause quoted above from the will of John Federhen, senior. More particularly the question is whether the concluding words, \\\"the issue of any deceased child to take what would have been its parent's share if living,\\\" apply to the shares given to John, Herbert, Augusta and Frances as well as to that given to Henry for his life, or whether they refer only to Henry's share; \\u2014 the contention being in the former case that under the will of John Federhen, senior, John Federhen 3d was given at the end of ten years as tenant in common an undivided fifth part of the principal of the real estate with a substitutionary gift to his issue in case he died before the end of the ten years, and in the latter case that the shares vested absolutely in the four children at the testator's death as tenants in common with a postponement of the right of possession till the expiration of the ten years. The result of the former contention, if adopted, would be to render inoperative and void the attempted disposition by will by John Federhen 3d of his share under his father's will, while according to the latter construction such disposition will be valid.\\nIt is plain that the devise was to the children as tenants in common, and not to them as joint tenants or as a class, (Frost v. Courtis, 167 Mass. 251, Stanwood v. Stanwood, 179 Mass. 223,) and it seems to us that the words as to the taking by issue quoted above refer to what immediately precedes them which is the devise to Henry and not to the devise to the other four children.\\nIn the first place the devise is to each of the four children by name in fee simple, and, so far as appears, there was nothing in the circumstances of the testator or in his relations to the children thus named or in their circumstances or situation or in other provisions in the will to furnish a reason for cutting down the absolute character of the gift thus made. An absolute gift will not be defeated by an equivocal expression of a contrary tendency. Williams v. Bradley, 3 Allen, 270.\\nIn the next place the clause, as the repetition of the words \\\"give and devise\\\" tends to show, naturally divides itself into two parts, each dealing with distinct though related matters;\\u2014 the first with the devise to the four children and the other with the devise to Henry. It is the fifth given to Henry for his life which the testator directs to be divided at Henry's death amongst the other four children, and it follows naturally, it seems to us, that it is that of which the issue of any deceased child are to take their parent's share, and this accords, we think, with the grammatical construction also. Naturally there would be a slight pause between the words \\\"four children\\\" and the words \\\"the issue of any deceased child,\\\" etc., and that would account for the presence of the comma between them, if its presence or effect needs to be explained.\\nLastly, as already observed, the fifth that was given to Henry was given to him for his life only. This left a remainder to be disposed of in his case which was not so in regard to the devise to either one of the other four children. In disposing amongst the other four children of the remainder thus created, the testator may well have had in mind the contingency that would arise if one of them should decease before Henry and have provided for it, as we think that he did, without at all affecting or intending to affect the absolute character of the devise already made to the other four children.\\nThe result is that the income which has accumulated in the plaintiff's hands on account of the share of John Federhen, 3d, in his father's estate is to go and be disposed of according to the will of said John Federhen, 3d.\\nDecree accordingly.\"}"
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+"{\"id\": \"5740063\", \"name\": \"Kenyon Oil Company, Inc. vs. Chief of the Fire Department of Douglas\", \"name_abbreviation\": \"Kenyon Oil Co. v. Chief of the Fire Department\", \"decision_date\": \"1983-05-06\", \"docket_number\": \"\", \"first_page\": \"727\", \"last_page\": \"732\", \"citations\": \"15 Mass. App. Ct. 727\", \"volume\": \"15\", \"reporter\": \"Massachusetts Appeals Court Reports\", \"court\": \"Massachusetts Appeals Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:08:58.195884+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kenyon Oil Company, Inc. vs. Chief of the Fire Department of Douglas.\", \"head_matter\": \"Kenyon Oil Company, Inc. vs. Chief of the Fire Department of Douglas.\\nWorcester.\\nOctober 7, 1982.\\nMay 6, 1983.\\nPresent: Hale, C.J., Grant, & Armstrong, JJ.\\nFrank E. Eastman for the plaintiff.\\nDon J. Virostek, for the defendant, submitted a brief.\\nThe chief, Edward A. Therrien, was also joined in his individual capacity.\", \"word_count\": \"1748\", \"char_count\": \"10332\", \"text\": \"Armstrong, J.\\nThe plaintiff (Kenyon) operates a gasoline station on Main Street in Douglas and seeks to convert it to a self-service station. Kenyon submitted its conversion plan to the chief of the fire department on November 17, 1980, and the following day submitted it to the State Fire Marshal with an application for approval of the self-service facility. The State Fire Marshal replied on April 9, 1981, by a letter which stated: \\\"Enclosed please find one (1) print of the above referenced self-service motor fuel facility stamped approved. Permission has been granted to operate this facility as per approved print and subject to the approval of the local Fire Department . This approval is granted on the condition it may be revoked by the Fire Marshal for cause, after notice and a hearing. Operation of this installation remains subject to subsequent inspection by the local Fire Department. This approved facility may dispense motor fuel as a self-service facility only after the Head of the Fire Department . . . has certified . . . that he has found that the facility has been constructed, or rebuilt, and will be operated, in accordance with the plans . . . approved by this Office.\\\" An inspection form, requiring the fire chiefs signature, accompanied the plan (or \\\"print\\\") and letter.\\nOn June 9, 1981, the fire chief sent a letter to the Fire Marshal \\\"to confirm . . . that I do not approve the 'self-service' station that is being instituted at this very moment on our small Main Street.\\\" The letter indicated that he and the police chief concurred that the facility would be \\\"very dangerous and not in the best interest of this Town.\\\" On June 26 the Fire Marshal met with the fire chief at Kenyon's station, in the presence of representatives of Kenyon and two of the town's selectmen. At that meeting, according to the fire chief's testimony, the Kenyon representatives stated that they planned \\\"to open up the station in the afternoon, whether they had the permit or not, and the Fire Marshal told me that he deputized me over and above the selectmen and all powers to put padlocks on there at the first ounce of gas that was sold.\\\" On July 1,1981, the fire chief sent a second letter to the Fire Marshal outlining in detail the reasons for his opinion that a self-service station would be hazardous.\\nKenyon then commenced this action seeking, on a preliminary basis, injunctive relief against the town's fire chief prohibiting the operation of a self-service facility and, as permanent relief, a declaration of the rights of the parties and money damages against the fire chief, both as such and as an individual. The judge found that the Fire Marshal had delegated to the fire chief \\\"power to act as his agent in approving or disapproving the self-service gasoline station\\\", entered a judgment declaring that the fire chief had acted properly in refusing to approve the station for the reasons stated in his July 1 letter (see note 2, supra). The case is before us on Kenyon's appeal.\\nThe judge's finding of delegation does not indicate whether it was based on the terms of the Fire Marshal's letter or the events which took place at Kenyon's station on June 26, but we do not think there could have been a legally effective delegation in either case.\\nThe source of the Fire Marshal's authority to approve or disapprove self-service installations is a regulation of the Board of Fire Prevention Regulations (527 Code Mass. Regs. \\u00a7 5.04[16] [1981]) which, although making provision for notice to the head of the local fire department, places the power of approval in the Fire Marshal exclusively. Under G. L. c. 148, \\u00a7 10A, as amended through St. 1981, c. 351, \\u00a7 89, \\\"head[s] of fire departments . . . shall . . . have and exercise such powers and duties in connection therewith as the marshal may direct,\\\" but while this section may authorize the Fire Marshal to delegate to the local fire chief the ministerial function of inspecting the completed facility to determine conformance with the approved plans, it cannot be read as authorizing the Marshal to subdelegate to the local fire chief the Marshal's function of approval. See Commonwealth v. Badger, 243 Mass. 137, 142 (1922); Sodekson v. Lynch, 298 Mass. 72, 74 (1937); Sheils v. Commonwealth, 306 Mass. 535, 540-541 (1940). See also Concord v. Attorney Gen., 336 Mass. 17, 21 (1957); Rep. A.G., Pub. Doc. No. 12, at 119 (1978). Moreover, a natural reading of the Fire Marshal's letter indicates that the Mar shal in fact exercised the power of approval and did not delegate that power to the Douglas fire chief. The words \\\"subject to the approval of the local Fire Department\\\" in the opening paragraph of the letter are most reasonably interpreted as a reference to the inspection power elaborated in the final paragraph. Indeed, it seems not to have been the letter which was the act of approval, but rather the stamping and signing of approval on the plan or \\\"print\\\" of the station design. The approval as it appears on the plan has no qualification or suggestion that the approval by the Fire Marshal is dependent on a further discretionary approval of the fire chief.\\nThus, when the Fire Marshal met with the fire chief and Kenyon representatives at the station on June 26, the application and plan had the approval contemplated by the Board of Fire Prevention Regulations and lacked only the fire chief's certification that the facility conformed to the approved plan. The fire chief could not properly withhold that certification if the facility did conform; and the Fire Marshal has at no time purported to withdraw or rescind his approval and has instead indicated in his letter of April 9, 1981, that such action would not be taken except for cause, and after notice and hearing. The record would not support a finding that the Fire Marshal delegated to the fire chief his power to revoke the approval for cause or otherwise.\\nThis opinion should not be read as impugning the role of local officials in the regulation of self-service gasoline stations. It is clear that a municipality may prohibit self-service stations altogether, Milton v. Attorney Gen., 372 Mass. 694 (1977); Shell Oil Co. v. Revere, 383 Mass. 682 (1981), and that in municipalities where self-service stations are allowed the licensing authority may decline by reason of local conditions to permit a self-service operation despite the fact that the Fire Marshal has approved the plans for the facility. V.S.H. Realty, Inc. v. License Bd. of Worcester, 13 Mass. App. Ct. 586 (1982). But in those cases the control of the municipality was exercised through by-laws or ordi nonces or through the licensing power under G. L. c. 148, \\u00a7 13. There is no prohibitory by-law in Douglas, and the license which Kenyon holds for storage and sale of gasoline is not conditioned on the traditional method of dispensing gasoline by a station attendant. Consequently, Kenyon, having the requisite license and approval, is presently entitled to operate its station provided that the facility conforms to the approved plan. It is the duty of the fire chief to conduct the inspection to determine conformance and not to withhold such inspection as a means of preventing the operation of the facility. See Markus v. County of Middlesex, 356 Mass. 517, 518-519 (1969); Page v. Chief of Fire Dept. of Gardner, 361 Mass. 849, 849-850 (1972).\\nAlthough the complaint initially sought damages, there was no attempt at trial to prove bad faith or malice, see Gildea v. Ellershaw, 363 Mass. 800, 820 (1973), and the plaintiff does not press the issue of damages in this court. The plaintiff has established that it is entitled to an order in the nature of mandamus directing the fire chief to perform the inspection and to certify his findings to the Fire Marshal.\\nThe judgment is reversed, and the case is remanded to the trial court for the entry of a new judgment in conformity with this opinion.\\nSo ordered.\\nThese had to do with the frequency of fires on the premises, the inadequate size of the lot to accommodate multiple vehicles, the fact that \\\"large number[s] of young people, many of whom smoke, . . . congregate in the vicinity of . . . [the] covenience store which is located on the site,\\\" the potential effect on Main Street traffic, and the generally crowded condition of the area.\\nGeneral Laws c. 148, \\u00a7 13, as amended through St. 1981, c. 622, deals expressly with the role of the fire chief in the initial licensing process by requiring, as a condition of license, that the application \\\"have endorsed thereon the certificate of approval or disapproval of the head of the fire department.\\\" See Chase v. Selectmen of Littleton, 2 Mass. App. Ct. 159, 160 (1974). Similarly, the regulations of the Board of Fire Prevention Regulations require an application for the Fire Marshal's approval of a self-service facility to have been first submitted to the head of the local fire department. The apparent purpose of both requirements is to elicit the views of the head of the fire department so that his views may be taken into consideration in making the decision whether the license or approval should issue; but in both cases the role of the head of the fire department is advisory in nature, and the legal authority to issue the license or approve the plan is vested in the local licensing authority and the Fire Marshal, respectively.\\nThe local licensing authority may, under G. L. c. 148, \\u00a7 13, revoke a license, but only for cause, after notice and hearing. See generally Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284 (1980). The head of the fire department has authority to issue a cease and desist order under \\u00a7 13 \\\"when a fire explosion hazard exists or is liable to exist due to the exercise of [a] license\\\"; but that provision contemplates a situation of some urgency and is not, of course, to be used as a means of countermanding licenses given by the local licensing authority or approvals given by the Fire Marshal.\"}"
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+"{\"id\": \"60199\", \"name\": \"Addison L. Bemis vs. Varnum P. Curtis\", \"name_abbreviation\": \"Bemis v. Curtis\", \"decision_date\": \"1921-01-07\", \"docket_number\": \"\", \"first_page\": \"60\", \"last_page\": \"64\", \"citations\": \"237 Mass. 60\", \"volume\": \"237\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:52:09.745947+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Addison L. Bemis vs. Varnum P. Curtis.\", \"head_matter\": \"Addison L. Bemis vs. Varnum P. Curtis.\\nWorcester.\\nNovember 7, 1920.\\nJanuary 7, 1921.\\nPresent: Bugg, C. J., Braley, De Courcy, Crosby, & Pierce; JJ.\\nConversion. Negligence.\\nAt the trial of an action of tort for the conversion of certain nursery stock belonging to the plaintiff, there was evidence tending to show that the plaintiff carried on the business of a nurseryman upon premises which he occupied as a tenant at will, and that the stock alleged to have been converted had been growing in the soil on those premises for at least a year; that the property was purchased by a collegiate alumni association who did not claim title to the stock but who requested the plaintiff by letter to remove it \\\"within the next thirty days,\\u201d so that a contractor, the defendant, who was to work upon the properly for the new owner, could \\u201chave free sweep for construction work;\\u201d that the plaintiff interviewed the association\\u2019s secretary with a view to getting the time allowed for removal extended and was told to see the defendant; that the defendant assured the plaintiff \\u201c that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be needed for the operations which were to be conducted thereon by the defendant under his contract;\\u201d that thereafter the plaintiff gradually removed shrubs until, when the shrubs alleged to have been converted still were on the property, the defendant forbade the plaintiff \\\"to touch or to take away the remainder of the shrubbery\\u201d and informed him \\\"that he must now keep off the property; \\u201d that thereafter the defendant took most of the stock from the ground, baled it and took it away. Held, that a finding for the plaintiff was warranted.\\nAt the trial of an action by a nurseryman against a building contractor for damage to nursery stock caused by alleged negligence of the defendant in the way in which he dumped stone and dirt upon it, there was evidence tending to show that the contractor was working upon land which was adjacent to land occupied by the plaintiff with the stock in question; that at the plaintiff\\u2019s suggestion the defendant dumped the stone and dirt upon the land in the plaintiff\\u2019s possession, but did so negligently and thus caused the damage which was the subject of the action. Held, that a verdict for the plaintiff was warranted.\\nTort, with a declaration as amended in two counts, the first count being for the conversion of nursery stock, and the second for the destruction of shrubs, plants and trees, owned by the plaintiff, by reason of negligence of the defendant in dumping upon them stones and dirt. Writ in the Central District Court of Worcester dated September 24, 1913.\\nOn appeal to the Superior Court the action was referred to an auditor, and, after the filing of the auditor\\u2019s report, was tried before Sanderson, J. There was evidence tending to show the following facts:\\nFor several years previous to May 8,1913, the plaintiff, a landscape gardener and nurseryman, had occupied as a tenant at will about two acres of land, a part of which belonged to the Worcester Art Museum and was located on Park Avenue in the city of Worcester. On or about May 8,1913, the Worcester Art Museum conveyed a part of the premises to the Worcester Polytechnic Institute, it having been purchased by the Institute\\u2019s alumni association. The Worcester Polytechnic Institute and the alumni association of the Institute each wrote to the plaintiff of the purchase and requested him to remove his property within the next thirty days. Upon receipt of these letters the plaintiff went to the secretary of the alumni association and asked him if the time suggested for the removal of his property could not be extended. He was referred by the secretary to the defendant, who, the secretary said, was to be the contractor for the construction of an athletic field upon the premises. The plaintiff thereupon saw the defendant and told him of the letters he had received, that it would be a hardship to remove the property within the time suggested, and asked the defendant if a greater time could not be allowed. The defendant told the plaintiff that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be needed for the operations. On May 24, 1913, the alumni association entered into a contract with the defendant for the construction of an athletic field upon the premises purchased. The defendant began work under this contract shortly after the date of its execution. During the summer of 1913, the plaintiff, at the request of the defendant\\u2019s foreman, from time to time removed portions of the nursery stock which were in the way of the defendant\\u2019s operations, and removed all of his buildings. At no time before the conversion alleged was any time given by the defendant to the plaintiff within which he would be obliged to remove his remaining stock, nor did the plaintiff at any time receive from any one any notice to vacate the premises, other than the letters above referred to. Neither the Worcester Polytechnic Institute, the alumni association, nor any one in their behalf ever claimed any property in the plaintiff\\u2019s nursery stock or forbade the plaintiff to remove it.\\nShortly before September 23, the plaintiff noticed that some of his nursery stock had been dug up and laid upon the ground and the defendant\\u2019s foreman told the plaintiff that he (the plaintiff) was not to be allowed to take away the remainder. The plaintiff then saw the defendant and was told by the defendant that he would not be allowed to remove the remainder of the stock and that he must keep off the property. On or about September 23, the plaintiff went upon the premises with his men and started to remove his nursery stock, whereupon the defendant\\u2019s foreman forbade the plaintiff from removing the stock. Immediately after this the defendant\\u2019s men removed the stock from the ground, baled it and took it away under the defendant\\u2019s directions.\\nAll of the nursery stock which the plaintiff contended was converted was planted in the ground and most of it had been planted there since the year before, if not longer.\\nDuring the construction above referred to, the defendant\\u2019s foreman had occasion to remove a large quantity of stones from the land where he was working and at the plaintiff\\u2019s suggestion dumped the same upon an adjoining lot which was occupied by the plaintiff and upon a part of which the plaintiff had nursery stock. The defendant\\u2019s men were negligent in the manner in which they dumped the stones and thereby injured the plaintiff\\u2019s nursery stock.\\nAt the close of the evidence, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, it being agreed that, if the judge was wrong in ordering a verdict for the defendant on the first count, the plaintiff should have judgment thereon for the stun of $383.90 with interest at the rate of six per cent per annum from September 23,1913; that, if the judge was wrong in ordering a verdict for the defendant on the second count, the plaintiff should have judgment thereon for the sum of $44 with interest at the rate of six per cent per annum from September 23, 1913.\\nThe case was submitted on briefs.\\nR. B. Dodge & A. T. Saunders, for the plaintiff.\\nC. E. Twpper, for the defendant.\", \"word_count\": \"1784\", \"char_count\": \"10472\", \"text\": \"Braley, J.\\nThe plaintiff, a tenant at will, and nurseryman, in occupation of the premises when the alumni association purchased the land, owned the personal property thereon consisting of \\\"an office building, a packing shed, small greenhouse and outbuildings . . . and a considerable quantity of small trees and shrubbery set out and growing in the ground.\\\" It appears from the auditor's report that the association never claimed ownership of this property, but only requested him by letter to remove it \\\"within the next thirty days, so that the contractor can have free sweep for construction work.\\\" The plaintiff endeavored to have the time extended, but was told by the secretary of the association to see the defendant, who was to be the contractor. While the defendant testified at the trial before the court that he never authorized the plaintiff to remain in possession after the thirty days had expired, the jury on the auditor's report could find he assured the plaintiff \\\"that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be needed for the operations which were to be conducted thereon by the defendant under his contract.\\\" The time for and process of removal having been thus prolonged, the plaintiff took away the buildings, and from time to time as the work progressed and with such promptitude as not to hinder the contractor, removed small quantities of shr\\u00fcbs, when without previous notice, the defendant's foreman forebode him \\\"to touch or take away the remainder of the shrubery,\\\" and the defendant also informed him, \\\"that he must now keep off the property.\\\" The defendant, an independent contractor, could make such arrangements as he pleased with the plaintiff, and his peremptory refusal under the circumstances to permit him with his men to enter for the purpose of immediately removing all the stock, and his subsequent taking of \\\"most of the stock from the ground\\\" which he \\\"baled up\\\" and took away, amounted to a conversion of the plaintiff's property entitling him to damages under the first count. Miller v. Baker, 1 Met. 27. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 506. McGonigle v. Belleisle Co. 186 Mass. 310, 313. See Lash v. Ames, 171 Mass. 487; Swift v. Boyd, 202 Mass. 26.\\nThe auditor's findings, that the defendant's foreman at the plaintiff's suggestion removed a large quantity of stone from the land on which he was working, and dumped several loads upon an adjacent lot in the plaintiff's possession, but so carelessly as to cause serious injury to the shrubs, was some evidence for the jury in support of the second count claiming damages for the negligent and tortious acts of the defendant's servants. Lambert v. Robinson, 162 Mass. 34.\\nThe exceptions therefore must be sustained, the verdict ordered for the defendant set aside, and judgment entered for the plaintiff in accordance with the stipulation of the parties.\\nSo ordered.\"}"
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+"{\"id\": \"6064205\", \"name\": \"Peter G. Cook v. Patient EDU, LLC et al.\", \"name_abbreviation\": \"Cook v. Patient EDU, LLC\", \"decision_date\": \"2011-05-24\", \"docket_number\": \"No. HDCV201000819\", \"first_page\": \"492\", \"last_page\": \"494\", \"citations\": \"28 Mass. L. Rptr. 492\", \"volume\": \"28\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:45:06.891916+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Peter G. Cook v. Patient EDU, LLC et al.\", \"head_matter\": \"Peter G. Cook v. Patient EDU, LLC et al.\\nSuperior Court, Hampden, SS\\nNo. HDCV201000819\\nMemorandum Dated May 24, 2011\\nSteven Graziano and Michael Schulman.\", \"word_count\": \"1940\", \"char_count\": \"12142\", \"text\": \"Josephson, Bertha D., J.\\nINTRODUCTION\\nThe plaintiff filed this action against the defendants seeking to recover unpaid wages. This matter is before the court on the Motion of the Defendants, Patient EDU, LLC and Steven Graziano, to Dismiss pursuant to Mass.R.Civ.P. 12(b)(6). For the reasons discussed below, the motion is ALLOWED.\\nBACKGROUND\\nThe following facts, taken from the complaint, are assumed to be true for purposes of this motion. Defendant Patient EDU, LLC (\\\"Patient\\\") is a Massachusetts limited liability company with a principal place of business in Springfield. Defendant Steven Graziano (\\\"Graziano\\\") is the President and manager of Patient. Defendant Michael Schulman (\\\"Schulman\\\") is also a manager of Patient. On December 12, 2008, Patient and plaintiff Peter Cook (\\\"Cook\\\") entered into a written employment contract whereby Cook was to serve as Patient's Director of Business Development and Strategic Partner Development. The contract established a start date of January 5, 2009 and stated that Cook would receive a guaranteed income annualized at $100,000, including a base salary of $70,000 and a guaranteed draw of $30,000. The contract also stated that Cook would be reimbursed for business expenses and car travel expenses at 38 cents per mile to be reviewed at the end of six months.\\nCook provided services to Patient under the terms of the contract from January 5, 2009 through May 21, 2010, when he voluntarily resigned. Cook received no salary or draw from Patient for the first six months of work. Thereafter, he received salary checks only sporadically. Patient owes Cook $61,538.56 in wages and $6,879.36 in business and travel expenses. On July 23, 2010, Cook filed a Non-Payment of Wage and Workplace Complaint with the Fair Labor Division of the Attorney General's Office. On August 30,2010, the Attorney General issued a letter authorizing Cook to pursue his wage claim through a civil lawsuit.\\nCook filed this action on September 10, 2010. Count I of the complaint alleges violation of G.L.c. 149, \\u00a7148 against Patient, Graziano, and Schulman. Count II alleges breach of contract against Patient. Finally, Count III seeks to recover from Patient $300,000 Cook loaned to the company.\\nDISCUSSION\\nWhen evaluating the legal sufficiency of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), the court accepts as true all of the factual allegations of the complaint and draws all reasonable inferences from the complaint in favor of the plaintiff. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008); Berish v. Bornstein, 437 Mass. 252, 267 (2002). However, the court need not accept as true legal conclusions cast in the form of a factual allegation. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). To survive a motion to dismiss, a complaint must contain factual allegations which, if true, raise a right to relief above the speculative level. Iannacchino v. Ford Motor Co., 451 Mass. at 636. Dismissal under Rule 12(b)(6) is proper where a reading of the complaint establishes beyond doubt that the facts alleged do not add up to a cause of action which the law recognizes, such that the plaintiffs claim is legally insufficient. Nguyen v. William Joiner Center for the Study of War and Social Consequences, 450 Mass. 291, 294 (2007); Pontremoli v. Spaulding Rehabilitation Hosp., 51 Mass.App.Ct. 622, 624 (2001).\\nGraziano contends that Count I fails to state a claim upon which relief can be granted because as a matter of law, he and Schulman cannot be personally liable under G.L.c. 149, \\u00a7148, the Massachusetts Weekly Payment of Wages Act (\\\"the Act\\\"). The Act provides in relevant part:\\n(e)veiy person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week, or to within seven days of the termination of the pay period during which the wages were earned if such employee is employed seven days in a calendar week . . .\\nG.L.c. 149, \\u00a7148. The Act allows an employee to recover treble damages, attorneys fees, and costs in addition to unpaid wages. See G.L.c. 149, \\u00a7 150. At this juncture, the defendants do not argue that Patient is not subject to these provisions as a person having employees in its service. See G.L.c. 156C, \\u00a763 (a) (any reference to \\\"person\\\" in General Laws which includes partnership shall be deemed to include limited liability company).\\nThe Act further provides, \\\"The president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this Section.\\\" G.L.c. 149, \\u00a7148. Thus, under the plain language of the Act, corporate individuals maybe held liable. Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005). Nonetheless, Graziano and Schulman contend that as a matter of law, they cannot be personally liable because an LLC is not a \\\"corporation\\\" within the meaning of the Act.\\nStatutory interpretation is a question of law for the Court. Boston Police Patrolmen's Ass'n, Inc. v. City of Boston, 435 Mass. 718, 719-20 (2002); Commonwealth v. Cintolo, 415 Mass. 358, 359 (1993). The court must interpret the language of a statute according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, the mischief or imperfection to be remedied, and the main object to be accomplished. Boston Police Patrolmen's Ass'n, Inc. v. City of Boston, 435 Mass. at 720. In interpreting the Act, the court must assume that the Legislature has adopted the common meaning of the terms used and not otherwise defined. Wiedmann v. The Bradford Group, Inc., 444 Mass. at 711. The Massachusetts Business Corporation Law defines the term \\\"corporation\\\" as \\\"a corporation for profit, which is not a foreign corporation, incorporated under or subject to this chapter.\\\" G.L.c. 156D, \\u00a71.40(a). In contrast, under the Massachusetts Limited Liabibity Company Act, an LLC is defined as an unincorporated organization founded under [Chapter 156C] and having 1 or more members.\\\" G.L.c. 156C, \\u00a72(5). Corporations and LLCs are statutorily defined and commonly understood as two distinct forms of business organization. Thus, a limited liability company is not a \\\"corporation\\\" as that word is used in the General Laws. See In the Matter of the Valuation of MCI WorldCom Network Services, Inc., 454 Mass. 635, 648 (2009) (limited liability company not eligible for tax exemption provided to incorporated utility companies); CFM Buckley/North, LLC v. Board of Assessors of Greenfield, 453 Mass. 404, 407 (2009) (limited liability company not eligible for tax exemption provided to \\\"charitable organization,\\\" defined as \\\"a literary, benevolent, charitable or scientific institution incorporated in the Commonwealth\\\").\\nNotably, the Business Corporation Law defines the term \\\"entity\\\" in part as \\\"a corporation and a foreign corporation; a profit and a nonprofit unincorporated association; a limited liability company; a business trust; an estate; a partnership; a limited liability partnership . . .\\\" G.L.c. 156D, \\u00a71.40(a). If the Legislature intended to impose liability under the Act on individual managers and officers of business organizations other than corporations, it could have used the term \\\"entity,\\\" which would have encompassed LLCs, or some other broad term. Cf. 455 CodeMass.Regs. \\u00a72.01 (defining, for purposes of Minimum Fair Wages Act, Chapter 151, \\\"employer\\\" as \\\"an individual, corporation, partnership or other entity, including any agent thereof, that engages the services of an employee or employees for wages, remuneration or other compensation\\\"); Stewart v. Sterling Technology Solutions, LLC, 2010 U.S. Dist. LEXIS 119056 at *4 (M.D.Fla. 2010) (holding that manager of LLC could be liable for unpaid wages under Federal Labor Standards Act, 29 U.S.C. \\u00a7203, which broadly defines \\\"employer\\\" as \\\"any person acting directly or indirectly in the interest of an employer in relation to an employee . . .\\\" and defines \\\"person\\\" as \\\"individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons\\\"). Instead, the Legislature used the term \\\"corporation,\\\" which is unambiguous and has a commonly understood specific statutory definition. See Prozinski v Northeast Real Estate Services, LLC, 59 Mass.App.Ct. 599, 605 (2003) (noting that narrow construction has been afforded the Act).\\nCook contends that such a restrictive interpretation contravenes the purpose of the Act, which is to prevent the unreasonable detention of wages and to ensure that employees receive prompt payment. See Wiedmann v. The Bradford Group, Inc., 444 Mass. at 703; Boston Police Patrolmen's v. City of Boston, 435 Mass. at 720. He makes a strong argument that public policy is not served by imposing individual liability for wage violations on officers and managers of corporations, but not officers and managers of LLCs. Cf. Middlesex Retirement System, LLC v. Board of Assessors of Billerica, 453 Mass. 495, 504 (2009) (opining that there is no reason why common-law doctrine of corporate disregard should not be applied to LLC). Nonetheless, where a statute is unambiguous, the court cannot insert therein a provision which the Legislature did not include, even if injustice or hardship results. Massachusetts Insurers Insolvency Fund v. Smith, 458 Mass. 561, 567 (2010). Where the language of a statute is plain and clear, the court's sole function is to enforce it according to its terms. D'Avella v. McGonigle, 429 Mass. 820, 822-23 (1999). It is possible that the Legislature's failure to include individual officers and managers of LLCs in the definition of employer is an unfortunate oversight. However, it is the task of that body, and not the Court, to remedy the unfairness of which Cook complains by effectuating the necessary changes to the Act. Cf. Prozinski v Northeast Real Estate Services, LLC, 59 Mass.App.Ct. at 605 (argument that term \\\"wages\\\" in \\u00a7148 should be construed broadly to include severance pay is properly addressed to Legislature).\\nGraziano as President/manager and Schulman as manager of Patient EDU, LLC are not \\\"officers or agents having the management of [a] corporation\\\" within the meaning of the Act and thus cannot be individually liable as employers for unpaid wages and other damages. Accordingly, Count I of Cook's complaint fails to state a claim for violation of G.L.c. 149, \\u00a7148 against Graziano and Schulman.\\nCONCLUSION\\nFor the reasons stated above, the Motion of the Defendants, Patient EDU, LLC and Steven Graziano, to Dismiss the claims against Graziano and Michael Schulman is ALLOWED.\\nCook cites cases under the Act in which the named defendants include both LLCs and individual owners or managers of LLCs. However, these cases hold no persuasive value because they neither raise nor resolve the issue of whether an LLC is included in the \\u00a7148 term \\\"corporation.\\\" See, e.g., Smith v. Winter Place, LLC, 447 Mass. 363 (2006) (addressing whether employer is prohibited from retaliating against employees for making internal allegation of wage violations); Suominen v. Goodman Indus. Equities Mgmt. Group, LLC, 78 Mass.App.Ct. 723 (2011) (concluding that judge properly dismissed Wage Act claim because \\\"promoted interest\\\" in real estate is not a commission recoverable under Act); Gordon v. Millivision Holdings, LLC, 2005 Mass.Super LEXIS 92 (Jan. 18, 2005) (Agostini, J.) [19 Mass. L. Rptr. 61] (addressing validity of employee's release of wage claim).\\nIt is worth noting that the provision of the Act at issue was enacted in 1936, see St. 1936, c. 160, while the Limited Liability Company Act, Chapter 156C, was not enacted until 1995. See 1995, c. 281, \\u00a718. The Act has been amended four times since 1995 without any change to the provision at issue\"}"
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+"{\"id\": \"6064361\", \"name\": \"GERTRUDE ACKERMAN v. JEROME A. DURAND\", \"name_abbreviation\": \"Ackerman v. Durand\", \"decision_date\": \"1955\", \"docket_number\": \"No. 4811\", \"first_page\": \"42\", \"last_page\": \"43\", \"citations\": \"9 Mass. App. Dec. 42\", \"volume\": \"9\", \"reporter\": \"Massachusetts Appellate Decisions\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T20:14:59.255186+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GERTRUDE ACKERMAN v. JEROME A. DURAND\", \"head_matter\": \"Northern District\\nNo. 4811\\nGERTRUDE ACKERMAN v. JEROME A. DURAND\", \"word_count\": \"528\", \"char_count\": \"3006\", \"text\": \"Brooks, J.\\nThis is an action of contract to recover on a note and for breach of a contract of sale of real estate. The answer is general denial and plea of violation of the Sunday law.\\nThe evidence tended to show the following:\\nPlaintiff offered real estate for sale through a real estate broker. The broker procured a customer who signed an agreement for purchase of the property on Sunday, although the agreement was dated otherwise. Defendant gave the broker, who was authorized to act for plaintiff, a note for $500 in lieu of a deposit. This note was likewise signed and delivered on Sunday, although otherwise dated.\\nThe broker took the written agreement for sale to plaintiff on a subsequent weekday. Plaintiff made a minor change in the contract and signed the same, whereupon the broker took the contract back to defendant who initialed the change.\\nWhen the time for performance came defendant declined to go through with the contract or to pay the note.\\nPlaintiff filed the following Requests for Rulings:\\n1. The evidence warrants a finding that the note sued upon* was given as a deposit on a real estate agreement and is a part thereof,\\n5. A contract not fully closed on a Sunday is not void by reason of the Sunday Law. Tuckerman v. Hinkley, 9 Allen 452, 455.\\nJames T. Connolly, Newburyport, for the plaintiff.\\nRaymond M. Sullivan, Lawrence, for the defendant.\\n6. A Sunday contract adopted on a secular day is valid and binding. Maher v. Haycock, 301 Mass. 594; Restatement of Contracts, \\u00a7539, III. 3.\\n7. The evidence warrants a finding that the defendant initialed a change in the contract on a secular day and adopted the contract as changed.\\n2. The evidence warrants a finding that the defendant refused to comply with the agreement without just cause.\\n9. A deposit made by a prospective purchaser, under a contract for sale and purchase of real estate, is forfeited by him when he breaks the contract by refusing to perform it. Macurdy v. Carver, 326 Mass. 434; King v. Milliken, 246 Mass. 460, 463; Smith v. Greene, 197 Mass. 16.\\nThe court denied requests No. 7 and 8 and allowed the other requests and found for defendant on the ground that the note and the agreement were both void by reason of G. L. c. 136, \\u00a75.\\nThe defense in this case is that both the note and the contract for purchase of the property were made on Sunday and, therefore, void under the statute. The note, though otherwise dated, was made and delivered on Sunday and is, therefore, void. Stevens v. Wood, 127 Mass. 123, The contract for purchase, while initiated on Sunday, was completed on a weekday and is, therefore, valid. Maher v. Haycock, 301 Mass. 594.\\nThe court having found for defendant on both issues, was correct with respect to the note but incorrect with respect to the contract for purchase. The 7th and 8th requests of plaintiff should have been granted. The finding is, therefore, to be vacated and the case remanded for a new trial,\"}"
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+"{\"id\": \"6110702\", \"name\": \"Martin J. Ploof, Jr. and others v. Cornu-Schaab Properties, Inc. et al\", \"name_abbreviation\": \"Ploof v. Cornu-Schaab Properties, Inc.\", \"decision_date\": \"1993-11-04\", \"docket_number\": \"No. 91-1403\", \"first_page\": \"292\", \"last_page\": \"295\", \"citations\": \"1 Mass. L. Rptr. 292\", \"volume\": \"1\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:31:11.281122+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Martin J. Ploof, Jr. and others v. Cornu-Schaab Properties, Inc. et al\", \"head_matter\": \"Martin J. Ploof, Jr. and others v. Cornu-Schaab Properties, Inc. et al\\nSuperior Court, Suffolk, SS\\nNo. 91-1403\\nMemorandum Dated November 4, 1993\\nAlbert H. Bonfatti, Thomas Marshall, Joseph Gangis, Robert Weatherbee, Andrew A. Samo, Charles J. Schumb, Patrick D. Kelleher, Donald MacKinnon, Jr., and Charles Albanese as Trustees of the Massachusetts State Carpenters Pension Fund.\", \"word_count\": \"2971\", \"char_count\": \"19450\", \"text\": \"Flannery, J.\\nThis case comes before this court on defendants' motion to determine the sufficiency of the plaintiffs' claim of attorney-client privilege. The plaintiffs instituted the underlying action against the defendants seeking a declaration, pursuant to G.L.c. 231A, that no binding agreement exists between the parties concerning the development and management of certain real estate. The defendants counterclaimed alleging breach of express contract (Counts I-II); breach of implied contract (Counts III-IV); tortious breach of contract (Count V); breach of the covenant of good faith and fair dealing (Counts VI-VII), breach of fiduciary obligations and constructive fraud (Counts VIII-IX), deceit, fraud, and misrepresentation (Count X], economic duress (Count XI), interference with advantageous business relations (Count XII); negligence (Count XIII); unfair and deceptive trade practices in violation of G.L.c. 93A (CountXTV); and indemniiy (Count XV).\\nAlthough discovery in this case is substantially complete, the defendants seek to depose the plaintiffs' former counsel, Richard J. Snyder. Plaintiffs' present counsel instructed Snyder not to answer questions concerning certain letters dated September 12, 1989, asserting the attorney-client privilege. The defendants now seek a ruling on the validity of the plaintiffs' privilege claim. In the event that this court finds that the privilege has been waived, the defendants request an order compelling Snyder's testimony. For the reasons herein stated, I find that the plaintiffs have waived the attorney-client privilege. Accordingly, Snyder shall answer the defendants' questions concerning Marshall's knowledge of the alleged agreement between the Fund and C&S, including information relating to the September 12, 1989 letters.\\nBACKGROUND\\nIn about March of 1989, the defendants, Cornu-Schaab Properties, Inc., Thomas W. Cornu, Charles L. Schaab II, and the 90 Broadway Realty Trust, (herein collectively referred to as \\\"C&S\\\"), initiated discussions with the plaintiffs, as Trustees of the Massachusetts State Carpenters Pension Fund (hereinafter \\\"the Fund\\\"), concerning the development of certain real estate located at 90 Broadway and 162 Columbus Avenue in Boston. The Fund and C&S contemplated establishing a partnership to acquire, develop, and improve the properties, and to operate, maintain, and lease the same. Although the central controversy in the underlying case is whether the parties reached a binding agreement, it is undisputed that C&S owned the property during all relevant periods. Two Massachusetts banks held mortgages on the property for which C&S was personally liable.\\nIn September 1989, both mortgagees were becoming anxious about the status of their loans. The Fund's Chairman, Robert D. Marshall, sent letters, dated September 12, 1989, to the two mortgagees to allay their concerns. In the letters, Marshall informed the banks that their loans would be paid when the 90 Broadway transaction closed. Marshall further stated that \\\"You should feel free to call upon me or our legal counsel, Richard J. Snyder, Goldstein and Manello, 439-8900 for any specific questions you may have.\\\" Sometime after the letters were sent, Marshall died.\\nFor reasons not relevant to the present controversy, the parties never developed the 90 Broadway property. Consequently, the Fund sought declaratory relief that the parties did not enter into a binding agreement. C&S counterclaimed, alleging the existence of an agreement between the parties.\\nDuring discovery C&S deposed the Fund's former counsel, Richard J. Snyder. In response to questions concerning the preparation and content of the September 12 letters, the Fund asserts that its deceased Chairman's communications to its attorney remain privileged from disclosure. C&S seeks an order directing Attorney Snyder to respond.\\nDISCUSSION\\n\\\"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . .\\\" Mass.R.Civ.P. 26(b)(1); 365 Mass. 772 (1974); see also Hull Municipal Lighting Plant v. Mass. Municipal Wholesale Elec. Co., 414 Mass. 609, 615 (1993) (discussing Mass.R.Civ.P. 26(b)(1)); G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 270-72 (1991) (discussing discovery of information protected by attorney-client privilege). In order for the Fund to legitimately refuse to answer C&S's deposition questions, the information sought by C&S must have been the subject of a privileged communication.\\nThe attorney-client privilege is the oldest common law privilege protecting confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 386 (1981) (discussing the history of the attorney-client privilege). It protects from discovery communications between clients and their attorneys for the purpose of obtaining legal advice. Colonial Gas Co. v. Aetna Casualty & Surety Co., 139 F.R.D. 269, 273 (D.Mass. 1991). In this way, the privilege encourages unfettered communication between clients and their attorneys. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Colonial Gas Co. v. Aetna Casualty & Surety Co., 139 F.R.D. 269, 273 (D.Mass. 1991); Connelly v. Dunn & Bradstreet, Inc., 96 F.R.D. 339, 341 (D.Mass. 1982).\\nThe privilege \\\"is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.\\\" In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 481-82 (1990) (citations omitted). Since the attorney-client privilege runs contrary to full disclosure of pertinent information, it should be strictly construed. Colonial Gas Co. v. Aetna Casualty & Surety Co., 139 F.R.D. 269, 273 (D.Mass. 1991) (discussing strict construction of attorney-client privilege); United States v. United Shoe Machine Corp., 89 F.Supp. 357, 358 (D.Mass. 1950); see also In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 482 (1990) (noting inherent tension between attorney-client privilege and discovery).\\nThe attorney-client privilege exists only if: (1) the person asserting the privilege was or sought to become a client; (2) the communication was made to a lawyer acting as such; (3) the communication was made by a client without strangers present with a view to obtaining the lawyer's legal advice, opinion, or assistance in legal matters, and not for the purpose of committing a tort or crime; and (4) the privilege has not been waived. United States v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20, 27-28 (1st Cir. 1989) (discussing criteria for attorney-client privilege); United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass. 1950) (delineating factors for application of the attorney-client privilege); In re Atlantic Financial Mgmt. Securities Lit., 121 F.R.D. 141, 145-46 (D.Mass. 1988) (same); Connelly v. Dun & Bradstreet, Inc., 96 F.R.D. 339, 341 (D.Mass. 1982) (same); In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 482 (1990) (discussing types of communication protected by attorney-client privilege).\\nThe party asserting the privilege bears the burden of showing its applicability. United States v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20, 28 (1st Cir. 1989); Refuse & Environmental Systems, Inc. v. Industrial Services of Am., 120 F.R.D. 8, 10 (D.Mass. 1988). The court determines both the nature and extent of the privilege. Commonwealth v. Clancy, 402 Mass. 664, 666 (1988).\\nWhile a client may waive the attorney-client privilege expressly or implicitly, Commonwealth v. Woodberry, 26 Mass.App.Ct. 636, 637 (1988); cf. Colonial Gas Co. v. Aetna Casualty & Surety Co., 139 F.R.D. 269 (D.Mass. 1991) (discussing waiver of attorney-client privilege), the privilege is not automatically waived by bringing suit. Colonial Gas Co. v. Aetna Casualty & Surety Co., 144 F.R.D. 600, 604 (D.Mass. 1992). Instead, courts look to the specific action taken by the party asserting the privilege to determine whether the asserting party implicitly waived the privilege. Colonial Gas Co. v. Aetna Casualty & Surety Co., 144 F.R.D. 600, 604 (D.Mass. 1992). A party implicitly waives the attorney-client privilege by affirmative conduct where: \\\"(1) assertion of the privilege was a result of some affirmative act, such as filing a suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.\\\" Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975). Accord Conkling v. Turner, 883 F.2d 431, 434 (5th Cir. 1989) (attorney-client privilege waived where litigant placed information protected by the privilege in issue by an affirmative action for his own benefit, noting that allowing the invocation of the privilege would be manifestly unfair); Sax v. Sax, 136 F.R.D. 541, 542 (D.Mass. 1991) (discussing test for determining waiver as concerning affirmative action by the privilege holder); Genzyme Corp. v. Ares-Serono, Inc., Civ. No. 91-3189 (Middlesex Super. Ct. 1992) (Butler, J.) (client implicitly waives the attorney-client privilege by relying on the privileged material in asserting an affirmative defense or counterclaim).\\nAdditionally, the attorney-client privilege applies only \\\"to communication expressly intended to be confidential.\\\" Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D. Wash. 1975). Communications intended to be conveyed to third parties do not fall within the privilege's ambit. See Refuse & Environmental Systems, Inc. v. Industrial Services of Am., 120 F.R.D. 8, 11 (D.Mass. 1988) (privilege applies only to confidential communications between client and attorney, not to those known to third parties or intended to be made public); Peters v. Wallach, 366 Mass. 622, 627 (1975) (\\\"communications between an attorney and client are not privileged, though made privately, if it is understood that the information communicated is to be conveyed to others\\\"). Commonwealth v. Rosenberg, 410 Mass. 347, 354 n.10 (1991) (same); Drew v. Drew, 250 Mass. 41, 45 (1924) (no privilege where information is divulged to a third party); Commonwealth v. Anolik, 27 Mass.App.Ct. 701, 710 (1989) (holding documents intended for publication to others did not constitute privileged communication); cf. Paul J. Liacos, Massachusetts Evidence 185 (5th ed. 1981).\\nLikewise, a partial disclosure of privileged information may waive the privilege with respect to the communication involving that information. See AMCA International Corp. v. Phipard, 107 F.R.D. 39, 40-44 (D.Mass. 1985) (holding plaintiffs release of a document from its attorney waived the attorney-client privilege as to documents relating to the same subject matter); Zirn v. VLI Corp., 621 A.2d 773, 781 (Del. Supr. 1993) (where the contents of a privileged communication is partially disclosed to others, the privilege is waived as to those communications).\\nIn the instant case, C&S argues that the Fund waived its privilege pertaining to the preparation and subject matter of the September 12 letters. In support of its claim, C&S urges that since the letters clearly indicate that a binding agreement existed between the parties, the Fund has placed information otherwise protected by the attorney-client privilege in issue by seeking declaratory relief and raising affirmative defenses which contradict the letters' content. In opposition, the Fund asserts that they have not placed the letters or Marshall's inner thoughts in issue because the letters themselves were neither part of the plaintiffs' complaint nor their answers to the defendants' counterclaim. Rather, the Fund contends that C&S raised the letters as an issue.\\nBoth parties misconstrue the concept of waiver as it pertains to the attorney-client privilege. A party does not waive the privilege by bringing suit, Colonial Gas Co. v. Aetna Casualty & Surety Co., 144 F.R.D. 600, 604 (D.Mass. 1992), unless the privilege holder relies on the privileged material in asserting its claim. See Conkling v. Turner, 883 F.2d 431, 434-35 (5th Cir 1989) (where plaintiff raised issue of when he became aware of the defendants' allegedly fraudulent conduct in response to the defendants' statute of limitations defense, the court held that the plaintiff waived the attorney-client privilege concerning when the plaintiff may have become aware of the defendants' fraud); Sax v. Sax, 36 F.R.D. 541, 544 (D.Mass. 1991) (where only the defendant's attorney could have explained the agreement to the defendant, the defendant waived the attorney-client privilege by claiming a lack of understanding of the agreement); Genzyme Corp. v. Ares-Serono, Inc., Civ. No. 91-3189 (Middlesex Super. Ct. 1992) (Butler, J.) (defendant waived the attorney-client privilege by relying on the protected information in asserting its counterclaim). Since the Fund did not base its claim for declaratory relief on Marshall's communications with Snyder, it cannot be said that the Fund waived the privilege by merely bringing suit.\\nAdditionally, C&S contends that since the letters' author is dead, information regarding Marshall's understanding of the letters' content is not otherwise available. Consequently, C&S concludes, the information sought is both vital and necessary to their defense of the Fund's claim for declaratory judgment, and in the prosecution of their counterclaims, given the Fund's affirmative defenses.\\nAlthough the Fund did not proffer Marshall's letters or inner thoughts in its complaint or defenses to C&S's counterclaim, Marshall's perception of the agreement or lack thereof is material in determining the existence of an agreement. By claiming no agreement existed between the parties, the Fund placed Marshall's perception of the parties' relationship in issue.\\nThe Fund, however, contends that C&S has failed to demonstrate how deposing Attorney Snyder is vital to C&S's defense or that they have exhausted every reasonable source of information. Fairness requires that the privilege be deemed waived where it will dimmish, in a meaningful way, C&S's ability to defend the instant action. Greater Newburyport Clamshell Alliance v. PSCNH, 838 F.2d 13, 20 (1st Cir. 1988). In arguing that the information sought by C&S is notvital in C&S's defense, the Fund lists various people whom C&S has deposed. In doing so. the Fund demonstrates that \\\"important information will be unavailable to [C&S] if the privilege prevails.\\\" Id.\\nNevertheless, these points are not dispositive. By releasing the September 12 letters to third persons, Marshall waived the attorney-client privilege. In opposing C&S's claim of waiver, the Fund argues that the September 12 letters did not disclose the contents of any privileged communication thereby waiving the attorney-client privilege. Moreover, the Fund claims that the letters' reference to Snyder was merely a courtesy and did not indicate that Snyder would discuss anything not otherwise contained in the letters. I do not agree.\\nIn indicating that Attorney Snyder could be contacted regarding \\\"any specific matter\\\" pertaining to the letters, Marshall clearly demonstrated an intention to disclose those privileged communications to third persons. Since the privilege only applies to confidential matters not intended to be made public, Refuse & Environmental Systems Inc. v. Industrial Services of Am., 120 F.R.D. 8 (D.Mass. 1988), Marshall's discussions with Snyder regarding Marshall's knowledge of the alleged agreement between the Fund and C&S, including information relating to the September 12, 1989 letters, are not privileged.\\nMoreover, in deposing Snyder, C&S sought to obtain information regarding the authorship of the September 12 letters. \\\"If the fact that an attorney drew or prepared documents can ever be regarded as a communication, it is not a confidential one where the documents are for a public, a quasi-public purpose, intended to be disclosed to third persons.\\\" Gretsky v. Miller, 160 F.Supp. 914, 915 (D.Mass. 1958); see also Refuse & Environmental Systems, Inc. v. Industrial Services of Am., 120 F.R.D. 8, 11 (D.Mass. 1988) (surrounding circumstances or fact of consultation not privileged). Since the letters were disclosed to others, information concerning their authorship is likewise not privileged.\\nAccordingly, the publication of the September 12 letters, including Marshall's offer that Attorney Snyder would be available to discuss the letters' content, and the Fund's action seeking declaratory relief constitute a waiver of the attorney-client privilege.\\nORDER\\nFor the foregoing reasons, this court HOLDS the plaintiffs have waived the attorney-client privilege and ORDERS that Attorney Snyder respond to the defendants' questions pertaining to Marshall's knowledge of an alleged agreement between the Fund and C&S, and information relating to the September 12, 1989 letters.\\nThe defendants do not dispute that the privilege applies ab initio to the communications in question. They contend, rather, that the privilege has been waived by the client.\\nThe mortgagees were the Boston Trade Bank and the Merchants National Bank of Leominster.\\nThe letters read:\\nI am writing this letter to you on behalf of the Massachusetts State Carpenters Pension Fund, of which I am a trustee. This letter will confirm that the Fund has issued a Letter of Commitment to provide permanent financing for the renovation and construction of an office building to be located at 90 Broadway in Boston.\\nWe understand that you are seeking assurances that this financing will go forward and that your present mortgage approximately $1,525,000 will be re-financed.\\nThe nature of our commitment is such that we are prepared to closed within 30 days and have every reason to believe that the construction lender to be designated similarly will be able to close within that period. Our commitment will remain outstanding for as long as reasonably required and we are prepared to work with the construction lender to immediately solve any problems which may arise.\\nWe are very familiar with the properly and with the borrowers, and the documents necessary for the transaction are virtually complete. In our dealings with the borrowers, there have been no difficulties nor delays except some as are normal for such transactions.\\nWe therefore anticipate a closing at which your mortgage will be paid off within the time period provided above and trust that you may be assured that matters should move forward as quickly as possible.\\nYou should feel free to call upon me or our legal counsel, Richard J. Snyder, Goldstein & Manello, 439-8900, for any specific questions you may have.\"}"
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+"{\"id\": \"730884\", \"name\": \"Timothy Bresnihan vs. John Sheehan & another\", \"name_abbreviation\": \"Bresnihan v. Sheehan\", \"decision_date\": \"1878-06-27\", \"docket_number\": \"\", \"first_page\": \"11\", \"last_page\": \"15\", \"citations\": \"125 Mass. 11\", \"volume\": \"125\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:59:25.712919+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Timothy Bresnihan vs. John Sheehan & another.\", \"head_matter\": \"Timothy Bresnihan vs. John Sheehan & another.\\nNorfolk.\\nJan. 25, 1877.\\nJune 27, 1878.\\nMorton, Endicott & Soule, JJ., absent.\\nIf a wife, without her husband\\u2019s knowledge or assent, deposits his wages, placed in her hands for safe keeping, in a savings bank, and uses the deposit with money o\\u00ed her own in the purchase of land, the title to which she takes and holds in her own name, the husband has an equitable interest in the land, to reach and apply which, in payment of his debt, a creditor of the husband may, under the Gen. Sts. c. 113, \\u00a7 2, cl. 11, maintain a bill in equity against him and his wife.\\nBill in EQUITY, under the Gen. Sts. c. 113, \\u00a7 2, against John Sheehan and Ellen Sheehan, his wife. Ellen Sheehan demurred for want of equity. Hearing upon the bill and demurrer, before Ames, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.\\nE. C. Bumpus, for Ellen Sheehan.\\nW. E. Jewell, for the plaintiff.\", \"word_count\": \"1685\", \"char_count\": \"9114\", \"text\": \"Colt, J.\\nUnder our statute, a creditor may maintain a bill in equity to reach and apply in payment of his debt any property, right, title or interest, legal or equitable, of a debtor which cannot be come at to be attached or taken on execution. Gen. Sts. c. 113, \\u00a7 2, cl. 11. A creditor may thus reach the equitable assets of his debtor, without having exhausted his remedies at law or reduced his claim to a judgment. Tucker v. McDonald, 105 Mass. 423. He may enforce in his own name and for his own benefit, to the extent of his interest as creditor, the equitable title of Ms debtor to any property, real or personal, within the jurisdiction of the court, which cannot be taken on execution.\\nThis bill is brought against husband and wife by a creditor of the husband. The plaintiff alleges that the husband deposited all his wages with the wife for safe keeping; that the latter, without the husband's knowledge, deposited the same in a savings bank, from time to time, and, without his knowledge or assent, used the amount so deposited, together with some money she had borrowed on her sole credit, in payment for certain real estate, the title to which she took and still holds in her own name. It is not alleged that this was done by the wife with any purpose on her part of aiding her husband to delay or defraud his creditors.\\nThe prayer of the bill is that the property of the husband, thus appropriated by the wife, may be applied to the payment of the plaintiff's debt, and, to that end, that the land may be conveyed to a receiver to sell the same or so much of the same as may be necessary. \\u2022\\nIn support of the demurrer, it is contended that the plaintiff has no remedy against the land in question, either at law or in equity. It is clear that the land cannot at law be attached, or taken on execution, as the property of the husband. It has been recently decided that when land was conveyed to the wife, which was paid for in part by the husband and in part by the wife, without any participation by the latter in the fraudulent intent of the husband to defraud his creditors, the same could not be reached under the Gen. Sts. c. 103, \\u00a7 1, which authorize a creditor to levy on land fraudulently conveyed or paid for by the debtor the record title to which is in another. In the ease referred to, the debtor, with a purpose to defraud his creditors, paid part of the purchase money, and his wife innocently paid the rest and took the title in her own name. It was held that the equitable interest of the debtor, if any, which arose from his part payment of the purchase money, could not be reached by the levy of an execution. Snow v. Paine, 114 Mass. 520.\\nNor, upon the facts alleged, does this land come within the other description named in the statute last cited, namely, that of land purchased, or directly or indirectly paid for, by the debtor, the title to which is conveyed to a third person, on a trust for him, express or implied, whereby he is entitled to a present conveyance. A resulting trust is not created in favor of one who pays directly or indirectly part of the purchase money for land conveyed to another, unless such payment is made for some specific or distinct portion of the estate. Mc Gowan v. Mc Gowan, 14 Gray, 119. Snow v. Paine, above cited. The money here appropriated by the wife was used with her own money, in a general payment towards the entire purchase, and the husband was not entitled, at law or in equity, to a present conveyance of the whole or of any distinct or aliquot portion of the whole.\\nThe plaintiff's claim is that the husband has an equitable interest which may be reached and applied, under the statute first cited, by a decree in his favor. The money of the husband was deposited with the wife for safe keeping; she held it as bailee in trust for him. It was a breach of that trust, and a fraud upon him, for her to use it without his knowledge in the purchase of real estate, and he has a right, at his election, by proper proceeding in equity, to charge the land so purchased and held by her, to the extent of the money so wrongfully appropriated. The practical difficulty, in cases where a misappropriation of money is charged, arises from the difficulty of identifying and following it in its changed conditions into other property. But, in the language of Lord Ellenborough, in a well considered case, \\\" the difficulty which arises in such case is a difficulty of fact and not of law, and the dictum, that money has no ear-mark, must be understood as predicated only of an undivided and undistinguishable mass of current money,\\\" and not of \\\" money in a bag, or otherwise kept apart from other money.\\\" Taylor v. Plumer, 3 M. & S. 562, 575. And it was declared by Gibson, J., in Wallace v. Duffield, 2 S. & R. 521, that it was certainly law, that money, although it had no ear-mark, might be followed into the land where it had been invested, in cases where the purchaser stood as trustee in relation to the fund. The trustee in such case ought not to be permitted to defeat the claim upon the land, so long as he continues to hold the title, by proving only that he contributed to the purchase money and mingled his own money with the money of the plaintiff. Deg v. D2 P. Wms. 412.\\nThese doctrines have been recognized in many American cases. In Day v. Roth, 18 N. Y. 448, the plaintiff's money held oy one of the defendants for investment on her account, was invested in land, which was conveyed to the other defendant with knowledge that the money was so misappropriated. The plaintiff's money was part only of the whole sum paid in the purchase and improvement of the land. It was declared that the fund was impressed with the characteristics of a trust, and that the plaintiff had the right to follow and claim it, so long as she could trace its identity, into whatsoever hands it might be transferred, and to charge it upon any man's estate in which she might find it invested, who was not an innocent purchaser ; that the estate was chargeable with an equitable lien in her favor in the nature of a resulting trust; and that she was entitled to a judgment for a sale of the property as upon foreclosure, in default of payment within a time named.\\nIn McLarren v. Brewer, 51 Maine, 402, it was declared to be the settled doctrine, both in law and equity, that a mere change of property from one form to another cannot divest the owner of his property in it so long as it is capable of identification ; and that money itself may be so followed.\\nIn Wallace v. Duffield, above cited, it was said by Gibson, J., that when a trustee purchases with the trust fund and takes the conveyance in his own name, there is properly speaking no resulting trust, though it is usually called so; for there is in equity a very substantial difference between them, both in the quality and extent of the relief that can be called for. In the former, the trustee will be compelled to execute the trust by a conveyance of the land. In the latter, chancery will raise the money out of the land by a sale of the whole, or such part of it as may be necessary to produce the sum withdrawn; and this mode - is peculiarly convenient where only part of the consideration has been taken from the trust fund. See also Cheney v. Gleason, 117 Mass. 557; Oliver v. Piatt, 3 How. 333; Kirkpatrick v. M' Donald, 11 Penn. St. 387; Adams Eq. 33, note; 2 Story Eq. Jur. \\u00a7 1258, 1259.\\nIn the law of agency, the doctrine is more frequently applied, and, when the money of the principal has been wrongfully invested by the agent in land, equity will follow it into the land, and hold the legal owner, charged with notice, trustee for the benefit of him whose money has been so invested. Story Agency \\u00a7 229.\\nIn the case at bar, upon the facts stated in the bill, the husband has an equitable lien upon the land conveyed to and now held by the wife. It is a valuable interest which cannot be come at to be attached or taken on execution. Robinson v. Trofitter, 109 Mass. 478. It may therefore, under the statute, be reached and applied by the plaintiff to the payment of his debt, by bill in equity. Demurrer overruled.\"}"
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+"{\"id\": \"7344345\", \"name\": \"People's Choice Mortgage, Inc. v. Premium Capital Funding, LLC dba Topdot Mortgage et al.\", \"name_abbreviation\": \"People's Choice Mortgage, Inc. v. Premium Capital Funding, LLC\", \"decision_date\": \"2010-03-31\", \"docket_number\": \"No. 063958BLS2\", \"first_page\": \"582\", \"last_page\": \"594\", \"citations\": \"26 Mass. L. Rptr. 582\", \"volume\": \"26\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:08:56.234793+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People\\u2019s Choice Mortgage, Inc. v. Premium Capital Funding, LLC dba Topdot Mortgage et al.\", \"head_matter\": \"People\\u2019s Choice Mortgage, Inc. v. Premium Capital Funding, LLC dba Topdot Mortgage et al.\\nSuperior Court, Suffolk, SS\\nNo. 063958BLS2\\nMemorandum Dated March 31, 2010\", \"word_count\": \"10980\", \"char_count\": \"68574\", \"text\": \"Neel, Stephen E., J.\\nIn 2006, defendant Marvin R. Bodden (Bodden) left the employ of plaintiff People's Choice Mortgage, Inc. (PCM) and joined defendant Premium Capital Funding, LLC (Topdot). PCM, alleging that Bodden violated a non-competition agreement and that Topdot participated in Bodden's wrongful conduct, brought this action against both. Topdot asserted a counterclaim against PCM, and a cross claim against Bodden for indemnification. The claims were tried without jury.\\nFINDINGS OF FACT\\nOn the basis of the credible evidence, and inferences reasonably drawn therefrom, the Court makes the following findings.\\nI. PCM's Employment of Bodden\\nIn April 2003, PCM, a licensed mortgage brokerage firm headquartered in Randolph, Massachusetts, hired Bodden as an Account Executive, a sales position involving recruiting and servicing residential mortgage loan prospects and clients. Bodden was sophisticated generally in business, having worked in the banking industry in Grand Cayman. He had little or no experience in the residential mortgage business.\\nBodden had applied to PCM in response to an advertisement for the position. PCM's owner and president, David Fasano (Fasano), hired Bodden specifically to expand PCM's business into the Spanish-speaking market, utilizing Bodden's facility in Spanish.\\nBodden signed a \\\"Loan Partner Contract\\\" with PCM dated April 16, 2003 (Loan Partner Contract). The Loan Partner Contract contains provisions protecting PCM's leads and other proprietary information. For so long as the Loan Partner Contract was the sole instrument governing Bodden's relationship with PCM, Bodden's position was probably that of independent contractor, insofar as that contract provided in Section Ten that \\\"this Agreement [as opposed to Bodderis employment] is 'AT WILL' and may be terminated by either party at any time without notice.\\\" Bodderis compensation under the PCM Loan Partner Contract was set, in \\\"Exhibit 'A' Compensation Agreement,\\\" on a sliding scale, as follows:\\nThe company shall pay the Loan Partner in the following manner on mortgage loans closed and funded in that current month:\\n$0 to $500,000 25% of company's gross points (front & back)\\n$500,000 to $1,000,000 27.5% of company's gross points (front & back)\\n$1,000,000 and up 30% of company's gross points (front & back)\\nIn any event, Bodden became an at-will employee in July 2003 when he signed a \\\"Non Competition, Confidentiality and Nondisclosure Agreement\\\" (2003 PCM Agreement), prohibiting him from, inter alia, competing with PCM in Massachusetts for one year following the termination of his employment with PCM. At that time, PCM began paying Bodden a salary in addition to his commission, to compensate him for managerial tasks he was assuming, and to supplement his relatively low commission scale.\\nOn August 30, 2004, Bodden signed another non-competition agreement (2004 PCM Agreement), which amended the non-competition geographical restriction to 50 miles \\\"from any licensed branch office of PCM . .\\\" In both the 2003 and 2004 PCM Agreements, Bodden agreed that he was an at-will employee, and that the consideration for his executing the agreement included his continued employment on an at-will basis. The 2004 PCM Agreement recites, as additional consideration, \\\"one paid day-off to be used within ninety (90) days of the date of this agreement . . .\\\" Paragraph 2 of the 2004 PCM Agreement provides that Bodden agrees \\\"not to disclose [PCM's] confidential or proprietary information, whether during or after the termination of my employment, . or to use [it] directly or indirectly\\\" without PCM's permission or as required in the course of his employment at PCM. Paragraph 5 provides that \\\"[d]uring the period of my employment with [PCM] and for a period of one (1) year after termination of such employment..., I agree that I will not, whether alone or as . . . employee . or otherwise, enter or engage in any phase of the mortgage brokerage business as . . . loan originator . on my own or for or on behalf of any other competitor of [PCM].\\\" Paragraph 6 provides that \\\"during the period of my employment with [PCM] and for a period of one (1) year after termination of such employment . . . , I will not directly or indirectly, either for myself or for any other enterprise, solicit, divert or take away or attempt to solicit, divert or take away, any of [PCM's] actual or prospective customers . in existence at the termination of such relationship.\\\"\\nBodden brought with him no \\\"book\\\" of business. Fasano directed Bodden to develop an advertising presence on Spanish radio stations, financed those advertisements, and reimbursed Bodden for participation in the Greater Boston Hispanic Lion's Club, which Bodden joined in early to mid-2004, while employed at PCM. At PCM's instance, Bodden also joined chambers of commerce. PCM paid for marketing activities such as television and newspaper advertising, and some home-buying seminars. PCM encouraged Bodden to undertake each of those activities for the purpose of generating leads.\\nBodden was the person at PCM to whom Spanish-speaking prospects were directed. Bodden began on a salaried basis and, after fine-tuning the radio ads, began to generate a significant number of leads for PCM. Bodden later had a management position at PCM, and admitted at his deposition (although denying at trial) that he oversaw the distribution of leads at PCM.\\nAriosto Rodriguez (Rodriguez), a. PCM employee, was assigned to work with Bodden in developing the Spanish-speaking market. Rodriguez came to believe that Bodden was cherry-picking prospects, and animosity developed between them. On Bodden's recommendation, Fasano fired Rodriguez in December 2005. Subsequently, Rodriguez returned to PCM on occasion as an independent contractor offering leads.\\nn. PCM's Confidential Customer Lead Information\\nPCM's customer \\\"leads,\\\" identifying actual or potential customers' names, telephone numbers, and information about customers' mortgage needs, were written on company paper documents, and recorded in PCM's electronic database. PCM treats its customer leads as confidential information. Only employees with a need to know the information are provided access to the documents.\\nPCM also keeps files on its customers, including credit applications, credit reports, and other documents necessary for the processing of mortgage loan applications. PCM has a strict policy against customer leads and files leaving the office, and so informs its employees. A customer's loan file contains all of PCM's information on that customer, and is available to the loan processor and the sales representative, and their supervisor. While the loan is pending, the file is kept in a file cabinet; once the loan is closed, the file is sent to a restricted file room, and is available to employees only on a need-to-know basis. PCM had a sign-in, sign-out system for its paper client files.\\nIn December 2005, PCM switched its customer database software from a system called Calyx to one called Genesis. The Calyx software was at that point frozen, ending access to that system. Bodden was very upset at the switch because he was more comfortable with the Calyx system, and in ensuing weeks repeatedly asked Yefim Sigal (Sigal), PCM's operations manager, for access to Calyx. Fasano finally instructed Sigal to give Bodden access to Calyx. Hard copies of the documents from which the customer database was derived were kept under lock and key in the basement of PCM's office. Only Fasano, his father, and compliance attorney Ken Tocci had keys; Bodden had a key to the building, but not to the basement.\\nIII. Topdot's Employment of Bodden\\nOn March 17, 2006, without notice to PCM, Bodden signed a \\\"Loan Officer Agreement\\\" with Topdot, and on that date became a Topdot employee at Topdot's Burlington, Massachusetts, office (Topdot Agreement). In that agreement, Bodden \\\"covenants and agrees that he . . . will not during the course of his . . . employment under this Agreement.. . render services to any other business . . . which is competitive with\\\" Topdot. Topdot Agreement, Sec. 2.(d); see also Sec. 7.(b). Section 7.(c) provides that Topdot \\\"recognizes that [Bodden] brought certain clients to the Company at the time he commenced employment as a result of [Bodden's] efforts alone. Those clients are identified in Exhibit C to this Agreement.\\\" (Emphasis supplied.) Exhibit C is blank. In Section 8.(a)(iv), Bodden warrants that he \\\"will not engage in . . . any acts involving fraudulent or dishonest behavior, in his capacity as an employee of [Topdot].\\\" Section 8.(b) requires Bodden to \\\"indemnify [Topdot] from and against any responsibility arising out of [Bodden's] own violation or breach of the warranties and representations set forth in this Section 8.\\\" In Section 9.(1), Bodden agrees to \\\"indemnify and hold harmless [Topdot] . . . from all claims . . . whatsoever arising from . . . any dishonest or fraudulent act, representation, defalcation of law, a violation of [Bodden's] duty of loyally to [Topdot], or any other violation by [Bodden] of. . this Agreement.\\\"\\nWhen it hired Bodden, Topdot was aware (from Bodden's \\\"Application for Employment\\\") that Bodden's \\\"present\\\" employer was PCM. Topdot was not aware, however, of Bodden's obligations and restrictions under the 2004 PCM Agreement. Indeed, on March 17, 2006, as part of his application for employment, Bodden signed an acknowledgment that he was under no such restrictions. Topdot had no actual notice that Bodden continued his employment with PCM beyond March 17, and was entitled to conclude, based upon the Topdot Agreement and the acknowledgment just referred to, that Bodden had left PCM upon becoming a Topdot employee.\\nOn April 12, 2006, Bodden voluntarily gave Fasano two weeks notice that he was terminating his employment with PCM. Upon receiving that notice, Fasano wanted Bodden to leave that day, but acceded to Bodden's request, purportedly based upon Bodden's personal financial situation and pending divorce, for two additional weeks. Bodden told Fasano that he planned to sell commercial real estate, and hoped to bring residential loan leads to PCM as he developed them. Bodden did not inform Fasano that he was in fact already an employee of a PCM competitor, Topdot, because \\\"he did not need to know.\\\"\\nThus, through dupliciiy, in violation of both the 2004 PCM Agreement and the Topdot Agreement, and unbeknownst to either PCM or Topdot, Bodden arranged to have himself employed simultaneously by both from March 17 through April 26, 2006, a period of nearly six weeks. Before or during that period, Bodden collected PCM documents containing customer lead information for the purpose of continuing to solicit those customers while he was at Topdot. By his conduct, Bodden violated both his contractual duties to safeguard PCM's confidential information while he was at PCM, his non-competition agreement, and the covenant of good faith and fair dealing implied in the 2004 PCM Agreement. In addition, his conduct, together with his testimony at trial referred to below, renders him in the Court's view untrustworthy in other matters at issue in this case touching his personal interests.\\nAs it turned out, Bodden's compensation for closing loans at Topdot was much better than at PCM. At Topdot, Bodden was entitled to 60 to 65% of commissions earned on loans he generated, roughly twice his commission rate at PCM.\\nIV. Topdot's Knowledge of Bodden's Duplicity\\nBeginning in about May 2006, Ana Portillo (Portillo) was Bodden's assistant at Topdot for two to three months. Michael Epstein (Epstein), Topdot's Rule 30(b)(6) designee, testified that Portillo was a Topdot loan officer. The Court concludes that she was at least a Topdot employee, providing sales and administrative assistance to Bodden and his team, which Epstein supervised. Her desk was in Bodden's office.\\nBodden gave Portillo the documents comprising Exhibit 5, which were among documents he had brought with him from PCM, and which contained customer information regarded by him and by PCM as customer leads. Bodden instructed Portillo to transcribe the information in the documents and distribute it to Topdot loan officers. Portillo did so, and distributed the leads to several loan officers at Topdot, including Rodriguez. Exhibit 5 is a package of PCM leads which Bodden gave to Portillo as leads for Rodriguez. To the extent that the pages of Exhibit 5 (variously titled \\\"PCM Loan Activity Log,\\\" \\\"PCM Weekly Leads Tracking Form,\\\" etc.) are dated, they are from 2004 and 2005. Portillo identified the handwriting on the first page (\\\"Leads for Ariosto\\\") as her own. Rodriguez told Portillo that the leads were from PCM, a conclusion which Portillo herself had probably already reached.\\nRodriguez had just begun employment at Topdot as a loan officer, having been employed at a different mortgage broker after his employment at PCM ended. At Topdot, Bodden showed Rodriguez documents he had brought with him from PCM. Some of the documents were headed \\\"People's Choice Mortgage,\\\" and contained names and identifying information of prospects and customers.\\nAmong the documents from Bodden which Portillo saw were documents containing the words \\\"radio program,\\\" and names designated as \\\"call-ins.\\\" When she queried Bodden about those, he told her that when he was at PCM he had done programs on the radio, and that the lead documents she was inquiring about had come from those promotions.\\nBodden denied at trial that Portillo was his assistant, a blatant falsehood. He testified that he provided financial, professional, and personal assistance to Portillo; he testified also that she sought a sexual relationship with him, which he rejected. On cross examination, counsel presented testimony from Bodden's May 8, 2007 deposition, in which Bodden agreed that Portillo was \\\"credible,\\\" and from his June 7, 2007 deposition, in which Bodden stated that he had \\\"no idea\\\" why Portillo would say that he had asked her to hand out leads he had brought from PCM. From that testimony counsel argued that Bodden's trial testimony was a contrived response to Portillo's damaging testimony in plaintiffs case in chief. The Court agrees, and concludes that Bodden attempted at trial to damage Portillo's credibility by falsely portraying her as a rejected would-be lover.\\nEpstein was director of operations and thereafter co-branch manager, with Teresa McNeil-Balian (McNeil-Balian), at Topdot's Burlington office. He supervised Bodden's activities on a daily basis. His office was directly in front of the team where Portillo handed out the PCM radio leads, and he often went into Bodden's office. While Rodriguez warned Epstein about Bodden's lack of trustworthiness, he did not specifically disclose that Bodden was using PCM information to develop business for Topdot. Nevertheless, the Court concludes that soon after it hired Bodden, Topdot had constructive knowledge that Bodden was using PCM information for Topdot's and his own benefit.\\nIn early July 2006, Rodriguez called Fasano to inform him that Bodden was working at Topdot and had \\\"stolen\\\" from PCM documents containing PCM leads. At a subsequent meeting, Rodriguez gave to Fasano copies of documents which Rodriguez had received from Bodden. Fasano called Bodden and left a voice message directing him to return the PCM documents. Bodden returned neither the call nor the documents.\\nIn or just after mid-July, Fasano called McNeil-Balian at Topdot, informing her of what he had learned and requesting that Topdot \\\"just return the documents.\\\" Although McNeil-Balian told Fasano that the owner of Topdot would agree, and would not tolerate Bodden's bringing of PCM documents, no one from Topdot's corporate office returned Fasano's call. Shortly thereafter, McNeil-Balian told Fasano that she had forwarded his request, but that the matter was \\\"out of my hands.\\\"\\nFasano then hired counsel, who on July 26 (via fax) notified Topdot that Bodden had misappropriated PCM's trade secrets, and was soliciting PCM customers in violation of the 2004 PCM Agreement, a copy of which was attached to the letter. Topdot's in-house counsel responded by letter of August 2, 2006, essentially passing along what Topdot represented to be Bodden's denial of PCM's claims, which Topdot adopted as its own position.\\nTopdot's August 2 response was at best disingenuous. Any reasonable investigation would have revealed what Topdot had constructively known, through branch manager Epstein, since April, when Bodden closed the first of his loans with PCM clients or prospects.\\nV. The Disputed Loans\\nFasano instructed Sigal to investigate the loans which Fasano suspected Bodden had wrongfully taken to Topdot. Sigal identified nine loans which represented customers or prospects of PCM, and as to which Topdot had closed loans after Bodden arrived there (disputed loans). Sigal matched the customer names on the disputed loans against PCM's database and third-parfy vendors. He determined, and the Court finds, that all of the disputed loans involved prior customers of PCM or leads that were in PCM's system. PCM paid for a credit report for each of the disputed loans. PCM had previously closed loans for some of the customers for whom disputed loans were closed by Topdot. The disputed loans are listed below, by type of loan and date of closing (see Bodden's Answer to PCM's Interrogatory No. 12, and Trial Ex. 23 ), together with the total amount of commissions and fees earned thereon by Topdot, the amount paid to Bodden and the percent which that amount represents of Topdot's total commission (net of fees), and the Court's findings regarding the genesis of the client.\\nBodden closed the following loans at Topdot (disputed loans):\\na. Carlos and Jacqueline Montoya (Montoya loan). Refinance loan of $530,000 closed by Topdpt on or about June 29, 2006; revenue to Topdot: $6,250; commission to Bodden: $3,153 (60%). Bodden met Carlos Montoya through the Lion's Club while he was working for PCM; in 2005 PCM paid for credit checks on the Montoyas and had previously financed a property for them. Montoya, an accountant, referred a number of his clients to Bodden at PCM. Because Montoya became a client of Bodden and PCM through Bodden's fulfillment of PCM's direction to develop contacts for PCM by joining the Lion's Club, the Court concludes that the Montoyas were clients developed under the direction of and with investment by PCM. In view of Bodden's taking and use at Topdot of lead documents from PCM, the Court concludes that Bodden improperly used PCM's lead information on the Montoyas to solicit their business for, and close their loan at, Topdot.\\nb. Esteban Quintana (Quintana loan). Refinance loan of $450,000 closed by Topdot on or about May 26, 2006; revenue to Topdot: $14,495; commission to Bodden: $8,775 (65%). Quintana was a long-time friend of Bodden's before Bodden's employment with PCM; at Bodden's request, he appeared in a PCM commercial directed at the Spanish-speaking market. Bodden had closed a loan for Quintana while he was at PCM. Quintana referred prospects to Bodden at PCM. Because his relationship with Bodden preceded Bodden's employment with PCM, the Court concludes that Quintana was a client developed by Bodden, without significant investment by PCM.\\nc. Esteban Vasquez (Vasquez loan). Refinance loan of $290,700 closed by Topdot on or about April 10, 2006 (while Bodden was still employed by PCM); revenues to Topdot: $6,809; commission paid to Bodden: $3,488 (60%). Vasquez was referred to Bodden at PCM by Montoya, and Bodden had closed a loan for Vasquez while at PCM. For the same reasons which lead the Court to conclude that Montoya was a client of PCM, the Court concludes that Vasquez was also a client of PCM. In view of Bodden's taking and use at Topdot of lead documents from PCM, the Court concludes that Bodden improperly used PCM's lead information on Vasquez to solicit his business for, and close his loan at, Topdot. In any event, Bodden's duplicity in closing the Vasquez loan at Topdot before he had even given notice to PCM of his departure vitiates any claim by Bodden to Vasquez's business.\\nd. Doris Cooper (Cooper loan). Purchase loan of $292,500 closed by Topdot on or about August 25, 2006; revenues to Topdot: $9,725; commission paid to Bodden: $5,238 (60%). Bodden asserts that Cooper and her mother Georgia Young came to him \\\"through Sandi Robinson and not through any paid marketing effort of' PCM; he identifies Robinson as a \\\"former employee of' PCM. Bodden's Answer to Interrogatoiy No. 13. There is no credible basis upon which to conclude that Cooper became a prospect of PCM through Bodden's efforts or personal contacts; in view of Bodden's taking and use at Topdot of lead documents from PCM, and the lack of any corroboration that Robinson was the source of the Cooper loan for Topdot, the Court concludes that Bodden improperly used PCM's lead information on Cooper to solicit her business for, and close her loan at, Topdot.\\ne. Jocelyn Cetoute (Cetoute loan). Refinance loan of $250,750 closed by Topdot on or about July 25, 2006; revenues to Topdot: $6,010; commission paid to Bodden: $3,009 (65%). Bodden had refinanced a loan for Cetoute while at PCM. Bodden avers that Cetoute \\\"came through a personal referral and not through any paid marketing effort of People's Choice . . . They [sic] called me [at Topdot] and I did not solicit them.\\\" Bodden Answer to PCM's Interrogatoiy No. 13. Bodden states in that answer that even after he suggested that Cetoute go to PCM's office, which was close to where she lived, \\\"they [sic] said they did not want to go there and asked if I could assist them.\\\" The Court concludes that Bodden's telling Cetoute that she \\\"could go to People's Choice\\\" is evidence that he did not consider her to be \\\"his\\\" client as opposed to a client of PCM. Nor is there a credible basis for concluding that Cetoute became a prospect of PCM through an unnamed \\\"personal referral.\\\" In view of Bodden's taking and use at Topdot of lead documents from PCM, and the lack of any corroboration that \\\"a[n unnamed] personal referral\\\" was the source of the Cetoute loan for Topdot, the Court concludes that Bodden improperly used PCM's lead information on Cetoute to solicit her business for, and close her loan at, Topdot.\\nf. Stanley and Tacita Porter (Porter loan). Refinance loan of $310,250 closed by Topdot on or about May 24, 2006; revenues to Topdot: $7,195; commission paid to Bodden: $3,720 (60%). Bodden states, in answer to Interrogatoiy 13, that the Porters \\\"were a personal referral,\\\" again unnamed, while he worked at PCM; that they \\\"called me in the week after I gave my notice [i.e., after April 12, 2006] and I told them that I was leaving and that someone else could help them. After several weeks to a month, they called me again and said that no one had called them and asked if I could refinance them (I have a letter to that effect).\\\" The Court concludes that Bodden's offer to have \\\"someone else\\\" at PCM help the Porters is evidence that he did not consider them to be \\\"his\\\" clients as opposed to clients of PCM; in any event, the Court finds it not credible that PCM would not have returned the Porters' call and offered to handle the refinancing for them. Accordingly, the Court concludes that the Porters were a lead developed through PCM's efforts and investment in Bodden, and not through Bodden's own personal contacts as he alleges. In view of Bodden's taking and use at Topdot of lead documents from PCM, and the lack of any corroboration that \\\"a[n unnamed] personal referral\\\" was the source of the Porter loan for Topdot, the Court concludes that Bodden improperly used PCM's lead information on the Porters to solicit their business for, and close their loan at, Topdot.\\ng. Conrado Sical (Sical loan). Refinance loan of $513,000 closed by Topdot on or about July 14, 2006; revenues to Topdot: $11,255; commissions paid to Bodden: $6,156 (60%). In his answer to Interrogatory 13, Bodden avers that Sical was a \\\"personal referral from an [unnamed] accountant in the winter of 2004.1 refinanced them in the winter of 2006 while at People's Choice.\\\" There is no credible basis for concluding that Sical became a prospect of PCM through Bodden's efforts or personal contacts; in view of Bodden's taking and use at Topdot of lead documents from PCM, and the lack of any corroboration that a personal contact of Bodden was the source of the Sical loan for Topdot, the Court concludes that Bodden improperly used PCM's lead information on Sical to solicit his business for, and close his loan at, Topdot.\\nh. David White (White loan). Loan of $370,000 closed by Topdot on or about June 2, 2006; revenues to Topdot: $9,275; commission paid to Bodden: $4,968 ($60%). Bodden does not refer to the White loan in his answers to interrogatories or in his trial testimony. Accordingly, in view of Bodden's taking and use at Topdot of lead documents from PCM, and the lack of any evidence that any effort or personal referrals of Bodden were the source of the White loan for Topdot, the Court concludes that Bodden improperly used PCM's lead information on White to solicit his business for, and close his loan at, Topdot.\\ni. Medina Jones (Jones loan). Loan of $276,000 closed by Topdot on or about June 8, 2006; revenues to Topdot: $5,415; commission paid to Bodden: $2,652 (60%). Bodden refinanced Jones while at PCM; she was in the process of closing a loan at PCM when Bodden left PCM, and while Bodden was employed by both PCM and Topdot. Bodden avers that \\\"I knew I was leaving and left this [i.e., Jones] file on my desk. I pointed this out to both David Fasano and processing manager Steve Demello, that they needed to finish the loan. From March to May, apparently no one contacted Ms. Jones.\\\" Answer to Interrogatory No. 13. The plain implication of Bodden's answer is that he told Fasano and DeMello in March that they \\\"needed to finish\\\" the Jones loan. The Court finds Bodden's statements not credible, because he did not give his notice to Fasano until April 12; it would make no sense for Bodden to have told Fasano, in March, before he gave notice, that others at PCM should \\\"finish the loan.\\\" Bodden told Epstein that the Jones loan had been closing at PCM, and that the Jones loan as well as all loans Bodden closed at Topdot were for personal friends and people he knew, or who had been referred to him by people he knew. In view of the foregoing, and of Bodden's taking and use at Topdot of lead documents from PCM, the Court concludes that Bodden improperly used PCM's lead information on Jones to solicit her business for, and close her loan, at Topdot.\\nAt Topdot in 2006, loans would take from a few weeks to a few months to close; the average was about thirty days. Bodden began closing loans at Topdot in April 2006.\\nOf the nine disputed loans, only two \\u2014 the Cetoute and Cooper loans \\u2014 were closed after Topdot received actual notice, in or just after mid-July, that Bodden had brought lead documents from PCM for use at Topdot. The other seven loans were closed after Topdot had constructive notice of that fact in April 2006, and before Topdot had actual notice.\\nTopdot admits that \\\"PCM would only have suffered damages if it could show that the Topdot loans made by Mr. Bodden were closed from PCM leads.\\\" Topdot's Proposed Findings, para. 29.\\nThe disputed loans generated total revenue of $76,429 for Topdot, of which Topdot paid Bodden commissions of $41,159. The total revenue which Bodden's loans (including the disputed loans) generated for Topdot is $120,137. The Court infers, from the evidence, that Topdot and PCM, two competitors in a competitive industry, charged comparable loan application and processing fees (see, e.g., Ex. 23) and commissions (compare Topdot's predominant 2% \\\"broker fees\\\" on the undisputed loans, id., with PCM's \\\"Loan Activity Logs\\\" attached to Fasano's Affidavit, documents nos. 000017 and 000020 (\\\"2 pts.\\\" charged on proposed loans)).\\nVI. Topdot's Counterclaim\\nTopdot's counterclaim is based upon its allegation that a loan known as the Perez/Messenger Loan was closed by an entity in Irvine, California named \\\"People's Choice Home Loan, Inc.\\\" There is no evidence that that entity is connected to PCM in any manner other than the similarity in names. \\u2022\\nRULINGS OF LAW\\nPCM may recover, as to any of its claims, only to the extent that it has proved causation and damage. As found above, the scope of PCM's harm is defined by the nine disputed loans which PCM has alleged, through Sigal's testimony and other evidence, were for customers or prospects of PCM; PCM's argument for any further damage as to other actual or potential customers is based, in the Court's view, on speculation. Thus, although the Court has found that Bodden took confidential information for other PCM customers or prospects and distributed it to employees of Topdot, PCM has not proved that such acts caused it any damage \\u2014 other than as to the disputed loans \\u2014 because PCM has not shown by a preponderance of the evidence that it lost business from those customers. Similarly, PCM has not proved that any of the loans which were closed by Bodden at Topdot, and do not appear on Sigal's list of the nine disputed loans, were for PCM customers or prospects. Accordingly, the Court will address the various counts only with regard to the nine disputed loans, and the customers they represent, as to which PCM has presented evidence of causation and harm.\\nI. PCM's Claims against Bodden\\nA. Breach of Contract (Count I)\\nAlthough Bodden testified that he was unaware of the restrictive provisions in the 2004 PCM Agreement at the time he signed it, the Court does not credit that testimony, particularly given Bodden's sophistication in business generally. Accordingly, to the extent that the various restrictive covenants in the 2004 PCM Agreement are enforceable, Bodden is bound by them.\\nPCM alleges that Bodden violated the 2004 PCM Agreement in at least three ways: by becoming employed by Topdot for a period of six weeks while he was still employed by PCM, and within one year thereafter, in violation of the non-competition covenant (paragraph 5); by taking to Topdot confidential customer documents from PCM, and distributing those documents to Rodriguez and others at Topdot for the purpose of generating customers for Topdot, in violation of the provisions for safeguarding confidential or proprietary information (paragraphs 2 and 3); and by soliciting and closing loans at Topdot for actual or prospective customers of PCM, in violation of the non-solicitation covenant (paragraph 6).\\nThe Court has found, as noted above, that Bodden violated his contractual duties to safeguard PCM's confidential information because, during his employment with PCM, he collected PCM documents containing customer lead information for the purpose of continuing to solicit those customers while at Topdot. The Court has also found that PCM has presented evidence of causation and harm only as to the nine disputed loans. While the documents submitted as evidence by PCM to show that Bodden took confidential PCM information to Topdot (Exhibit 5) do not contain any information relating to the disputed loans, the facts found above support a reasonable inference that Bodden also took confidential information relating to the disputed loans. On the basis of all the evidence, the Court makes that inference, and concludes that Bodden violated paragraphs 2 and 3 with respect to the disputed loans.\\nWith regard to PCM's claims under the non-competition and non-solicitation provisions of the 2004 PCM Agreement, the Court looks to the standards which it is to apply in determining the enforceability of such covenants:\\nNoncompetition agreements are generally enforceable so long as they are reasonable under the circumstances. All Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974). Marine Contractors Co. v. Hurley, 365 Mass. 280, 289 (1974). Wells v. Wells, 9 Mass.App.Ct. 321, 323 (1980). In determining whether a covenant will be enforced in whole or in part, the reviewing court must consider whether (1) it protects the legitimate business interest of the employer against harmful conduct of the former employee; (2) it is supported by consideration; (3) the time, space, and geographical restraints imposed on the former employee are reasonable in the circumstances; and (4) the covenant is consistent with public policy. See All Stainless, Inc. v. Colby, supra; Blackwell v. E.M. Helides, Jr., Inc., 368 Mass. 225, 228-29 (1975); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 102-03 (1979). See also Boulanger v. Dunkin' Donuts Inc., 442 Mass. 635, 639 (2004).\\nRunway Salon, Inc. v. Garey, 68 Mass.App.Ct. 1105 (2007) (unpublished decision). Here, the first of the four factors listed presents the most significant issue. In light of the evidence, the Court concludes that the non-competition and non-solicitation covenants reasonably protect the legitimate business interests of PCM against the harmful conduct of Bodden.\\nAs found above, Bodden had no previous experience in the residential mortgage brokerage industry, and arrived at PCM with no \\\"book\\\" of business which he can claim to have developed without the assistance of PCM. Rather, with the exception of family and personal friends, Bodden developed customers and prospects for PCM by following PCM's instructions about how to develop business, through PCM's reimbursement of costs which Bodden incurred in the course of his participation in social and business groups, and through PCM's providing of funds for and sponsoring of television and radio advertisements, and marketing seminars, in which Bodden participated and from which he benefited. Bodden's personal attributes and industry played an important role in his production of business for PCM, but PCM's investment in him, through its support of his marketing and other business development efforts, was substantial enough to give PCM a legitimate interest in protecting that investment, and the business it generated.\\nNor are the restrictive covenants which PCM seeks to enforce unreasonable in time, space, or geographical restraints. In view of PCM's substantial investment, through Bodden and otherwise, in the development of its Spanish-speaking market, and the importance to PCM of repeat business and referrals from existing customers, the Court concludes that the one-year, fifty-mile restrictions are neither unreasonable nor unfair to Bodden. For the same reasons, it is neither unreasonable nor unfair to prohibit Bodden from soliciting the PCM customers represented on the list of disputed loans, with the exception of the Quintana loan. PCM, which admits that Quintana was a long-time friend of Bodden's before it hired Bodden, can claim no particular investment in the development of Quintana as a customer.\\nAccordingly, under familiar contract principles, PCM may recover from Bodden its lost profits with regard to the eight disputed loans as to which the Court has found him in breach. See Frank D. Wayne Associates, Inc. v. Lussier, 16 Mass.App.Ct. 986, 988 (1983) (no requirement that \\\"a more solid foundation in fact is needed to recover damages for breach of a covenant not to compete than for breaches of other contracts . . As in other cases where lost profits have to be valued, . . . mathematical accuracy of proof is not required, and estimates are in order\\\"). The evidence at trial permits the Court to make findings regarding PCM's expected revenues (commissions and fees) generated by each loan, and (as calculated below) the commission it would have paid to Bodden as to each. The Court has not found direct evidence of PCM's expected profit margin on the disputed loans, other than its gross profit after paying Bodden his commission. As determined below, however, the Court concludes that the net commission to PCM, less expected application and processing fees, provides a sufficient approximation of PCM's profit on each loan (and probably a conservative one, in view of PCM's expectation of repeat business from some or all of its customers lost because of Bodden's breach).\\nHaving found that the revenues from the eight disputed loans would have been comparable whether they were closed at PCM or Topdot, the Court will for each loan (1) project the commission which Bodden would have earned had the loan closed at PCM (i.e., multiply his actual commission from Topdot by the fraction of which the numerator is his PCM commission rate and the denominator his Topdot commission rate); (2) subtract the result from the revenue received by Topdot; and (3) further subtract application and processing fees, to arrive at a reasonable approximation of PCM's lost profit as to each loan.\\n(1)As found above, Bodden's commission at PCM was on a sliding scale, depending upon the total amount of his loan closings for PCM in a given month ($0 to $500,000: 25%; $500,000 to $1,000,000: 27.5%; $1,000,000 and up: 30%). The disputed loans and amounts which Bodden closed each month at Topdot, and Bodden's corresponding commission on those loans, are as follows:\\nApril 2006: Vasquez ($290,700); commission rate: 25%\\nMay 2006: Quintana ($450,000), Porter ($310,250); commission rate: 27.5%\\nJune 2006: Montoya ($530,000), White ($370,000), Jones ($276,000); commission rate: 30%\\nJuly 2006: Sical ($513,000), Cetoute ($250,750); commission rate: 27.5%\\nAugust 2006: Cooper ($292,500); commission rate: 25%\\nUsing those projected PCM commission rates, and multiplying Bodden's actual commission from Topdot by the fraction of which the numerator is the PCM commission rate, and the denominator his Topdot commission rate, results in the following commission amounts to Bodden had he closed the loans at PCM:\\nMontoya loan: $3,153 x 30%/60% = $1,577 PCM commission to Bodden\\nVasquez loan: $3,488 x 27.5%/60% = $1,599 PCM commission to Bodden\\nCooper loan: $5,238 x 25%/60% = $2,183 PCM commission to Bodden\\nCetoute loan: $3,009 x 27.5%/65% = $1,273 PCM commission to Bodden\\nPorter loan: $3,720 x 27.5%/60% = $1,705 PCM commission to Bodden\\nSical loan: $6,156 x 27.5%/60% = $2,822 PCM commission to Bodden\\nWhite loan: $4,968 x 30%/60% = $2,484 PCM commission to Bodden\\nJones loan: $2,652 x 30%/60% = $1,326 PCM commission to Bodden\\n(2) Subtracting the above results from the revenues received by Topdot for each respective loan yields the following net revenues which PCM reasonably expected to receive under its contract with Bodden, and lost because of his breach:\\nMontoya loan: $ 6,250 \\u2014 $1,577 = $ 4,673 lost net revenue to PCM\\nVasquez loan: $ 6,809 \\u2014 $1,599 = $ 5,210 lost net revenue to PCM\\nCooper loan: $ 9,725 \\u2014 $2,183= $ 7,542 lost net revenue to PCM\\nCetoute loan: $ 6,010 \\u2014 $1,273 = $ 4,737 lost net revenue to PCM\\nPorter loan: $ 7,195 \\u2014 $1,705 = $ 5,490 lost net revenue to PCM\\nSical loan: $11,255 \\u2014 $2,822 = $8,433 lost net revenue to PCM\\nWhite loan: $ 9,275 \\u2014 $2,484 = $ 6,791 lost net revenue to PCM\\nJones loan: $ 5,415 \\u2014 $1,326 = $ 4.089 lost net revenue to PCM\\nTotal: $46,965 lost net revenue to PCM\\n(3) From the $46,965 lost net revenue to PCM, the Court further subtracts $995 for each loan (derived from the amounts charged by Topdot, which the Court has found comparable to what PCM would have charged, of a $695 application fee and $300 process ing fee), or $7,960, resulting in total lost profits to PCM of $39,005 caused by Bodden's breach of contract.\\nB. Breach of Covenant of Good Faith and Fair Dealing (Co\\u00fant II)\\n\\\"Every contract implies good faith and fair dealing between the parties to it.\\\" Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). \\\"The implied covenant of good faith and fair dealing provides that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.\\\" Id. Here, Bodden knowingly violated the confidentiality provision, the non-competition provision, and the non-solicitation provision by taking PCM documents to Topdot for the purpose of soliciting PCM's customers to benefit himself. In doing so, Bodden clearly injured the rights of PCM to reap the benefits of the 2004 PCM Agreement, i.e., making money on the leads developed by Bodden using PCM's resources. The Court has calculated above the amounts representing the fruits of the 2004 PCM Agreement of which PCM was deprived.\\nC. Breach of Fiduciary Duty (Count III)\\n\\\"Employees occupying a position of trust and confidence owe a duty of loyalty to their employer and must protect the interests of the employer.\\\" Chelsea Indus., Inc. v. Gaffney, 389 Mass. 1, 11 (1983). See Meehan v. Shaughnessy, 404 Mass. 419, 438 (1989) (finding law firm associate occupied position of trust sufficient to justify imposition of duty of loyalty because he had \\\"access to clients and information concerning clients\\\"). An at-will employee may properly plan to go into competition with his employer and may take active steps to do so while still employed. Augat v. Aegis, Inc., 409 Mass. 165, 172 (1991). There are, however, certain limitations on the conduct of an employee who plans to compete with his employer. Id. An employee may not solicit his employer's customers while still working for his employer, appropriate his employer's trade secrets, or carry away certain information, such as lists of customers. Id. at 172-73; see also Quinn v. Mar-Lees Seafood, 69 Mass.App.Ct. 688, 700 (2007) (judge correctly charged the jury that plaintiff, while employed by defendant, could not permissibly solicit defendant's customers). An employee certainly cannot act for his future interests at the expense of his employer by entering into a course of conduct designed to hurt his employer. Augat, 409 Mass. at 173.\\nThe Court concludes that Bodden breached the duty of loyally to PCM when he closed the Vasquez loan for Topdot while he was still employed by PCM. The duly of loyalty, however, ends when the employment ends; once the employment relationship has terminated, the former employee's only duty to the former employer is to refrain from misappropriation of its trade secrets. See generally Augat, 409 Mass. at 172. It is undisputed that the eight other loans were closed after Bodden left the employ of PCM. Thus, the Court will address the conduct related to those eight loans below with respect to the misappropriation of trade secrets claim. If PCM can show that Bodden misappropriated trade secrets and harm resulted, it can recover under that theory; it cannot recover for breach of a fiduciary duty for post-employment conduct.\\nBodden's conduct with regard to the Vasquez loan caused PCM to lose the financial benefits of that loan. An employee who breaches his fiduciary duty can be required to forfeit his compensation for the period in which he was disloyal. Chelsea Indus., Inc. v. Gaffney, 389 Mass. 1, 12 (1983); see Berish v. Bornstein, 437 Mass. 252, 271-72 (2002) (recognizing disgorgement of ill-gotten profit as remedy for a breach of fiduciary duty). These damages are cumulative of other damages available to the employer. See Chelsea Indus., Inc., 389 Mass. at 13 (noting equitable nature of remedy of restoring compensation for breach of fiduciary duty). Thus, PCM may recover the $3,488 Bodden received as commission from closing the Vasquez loan at Topdot.\\nII. PCM's Claims against Bodden and Topdot A. Conversion (Count IV)\\n\\\"One who intentionally or wrongfully exercises acts of ownership, control or dominion over personal property to which he has no right of possession at the time is liable for the tort of conversion.\\\" Abington Nat'l Bank v. Ashwood Homes Inc., 19 Mass.App.Ct. 503, 507 (1995); see Third Natl. Bank of Hampden County v. Continental Ins. Co., 388 Mass. 240, 244 (1983). An action for conversion \\\"cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself or to deprive the rightful owner of it, or destroyed the property.\\\" Kelly v. LaForce, 288 F.3d 1, 12 (1st Cir. 2002).\\nPCM claims that Bodden and Topdot converted PCM customer leads and files. The Court concludes that PCM has proven that Bodden wrongfully appropriated PCM's documents containing customer lead information, including such information relating to the disputed loans, by taking them to Topdot. In addition, while Topdot might have inadvertently obtained possession of the PCM documents when Bodden came to Topdot, Topdot's possession became intentional and wrongful after Fasano called Topdot in mid-July, notified it of Bodden's misappropriation of the documents, and demanded their return. See Atlantic Fin. Corp. v. Galvam, 311 Mass. 49, 50-51 (1942) (\\\"Where a defendant's possession is not wrongful in its inception, demand and refusal are prerequisites to an action for conversion\\\").\\nAs the Court has ruled above, PCM has not proven that it was damaged by Bodden's or Topdot's wrongful conduct, except with respect to the disputed loans. PCM seeks, as damages for conversion, \\\"the loss of revenues from the loans.\\\" PCM's Memorandum of Law for Trial, at 5. PCM is entitled to elect either possession of the converted goods (for various reasons, including their supposed disappearance, not an option in this case) or \\\"the value of the converted goods at the time of the conversion, with interest from that time . . .\\\" Welch v. Kosasky, 24 Mass.App.Ct. 402, 404-05 (1987). On the evidence submitted, the Court concludes that the fair market value of the converted customer information relating to the disputed loans is equivalent to PCM's lost profits from the eight loans as to which it may recover on other theories discussed above. In light of the Court's findings regarding Bodden's and Topdot's respective liability, PCM may recover against Bodden for its lost profits on the eight disputed loans for which he is liable ($39,005), and against Topdot for its lost profits on the Cetoute and Cooper loans (calculated above as $4,737 and $7,542 respectively, for a total of $12,279).\\nB. Misappropriation of Trade Secrets/ Confidential Information (Count V)\\nUnder the common law and G.L.c. 93, \\u00a742, one who misappropriates trade secrets of another is liable for damages caused thereby. Jet Spray Cooler, Inc. v. Crompton, 377 Mass. 159, 168-69 (1979). To prove its claim of misappropriation of trade secrets, PCM must prove that the information sought to be protected is a trade secret, that it took reasonable steps to preserve the secrecy of the information, and that the defendants used improper means to acquire and use the trade secret. Peggy Lawton Kitchens, Inc. v. Hogan, 18 Mass.App.Ct. 937, 939 (1984). \\\"The crucial issue tobe determined in cases involving trade secrets . is whether the information sought to be protected is, in fact and in law, confidential information.\\\" Jet Spray Cooler, Inc. v. Crompton, 361 Mass. 835, 840 (1972); J.T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 357 Mass. 728, 736 (1970) (\\\"The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret.\\\"). There are six factors relevant to this determination:\\n(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.\\nJet Spray Cooler, Inc., 361 Mass. at 840.\\nApplying these factors to this case, PCM has proven that its customer leads are trade secrets. Customer leads are clearly valuable in the mortgage broker business because they provide the basis for identifying potential customers. As discussed above, PCM spent money developing Bodden's customer leads by paying for Bodden's participation in social and business groups, television and radio advertisements, and marketing seminars. Further, PCM treated its customer leads as confidential; only employees with a need to know the information were provided access to the documents. PCM also had a strict policy against customer leads being taken from the office, and so informed its employees. Both the 2003 PCM Agreement and the 2004 PCM Agreement, which Bodden signed, contain a confidentiality provision encompassing \\\"Names, addresses, phone numbers, fax numbers, e-mail addresses, and website addresses in the Company's client database(s), and any databases subsequently acquired or generated during my employment\\\" and \\\"Names, addresses, phone numbers, fax numbers, e-mail addresses, and website addresses of telemarketing leads and prospect lists.\\\" See Jet Spray Cooler, Inc., 361 Mass. at 840-41 (expectation that any information is to be kept confidential must be \\\"expressed or otherwise brought to the attention\\\" of the party expected to maintain the secrecy of such information).\\nHaving established its claims of conversion as to Bodden (as to the eight disputed loans) and Topdot (as to the Cetoute and Cooper loans), PCM has established the element of improper means on its claims for misappropriation. PCM's damages as to each defendant are the greater of its lost profits, or those of the defendant, resulting from the misappropriation (see above). See Diomed, Inc. v. Vascular Solutions, Inc., No. Civ.A.03-12498 RWZ, 2006 WL 516756, *1 (D.Mass. March 2, 2006); Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 11-12 (1980); Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159 (1979).\\nC. Interference with Contractual Relations/Advantageous Business Relationships (Count VII)\\n\\\"A defendant may be subject to liability if it intentionally and improperly interferes with an existing or prospective contract between a plaintiff and a third person by inducing or otherwise causing the third person not to perform the contract.\\\" Netherwood v. American Federation of States, County and Municipal Employees, Local 1725, 53 Mass.App.Ct. 11, 21 (2001), citing Restatement (Second) of Torts \\u00a7766-67 (1979). To prove interference with either contractual relations or advantageous business relations, the plaintiff has to prove that \\\"(1) he had an advantageous relationship with a third pariy (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.\\\" Blackstone v. Cashman, 448 Mass. 255, 260 (2007), citing Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001); see Netherwood, 53 Mass.App.Ct. at 21.\\nIn assessing whether interference with a contract is improper, the court considers the nature of the conduct, the motive, the interests of the party with which the conduct interferes, the interests sought to be advanced, the social interests in protecting freedom of action and the contractual interests, the proximity or remoteness of the conduct to the interference, and the relations between the parties. Restatement (Second) of Torts \\u00a7767; see Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass.App.Ct. 315, 319 (1995). In addition, there must be \\\"interference accompanied by improper motive or improper means; the plaintiff need not prove both.\\\" Kurker v. Hill, 44 Mass.App.Ct. 184, 191 (1998).\\n1. Topdot and Bodden's Interference with PCM's Customer Relations\\nPCM argues that Topdot and Bodden interfered with its customer relations or prospective customer relations by soliciting PCM's customers for business with Topdot and by using stolen documents to do so.\\na. Bodden\\nThe Court finds that PCM had advantageous relationships with eight of the customers of the disputed loans and Bodden knowingly induced a breaking of those relationships. Further, PCM was harmed by Bodden's actions because it lost the financial benefit of those loans. The question, then, is whether Bodden's actions were \\\"improper in motive or means.\\\" See Bourque v. Cape Southport Assocs., LLC, 60 Mass.App.Ct. 271, 278 (2004) (a party must demonstrate \\\"(s)omething more than intentional interference\\\"); Hunneman Real Estate Corp. v. Norwood Realty, Inc., 54 Mass.App.Ct. 416, 427 (2002) (there must be proof of improper conduct beyond the interference itself).\\nThe motive for Bodden's actions was clearly financial gain \\u2014 Bodden's compensation for closing loans at Topdot was roughly twice his commission at PCM\\u2014 and there is no evidence that Bodden desired to harm PCM. Motivation of personal financial gain is not enough to satisfy the improper interference requirement. King v. Driscoll 418 Mass. 576, 587 (1994); see United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 817 (1990) (where defendant's motives were to benefit his customers and himself financially and not to hurt the plaintiff, tortious interference claim could not be sustained); Adcom Products, Inc. v. Konica Business Machines USA, Inc., 41 Mass.App.Ct. 101, 105 (1995) (improper motive consists of a desire to harm the plaintiff).\\nThe improper means required to prove tortious interference must consist of a violation of a statute or the commission of a common-law tort, such as threats, misrepresentations, or defamation. United Truck Leasing Corp., 406 Mass. at 817. As noted above, PCM has established that Bodden's actions constituted improper means because he used stolen documents to solicit PCM's customers.\\nBodden's breach of fiduciary duty with regard to the Vasquez loan likewise constitutes improper conduct, but only as to that loan. Bodden breached a fiduciary duty to PCM when he closed Vasquez's loan for Topdot while he was still employed by PCM. This interference with Vasquez's relationship with PCM was committed by improper means. See Kurker, 44 Mass.App.Ct. at 191-92 (plaintiffs stated claim for tortious interference where they alleged that defendant's conduct amounted to a breach of fiduciary duty).\\nThe measure of damages in cases involving business torts such as interference with contractual relations entitles a plaintiff to recover full compensation for his lost profits or requires a defendant to surrender the profits which he realized from his tortious conduct. National Merchandising Corp. v. Leyden, 370 Mass. 425, 430-33 (1976); see Jet Spray Cooler, Inc., 377 Mass. at 169. Thus, PCM may recover from Bodden the greater of its lost profits for the disputed loans ($39,005), or the commissions Bodden received therefrom ($32,384).\\nb. Topdot\\nThe Court concludes that Topdot also knowingly induced interference with PCM's relationships with its prospective customers, but only as to the Cetoute and Cooper loans which closed after PCM informed Topdot that Bodden was wrongfully using confidential information he had stolen from PCM. Topdot failed to conduct any investigation after receiving that notice in or just after mid-July, ultimately adopting Bodden's denial of PCM's claims. Any reasonable investigation by Topdot would have revealed Bodden's actions. Because the Court concludes that Topdot knowingly and intentionally failed to investigate PCM's allegations, the Court concludes that Topdot's subsequent interference with PCM's relationships with Cetoute and Cooper was committed by improper means. See Hunneman Real Estate Corp., 54 Mass.App.Ct. at 427 (there must be proof of improper conduct beyond the interference itself).\\nTopdot received $6,010 in revenue from the Cetoute loan. After subtracting $995 in fees and the $3,009 commission to Bodden, the net to Topdot is $2,006. As to the Cooper loan, the same analysis yields $3,402 ($9,725 in revenue, less $995 in fees and the $5,328 commission to Bodden). Thus, PCM is entitled to recover from Topdot the greater of $5,408, the amount of Topdot's profit from its improper interference with PCM's relations with Cetoute and Cooper, or $12,279, the amount of PCM's own lost profits as to those customers.\\n2. Topdot's Interference with PCM's Contract with Bodden\\nBodden entered into the 2004 PCM Agreement, which contained a non-competition clause, and vio lated that clause through his employment at Topdot. Until July 26, 2006, Topdot had no knowledge that Bodden was violating the 2004 PCM Agreement, and thus cannot be said to have knowingly induced a breach of that agreement. After Topdot received the July 26 letter, however, Topdot improperly, and with full knowledge, participated in Bodden's closing of the Cooper loan on August 26. Thus, as to that loan only, Topdot's interference with Bodden's contract with PCM was, while not motivated by other than financial gain, see King, 418 Mass. at 587, \\\"improper in . . . means.\\\" Topdot is thus accountable to PCM for PCM's profit on that loan.\\nD. Violation of c. 93A, \\u00a72 & 11 (Count VI) 1. Bodden\\nClaims by an employer against its employee for breach of duty as an employee are not within the scope of chapter 93A. Second Boston Corp. v. Smith, 377 Mass. 918, 918 (1979); see Manning v. Zickerman, 388 Mass. 8, 15 (1983) (disputes arising out of the employment relationship between an employer and employee are not cognizable under chapter 93A). Further, in the circumstances of this case, the violation of a non-compete agreement by a former employee falls outside the scope of chapter 93A regardless of whether that violation occurs during or after the employment relationship, because disputes arising from employment agreements are not in \\\"trade\\\" or \\\"commerce.\\\" Informix v. Rennell, 41 Mass.App.Ct. 161, 162-63 (1996). Cf. Peggy Lawton Kitchens, Inc., 18 Mass.App.Ct. at 940. Thus, PCM's chapter 93A claim against Bodden fails.\\n2. Topdot\\nTopdot cannot be held liable under chapter 93A for Bodden's breach of the 2004 PCM Agreement. See Oceanair, Inc. v. Katzman, Civil No. 00-3342 (Suffolk Super. Ct. Jan. 22, 2002) (van Gestel, J.) [14 Mass. L. Rptr. 414] (former employer could not sue its former employee's current employer for a willful breach of a non-compete agreement under c. 93A because the claim arose from the employment relationship); Intertek Testing Servs. v. Curtis-Strauss, Civil No. 98-903 (Middlesex Super. Ct. Aug. 7, 2000) (Gants, J.). But see Professional Staffing Group v. Champigny, Civil No. 04-852A (Suffolk Super. Ct. Nov. 18, 2004) (Sikora, J.) (chapter 93A applied to a former employer's suit against its former employee's current employer for violation of a non-compete which occurred well after the termination of the employment relationship, and involved activity in the open marketplace, and not \\\"intra-employment conduct\\\").\\nIn addition, even though a company that assists a breach of an employee's fiduciary duty may be liable to his former employer under chapter 93A, see Augat, 409 Mass. at 172, PCM has only shown that Bodden breached a fiduciaiy duty as to the Vasquez loan; there is no evidence that Topdot induced Bodden to commit that breach as Topdot did not know that Bodden was still working for PCM at that time.\\nThere is evidence, however, that Topdot used improper means sufficient to support a tortious interference claim with respect to the Cetoute and Cooper loans (and, separately as to the Cooper loan, with respect to Bodden's agreement with PCM). The Court must now determine whether Topdot's actions were unfair or deceptive. \\\"The remedy of businessman against businessman of G.L.c. 93A, \\u00a711, may be invoked against an 'unfair method of competition' or 'an unfair or deceptive act or practice . . .' \\\" Doliner v. Brown, 21 Mass.App.Ct. 692, 696 (1986). As to \\\"unfair method of competition,\\\" a party would have to be engaged in a \\\"practice considered abusive of, or injurious to competition such as may be discerned in the theft of trade secrets, or in passing off, or in adjacent business torts.\\\" Id. at 696-97. In addition, \\\"[a]n act or practice is unfair within the meaning of G.L.c. 93A if it is: (1) within the penumbra of a common law, statutory, or other established concept of fairness; (2) immoral, unethical, oppressive, or unscrupulous; or (3) causes substantial injury to competitors or other business people.\\\" Morrison v. Toys \\\"R\\\" Us, Inc., 441 Mass. 451, 457 (2004).\\nTopdot's actions constituted a tortious interference with an advantageous business relationship. Thus, Topdot's actions were within a concept of unfairness established at common law. For this reason, the court concludes that Topdot's actions merit relief under G.L.c. 93A, \\u00a711. See Picciuto v. Dwyer, 32 Mass.App.Ct. 137, 139 (1992) (conduct constituting 'improper purpose or improper means' can certainly fall far below the acceptable level of fair dealing that chapter 93A was designed to promote). To merit multiple damages under G.L.c. 93A, \\u00a711, the unfairness or deception must be willful or knowing. Willful implies not only intent to do an act, but also intent that the act be unfair or deceptive. See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 627 (1978). Both intent to do an act and intent that the act be unfair are elemental to tortious interference with a contractual or advantageous business relationship. Having concluded that Topdot's actions were willful and intentional, the Court concludes also that the damages awarded should be doubled, from $12,279 (i.e., the greater of the amounts of damage to PCM against Topdot on the claims of tortious interference) to $24,558. G.L.c. 93A, \\u00a711. In addition, PCM is entitled to an award of reasonable attorneys fees and costs. Id.\\nIII. Topdot's Cross Claim against Bodden\\nOn November 27, 2007, this court (Fabricant, J.) allowed Topdot's unopposed motion for summary judgment against Bodden regarding indemnification. Thus, Bodden must indemnify Topdot from any liability resulting from any dishonest or fraudulent act of Bodden.\\nIn view of the above findings and rulings, the Court concludes that the liability which Bodden must indemnify is any liability to which Topdot was exposed prior to mid-July of 2006, i.e., before Topdot received actual notice that Bodden had misappropriated PCM's customer documents. After Topdot received notice of Bodden's wrongdoing, it was in a position to take steps to end any resulting harm to PCM. As also found above, the only liability to which Topdot is exposed in this case is that which it incurred through its knowing conduct after mid-July. Accordingly, Topdot has not proved that it is subject to any liability as to which Bodden is required to provide indemnification.\\nIV. Topdot's Counterclaim against PCM\\nAs stated above, there is no evidence that \\\"People's Choice Home Loan, Inc.\\\" is connected to PCM in any manner.\\nTo the extent that the parties' respective requests for findings and rulings are contrary to the foregoing, they are denied.\\nORDER FOR JUDGMENT\\nUpon consideration of the foregoing findings and rulings, it is hereby ORDERED that judgment as to plaintiff PCM's complaint shall enter as follows.\\nCount I: For PCM on its Breach of Contract claim against defendant Bodden in the amount of $39,005.\\nCount II: For PCM on its Breach of the Covenant of Good Faith and Fair Dealing claim against Bodden in the amount of $39,005.\\nCount III: For PCM on its Breach of Fiduciaiy Duty claim against Bodden in the amount of $3,488.\\nCount IV: For PCM on its Conversion claim against Bodden in the amount of $39,005, and against defendant Topdot in the amount of $12,279.\\nCount V: For PCM on its Misappropriation of Confidential Information claim against Bodden in the amount of $39,005, and against Topdot in the amount of $12,279.\\nCount VI: For Bodden on PCM's Violation of chapter 93A claim, and for PCM on its Violation of chapter 93A claim against Topdot in the amount of double damages totaling $24,558. In addition, PCM is entitled to an award of reasonable attorneys fees and costs against Topdot, and may serve and file a motion therefor together with supporting affidavit.\\nCount VII: For PCM on its Interference with Advantageous Business Relationships claim against Bodden in the amount of $39,005, and against Topdot in the amount of $12,279.\\nWith respect to defendant Topdot's counterclaim against PCM, it is further ORDERED that judgment shall enter for PCM.\\nWith respect to defendant Topdot's cross claim against defendant Bodden, it is further ORDERED that judgment shall enter for Bodden.\\nPCM charges Bodden with breach of contract (Count I), breach of the covenant of good faith and fair dealing (Count II), and breach of fiduciaiy duty (Count III), and charges both defendants with conversion (Count IV), misappropriation of confidential information (Count V), violation of c. 93A, sec. 2 and 11 (Count VI), and interference with advantageous business relationships (Count VII).\\nThe latter table sets out the date the loan was \\\"funded,\\\" which for a residential loan lags the closing date by several days (compare, e.g., 4/14/2006 funding date for the Vasquez loan appearing on Ex. 23 with the undisputed closing date\\u2014 \\\"on or about April 10, 2006\\\" \\u2014 in PCM proposed finding no. 143). The Court will therefore select, as the \\\"on or about\\\" closing date of a disputed loan, that business day which precedes the loan's funding date by an intervening three full business days.\\nBodden places the date in August. Answer to Interrogatory No. 13.\\nBodden places the date in May. Answer to Interrogatory No. 13.\\nBodden places the date in June. Answer to Interrogatory No. 13.\\nPCM states that it \\\"is proceeding on a disgorgement theory of damages against the defendants.\\\" Joint Pre-Trial Memorandum, at 6; see PCM's \\\"Memorandum of Law for Trial,\\\" at 15-16. While PCM offers authority for that measure of damages as to other counts, see discussion below, it offers no authority for any but the traditional measure of damages on a breach of contract claim.\\nAlthough the Court has found that Bodden did not violate his contract with regard to the Quintana loan, the amount of that loan would presumably have been included in Bodden's monthly total at PCM in determining his commission rate for that month.\\n\\\"When an employee has executed an enforceable non-compete agreement with his current employer, the 'active steps' an employee may take to prepare for competition may constitute a prelude to a breach of that non-compete agreement but they do not constitute a breach of fiduciary duty. Consequently the line that divides permissible preparation from a breach of fiduciary duty is the same for an employee regardless of whether or not he has entered into a non-compete agreement.\\\" National Economic Research Ass'n v. Evans, Civil No. 042618BLS1 (Suffolk Super. Ct. Sept. 10, 2008) (Gants, J.) [24 Mass. L. Rptr. 436].\\nThere are three interference torts: (1) intentional interference with the performance of a contract by a third person, see Restatement (Second) of Torts \\u00a7766; (2) intentional interference with another's performance of his own contract, see Restatement (Second) of Torts \\u00a7766A; and (3) intentional interference with prospective contractual relations, see Restatement (Second) of Torts \\u00a7766B. The Supreme Judicial Court has \\\"not consistently distinguished\\\" interference torts. Blackstone v. Cashman, 448 Mass. 255, 255 n.9 (2007), citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815 n.6 (1990).\\nAs discussed above, Quintana was a long-time friend of Bodden's and the Court finds that Quintana was a prospective customer of Bodden's not PCM's. Cf. Owen v. Williams, 322 Mass. 356, 361-62 (1948) (\\\"It is well settled that an existing or even a probable future business relationship from which there is a reasonable expectancy of financial benefit is enough\\\" to maintain an action for interference with advantageous business relationships).\\n\\u2022'As already noted, a motive of financial gain, standing alone, is not sufficient; companies regularly solicit customers from their competitors in an effort to increase their business. See Doliner v. Brown, 21 Mass.App.Ct. 692, 695 (1986) (\\\"A competitor may 'interfere' with another's contractual expectancy by picking the deal off for himself, if, in advancing his own interest, he refrains from employing wrongful means\\\").\"}"
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+"{\"id\": \"748992\", \"name\": \"Arthur I. Connell vs. Clarissa E. Sokoll\", \"name_abbreviation\": \"Connell v. Sokoll\", \"decision_date\": \"1924-01-02\", \"docket_number\": \"\", \"first_page\": \"203\", \"last_page\": \"207\", \"citations\": \"247 Mass. 203\", \"volume\": \"247\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:35:48.934401+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arthur I. Connell vs. Clarissa E. Sokoll.\", \"head_matter\": \"Arthur I. Connell vs. Clarissa E. Sokoll.\\nBristol.\\nOctober 23, 1923.\\nJanuary 2, 1924.\\nPresent: Rugg, C.J., Braley, DeCourcy, & Pierce, JJ.\\nProbate Court, Framing of jury issues. Will, Validity.\\nOn an appeal by one nominated as the executor in a will from a decree allowing a motion by one contesting the proof of the will for the framing of jury issues, where it appears that the motion was heard upon statements by counsel for the contestant of what he expected to prove at the trial of the issue, the decree ordinarily will not be reversed if it is supported by the statements of expected proof.\\nA motion, made by one contesting the proof of a will, for the framing of an issue to be tried by a jury as to whether or not the alleged testator was of sound mind when the instrument offered for proof was executed, was heard upon statements by counsel for the contestant of what he expected to prove, and was allowed. Material facts so offered in proof were, that the alleged testator\\u2019s wife had died nearly five years before the will was made, and that even before that time a decidedly noticeable change had come over the attitude and actions and apparent mental processes of the alleged testator, he becoming morose and sullen with his family, subject to violent fits of anger, and ugly to his wife; that, by the alleged will, the contestant, a daughter of the alleged testator, was disinherited, and that in the alleged will he denominated her as \\u201c unfilial \\u201d and gave reasons for such disinheritance which were unfounded in fact and due to delusions and monomania with respect to money matters and to the contestant\\u2019s marriage; that the alleged testator had handled the contestant\\u2019s share of her mother\\u2019s property as if it were his own, made inadequate allowance to the contestant, and had failed to make an accounting until she employed an attorney to compel an accounting; that the alleged testator insisted that the contestant was too young to marry, although she was twenty-four years of age and well educated and the man whom she intended to marry was of ability and good habits and the alleged testator at one time had assented to the marriage. Held, that the allowance of the motion was warranted.\\nA motion for the allowance of an issue presented by the contestant in the circumstances above described, whether the alleged will was procured to be executed by undue influence of two sisters of the alleged testator or of either of them, was allowed after being heard upon statements by counsel for the contestant offering to prove, besides the facts described above, numerous instances indicating that in matters relating to the management of his home, to the clothing and conduct of his daughter, the contestant, and to her marriage, he was controlled by the continuous and increasing influence of the sisters; that this culminated in the daughter\\u2019s leaving home; that when she was about to be married the alleged testator and the sisters, with whom he then was living, refused to attend the wedding and wrote similar letters to the contestant referring to her \\u201c unloving demeanor \\u201d and \\u201c cruel treatment.\\u201d Held, that the allowance of the motion for the framing of the issue was warranted.\\nPetition, filed on February 14, 1923, in the Probate Court for the county of Bristol, for proof of the will of Charles W. Connell, late of Fall River, and the appointment of the petitioner as executor.\\nClarissa E. Sokoll, a daughter and the sole next of kin of the alleged testator, opposed the petition and made a motion for the framing of the following jury issues:\\n\\u201c 1. Was the instrument purporting to be the last will of said Charles W. Connell, dated January 29,1920, executed according to law?\\n\\u201c 2. Was the said Charles W. Connell at the time of the execution of the said alleged will of sound mind?\\n\\u201c 3. Was the execution of said alleged will of said Charles W. Connell, procured by the fraud or undue influence of Arthur I. Connell, Sarah J. Connell, Harriet E. Connell and William A. Connell or any of them, exercised upon the said Charles W. Connell? \\u201d\\nThe motion was heard by Hitch, J., upon statements by counsel of what the respondent expected to prove. Material facts are described in the opinion. The judge allowed the motion. The petitioner appealed.\\nA. E. Seagrave, (C. L. Baker with him,) for the petitioner.\\nJ. M. Swift, for the respondent.\", \"word_count\": \"1531\", \"char_count\": \"8805\", \"text\": \"DeCourcy, J.\\nThis is an appeal from the order of the Probate Court directing issues for a jury trial. The testator, Dr. Charles W. Connell, died on February 7, 1923, leaving as his only heir at law and next of kin his daughter Clarissa E. Sokoll, the contestant. By his will, dated January 29, 1920, he gave all his property to his brother Arthur I. Connell as trustee; the income to go to the said brother and his sisters Sarah J. and Harriet E. Connell, and the survivor of them; and on the death of the survivor, the principal to go to his nephew William A. Connell. The will states \\\" I have not given or devised any of my property to my daughter, Clarissa, because of her unfilial conduct and because in my opinion she is possessed of all the property that she can wisely use.\\\" It further provides that if she should be in need during the continuance of the trust, the trustee might provide her \\\" with such necessities as he shall deem sufficient.\\\" The issues framed relate to the testator's soundness of mind, and to the exercise of undue influence by his said two sisters.\\nIn the Probate Court the motion for jury issues was heard on statements by counsel of what he expected to prove. The question is before us on appeal substantially as it was before the Probate Court, except that, by reason of the element of discretion involved in the action of the judge of probate, his order respecting the framing of issues ordinarily will not be reversed where it is supported by the statements of expected proof. Fuller v. Sylvia, 240 Mass. 49. Cook v. Mosher, 243 Mass. 149. Clark v. McNeil, 246 Mass. 250.\\nIt would serve no useful purpose to recite the statement in detail. On the issue of soundness of mind the indicated evidence was that even before his wife died (April 13, 1915) \\\" a decidedly noticeable change came over the attitude and actions and apparent mental processes of Dr. Connell; he became a morose man, sullen with his family, subject to violent fits of anger; at times uncontrollable outbursts of passion, ugly to his wife, so that she stated she was afraid of him, and afraid to cross his wishes, . . . 'and stated she was afraid to ask her sister to the house because of the way in which the husband would treat her about it.\\\" With reference to the alleged reasons for disinheriting her, the contestant offered proof tending to show that they were unfounded in fact, and due to delusions or monomania with reference to money matters, and to her marriage. As to money matters, the offer deals with the testator's handling of his daughter's share of her mother's property, as if it were his own; his inadequate allowance to her; and his failure to make any accounting until she employed an attorney to compel him to do so. With reference to the marriage, it deals, among other things, with his insistence that she was too young to marry, although more than twenty-four years of age, and well educated; and the fact that the young man she married was known by the testator to be one of ability and good habits. To characterize her conduct as \\\" unfilial \\\" because she married the man she loved, after her mother had approved of him, and the testator himself at one time had assented to the proposed marriage, is claimed by the contestant to be so irrational and unjustifiable as to indicate an insane delusion on his part, operating to cause him to disinherit his only child.\\nThe alleged facts bearing on the issue of undue influence, in addition to some already referred to, are numerous instances indicating that in matters relating to the management of his home, to the clothing and conduct of his daughter, and to her marriage, he was controlled by the continuous and increasing influence of his two sisters. This culminated in her leaving home. And when she was about to be married, the testator and his sisters, with whom he then was living, refused to attend the wedding, and wrote similar letters to her, referring to her \\\" unloving demeanor \\\" and \\\" cruel treatment.\\\"\\nWhile the inferences'sought to be drawn from the proposed evidence1 may be overcome by evidence showing that the provisions of the will were justified, and were dictated by a free and sound mind, we cannot say there is not disclosed \\\" a genuine and doubtful question of fact to be decided,\\\" and one \\\" supported by evidence of a substantial nature.\\\" Fuller v. Sylvia, 240 Mass. 49, 53. Raposa v. Oliveira, ante, 188, and cases cited.\\nDecree affirmed.\"}"
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+"{\"id\": \"762431\", \"name\": \"Commonwealth vs. Daniel Green and another\", \"name_abbreviation\": \"Commonwealth v. Green\", \"decision_date\": \"1884-12-06\", \"docket_number\": \"\", \"first_page\": \"200\", \"last_page\": \"204\", \"citations\": \"138 Mass. 200\", \"volume\": \"138\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:17:59.217196+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. Daniel Green and another.\", \"head_matter\": \"Commonwealth vs. Daniel Green and another.\\nBristol.\\nOct. 28.\\nDec. 6, 1884.\\nC. Allen & Colburn, JJ., absent.\\nIn an action on a recognizance to prosecute an appeal, an allegation that the defendant did not appear, but made default, sufficiently alleges a breach.\\nIn an action on a recognizance to prosecute an appeal, the declaration alleged the entering into of the recognizance ; that the recognizance was \\u201cnow on file and of record \\u201d in the appellate court; and that the defendant, while the matter was before that court, did not appear, but made default. Held, that an objection that the declaration did not show that the recognizance was on file in the appellate court at the time of the default, could be taken advantage of only on demurrer.\\nA declaration on a recognizance to prosecute an appeal which alleges that the recognizance is \\u201cnow on file and of record\\u201d in the appellate court, sufficiently alleges that it was duly returned and entered there.\\nA recognizance given to the Commonwealth, to prosecute an appeal, by a person held under a complaint in a criminal case, showed that it was taken upon an appeal from the judgment of a district court, and that this was the cause of its taking; the court before which he was bound to appear and answer; and the authority of the court taking it. Held, that this was sufficient.\\nContract against Daniel Green and Clark Green. The declaration was as follows: \\u201c And the plaintiff says that the said Daniel Green, on the nineteenth day of July, A. d. 1881, being then legally in custody upon a warrant duly issued, after complaint in due course of law, by Thomas J. Cobb, Esq., a justice of the peace within and for the county of Bristol and who is also clerk of the Third District Court of Bristol in said county, was lawfully required to enter into recognizance to the Commonwealth, with sureties, in the sum of eight hundred dollars, for his personal appearance before said court to answer to said complaint, which charged the said Daniel Green with the offence of keeping a liquor nuisance. And thereupon, before the Third District Court of Bristol, on the nineteenth day of July, A. D. 1881, the said Daniel Green as principal, and Clark Green as surety, entered into such recognizance before said Third District Court of Bristol, duly authorized by law to take such recognizance, which recognizance is now on file and of record in said Superior Court, a copy of which is to be produced in this case. And afterwards, on the sixteenth day of Sep' tember, A. D. 1881, and while said complaint was still pending in said Superior Court, and while the said Daniel Green was lawfully required to appear and answer to the same, the said Daniel Green, being solemnly called to come into court and answer thereto, did not appear, but made default, which default was then duly entered of record in said Superior Court. And the defendants owe the plaintiff the sum of eight hundred dollars by reason of the premises.\\u201d\\nThe declaration was afterwards amended, by leave of court, by substituting, after the word \\u201c appearance,\\u201d instead of the words \\u201c before said court,\\u201d the words \\u201cbefore the Superior Court next to be holden at Taunton, within and for the county of Bristol, on the first Monday of September then next following; \\u201d and by striking out the word \\u201c sureties \\u201d and substituting therefor the word \\u201c surety.\\u201d\\nAnswer, a general denial.\\nTrial in the Superior Court, without a jury, before Q-ardner, J., who allowed a bill of exceptions, in substance as follows:\\nThe plaintiff offered the recognizance in evidence and rested its case. The recognizance, which was dated July 19, 1881, contained the following recitals:\\n\\u201c Whereas the said Daniel Green has this day been duly brought before the said district court, by virtue of a warrant duly issued upon the complaint of one Isaac B. Tompkins, of New Bedford, in the county of Bristol, wherein said complainant upon oath says that said defendant, at said New Bedford, in said county, on the first day of May, A. r>. 1881, and on divers other-days and times between that day and the day of the date of receiving this complaint, did keep and maintain a certain tenement which was then and there used for the illegal sale and illegal keeping of intoxicating liquors; whereby, and by force of the statute in such case made and provided, the said tenement then and there kept and maintained by the said Daniel Green, and then and there used as aforesaid, was then and there a common nuisance; to the great injury and common nuisance of all the peaceable citizens of said Commonwealth there residing, inhabiting, and passing. Against the peace and dignity of said Commonwealth, and contrary to the form of the statute in such case made and provided.\\n\\u201c And said defendant, having appealed from the judgment of said court, rendered upon said complaint, was thereby duly ordered by the said district court to recognize as aforesaid for his appearance before the justices of the Superior Court, at a term of said Superior Court next to be holden at Taunton, within and for the county of Bristol, on the first Monday of September next, then and there to answer to the said complaint and accusation, and abide the order of said Superior Court thereon.\\u201d\\nThe condition of the recognizance was, that the defendant should appear \\u201c at the term of said Superior Court to be holden as aforesaid,\\u201d and to abide the final order of the court.\\nThe defendants asked the judge to rule that the action could not be maintained, for the following reasons: \\u201c 1. Because no copy of said recognizance was set forth in the writ, and no condition declared on agreeably to the provisions of the practice act. 2. Because the declaration did not declare the recognizance to be of record of the court at the default, or that it bad ever been returned and entered in the Superior Court, or that the Superior Court had jurisdiction of the case, to wit, of the criminal cause, at the time of the default. 3. Because it does not appear from the recognizance itself that it was given by any competent court; it does not appear to be sufficient, nor does it show any cause for the taking thereof, or any jurisdiction in the person or court assuming to take it; and it is so defective and insufficient that no cause of action has accrued thereon, or can be maintained thereupon.\\u201d\\nThe judge refused so to rule, and found and ordered judgment for the plaintiff for the full amount of the recognizance; and the defendants alleged exceptions.\\nE. L. Barney, for the defendants.\\n1. The recognizance, not having been set out nor declared on, nor any breach stated, ought not to have been admitted in evidence. Pub. Sts. c. 167, \\u00a7 2, cl. 10. 2. A recognizance must be alleged to be of record, and duly returned and filed in court, at the date of the alleged default or breach; and it must be alleged that the court had jurisdiction of the case at the time of the default or breach, and that the court taking the recognizance had jurisdiction and authority to take it with its conditions. Tarbell v. Gray, 4 Gray, 444. Patterson v. Goldsmith, 9 Gray, 258. Pierce v. Gray, 11 Gray, 377. 3. The recognizance itself must show that the court had jurisdiction to take it, and the cause of taking. See cases cited above. 4. The recognizance is defective in that it does not show any plea or hearing, or any trial, conviction, or judgment in the District Court. All that- the recognizance shows is, \\u201cthat Daniel Green was brought before the District Court,\\u201d that, \\u201c having appealed from the judgment of said court,\\u201d he was ordered to recognize, &c. It does not even appear to what court he appealed, or from what judgment.\\nE. J. Sherman, Attorney General, for the Commonwealth.\", \"word_count\": \"1911\", \"char_count\": \"10862\", \"text\": \"Devens, J.\\nThe recognizance declared on was carefully and accurately drawn. In view of the fact that the plaintiff's declaration was amended by leave of court, it is somewhat peculiar that it was not so amended as to follow the well-established forms in such cases, and to obviate such objections as are here made. Whatever might have been the result had these objections been made by demurrer, they cannot prevail when made only at the trial.\\n1. The legal effect of the recognizance was stated, and a copy was referred to, to be produced. It was averred to be a recognizance for the personal appearance of Green before the Superior Court, &c., to answer to. the complaint charging him with the offence of keeping a liquor nuisance, and a breach was alleged in failing so to appear and answer. His default was a breach of the condition, and this fixed the liability of his sureties. Pub. Sts. c. 167, \\u00a7 2, cl. 9, 10. Commonwealth v. Slocum, 14 Gray, 395. Commonwealth v. Dowdican's Bail, 115 Mass. 133, 137. If the defendant intended to rely on the fact that the declaration does not show that the recognizance was actually on file at the time of the default, this should have been taken by demurrer. As the defendant was called and the default recorded, and this appears by the declaration, it can be shown by the record that this was correctly done after the recognizance was on file. Capron v. Anness, 136 Mass. 271.\\n2. While it is usual to state that the recognizance was duly returned and entered, as well as that it is on file in the Superior Court and of record there, yet, the latter allegation being made, it is to be implied that it was duly returned and entered. Had it not been so, it would not have been made of record there, which is the important thing to allege and prove. Tarbell v. Gray, 4 Gray, 444. Patterson v. Goldsmith, 9 Gray, 258. Pierce v. Gray, 11 Gray, 377.\\n3. The jurisdiction of the Third District Court of Bristol to take the recognizance was distinctly alleged in the declaration, and we must take judicial notice of the fact that the Superior Court has jurisdiction of the offence with which Green was charged, and to meet which charge he recognized to appear and answer.\\n4. The recognizance itself showed that it was taken upon an appeal from the judgment of the District Court, and that this was the cause of its taking; the court before which he was bound to appear and answer; and the authority of the court taking it. This was sufficient. The earlier cases seem to have required a strictness which has not prevailed since the Rev. Sts. c. 135, \\u00a7 30, reenacted in the Gen. Sts. c. 170, \\u2022\\u00a7 49, and in the Pub. Sts. c. 212, \\u00a7 63, which provide that no judgment shall be barred or defeated, or judgment thereon arrested, by reason of any omission to note or record the default at the time it may happen, nor by reason of any defect in the form of the recognizance, if it sufficiently appears at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to take such recognizance. Commonwealth v. Nye, 7 Gray, 316.\\n.Exceptions overruled.\"}"
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+"{\"id\": \"768451\", \"name\": \"Charles Faulkner & others vs. Michael Hyman & others, & trustees\", \"name_abbreviation\": \"Faulkner v. Hyman\", \"decision_date\": \"1886-05-11\", \"docket_number\": \"\", \"first_page\": \"53\", \"last_page\": \"56\", \"citations\": \"142 Mass. 53\", \"volume\": \"142\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:18:42.320485+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Faulkner & others vs. Michael Hyman & others, & trustees.\", \"head_matter\": \"Charles Faulkner & others vs. Michael Hyman & others, & trustees.\\nSuffolk.\\nMarch 15.\\nMay 11, 1886.\\nW. Allen & Holmes, JJ., absent.\\nAn assignment of property, executed in another State, by a debtor domiciled there, for the benefit of his creditors, which is valid by the law of that State, but is invalid by the law of this Commonwealth, because not executed or assented to by the creditors, will not be upheld in this Commonwealth, as against attaching creditors of the assignor constituting a partnership, although some of such creditors are domiciled in the State where the assignment was executed, and where the firm has a place of business, and some in another State, the others being domiciled and the firm having its usual place of business here.\\nTrustee process. The Superior Court ordered judgment for the plaintiffs, as against 'the claimant of the funds in the hands of the trustees, and that the trustees be charged; and the claimant appealed to this court. The facts appear in the opinion.\\nJ. J). Ball, for the claimant.\\nA. E. Pittsburg, for the plaintiffs.\", \"word_count\": \"1337\", \"char_count\": \"7695\", \"text\": \"Deyens, J.\\nThe plaintiffs, on December 24, 1884, attached, as property of the principal defendants, certain debts due to them from persons in this Commonwealth named in the writ as trustees. Prior to this attachment, the defendants had, on December 20, 1884, assigned to the claimant all the property of their copartnership by a description sufficiently general to include these claims, in trust to pay certain preferred debts in full, and afterwards to pay their remaining debts proportionally to their respective amounts, so far as the residue should suffice for that purpose. The assignment was made in the city of New York by the defendants, who were residents and carried on business there, to the claimant, also a resident there. It is conceded that it was recorded there on December 22, 1884, and that it is in all respects valid by the laws of the State of New York.\\nThis assignment was not executed or assented to by any of the creditors named therein, or any other creditors of the principal defendants for whose benefit it purports to have been executed. The claimant contends that, even if the plaintiffs could be deemed a Massachusetts partnership doing business solely in this Commonwealth, the assignment would be valid against them. The law of any State has no force or effect proprio vigore beyond its territorial limits. Whatever extra-territorial vitality it may-have is owing to the comity which should prevail between different states or nations. That comity does not require that it should be executed when it would be against the public policy of the State where the remedy is sought, or would be injurious to the just interests of its citizens. It certainly would be unjust to creditors residents of this State, if they were to be deprived of the benefit of an attachment they had lawfully made, or other lien they had lawfully acquired, on the property of their debtors here situate, by an assignment which, if made here between citizens, would be inoperative for want of compliance with legal requisitions, even if such assignment was valid in the State where it was made, and sufficient to transfer property under its control. Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139. Dehon v. Foster, 4 Allen, 545. Cunningham v. Butler, ante, 47.\\nIt has repeatedly been held in this Commonwealth, and by a long series of decisions, that a voluntary assignment in trust for the benefit of creditors, the only consideration of which is the acceptance of the trust by the assignee, is invalid against an attachment, except so far as assented to by creditors, in which case, being good at common law, it will protect the property from attachment to the extent of the amount due the creditors thus assenting. This, for the reason that there is no adequate consideration unless with the assent of creditors, without which no insolvent debtor should be allowed so to dispose of his property as to place it beyond their reach. It has further been held, that such assent is not to be presumed, but must be shown by some affirmative act, such as presenting claims, accepting a dividend, or distinctly becoming a party to the written assignment. May v. Wannemacher, 111 Mass. 202, 209. Swan v. Crafts, 124 Mass. 453. Pierce v. O'Brien, 129 Mass. 314. The rule in Massachusetts on this subject appears to us to rest upon a sound reason. The earliest case on the matter is that of Widgery v. Haskell, 5 Mass. 144. This has been repeatedly affirmed, and we see no reason for changing it in view of decisions made elsewhere, as we are urged to do by the claimant.\\nBut if the assignment made in New York would be inoperative against the plaintiffs if they were residents of Massachusetts, it is urged that they must be dealt with as if they were all residents of New York. By the writ, it appears that four of the plaintiffs are citizens of Massachusetts, two of New Jersey, and one of New York, having their usual place of business in Boston. The claimant alleges that \\\"several\\\" of the partners are residents of New York, but does not deny that several are citizens and residents of Massachusetts. Nor do his allegations deny that the usual place of business of the plaintiffs is in Boston, although it is asserted that they have a place of business in New York, where the indebtedness was contracted.\\nA partnership is not a legal entity, having, as such, a domicil, although for purposes of taxation and for similar purposes it may be treated by statute as having a locality. Ricker v. American Loan Trust Co. 140 Mass. 346. Nor does the allegation of the claimant undertake to establish its situs in New York. The allegation that the firm has a place of business in New York is entirely consistent with its having its principal place of business in Boston. The right of the plaintiffs to recover cannot be defeated upon the ground that their firm, as such, is to be treated as if it had solely a residence in New York. It must be determined what the rights of the plaintiffs are, in view of the fact that some of them are citizens of New York, and others of Massachusetts and New Jersey. If some of the plaintiffs would be precluded from holding the assigned property by attachment, as against the assignment, it is urged that all are necessarily so. If a suit were brought by New York creditors alone, it may be that they could not be heard to deny the validity of the assign: ment, because, as citizens of that State, they would be bound by its laws, even here. May v. Wannemacher, ubi supra. If brought by Massachusetts creditors alone, it is equally true, as the assignment is not valid by the law of this Commonwealth, that the attachment would prevail. All the partners are necessarily compelled to join in the action, and the New York plaintiffs are under no disability to sue here. The principle of comity cannot require us to enforce a foreign law, differing from our own, against the just rights of our own citizens, and to their prejudice, because, if we fail so to do, the residents of another State would incidentally obtain a benefit which they could not otherwise obtain. It cannot be required of us to deny our own citizens their lawful rights, for the sake of denying to residents of New York that which we could not accord them except by reason of our respect to the legislation of another State of which they are residents, if they had brought suit alone. Considering the fact that the other plaintiffs are residents of Massachusetts, the fact that some are residents of New York places us under no duty to enforce the New York law on the subject of assignments.\\nJudgment for the plaintiffs affirmed.\"}"
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+"{\"id\": \"768535\", \"name\": \"Elias F. Peck vs. Benjamin F. Clark\", \"name_abbreviation\": \"Peck v. Clark\", \"decision_date\": \"1886-10-21\", \"docket_number\": \"\", \"first_page\": \"436\", \"last_page\": \"441\", \"citations\": \"142 Mass. 436\", \"volume\": \"142\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:18:42.320485+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elias F. Peck vs. Benjamin F. Clark.\", \"head_matter\": \"Elias F. Peck vs. Benjamin F. Clark.\\nBerkshire.\\nSept. 15.\\nOct. 21, 1886.\\nDevens, W. Allen, & C. Allen, JJ., absent.\\nIn an action for the conversion of the waters of a spring, it appeared that the plaintiff owned the right, reserved by the grantor in a deed of land, of \\u201c the spring of water on said premises; \\u201d and that a stream of water running on the land was the outlet of a spring a short distance off on the- adjoining land, and was finally lost in the ground. The plaintiff\\u2019s evidence tended to show that there was no other spring; and he introduced the evidence of persons who had long lived in the vicinity of the stream and known of it, that it was called a spring. Held, that this evidence was admissible.\\nIn an action for the conversion of the waters of a spring, it appeared that the plaintiff owned the right, reserved by the grantor in a deed of land, of \\u201c the spring of water on said premises ; \\u201d and that a stream of water running on the land was the outlet of a spring a short distance off on the adjoining land, and was finally lost in the ground. The plaintiff offered in evidence the declarations of his deceased grantor, made on the land when he conveyed to the plaintiff, that he intended to carry this stream of water off the land, and that he called it a spring. Held, that this evidence was inadmissible.\\nIn an action for the conversion of the waters of a spring, it appeared that the plaintiff owned the right, reserved by the grantor in a deed of land, of \\u201c the spring of water on said premises ; \\u2019\\u2019 and that a stream of water running on the land was the outlet of a spring a short distance off on the adjoining land, and was finally lost in the ground. The grantee of the land testified for the plaintiff that there was no other water or spring on the land at the time lie purchased it, or during his ownership, than this little stream of water; and that he understood, at the time he purchased, that this stream was the water reserved in the deed to him. Held, that the defendant had no ground of exception to the admission of this evidence.\\nIf a deed of land reserves to the grantor, his heirs and assigns, \\u201cthe spring of water on said premises, and the right to lay down, repair, and rebuild aqueduct and pipe, and convey said water off from said premises, together with the right to fix said spring and do any other act or thing necessary for taking off said water,\\u201d and a grantee of the land subject to the reservation puts in an aqueduct, which diverts the water continuously, an owner of the right reserved to the grantor is entitled, in an action against such grantee for an interference with his rights, at least to nominal damages.\\nAt the trial of an action for the conversion of the waters of a spring, by means of an aqueduct, if the ruling of the judge requires the jury to find that the defendant put in the aqueduct and withdrew the water without the plaintiff\\u2019s consent, the defendant is not entitled, after the charge to the jury is finished, to single out particular circumstances tending to show consent, and require the judge to comment on them specially.\\nTort for the conversion of the waters of a spring, and for interfering with the plaintiff\\u2019s right to use the same. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions, in substance as follows:\\nThe' plaintiff, 'by mesne conveyances, owns the rights reserved in a deed of Charles F. Benton to Jane M. Darby, dated March 1, 1867, by which Benton conveyed to Darby a certain parcel of land in Great Barrington, \\u201c reserving to myself, my heirs and assigns, the spring of water on said premises, and the right to lay down, repair, and rebuild aqueduct and pipe, and convey said water off from said premises, together with the right to fix said spring and do any other act or thing necessary for taking off said water.\\u201d The plaintiff\\u2019s deed was dated April 9, 1869. On March 29, 1877, Jane M. Darby, by her deed, conveyed the Darby lot, subject to said reservation, to the defendant ; and the defendant owned the premises subject to said reservation until June 15, 1882, when he conveyed said lot to one Shepard, and Shepard conveyed to John E. Rogers, who owned the Darby lot under said conveyance, subject to the reservation in Benton\\u2019s deed, at the time of the trial. The defendant, soon after he obtained his deed of Jane M. Darby, in the spring of 1877, and while he owned the Darby lot, dug a ditch on and from the Darby lot northerly to a highway, and thence easterly to another highway, and thence northerly on said last-named highway to his dwelling-house, and laid down therein logs and carried water from the stream of water on the Darby lot to his dwelling-house., About a year after said logs were laid, the plaintiff laid a pipe joined to said logs at the junction of said highways to a place in the highway in front of his house, by an understanding between him and the defendant, and took water through said pipes to his premises for two\\\" or three years; and sometimes, when the water was low and did not run down as far as said junction, the plaintiff would go up to the Darby lot and get water from a penstock put into the defendant\\u2019s logs.\\nAt the time of Benton\\u2019s deed to Jane M. Darby, and ever since, there was running from the premises situate south of and \\u2022above the Darby lot a small stream of water, having its rise on land of one Comstock, about one hundred rods south of the south line of the Darby lot, which ran northerly to the Darby lot and down on said lot ten rods, more or less, sometimes disappearing and then reappearing; but it could be heard running under the rocks and stones, and it was finally lost by running into the sandy or gravelly land, and there wholly disappeared. Said stream had never been known to be wholly dried up, and was, at its largest condition, about three inches wide, but in the summer season it would about fill an inch pipe. Whatever the defendant did with the water, he did while he was owner of the soil, or under direction of Rogers at the time when Rogers owned it.\\nThe plaintiff contended that \\u201c the spring of water\\u201d named in the reservation in Benton\\u2019s deed, and under which he claimed, meant said stream of water; and he introduced the evidence of persons who had long lived in the vicinity of the stream and known of it, that it was called a spring. To this evidence the defendant objected as being incompetent, but the judge admitted it.\\nThe plaintiff offered evidence to prove the declarations of Henry H. Peck, now deceased, the grantor of the plaintiff, made on the Darby lot when he conveyed it to the plaintiff. The defendant objected to this evidence; but the judge allowed the witness to state that Henry H. Peck said that he intended to carry this stream of water off the Darby lot, and that he called it a spring in speaking of it. The plaintiff also called Jane M. Darby, who testified, against the defendant\\u2019s objection, that there was no other water or spring on the Darby lot at the time she purchased said lot, or during the time she owned it, than this little stream of water; and that she understood, at the time she purchased, that this' little stream of water was the water reserved by Benton in his deed to her. The defendant excepted to the rulings of the judge' admitting this evidence, and further contended that the language in the reservation was not ambiguous, and should be interpreted and construed by the court, and not left to the jury under such evidence, or any evidence; but the judge ruled that it should be submitted to the jury.\\nThere was other evidence, not excepted to, introduced by both parties, as to whether there was or was not a spring or springs of water on the Darby lot other than the stream; but there was no evidence that there ever was a \\u201c spring of water,\\u201d commonly known as a \\u201c spring,\\u201d in the line of the stream, or within ten feet of it. There was no evidence offered by the plaintiff, or in the case, that the plaintiff, or any one under whom he holds, ever located or attempted to locate Ms right to take the water off the Darby lot, up to the date of the writ, (or to assert any right under the reservation excepting as above stated.\\nThe plaintiff contended that the stream was the spring named in the reservation ; that the defendant\\u2019s acts, in laying his logs and conducting the water of the stream off from the Darby lot, was an infringement and interruption of his rights under Ms title; and that he was entitled to nominal damages.\\nThe judge, at the request of the plaintiff, instructed the jury as follows: \\u201c If the jury, under instructions given by the court, shall find that the reservation in the deed from Benton to Darby applied to the water supply claimed by the plaintiff, and if they shall find that the defendant, without the consent of the plaintiff, put in an aqueduct, and by means thereof diverted and took away the water or any part of said water supply from said Darby lot to other premises of the defendant, then the defendant violated the legal rights of the plaintiff, and it will be their duty to return a verdict in the plaintiff\\u2019s favor, for at least nominal damages.\\u201d\\nAfter the judge had concluded his charge to the jury, and not having instructed them as to the evidence of joint occupancy by the plaintiff and the defendant of the defendant\\u2019s logs and the water running through them, the defendant asked the judge to instruct the jury as follows: \\u201c If the plaintiff knew of the defendant\\u2019s laying his aqueduct at the time it was done, and made no objection at the time, and afterwards joined in the use of the water which ran through the same, he cannot recover in this action for such laying of the defendant\\u2019s aqueduct, or its use.\\u201d The judge declined to give this instruction, and instructed the jury no further after closing his charge to them.\\nThe jury returned a verdict for the plaintiff; and the defendant alleged exceptions.\\nH. J. Dunham A. J. Waterman, for the defendant.\\nHi 0. Joyner, for the plaintiff.\", \"word_count\": \"2644\", \"char_count\": \"14730\", \"text\": \"Holmes, J.\\n1. If there was no spring, properly so called, on the Darby lot, it may be doubted whether the reservation of \\\" the spring of water on said premises \\\" in the conveyance of that lot would not be taken to refer to the stream, without evidence in favor of such an interpretation. The stream was the outlet of a spring a short distance off on the next lot. It hardly appeared as a stream to casual observation, and it was finally lost in the ground. Nothing would have been more natural than to describe it as a spring, and it cannot be contended seriously that such a slight inaccuracy of expression is to make inoperative words clearly intended to reserve something, assumed to be well known to, or easily recognized by, the parties, as is shown by the use of the definite article,\\u2014 \\\" the spring.\\\" The plaintiff's evidence tended to show that there was no other spring, and evidence that this water was called a spring in the neighborhood was admissible, although possibly superfluous.\\n2. The evidence that Peck, the plaintiff's grantor, now deceased, when he made his conveyance to the plaintiff, stated on the Darby lot that he intended to carry this stream off the Darby lot, and called it a spring, was admitted, we presume, as being in effect an identification of the spring attached to the land conveyed, and as falling within the principle of declarations as to boundaries. Daggett v. Shaw, 5 Met. 223. Davis v. Sherman, 7 Gray, 291. Wood v. Foster, 8 Allen, 24. Long v. Colton, 116 Mass. 414. Hunnicutt v. Peyton, 102 U. S. 333, 364. So far as these cases stand on the ground that such declarations are acts qualifying the party's possession, Niles v. Patch, 13 Gray, 254, 257, they do not apply to the identification of an easement. For, unless it be assumed that the easement identified and claimed is the one in fact attached to the. dominant estate, the party making the declaration has no possession of it; and the assumption thus made to justify the admission of the evidence would be an assumption of the very fact which the evidence was admitted to prove. But it is more satisfactory perhaps to say, that the admission of such declarations has generally been regarded as an exception to the general rule against hearsay, and that we cannot extend the principle further than it has been carried by authority. We are not aware that it has ever been applied to a case like this. On this point, the exceptions must be sustained.\\n3. The testimony of Mrs. Darby, the original grantee subject to the reservation of the spring, that, at the time of her purchase and ownership, there was no other water or spring on the lot, was admissible, of course, as tending to show that the words must have referred to this water. Her subsequent statement, that she understood at the time that this stream was the water reserved, seems to have been merely a statement of a conclusion from what she had already testified, and did not add to it. Whether standing alone it would have been admissible, if the suit had been against her, as an interpretation made by her against her own interest, and whether, if admissible against her, it would have been admissible against a purchaser from her without notice, are questions not fairly raised, we think, in this case.\\n4. The instruction to the jury was correct. It may be true that, so long as the plaintiff had not appropriated the water, he could not have sued the defendant for doing transitory acts, such as drawing water in pails or watering his cattle. But when the defendant put in an aqueduct, which diverted the water continuously, and which would interfere with the exercise of the plaintiff's rights whenever thereafter he sought to exercise them, he did an overt act of permanent effect, which amounted to a standing open denial of the plaintiff's right, and which would have extinguished it in twenty years to the extent of the water withdrawn. . Nominal damages, at least, may always be recovered for such an act.\\n5. The ruling of the court required the jury to find that the defendant put in the aqueduct and withdrew the water without the plaintiff's consent. When the charge was finished, the defendant had no right to single out particular circumstances tending to show consent, and require the court to comment on them specially. Whether the plaintiff's making no objection to the aqueduct and afterward using water from it, if proved, would have amounted to anything more than evidence from which the jury might have inferred consent, we need not consider. The counsel for the defendant argues that the question should have been submitted to the jury, but his request was for a ruling that the supposed facts were a bar, as matter of law.\\nExceptions sustained.\"}"
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+"{\"id\": \"774118\", \"name\": \"Mary Murphy vs. Maria E. Lee\", \"name_abbreviation\": \"Murphy v. Lee\", \"decision_date\": \"1887-05-06\", \"docket_number\": \"\", \"first_page\": \"371\", \"last_page\": \"374\", \"citations\": \"144 Mass. 371\", \"volume\": \"144\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:31:56.861472+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mary Murphy vs. Maria E. Lee.\", \"head_matter\": \"Mary Murphy vs. Maria E. Lee.\\nSuffolk.\\nJan. 13.\\nMay 6, 1887.\\nHolmes & Gardner, JJ., absent.\\nA. conveyed land to B. by a deed containing these words : \\u201c There is a passageway on the southeasterly side of the said premises, which is to be used in common with the abutters thereon.\\u201d C. owned land abutting on the southeasterly side of the land conveyed to B. At the time of the conveyance from A. to B. there was a passageway four feet wide over which a right of way had been granted by A. as appurtenant to adjoining land which he had before that time conveyed. Held, that a right of way over B.\\u2019s land was not reserved as appurtenant to C.\\u2019s land by the deed to B. Held, also, that the declarations of A. to C., at the time of his deed to B., were not competent to affect the deed.\\nTort, for breaking and entering the plaintiff\\u2019s close in Boston, and cutting down a fence and posts thereon. Writ dated September 16, 1885. The answer alleged that the defendant had a right of way over the land of the plaintiff, four feet in .width, and that the fence and posts taken down obstructed said passageway.\\nTrial in the Superior Court, without a jury, before Barker, J., who allowed a bill of exceptions, in substance as follows :\\nThe plaintiff owns lot 1, and the defendant lot 4, as shown on a plan, a copy of which is printed in the margin.* The passageway in question is a part of lots 1, 2 and 3, and is shown by a dotted line ; it touches but does not encroach upon lot 4.\\nThe defendant does not claim any right in said passageway over lots 2 and 3, but claims a right of way in said passageway over lot 1. Her house comes within six inches of the dividing line separating the two estates.\\nLots 1, 2, and 3 once belonged to Terence Lappen, who conveyed lots 2 and 3 to several grantees, by deeds in which rights of way were given over lot Ho. 1, along said passageway, to Fifth Street.\\nTerence Lappen\\u2019s deed of lot 1 was to Henry Kane, in 1872, and contained the following words : \\u201c There is a passageway on the southeasterly side of said premises which is to be used in common with the abutters thereon, and said Kane to have the use in common of a certain water-closet at southerly end of said passageway.\\u201d\\nIn 1875 Kane conveyed lot 1 to the plaintiff by a deed containing words precisely the same as the above, except that the name \\u201c Murphy \\u201d was substituted for \\u201c Kane.\\u201d\\nLot 4 formerly belonged to William Kennedy, who got title in 1856, and by mesne conveyance it has come into the possession of the defendant. In all the deeds conveying this estate are the words, \\u201c with all the privileges and appurtenances thereto belonging,\\u201d or words of similar import.\\nThere was evidence tending to show that when Kennedy bought lot 4 in 1856, there was something said about a right of way over said passageway, but there is no deed other than as \\u00e1bove, conveying such an easement; but from that time it was customary for him and his family, and the occupants of his house, to go to and from the back yard of his house over said passageway to Fifth Street; and there was evidence tending to show that no objection or hindrance to their so doing was made for twenty-five years or more. There was also evidence tending to show the contrary.\\nIt was also in evidence, that at the time Lappen sold lot 1 to Kane in 1872, he told Kennedy that he had now made his, Kennedy\\u2019s, right of way to Fifth Street a matter of record, so that no one could hereafter interfere with it; and it was also shown that no interference with or obstruction to its use was made after said deed in 1872, until the plaintiff refused and obstructed its use to the defendant and her tenants in 1883.\\nThe defendant contended that the intent of Lappen in the reservation in his deed to Kane was clearly to confirm and give a right of way to Kennedy over said passageway, as an abutter thereon ; and asked the judge to rule that, even if Kennedy had not acquired a right of way by prescription, yet he had acquired it by the said reservation in said deed.\\nThe judge refused so to rule, and found, as matter of fact, that, up to the time of Lappen\\u2019s deed to Kane, the use by Kennedy of said passageway was permissive; that, after that time, it was used as a matter of right; and ruled that as twenty years had not elapsed since said adverse user began, the defendant had acquired no right of way by prescription, or by the reservation in said deed.\\nThe judge found for the plaintiff; and the defendant alleged exceptions.\\nO. P. Grorely, for the defendant.\\nJ. A. Maxwell, for the plaintiff.\", \"word_count\": \"1286\", \"char_count\": \"6930\", \"text\": \"W. Allen, J.\\nThe only exception is to the ruling of the court that a right of way over the plaintiff's land was not reserved as appurtenant to the defendant's land by the deeds under which the plaintiff claims. The plaintiff derives her title from one Lappen, who, in 1872, conveyed the lot now owned by' her to one Kane, who subsequently -conveyed it to the plaintiff. Both deeds contained the words, \\\" There is a passageway on the southeasterly side of said premises, which is to be used in common with the abutters thereon.\\\" The defendant's land abuts on the southeasterly side of. the plaintiff's land; and the contention for the defendant is, that a right of way in favor of the defendant's land was reserved in the deed. At the time of the conveyance from Lappen to Kane, there was a passageway four feet wide, over which a right of way had been granted by Lappen as appurtenant to adjoining land which he had before that time conveyed. The deed refers to an existing passageway, and the natural construction of it is, that it excepts from the grant the existing right of way, and not that it creates a new right. The words, \\\" which is to be used in common with the abutters thereon,\\\" do not necessarily include the defendant's land. The passageway abutted upon the two lots in the rear which Lappen had sold, and the language may well be taken to refer only to those abutters on the way who had rights in it.\\nBut if there had been an express reservation of the right of way to the defendant's grantor, it would not have created an easement in him. He was not a party to the deed, and a reservation in a deed cannot create an easement in a stranger to it. Stockwell v. Couillard, 129 Mass. 231, 233. Young, petitioner, 11 R. I. 636. Bridger v. Pierson, 45 N. Y. 601. Hornbeck v. Westbrook, 9 Johns. 73.\\nIn Wickham v. Hawker, 7 M. & W. 63, a lease by indenture executed by three as lessors, two of whom had the legal title and the third the beneficial interest, contained a reservation of liberty to hawk, hunt, fish, and fowl upon the land. It was held that it could not operate as a reservation to the three, because one of them was not a conveying party, but, as the indenture was executed by the lessee, it might operate as a grant from him to the three.\\nThe declarations of Lappen at the time of his deed to Kane are not competent to affect the deed.\\n.Exceptions overruled.\"}"
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+"{\"id\": \"776149\", \"name\": \"William A. Denholm & others, executors, vs. Margaret M. McKay & others\", \"name_abbreviation\": \"Denholm v. McKay\", \"decision_date\": \"1889-01-14\", \"docket_number\": \"\", \"first_page\": \"434\", \"last_page\": \"444\", \"citations\": \"148 Mass. 434\", \"volume\": \"148\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:39:00.012939+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William A. Denholm & others, executors, vs. Margaret M. McKay & others.\", \"head_matter\": \"William A. Denholm & others, executors, vs. Margaret M. McKay & others.\\nWorcester.\\nOctober 5, 1888.\\nJanuary 14, 1889.\\nPresent: Morton, C. J., Field, Devens, W. Allen, C. Allen, Holmes, & Knowlton, JJ.\\nWill \\u2014 Partnership \\u2014 Executors \\u2014 Accounting \\u2014 Sale to Surviving Partner \\u2014 Laches.\\nA partnership agreement between two provided \\u201c that, if either partner shall die during the continuance of this agreement, the other party shall carry on the business in the same manner, until the next stock-taking, and the survivor shall then have the option of taking the assets himself, at such price and terms as may he agreed upon by the legal representatives of the deceased and himself.\\u201d Upon the death of one partner, his executors, one of whom was the surviving partner, as such, made a final agreement, after such a stock-taking with the surviving partner, as to the price and terms upon which he might buy the firm assets belonging to the estate. Held, that such agreement might be avoided within a reasonable time by those interested in the estate.\\nThe parties interested in the deceased partner\\u2019s estate were his widow and his minor children, of whom alie was the guardian, and it was held that such children were not affected by conduct and delay on her part showing such acquiescence as might bar her personally from holding the executors responsible for selling such share for less than its value, but that it was their right, under the Pub. Sts. c. 144, \\u00a7 9, to have the accounts of the executors opened to correct any errors therein.\\nThe executors believed that they had a right to make such an agreement, and received and accounted for such assets at a price which they thought reasonable, but which was somewhat below their real value, which price was paid them by such surviving partner, who thereupon formed with new partners another firm which purchased such assets, mingled them with new assets, and' sold them. Held, that it would not be practicable, even if just, to follow specifically the small interest of the deceased partner that was unpaid for, and ascertain how much it had earned in the new business, but that the executors should account for tlie full value of the share of the testator at the time of the stock-taking, with interest.\\nAppeal, by Margaret M. McKay and her two minor children, who were respectively eight and ten years old, from a decree of the Probate Court allowing the third account of William A. Denholm, Robert J. McKay,' and Daniel Gr. McKay, the executors of the will of William C. McKay, the husband and father of the appellants. Hearing before Knowlton, J., who reported the case for the consideration of the full court as follows.\\nThe only question raised at the hearing was how much the executors should be charged on account of the interest of the testator in the partnership of Denholm and McKay, composed of William A. Denholm, the first named executor, and the testator. The agreement of copartnership, which was in writing, signed by them, and dated February 3, 1880, provided, among other things, that they should be equal partners in a dry goods business to be carried on at Worcester; that their copartnership should continue for three years; and that accounts of stock should be taken in February and August of each year; and contained the following provision: \\u201c And it is further agreed, that, if either partner shall die during the continuance of this agreement, the other party shall carry on the business in the same manner until next stock-taking, and the survivor shall then have the option of taking the assets himself, at such price and terms as may be agreed upon by the legal representatives of the deceased and himself, or put the business into liquidation for the benefit of both parties, such liquidation to be as speedy as possible; or if agreed upon by the survivor and the representatives of the deceased, the business may be carried on until the expiration of this agreement; provided always that the party so carrying on the business shall at all times disclose his acts, the affairs of the firm, the books, and the account of stock, to the representatives of the party so deceased.\\u201d\\nAfter the expiration of the three years named in the original articles, the copartnership was continued upon the same terms, under an oral agreement, unlimited as to time.\\nAt the time this agreement was executed, the' testator had made and had in his possession a will, in which Denholm was named as sole executor; subsequently this will was revoked by another, in which Denholm was appointed sole executor again, and this will also was revoked by that under which the appellees were appointed, which was made a few weeks before the testator\\u2019s death. The testator died on May 7, 1884. The will, which was duly admitted to probate and which named the appellees as executors, after gifts to Margaret M. McKay, his wife, and others, and making provision for the maintenance and education of his two minor children, provided that the residue of his estate should be allowed to accumulate, and be given equally to such children, or the survivor, upon becoming twenty-five years old. ' Margaret M. McKay was at the time of the probate of the will guardian of such children.\\nIn accordance with the partnership agreement, Denholm continued the business until August 27, following the testator\\u2019s death, when he caused an inventory to be taken of the assets of the late firm. This inventory was taken by his clerks, the heads of the departments in the store, and they were directed to be particular about it, because it would affect the interest of the testator\\u2019s estate. In doubtful matters they consulted him in regard to the values to be put upon the goods, and were guided by his suggestions.\\nDenholm then contemplated buying the interest of the testator\\u2019s estate in the property. After this inventory had been completed, appraisers were appointed by the Probate Court, one of whom was a man thoroughly competent to appraise dry goods, another was a corset manufacturer, and the third was engaged in the manufacture of looms, and was familiar with book-keeping and matters of account. They took the stock sheets, compared them with the property, became convinced that the inventory of that portion of the testator\\u2019s estate was fairly taken, and adopted it as a part of the inventory which was filed in the Probate Court on September 16, 1884, in which inventory such portion appeared as a single item, as follows : \\u201c Mdse. $81,632.94.\\u201d The executors then assumed to sell to Denholm all their right, title, and interest in the partnership property for that sum, by a contract in writing signed by them, dated September 8, 1884. On September 19, 1884, Denholm, Robert J. McKay, and one Hughes formed a copartnership, under the name of Denholm and McKay, for the purpose of continuing the business which had been formerly carried on by the old firm of that name, and Denholm assumed to turn over to the new firm the interest of the estate in the property of the old firm. This property was mingled with other property purchased by the new firm, and the greater part, if not all of it, had been sold in the regular course of the business, which was still carried on.\\nThe judge found, for the purpose only of presenting the questions of law arising upon the report, that Denholm and the other executors intended to act fairly in relation to the taking of the inventory and the disposition of the property; that they thought the price named in the inventory was a reasonable price at which to sell; that the share of the estate was worth a little more than the sum at which it was appraised; and that unintentionally and unconsciously Denholm was influenced in his judgment by his personal interest.\\nIn September, 1884, Margaret M. McKay had an interview with Denholm in relation to the inventory and the affairs of her husband\\u2019s estate, and there was contradictory evidence upon the question whether the contract of sale of September 8, 1884, signed by the executors, was then shown her. The judge was not satisfied that she saw the writing, or knew the terms of the agreement, until after the account in question was filed, but found that she was informed of the result of the taking of the inventory, and that she understood it was arranged by the executors that Denholm should take the partnership property and dispose of it as his own, in connection with his business, and should allow the estate for it the price at which it was inventoried, and that the executors\\u2019 accounts should be settled upon that basis; and that while she indicated some disappointment that her husband\\u2019s entire estate inventoried less than she expected it would, she expressed confidence in Denholm, and made no objection to the proposed method of disposing of the partnership property.\\nIn May, 1885, Margaret M. McKay, in company with her counsel, had another interview with Denholm at his store, and heard his statements, and examined his books and papers showing the condition of the partnership affairs, so far as she or her counsel desired, and was advised by her counsel that everything seemed to have been properly done, and nothing was said in particular reference to the disposition of the property, or the manner in which it should be accounted for.\\nOn June 16,1885, the executors filed their first account in the Probate Court, and a citation, a copy of which was sent to her, was issued to all persons interested to appear and show cause why it should not be allowed, and the account was allowed without objection. In this account the executors were charged with the personal estate according to the inventory, and a balance was shown as remaining in their hands. Their second account was filed on June 15, 1886, the first item in which was a charge against the executors of the balance of the former account. This was sent to her by mail, for an indorsement upon it of her approval. She returned it, with a request upon it that it should be allowed without further notice, signed with her own name, and with her signature as guardian of each of her children. It was then allowed by the Probate Court, after the appointment of a guardian ad litem, who certified his assent to the allowance of it.\\nThe account in question was filed on October 3, 1887, and in it the executors are charged with the balance of the former account. Margaret M. appeared and objected to the allowance of it, on the ground that the executors had not properly accounted for the partnership property. From September, 1884, she knew that the property was being sold by the new firm of Denholm and McKay, under the belief by the executors and by the members of that firm that it was to be accounted for by the executors at the inventory price, and she believed that they were not keeping it, or the proceeds of it, separate from other property in their hands. No deception was intentionally practised upon her by either of the executors or of the members of the firm. She had no knowledge in relation to the inventory, or the particulars of the value of the property, except what she derived from Denholm.\\nThe executors contended that they were chargeable with the partnership interest only at the price at which it was inventoried. The appellants contended that the executors should be ordered to disclose what use was made of the firm property from August 27, 1884, to the date of filing the account in question, and what profits had been derived therefrom, and that they should be charged with the value of the testator\\u2019s interest in the business, and with the profits thereof. If the executors were right, the decree was to be affirmed; otherwise, the case was to be referred to a master, or such other order made as justice and equity might require.\\nThe case was argued at the bar in October, 1888, and after-wards was submitted on the briefs to all the judges.\\nW. W. Rice & H. W. King, for the executors.\\nR. Stone, for the appellants.\", \"word_count\": \"4016\", \"char_count\": \"22928\", \"text\": \"C. Allen, J.\\nThe appeal is taken by the widow and minor children of William C. McKay; but it is apparent upon an examination of the will that it is the children who are chiefly, if not solely, interested.\\nThe first question to be determined is whether, in view of the fact that the surviving partner was one of the executors of the deceased partner, the contract of partnership by its true construction authorized the executors, as the legal representatives of the deceased, to make a final agreement with the surviving partner as to the price and terms upon which he should be at liberty to take the partnership assets. In the opinion of a majority of the court, the contract should not receive this construction. Three modes are mentioned for the adjustment of the partnership affairs, in case of the death of a partner. 1. The survivor shall have the option of taking the assets himself, at such price and terms as may be agreed upon by the legal representatives of the deceased and himself. 2. He may put the business into liquidation for the benefit of both parties. 3'. If agreed upon by the survivor and the representatives of the deceased, the business may be carried on until the expiration of the agreement, provided always that the party so carrying it on shall at all times disclose his acts, the affairs of the firm, the books, and the account of stock to the representatives of the party so deceased. By these provisions an intention is shown to preserve and realize in full the interest of the deceased partner, and not to give an option to the survivor to sacrifice it. If Denholm, the surviving partner, had been the sole executor, the agreement would not have the effect of allowing him to take the assets at a price fixed by himself alone; and it makes no difference in this respect that others are joined with him as executors. The transaction contemplated in the method first specified was virtually a sale, and the relation between the legal representatives of the deceased and the surviving partner was virtually that of vendor and purchaser. Although in point of fact by successive wills McKay appointed Denholm either sole or associate executor, the agreement must still be held to call for the existence of executors who should be able to act with sole reference to the interests of the estate, and independently of the interest of the surviving partner; and Denholm could not properly act on both sides of the same transaction, although there were two other executors. Whichcote v. Lawrence, 3 Ves. 740. Morse v. Royal, 12 Ves. 355, 374. Boynton v. Brastow, 53 Maine, 362.\\nIt does not necessarily follow from this, that the surviving partner would not be entitled under the agreement to take the assets at a fair valuation. Although it is sometimes declared that, if the mode of arriving at a valuation of a deceased partner's share which is provided in the articles of agreement cannot be strictly carried out, the whole thing fails, and a settlement must be made independently of the agreement, yet it is said in 2 Lindl. Part. (4th ed.) 850, that the above rule must be taken with considerable qualification. See Simmons v. Leonard, 3 Hare, 581; Dinham v. Bradford, L. R. 5 Ch. 519. The great object of this provision in the agreement apparently was to avoid the necessity of putting the business into liquidation by a sale, and thus of stopping the whole concern. Of course the executors, if competent to act in the matter, might sell the assets to the surviving partner, provided they could agree on the price and terms. There was no need of a special provision in the contract to say that. It seems reasonable to suppose that the parties meant to give to the surviving partner an option of taking the assets himself, as an independent right; and in the event of his electing to take them, the price and terms were to be agreed upon. But the mode of ascertaining the value is not necessarily of the essence of the contract; and it was said by Lord Hatherley, in Dinham v. Bradford, above cited, where the prescribed mode of arriving at a valuation could not be carried out, \\\" If the valuation cannot be made modo et forma, the court will substitute itself for the arbitrators. It is not the very essence and substance of the contract.\\\"\\nBut however this may be, and whether the contract should be deemed to be thus severable or not, since the executors assumed without due authority to fix the price at which Denholm might take the partnership assets, their agreement as to the price was not final, but might be avoided by those interested in the estate of McKay within a reasonable time. But such a transaction, though avoidable, will stand, unless within a reasonable time steps are taken to avoid it. This rule is of gen\\u00e9ral application, whenever a sale is made by any one occupying a position of trust, if he is also interested directly or indirectly as purchaser. Jones v. Dexter, 130 Mass. 380, 383. Morse v. Hill, 136 Mass. 60, 65. Learned v. Foster, 117 Mass. 365. Ives v. Ashley, 97 Mass. 198. Yeackel v. Litchfield, 13 Allen, 417. Wyman v. Hooper, 2 Gray, 141. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587. Lewin on Trusts, (7th ed.) 448.\\nTwo questions remain. One is, whether there has been any such delay or acquiescence on the part of the appellants as to cut them off from their right to hold the executors thus responsible. It is contended that the facts show such acquiescence on the part of the mother, and that, as she was guardian of the children, they also are bound thereby. The discussion of this question by counsel has been but slight. The rights of infants are sedulously protected by courts of law and of equity, as well as by statute. Illustrations of this may be found in the limited power of guardians to bind their infant wards by express contract : Oliver v. Houdlet, 13 Mass. 237; Massachusetts Greneral Hospital v. Fairbanks, 132 Mass. 414, 421; Rollins v. Marsh, 128 Mass. 116; Thacher v. Dinsmore, 5 Mass. 299; in the statutes of limitation, which do not run against infants: Pub. Sts. c. 196, \\u00a7 5; c. 197, \\u00a7 9; in the doctrine of estoppel, which ordinarily is not applicable to infants or other persons incapable of contracting for themselves: Pells v. Webquish, 129 Mass. 469, 472; Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241, 244; Pierce v. Chace, 108 Mass. 254, 258; Bemis v. Call, 10 Allen, 512; Lowell v. Daniels, 2 Gray, 161; and in the rules of practice in courts of equity, as to the effect of answers by guardians: Mills v. Dennis, 3 Johns. Ch. 367; James v. James, 4 Paige, 115, 119; Stephenson v. Stephenson, 6 Paige, 353; Tucker v. Bean, 65 Maine, 352; Turner v. Jenkins, 79 Ill. 228, 232; Berrett v. Oliver, 7 Gill & J. 191; Holden v. Hearn, 1 Beav. 445, 455; 2 Kent Com. (12th ed.) 245; 1 Dan. Ch. Pract. (5th ed.) 169. The practice in Massachusetts is shown in Walsh v. Walsh, 116 Mass. 377. The assent of a guardian ad litem of a minor cestui que trust to an account rendered by a trustee, is no bar to a revision and correction of the account when reopened. Blake v. Pegram, 101 Mass. 592. The court say, \\\" The fact that a guardian ad litem was appointed in order to give validity to the former decree does not protect the accounts from revision. The right to have errors corrected is recognized, even when the party interested was under no disability. And the assent of such a party to the account as settled in the Probate Court, or of a guardian ad litem in his behalf, does not preclude him.\\\" p. 598. The doctrine is usually declared in general terms, that loches is not to be imputed to an infant; and no exception is made of infants under guardianship. Thus in Lewin on Trusts, (7th ed.) 449, it is said, \\\" Persons not sui juris, as femes covert and infants, cannot be precluded from relief on the ground of acquiescence during the continuance of the disability.\\\" See also 1 Perry on Trusts, (3d ed.) \\u00a7 467; Burns v. Thayer, 115 Mass. 89; March v. Russell, 3 Myl. & Cr. 31, 44; Blandford v. Marlborough, 2 Atk. 542, 545; Campbell v. Walker, 5 Ves. 678; Allen v. Sayer, 2 Vern. 368; Meanor v. Hamilton, 27 Penn St. 137; Piatt v. Smith, 12 Ohio St. 561, 571, 572. On the whole, in view of these authorities and considerations, we are of opinion that, even if it be assumed that the conduct and delay of the mother showed such acquiescence as to bar her personally, respecting which it is unnecessary for us to give an opinion, the minor children are not affected thereby; and that under Pub. Sts. c. 144, \\u00a7 9, it is their right to have the former accounts of the executors opened so far as to correct any errors therein.\\nIt now appears that, although the executors were guilty of no actual fraud, and intended to act fairly, and thought the price fixed a reasonable one at which to sell, yet the share of the deceased was worth a little more than the sum at which it was appraised, and that unintentionally and unconsciously Denholm was influenced in his judgment by his personal interest. The children are entitled to have the executors account for the full value of the share of the deceased. If this were not so, and they were cut off by the delay and acquiescence of their mother, it would be difficult to escape from the conclusion that she herself would be responsible, in the settlement of her accounts as guardian, for any loss thereby resulting to the children. Pierce v. Prescott, 128 Mass. 140, 146, 147.\\nThe final question is, what is the measure of the liability of the executors? If the agreement is severable, so that Denholm was entitled as of right to take the assets at a fair valuation, it follows that it is now only necessary to ascertain and fix upon such fair valuation, and substitute it for the price actually agreed upon. But the same result would also be arrived at if the whole provision which was acted on in the agreement is treated as inoperative. Each case must depend on its own circumstances. Robinson v. Simmons, 146 Mass. 167. In the present case, the executors entered into this method of adjustment, believing that they had a right to do so, and they received and have accounted for a price which they thought reasonable, but which in fact was not quite enough. New partners entered the firm. The amount of capital belonging to McKay's estate, over and above the amount accounted for, which remained in the new business, was small. It would not be practicable, even if just, to follow it specifically, and ascer tain how much it has earned in the subsequent business. What the executors ought to have accounted for was the full value of McKay's share at the time of the stock-taking; and we think it sufficient if they account for that value now, with interest, instead of the amount they actually accounted for.\\nThe case must therefore be sent to a master to ascertain and report what was the fair value of the interest of the deceased in the assets and business of the partnership at the time of the stock-taking. Ordered accordingly.\"}"
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+"{\"id\": \"820620\", \"name\": \"John Cummings vs. Worcester, Leicester, and Spencer Street Railway Company\", \"name_abbreviation\": \"Cummings v. Worcester, Leicester, & Spencer Street Railway Co.\", \"decision_date\": \"1896-05-23\", \"docket_number\": \"\", \"first_page\": \"220\", \"last_page\": \"223\", \"citations\": \"166 Mass. 220\", \"volume\": \"166\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:39:42.902305+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Cummings vs. Worcester, Leicester, and Spencer Street Railway Company.\", \"head_matter\": \"John Cummings vs. Worcester, Leicester, and Spencer Street Railway Company.\\nBristol.\\nMarch 17, 1896.\\nMay 23, 1896.\\nPresent: Field, C. J.,.Allen, Holmes, Morton, & Barker, JJ.\\nPersonal Injuries \\u2014 Street Railway \\u2014 Due Care \\u2014 Negligence \\u25a0 \\u2014 Passenger riding on Platform of Car.\\nIf a person riding in the daytime on the front steps or platform of a closed street , car, moving at the rate of four miles an hour, casually or momentarily turns his head or leans his body out beyond the line of the car as incident to an effort to secure a more comfortable or a safer position, lie is not necessarily precluded from recovering, in an action against the railway corporation, for injuries occasioned by his head striking a post standing about three feet from the nearer rail of the car track and visible from the car for a quarter of a mile as the car approached; but, if he deliberately leans out beyond the car with his face turned in the direction opposite to that in which the car is moving, he cannot recover for such in j ury.\\nTort, for personal injuries occasioned to the plaintiff while a passenger on the defendant\\u2019s car. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.\\nJ. W. Cummings, (E. Higginson with him,) for the plaintiff.\\nA. J. Jennings & J. M. Morton, Jr., for the defendant.\", \"word_count\": \"1526\", \"char_count\": \"8331\", \"text\": \"Barker, J.\\nThe plaintiff was a passenger riding in the daytime upon the front platform or steps of a closed street car, moving four miles an hour. His head struck a post standing about three feet from the nearer rail of the car track, and visible from the car for a quarter of a mile as the car approached. There was a conflict of evidence as to how the accident happened. The plaintiff's evidence tended to show that he was facing the platform, and was standing with one foot on the step and the other foot on the platform, his left hand holding the body rail of the car and his right hand holding the dasher rail; that he happened to turn his head in the direction in which he was going, and was instantly struck in the face by the post. On the other hand, the defendant's evidence tended to show that he was facing the street, with both feet on the lower -step, his left hand on the dasher rail and his right hand on the body rail, and that he was intentionally and deliberately leaning out beyond the car and looking back in the direction opposite to that in which the car was going.\\nThe instructions requested by the plaintiff were: \\\"1. Even though the jury find that the plaintiff was facing out towards the street at the time of the accident, it cannot be ruled as matter of law that he was negligent in so doing \\\" ; and, \\\" 2. If the jury find that the plaintiff, at the time of the accident, was looking back, they cannot condemn his act as negligent, unless they find it was such an act as a reasonably prudent man under like circumstances would not have done.\\\"\\nThe presiding justice, after giving instructions upon care and negligence to be applied in considering the question whether the plaintiff was in the exercise of due care, read to the jury the plaintiff's first request, and stated that he had substantially given it to the jury. He then read to the jury the second request, and stated that he had given it with a qualification, which he stated, and that he now gave that request to the jury in connection with a distinction which he went on to explain. The only exception taken was to a specific part of the charge, and to the charge in so far as it was inconsistent with the requests. If the bill of exceptions can be construed to show a refusal to give the two requests, no exception was taken to that refusal, and the requests are material only as showing the extent of the plaintiff's exceptions to the charge itself.\\nThe charge, after explaining correctly the general rules applicable to questions of due care in the case of a passenger riding upon the platform of a street car, stated the conflict of testimony as to how the accident occurred, and then continued:\\n\\\" Suppose he was standing upon the step of the car in the way in which he says he was ; suppose that, as the car proceeded upon its way, he leaned out, with his head slightly projecting, or his body even beyond the line of the car, what would be the effect of that upon his right to recover here ? It would be for you to say, as a matter of fact, whether it was negligent or not for him to do that thing. The general question whether or not it was negligent for him to be there at all in that position, in that place, is a question for you.\\n\\\" If there was upon his part a casual, momentary leaning out, or turning of the head, such as would be incident to an effort to secure a more comfortable or a safer position upon the car, that would not, \\u2014 whatever you may think of it as a question of fact, \\u2014 that would not amount to such negligence in law as would preclude him from recovery, but it is a circumstance for you to consider in determining, as a question of fact, whether he was negligent.\\n\\\" Mow if, upon the other hand, he stood as described by the defendant's witnesses, with his left hand upon the dasher rail, and his right hand upon the rail of the body of the car, leaning out, with his face turned in the direction opposite that in which the car was going, \\u2014 if he did that deliberately, then I instruct you that that would be such negligence as in law would preclude him from recovery ; and it is for you to say what the fact is; and, as you see, that presents a vital question.\\n\\\" You are to distinguish between the mere casual and momentary leaning out, or turning of the head, such as would be incident to an effort to secure a more comfortable or a safer position, \\u2014 you are to distinguish between that and such a leaning out as has been described by the defendant's witnesses.\\n\\\" If you find that he was leaning-out in the manner described by the defendant's witnesses, and in the manner I have undertaken to describe more or less, seeking to give you the substance of their testimony, then I instruct you that that was such negligence as in law would preclude him from recovering.\\\"\\nThe charge was sufficiently favorable to the plaintiff. In many instances a street car passenger, riding with part of his body projecting beyond the line of his car, cannot be held, as matter of law, to be guilty of negligence, or to have assumed the risk of contact with things outside of the car; and those questions are for the jury. See Powers v. Boston, 154 Mass. 60; Francis v. New York Steam Co. 114 N. Y. 380 ; City Railway v. Lee, 21 Vroom, 435 ; Elliott v. Newport Street Railway, 18 R. I. 707; Dahlberg v. Minneapolis Street Railway, 32 Minn. 404: Miller v. St. Louis Railroad, 5 Mo. App. 471; Geitz v. Milwaukee City Railway, 72 Wis. 307 ; Summers v. Crescent City Railroad, 34 La. An. 139; Seigel v. Eisen, 41 Cal. 109. This was recognized in that part of the charge in which the jury were told that, if the accident happened in the manner testified to by the plaintiff, it was a question of fact for them whether he was careful or negligent, and that a casual or momentary leaning out, such as would be incident to an effort to secure a more comfortable or a safer position, would not necessarily preclude him from recovering. But it is also true that a street car passenger may intentionally and deliberately put his head or part of his body outside of or beyond the line of the car under such circumstances and in such a manner as to make it plain that in so doing he is not in the exercise of ordinal care, and as to make it unjust not to hold that he assumes the risk. See Butler v. Pittsburgh & Birmingham Passenger Railway, 139 Penn. St. 195; Moore v. Edison Electric Illuminating Co. 43 La. An. 792.\\nEach case must be decided upon its own facts, and we are of opinion that if the plaintiff, substantially and in the manner testified to by the defendant's witnesses, deliberately leaned out beyond the car, with his face turned in the direction opposite to that in which the car was moving, he cannot recover for an injury received in consequence of striking his head against a post which had been plainly in sight while the car was going a quarter of a mile at a speed of four miles an hour.\\nRxceptions overruled.\"}"
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+"{\"id\": \"8300781\", \"name\": \"Michael W. HAYES vs. M. Dolores DUNPHY, et al.\", \"name_abbreviation\": \"Hayes v. Dunphy\", \"decision_date\": \"1983-01-12\", \"docket_number\": \"No. 318\", \"first_page\": \"205\", \"last_page\": \"208\", \"citations\": \"4 Mass. Supp. 205\", \"volume\": \"4\", \"reporter\": \"Massachusetts Reports Supplement\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T22:37:03.677205+00:00\", \"provenance\": \"CAP\", \"judges\": \"Robert A. Welsh, Jr., P.J.\", \"parties\": \"Michael W. HAYES vs. M. Dolores DUNPHY, et al\", \"head_matter\": \"Michael W. HAYES vs. M. Dolores DUNPHY, et al\\nNo. 318\\nDistrict Court/Norfolk, ss. Appellate Division/Southem District Trial Court of the Commonwealth of Massachusetts\\nJanuary 12, 1983\\nRonald E. Lustlg, Esq., counsel for plaintiff.\\nBruce W. Carroll, Esq., counsel for defendant.\\nThe other defendant is the Puritan Life Insurance Company.\", \"word_count\": \"1744\", \"char_count\": \"10246\", \"text\": \"DECISION AND ORDER\\nThis cause came on to and was heard in the Appellate Division for the Southern District sitting at Orleans upon Report from the District. Court Department, Quincy Division and it is found and decided that there was prejudicial error.\\nIt is hereby\\nORDERED: That the Clerk of the District Court Department, Quincy Division make the following entry in said case on the docket of said Court, namely: ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT VACATED; DEFAULT JUDGMENT AGAINST M. DOLORES DUNPHY IS SET ASIDE AND CASE RETURNED TO TRIAL COURT FOR TRIAL ON THE MERITS.\\nDate: January 12, 1983\\nRobert A. Welsh, Jr., Presiding Justice\\nRichard O. Staff, Justice\\nCharles E. Blade, Justice\\nOpinion filed herewith.\\nPatrida D. Minotti, Clerk\\nOPINION\\nWelsh, J.\\nThis is a civil action based upon an account annexed for money had and received. The complaint alleges, in substance, that the defendant, Dolores Dunphy received payments from the Puritan Life Insurance Company for the benefit of the plaintiff and another beneficiary in her capacity as trustee and converted the proceeds to her own use; that the amount so converted is $2,976.47 and that the plaintiff is entitled to judgment in said amount with interest from the date of said conversion.\\nNo answer or other responsive pleading was filed. A default and default judgment was entered in the sum of $4,699.22 including interest and costs.\\nThe judgment was entered on April 15, 1980. Execution thereon was issued April 28, 1980. Motion \\\"To Remove J udgment\\\" was filed by the defendant on J uly 30, 1980. This motion was denied on September 12, 1980 and counsel fees of $350.00 were awarded the plaintiff. On October 2, 1980, the defendant retained a new attorney who filed a motion for relief from judgment. This motion was denied February 2, 1981. The question reported is the propriety of the denial of the motion for relief from judgment.\\n1. The first issue raised by the report is the question of subject matter jurisdiction. The defendant contends that this controversy arises out of the administration of a trust, and, as such, is within the exclusive province of a court possessing general equity jurisdiction. Since, as the argument proceeds, the district court does not have general equity jurisdiction, the judgment is void by reason of lack of subject matter jurisdiction. It is true that as a'general rule the control of trusts and trustees is a well recognized basis of general equity jurisdiction. Rice v. Merrill, 215 Mass. 419, 424 (1913). Relief may be had only in equity, for example, where a trustee comingles trust funds with his own without the knowledge of the beneficiary. Taft v. Stow, 174, Mass. 171, 173-174 (1899). Yet, it is not necessarily fatal to the maintenance of an action at law for money had and received, if it is made to appear that the party could have maintained a suit in equity for termination of the trust or for an accounting. Flye v. Hall, 224 Mass. 528, 529 (1916); cf. Boston v. Santosuosso, 298 Mass. 175, 180 (1937). No valid objection exists to the maintenance of an action at law if the trust is terminated. Cunniff v. McDonnell, 196 Mass. 7, 10-11 (1907). The Court stated in Johnson v. Johnson, 120 Mass. 465 (1876) the following:\\n\\\"It is well settled that a cestui que trust cannot bring an action at law against a trustee to recover for money had and received while the trust is still open; but when the trust has been closed and settled, the amount due the cestui que trust established and made certain, and nothing remains to be done but to pay over money, such an action may be maintained.\\\" Id, at 466.\\nThe present action seeks to recover monies paid by the Puritan Life Insurance Company to the defendant under the terms of a settlement option providing for payments of interest on $10,000.00 and guaranteed monthly installments of $100.00. The amount paid and disbursed is readily ascertainable by examination of the complaint. This is not a case in which part of the trust estate was wrongly transferred into the hands of a third party. Nor does it appear that the. funds were used by the trustee to acquire other assets. There is nothing that remains to be done except for the payment of money. See Buttrick v. King, 7 Metc. (48 Mass) 20, 23 (1843); Sewall v. Patch, 132 Mass. 326, 329 (1882). We conclude that the present action at law may be maintained and that the District Courts have subject matter jurisdiction.\\n2. Taking into account the considerable deference traditionally accorded by appellate courts to the determinations of the motion judge in acting upon a motion for relief from judgment, we conclude that the motion ought to have been allowed. This is one of those cases in which we must decide whether and to what extent consequences of the neglect of the defendant's prior counsel should be visited upon the defendant herself. The record in this case indicates that the defendant promptly retained an attorney to represent her interests in the case. The uncontradicted affidavit of the defendant in support of the second motion for relief from judgment states that immediately upon the receipt of a copy of the complaint and summons, she delivered the process to her then attorney who told her he would attend to the matter and take the necessary steps to protect her rights. Notwithstanding such assurances, no answer or other responsive pleading was ever filed.\\nOn or about May 9, 1980, the defendant received notice that judgment had. entered against her and that a supplementary process hearing was to be held on August 12, 1980. Immediately upon receipt of the notice, she contacted her then attorney and again received his assurances that he would take care of it and that she had nothing to worry about. On July 30, 1980, her then attorney filed a motion to remove (sic) judgment and requested a hearing on the motion for August 11, 1980. He failed to file any affidavits or other material to demonstrate the grounds for the motion or the existence of a meritorious defense. The motion was heard on September 12, 1980. The defendant was advised that she need not attend and did not attend the hearing. The defendant's then counsel was granted leave by the court to file supporting affidavits late, but failed to do so. The motion was denied. On October 2, 1980, the defendant's present counsel filed a motion for relief from judgment with supporting affidavits. This motion was denied February 2, 1981. Throughout this, entire scenario, the defendant repeatedly tried to contact her then attorney by telephone, but to no avail.\\nClearly, the pattern emerges of a litigant who was neither lax nor dilatory, who suffered the consequence of a judgment by default due to the apparent lack of diligence by her retained counsel. She was certainly not unreasonable in placing reliance upon the assurances of her counsel that he would take care of the matter for her. There has been no showing of prejudice to the plaintiff by the allowaftce of a motion for relief from judgment. Granted that sloppiness in pleading and the disregard of the Rules of Civil Procedure are not to be condoned, it is difficult to see how the administration of justice would be fostered by denying such a defendant her day in court. As observed earlier, the matter remains open as to one of the defendants. Surely the matter can proceed to a just determination after a hearing on the merits without undue inconvenience to anyone. The case of Mullen Lumber Company, Inc. v. F. P. Associates, Inc., Mass. App. Ct. Adv. Sh. (1981) 869 is instructive.\\nThe defendant's affidavit reveals that she might well have a meritorious defense to all or part of the claim against her. As was observed in the case of Medford Red Cab, Inc. v. Duncan, 341 Mass. 708, 709-710 (1961), it is not necessary to demonstrate that the defense proposed will perforce succeed; it is sufficient to present a cause worthy of judidal investigation. The defense proposed meets this criteria.\\nA final note: We have in this instance elected to deal with this appeal on the merits notwithstanding the fact that no final judgment has entered in the case and no permission for a separate judgment was granted. In the circumstances, it would be futile to require the appellant to abide the determination of the matter as to the other defendant, before bringing before this division her grievance that the motion for relief from judgment ought to have been granted. The adion we take will facilitate a single trial on the merits as to both defendants, rather than two separate trials as would have been necessary had the present appeal been prosecuted after judgment in the claim against Puritan Life Insurance Company. We continue to hold that piecemeal review is not to be encouraged, save in those well-defined exceptions permitting interlocutory review.\\nThe order denying the motion for relief from judgment is vacated. The default judgment against M. Dolores Dunphy is set aside and the case returned to the trial court for trial on the merits.\\nSO ORDERED\\nRobert A. Welsh, Jr., P.J.\\nRichard O. Staff, J.\\nCharlesE, Black, J.\\nThis certifies that this is the opinion of the Appellate Division in this cause.\\nPatricia D. Minotti, Clerk\\nNo question was raised as to whether the other beneficiary ought to have been joined as a necessary party.\\nRule 54(b), Mass. R. Civ. P., authorizes the court to direct the entry of final judgment as to fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. The docket does not indicate that such a determination was made. The case remains open as to the Puritan Life Insurance Company.\\nThe authority to award counsel fees in this circumstance is unclear.\\nThe affidavit in support of the motion states that the motion to remove judgment was filed on July 14, 1980. The docket entries show that this motion was filed on July 30, 1980.\"}"
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+"{\"id\": \"880003\", \"name\": \"Arlette Schwartz vs. Donald Goldstein\", \"name_abbreviation\": \"Schwartz v. Goldstein\", \"decision_date\": \"1987-06-02\", \"docket_number\": \"\", \"first_page\": \"152\", \"last_page\": \"155\", \"citations\": \"400 Mass. 152\", \"volume\": \"400\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:15:38.347467+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arlette Schwartz vs. Donald Goldstein.\", \"head_matter\": \"Arlette Schwartz vs. Donald Goldstein.\\nNorfolk.\\nMarch 5, 1987.\\nJune 2, 1987.\\nPresent: Hennessey, C.J., Liacos, Nolan, Lynch, & O\\u2019Connor, JJ.\\nRobert S. Wolfe for the plaintiff.\\nStephen A. Moore (Kim Marrkand with him) for the defendant.\", \"word_count\": \"975\", \"char_count\": \"6047\", \"text\": \"Hennessey, C.J.\\nThe plaintiff appeals from a jury verdict for the defendant, arguing that the Superior Court judge erred in admitting testimony of prior inconsistent statements made by the plaintiff's physician, and erred in instructing the jury on negligence. The case was transferred to this court on our own motion. We conclude that there was no error. We affirm.\\nThe defendant, a specialist in obstetrics and gynecology, performed a hysterectomy on the plaintiff in June, 1973. During the course of the surgery, a suture placed near the plaintiff's right ureter caused the ureter to be displaced and to kink, obstructing it. The obstruction of the ureter was discovered within a few days of the hysterectomy, and was corrected by Dr. Alan H. Bennett in a second surgical procedure on June 19, 1973. The plaintiff underwent a third surgical procedure in 1980 to relieve problems caused by damage to the ureter from the first operation. The plaintiff filed this action, alleging medical malpractice, in 1976.\\n1. The plaintiff introduced in evidence a videotaped deposition of Dr. Bennett. Dr. Bennett stated his opinion that \\\"no surgeon should have placed a suture in that position.\\\" During the deposition, the defendant's attorney asked Dr. Bennett if he recalled discussing the matter previously with one Joan Holbrook Adams, a claims adjuster for the defendant's insurer. Dr. Bennett replied that he remembered no such conversations.\\nThe defendant called Adams as a witness to impeach Dr. Bennett's testimony by his prior inconsistent statements. Adams testified that Dr. Bennett had told her that \\\"he felt that there was no malpractice\\\" in the surgery that was done, and that \\\"the case should be thrown out.\\\"\\nThe plaintiff argues that, because the prior conversations between Adams and Bennett were a breach of confidentiality and an invasion of privacy, evidence of those conversations should not be admissible at trial. In essence, the plaintiff urges that we adopt a rule of exclusion. We decline to impose such an extraordinary remedy.\\nThe plaintiff is correct in asserting that she has an interest in maintaining the confidentiality of information obtained by her physician in treating her. Tower v. Hirschhorn, 397 Mass. 581, 586-587 (1986); Alberts v. Devine, 395 Mass. 59, 68, cert. denied sub nom. Carroll v. Alberts, 474 U. S. 1012 (1985); Bratt v. International Business Machs. Corp., 392 Mass. 508, 522-524 (1984). The remedy for a breach of the physician's duty of confidentiality lies in an action for damages against the physician, not in the extreme sanction of an exclusionary rule. See Tower v. Hirschhorn, supra at 588; Alberts v. Devine, supra at 69; Bratt v. International Business Machs. Corp., supra at 522-524. We also recognize that an opposing party should not be free to engage in clandestine, unauthorized conferences with a plaintiff's physician. See Tower v. Hirschhorn, supra at 588 n.9. See also Hammonds v. Aetna Casualty & Sur. Co., 243 F. Supp. 793, 805 (N.D. Ohio 1965); Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 610 (1986); State v. Alby, 125 Wis. 2d 468, 473-474 (1985). We conclude that the plaintiff's interests are protected by the rules governing discovery, and by the causes of action for invasion of privacy and breach of the duty of confidentiality. See Tower v. Hirschhorn, supra at 585-588; Alberts v. Devine, supra at 70-71; Bratt v. International Business Machs. Corp., supra at 523-524.\\n2. The plaintiff argues that Adams' testimony concerning her conversations with Dr. Bennett should have been excluded as hearsay, or in the alternative, the judge was required to give a limiting instruction to the jury. Tliis argument is without merit. Adams' testimony was properly admissible as a prior inconsistent statement made by Dr. Bennett, and the judge properly overruled the plaintiff's objection on hearsay grounds. Robinson v. Old Colony St. Ry., 189 Mass. 594, 596 (1905). Furthermore, the plaintiff did not request that a limiting instruction be given, and therefore cannot claim error in that no such instruction was given. Commonwealth v. Costa, 354 Mass. 757 (1968). There was no error.\\n3. The plaintiff's final ground of appeal is that the judge's instructions on negligence constituted reversible error. During his instructions, the judge reversed the names of the parties, and was immediately corrected. The judge stated that his slip of the tongue, while a mistake, was probably not negligence. Later, a juror asked, \\\"if we were to look at whether an error was made and determine that that was not a negligent error, are we then precluded from assigning any damages at all to that?\\\" The judge responded in the affirmative. The plaintiff argues that the judge's instructions led the jury to conclude that negligence required a higher form of misconduct, such as recklessness, than actually is required in the law.\\nWe note that the plaintiff did not object to the judge's instructions. Even if the plaintiff had objected, we would find no error in the judge's instructions. The judge properly defined the standard: \\\"A doctor undertakes to use a reasonable degree of care such as ordinarily possessed by others providing medical care and treatment, having regard to the current state of care and treatment to patients in hospitals, but he does not warrant a cure or guarantee [a] good result.\\\" See Brune v. Belinkoff, 354 Mass. 102, 109 (1968); Riggs v. Christie, 342 Mass. 402, 405-406 (1961).\\nThe plaintiff also contends that the judge erred in declining to give certain of her requested instructions. We disagree. The plaintiff's requested instructions either were covered in substance by the judge's charge, were not correct statements of the law, or were not warranted on the evidence. There was no error.\\nJudgment affirmed.\"}"
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+"{\"id\": \"88001\", \"name\": \"Commonwealth vs. William A. Dorr\", \"name_abbreviation\": \"Commonwealth v. Dorr\", \"decision_date\": \"1914-01-09\", \"docket_number\": \"\", \"first_page\": \"314\", \"last_page\": \"319\", \"citations\": \"216 Mass. 314\", \"volume\": \"216\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:07:18.410494+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth vs. William A. Dorr.\", \"head_matter\": \"Commonwealth vs. William A. Dorr.\\nEssex.\\nNovember 5, 1913.\\nJanuary 9, 1914.\\nPresent: Rugg, C. J., Hammond, Bralet & DeCourcy, JJ.\\nHomicide. Practice, Criminal, Venue, Indictment, Variance, Conduct .of trial: order of evidence. Evidence, Opinion: experts, Competency, Official records.\\nAt the trial of an indictment for a murder alleged to have been committed in Essex County, the defendant admitted the killing, but contended and testified that the act was committed in Suffolk County more than one hundred rods from the Essex County line. There was evidence that the defendant had planned the crime for a considerable length of time. The body was found in Essex County over three thousand feet from thte boundary line, and there was evidence that wounds upon it showed that death must have ensued almost instantly after they were inflicted. There was further evidence that a cane and a cap, which were found in the immediate vicinity of the body, were used and worn by the deceased shortly before the body was found, and that a button, found in the same vicinity, was worn by the defendant on the afternoon of the murder. Held, that the jury were warranted in disbelieving the defendant and finding that the murder was committed in Essex County.\\nIt cannot be said as matter of law that, at the trial of an indictment for a murder committed by shooting, testimony of a physician having especial knowledge of anatomy and considerable experience with bullet wounds, giving his opinion as an expert as to the position in which the body of the deceased was when the wounds were received, would not be helpful in enabling the jury to reach a just conclusion on that question.\\nAt the trial of an indictment there was evidence warranting a conclusion that the crime was committed in order to benefit financially an aunt of the defendant, and as bearing on that issue the Commonwealth offered in evidence a deed of property to the aunt from the deceased with a letter from the deceased to a witness directing that it be held in escrow by the witness until the death of the deceased if he should die before a certain day, which would be over three years after the homicide. There was evidence that the deed had been discussed in the presence of the defendant and he testified that he knew of it and of the purpose for which it was put in escrow and that there was no secret as to the terms under which it was held in escrow. Held, that the deed and letter were competent evidence.\\nWhere, at the trial of an indictment for murder, it becomes material for the Commonwealth to show that a.certain button, found near the body of the deceased, was a button from the coat of the defendant, it is within the discretion of the presiding judge to permit the button to be shown to a witness before he is questioned in regard to it.\\nIf at the trial of an indictment for murder a diary kept by the defendant is produced by the Commonwealth during the testimony of one of its witnesses and is marked for identification only, it is within the discretion of the presiding judge to deny a demand of the defendant\\u2019s counsel to be allowed to examine it at once, and to rule that the counsel may examine it \\u201cimmediately preliminary to\\u201d its introduction in evidence, and not before.\\nThe official record of a fact made by a public officer in the performance of his duty may be introduced in evidence as proof of the truth of the fact recorded.\\nThe director and forecasterof the United States Weather Bureau at Boston, testifying at the trial of an indictment for a murder committed at Lynn, stated that in his opinion the weather conditions and the velocity of the wind at Boston at the time of the alleged crime would not vary substantially from those prevailing where the body was found, and then, subject to an exception by the defendant, he was allowed to read from original records of weather conditions in Boston at the time in question, which were kept in his office under his supervision, although not in his handwriting. Held, that the exception must be overruled, because the records must be treated as in evidence, and, being records kept by a public official in the performance of his duty, were admissible.\", \"word_count\": \"2362\", \"char_count\": \"13402\", \"text\": \"Rugg, C. J.\\nThe defendant was indicted for the murder of one George E. Marsh. The defendant admitted the killing, but asserted that it was in self defense. It was undisputed that the deceased died instantaneously, from bullet wounds received from the defendant.\\n1. The defendant contends that there was not sufficient evidence on which to find a verdict of guilty of murder in the first degree, under the indictment which charged that the crime was committed at Lynn, within the county of Essex. Under this indictment it was necessary for the Commonwealth to prove that the deceased was killed in Essex County or within one hundred rods of the county line, or that he died in that county. R. L. c. 218, \\u00a746 and 49. The facts bearing upon this point were: \\u2014 that the deceased was last seen alive by any witness except the defendant near Central Square in Lynn, at about four o'clock in the afternoon of April 11, and that the defendant in his automobile was then a few hundred feet distant and in plain sight of the deceased; that about thirty-five minutes after four of the same day a cane, which might have been found to have been one used by the deceased that afternoon, was discovered in the road directly opposite the spot where the body of the deceased was found; thirty or forty feet distant was a cap which might have been found to have been worn by the defendant on the same afternoon; that the next morning, April 12, the body of the deceased was found at the foot of an embankment in Lynn, thirty-seven hundred and one feet from the line separating Essex County from Suffolk County, and at about the same time a button, which might have been found to have been torn from a coat worn by the defendant on the preceding afternoon, was seen lying in the highway near the place where the body was found; and that some time later a pistol, identified as belonging to the defendant and carrying unexploded cartridges of the same size and type as those found in the body of the deceased, was discovered in the Saugus River, the centre of which is the county line between Essex and Suffolk. The defendant testified that at his invitation the deceased entered his automobile in Lynn, but that the homicide occurred in Suffolk County more than one hundred rods from the county line, and that he \\\"had brought the body back in the automobile and carried it about for about two hours when he placed it upon the embankment above where it was found.\\\" There were no buildings between the spot where the body was lying on the morning of April 12 and the gate house at Saugus River bridge on the county line. The mere finding of the body with marks of mortal wounds upon it of such character that death must, have ensued almost instantly, at a place where it must have been thrown by the hand of man, within the county of Essex, was sufficient to prove that the killing occurred in that county. Commonwealth v. Costley, 118 Mass. 1, 26. There was evidence of the other facts which have been narrated and which well might have been thought to lend confirmation to the conclusion that acts of violence occurred near the place where the body was found. The statement of the defendant to the contrary might have been disbelieved by1 the jury, who saw him on the witness stand and had opportunities for determining as to his truthfulness and reliability. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, 323. Moreover, there was ample evidence from which the inference might have been drawn that the purpose of the defendant to commit the crime had been fixed and predetermined for a considerable period of time. If this was found to be the fact, manifestly his testimony as to the way in which the killing occurred might have been discredited.\\n2. The medical examiner who qualified as an expert was permitted, against the exception of the defendant, to give his opinion as to the position in which the body of the deceased was at the time the bullet wounds were received, which was based upon a surface flesh wound. The ground of objection was that that subject was one not requiring special knowledge, but one which could be comprehended by persons of average intelligence without the aid of experts, and reliance is placed on Edwards v. Worcester, 172 Mass. 104, and Whalen v. Rosnosky, 195 Mass. 545. But it cannot be said as matter of law that a physician, having special knowledge of anatomy and considerable experience with bullet wounds, would not be able to express an opinion upon this point helpful in enabling the jury to reach a just conclusion. Commonwealth v. Spiropoulos, 208 Mass. 71.\\n3. One motive for the commission of the crime might have been found to have been a desire on the part of the defendant to cause a financial gain to his aunt, Orpha A. Marsh, to whom he appeared to be deeply attached. As bearing .upon this issue, the Commonwealth offered in evidence through a witness Crane, a deed from the deceased to Orpha A. Marsh of property of con siderable value, together with a letter directing the witness Crane to deliver the deed at the death of the deceased if that event occurred before July 20,1915. At the time these documents were introduced, the presiding judge instructed the jury that they were not to be considered as evidence unless the defendant should be found on the testimony to be directly or indirectly acquainted with the matters contained in them. Later the same witness testified that he and Orpha A. Marsh discussed the escrow deed a good many times in the presence of the defendant, and that once he spoke of it to the defendant. The defendant himself also testified that he knew of the deed in escrow and that its purpose was to carry out the intent of an original trust deed from another kinsman for the benefit of Orpha A.. Marsh, which was invalid because of a defect in its terms; that he had talked with his aunt about the deed in escrow, and that there was no secret about the fact or the terms upon which it was held by the witness Crane. Manifestly knowledge of the substance of the two documents introduced in evidence was brought home to the defendant, and that being so, they became competent evidence.\\n4. Two witnesses were called by the Commonwealth for the purpose of identifying the button found in the road near the place where the body of the deceased was discovered, as being a button from the coat of the defendant. The button was shown to each of the witnesses and then inquiries were made about it. The defendant objected upon the ground that it was a leading question if the button was presented first. It is difficult to see how it can be regarded as a leading question, to present an article to a witness with an inquiry about it. But even if it be treated as a leading question, this is not ground for setting aside the verdict. Within reasonable limits, leading questions may be permitted as matter of discretion by the presiding judge. Moody v. Rowell, 17 Pick. 490, 498. York v. Pease, 2 Gray, 282. Green v. Gould, 3 Allen, 465. Commonwealth v. Meserve, 154 Mass. 64, 68.\\n5. During the examination of a witness a diary and letter of the defendant, which were important pieces of evidence in favor of the contentions of the Commonwealth, were marked for iden tification, but were not then offered in evidence. Counsel for the defendant at that time demanded the right to inspect the diary and letter, but the judge ruled that he could examine them \\\"immediately preliminary to the introduction\\\" of them in evidence, and not before. This ruling related merely to the order of introduction of evidence, a matter resting in the discretion of the trial court to the exercise of which no exception lies. Commonwealth v. Piper, 120 Mass. 185. Commonwealth v. Smith, 162 Mass. 508. Commonwealth v. Johnson, 188 Mass. 382, 385.\\nC. N. Barney, (W. A. Bishop & C. J. Goldman with him,) for the defendant.\\nH. C. Attwill, District Attorney, for the Commonwealth.\\n6. The director and forecaster of the United States Weather Bureau at Boston testified that he had before him the original record of the weather conditions kept at the Boston offices of the United States Weather Bureau under his supervision, although not in his handwriting, and that in his opinion the weather conditions and the velocity of the wind- at Boston would not vary substantially from those prevailing at the place where the body was found. Thereupon, against the objection of the defendant, the records as to weather conditions and velocity of wind were read. The official record of a fact made by a public officer in the performance of his duty may be introduced in evidence as proof of the truth of the facts recorded. This rests upon the general principles of the law of evidence, and not upon the statutes. Gurney v. Howe, 9 Gray, 404. Allen v. Kidd, 197 Mass. 256, and cases cited at 259. Weather bureau records generally have been admitted under this rule. Evanston v. Gunn, 99 U. S. 660. Hufnagle v. Delaware & Hudson Co. 227 Penn. St. 476. Kolodrianski v. American Locomotive Works, 29 R. I. 127. See cases collected in 17 Cyc. 310. The records were in court before the witness and must be treated as actually in evidence.\\nExceptions overruled.\\nQuinn, J.\"}"
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+"{\"id\": \"885033\", \"name\": \"Town of Lexington vs. Charles W. Ryder & others\", \"name_abbreviation\": \"Town of Lexington v. Ryder\", \"decision_date\": \"1937-03-02\", \"docket_number\": \"\", \"first_page\": \"566\", \"last_page\": \"569\", \"citations\": \"296 Mass. 566\", \"volume\": \"296\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T21:54:49.770021+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Town of Lexington vs. Charles W. Ryder & others.\", \"head_matter\": \"Town of Lexington vs. Charles W. Ryder & others.\\nMiddlesex.\\nMay 12, 1936.\\nMarch 2, 1937.\\nPresent: Rugg, C.J., Crosby, Donahue, Lummus, & Qua, JJ.\\nR. B. Owen, (R. L. Ryder with him,) for the respondents.\\nS. R. Wrightington, for the petitioner.\", \"word_count\": \"1312\", \"char_count\": \"7238\", \"text\": \"Donahue, J.\\nThe town of Lexington brought this petition in the Land Court for the foreclosure of all right of redemption under a tax sale. G. L. (Ter. Ed.) c. 60, \\u00a7 65.\\nThe petitioner claims title under a deed from the collector of taxes of the town which recited that at a tax sale held on September 25, 1931, the real estate in question was bid in by one Tenney, that he failed to pay within twenty days after the sale the sum offered by him, and that the town thereby became the purchaser of the property. The deed was dated and acknowledged on October 15, 1931. It is conceded by the respondents that the deed was recorded within the time after the sale required by the statute. G. L. (Ter. Ed.) c. 60, \\u00a7 45.\\nThe respondents contend that the deed given by the collector of taxes to the town was invalid. Under the statute, Tenney, the purchaser at the tax sale, by paying to the collector the amount of his bid \\\"within twenty days after the sale\\\" would become the owner of the tax title, but in the event of his failure to make payment within that period \\\"the sale shall be void, and the town shall be deemed to be the purchaser.\\\" G. L. (Ter. Ed.) c. 60, \\u00a7 49. The day of the date of the deed was the twentieth day after the sale. The respondents contend that the deed to the town was delivered at a time when the twenty-day period within which Tenney could make payment had not expired, when the sale to him had not become void, and when the town could not be deemed to be the purchaser.\\nA judge of the Land Court found on the evidence that the tax sale to the town was valid. The respondents having offered to redeem if the tax title was held valid, the trial judge ordered that the case stand for further hearing on the matter of redemption. The respondents appealed from the decision of the Land Court.\\nThe deed to the town contained a recital that the purchaser at the tax sale had failed to pay the amount he had bid within twenty days thereafter. Such a recital conformed to the provision of the statute which required that where a town becomes the purchaser by operation of \\u00a7 49, the deed \\\"shall set forth the fact . . . that the purchaser failed to pay the amount bid.\\\" G. L. (Ter. Ed.) c. 60, \\u00a7 50. By reason of another section of the statute a tax deed when recorded becomes \\\"prima facie evidence of all facts essential to the validity of the title thereby conveyed.\\\" G. L. (Ter. Ed.) c. 60, \\u00a7 45. Welch v. Haley, 224 Mass. 261. A failure of the purchaser at the tax sale to make payment within twenty days was a fact essential to the validity of the title. By the introduction in evidence of the recorded deed containing such recital there came into the case prima facie evidence of the fact that the purchaser did not pay the amount bid by him within twenty days after the tax sale.\\nIf this prima facie evidence was uncontradicted it would compel the conclusion that the purchaser at the tax sale did not make payment within twenty days after the sale. If, however, there was contradictory evidence, that conclusion would not be compelled, but there would be presented the question of fact whether, on the evidence which was made prima facie evidence by the statute and on any contradictory evidence, the purchaser had made payment within twenty days after the sale. Cohasset v. Moors, 204 Mass. 173, 179-180. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 548. Shamlian v. Equitable Accident Co. 226 Mass. 67, 70. Thomes v. Meyer Store Inc. 268 Mass. 587, 589-590.\\nOn the date borne by the deed, the twenty-day period within which the purchaser might make payment had not expired, although the deed in effect recited that it had expired without payment having been made. Thus, the date in the deed was other evidence in the case, also prima facie in character, which tended to contradict the fact embraced in that recital which the statute made prima facie evidence. There was therefore a question of fact to be determined on two pieces of prima facie evidence both appearing in the deed. At the time of the trial the collector of taxes who gave the deed had died and there was no one who could testify from personal knowledge as to the facts respecting the execution and delivery of the deed. As to these matters the only evidence was in the deed itself.\\nThe delivery of a deed is essential to its validity and a deed becomes effective only at the time of its delivery. Dresel v. Jordan, 104 Mass. 407. Berkshire Mutual Fire Ins. Co. v. Sturgis, 13 Gray, 177. Harrison v. Phillips Academy, 12 Mass. 455, 461. The date appearing in the deed in this case furnished prima facie evidence that it was delivered on the day of its date, Smith v. Porter, 10 Gray, 66, Conley v. Finn, 171 Mass. 70, Hall v. Sears, 210 Mass. 185, but this might \\\"be controlled by other recitals in the deed, or by extrinsic facts and circumstances.\\\" Dresel v. Jordan, 104 Mass. 407, 417.\\nWhere, as here, there are two conflicting pieces of evidence, both prima facie in character, it cannot be ruled as matter of law that either has controlling effect over the other. As was said in Chandler v. Prince, 217 Mass. 451, 455: \\\". . . the law does not put all prima facie evidence on the same footing, nor declare that it is all of equal probative force. . . . When two pieces of evidence conflict, each declared by law to be of prima facie force, then the case is thrown open and is to be considered at large upon all the evidence. The tribunal charged with the ascertainment of the facts is bound to determine the inherent evidential value of each piece of evidence and weigh it with the inferences and probabilities arising from all the circumstances, and thus reach a decision. . . . The evidence is to be considered as a whole and the truth ascertained as in other cases of contradictory evidence.\\\" See also Adams v. Hayden, 236 Mass. 454, 459. Compare Turner v. Williams, 202 Mass. 500, 505; Fisher v. Drew, 247 Mass. 178, 183. It was here a question of fact for the trial judge to determine which of the two pieces of prima facie evidence had the greater probative value, the burden of proof being on the petitioner.\\nThe express recital in the deed that the purchaser had failed to pay the amount bid was, under the statute, essential to its validity. But the date written in the deed had no essential effect on the time when it should be operative. It is the delivery of a deed and not the date which makes it effective. There is no reason why the collector should make the deed effective before the expiration of the twenty-day period and there were eleven days after its date within which, under the statute, it might be recorded. The trial judge found the prima facie evidence that payment was not made by the purchaser within twenty days after the sale to be of controlling force and \\\"On the evidence\\\" found the tax sale to the town to be valid. It cannot be said that this finding was unwarranted.\\nDecision affirmed.\\nThe trial judge found that the deed was recorded on \\\"October 26th.\\\" \\u2014 Reporter.\"}"
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+"{\"id\": \"888032\", \"name\": \"David Herman vs. Abraham E. Golden\", \"name_abbreviation\": \"Herman v. Golden\", \"decision_date\": \"1937-06-29\", \"docket_number\": \"\", \"first_page\": \"9\", \"last_page\": \"12\", \"citations\": \"298 Mass. 9\", \"volume\": \"298\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:10:13.437899+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David Herman vs. Abraham E. Golden.\", \"head_matter\": \"David Herman vs. Abraham E. Golden.\\nSuffolk.\\nMarch 29, 1937.\\nJune 29, 1937.\\nPresent: Rugg, C.J., Field, Donahue, Lummus, & Qua, JJ.\\nR. B. Coulter, for the plaintiff.\\nJ. T. Connolly & W. R. Donovan, for the defendant.\", \"word_count\": \"946\", \"char_count\": \"5204\", \"text\": \"Lummus, J.\\nThe defendant's father kept a store, and the defendant owned a building next door, the rooms of which he let to various tenants for business purposes. The plaintiff desired to hire a place of business, and called at the store on Wednesday or Thursday, where he found the elder Golden, who was the defendant's father and agent. The latter showed the plaintiff a loft on the third floor. After another visit on Friday, an arrangement was made on Saturday by which the plaintiff was to pay rent from the first day of May, which was the following Friday, but in the meantime could go to the premises and do anything he wished there. . A deposit was made on account of the first month's rent, but the evidence was conflicting as to whether he got a key. The balance of the rent was to be paid at the first of the month.\\nEntrance to the building was had through double swinging doors leading into a hallway five feet wide and nineteen feet long. As one walked down this hallway, he found on the right, about eight feet from the doors, an elevator lobby six feet wide and ten feet deep. Both the hallway and the elevator lobby were lighted by a single electric light in the hallway opposite the elevator lobby. This was controlled by a switch at the back of the hallway. The elevator, which was of the platform type used for .freight, ran in a shaft between the elevator lobby and the front of the building. There was an entrance to the elevator from the front of the building, but that is immaterial. There was also an entrance to it from the elevator lobby. At this entrance there were heavy iron fire doors commonly left open. There was also a safety gate consisting of several bars with cross pieces. This gate worked in a groove of metal on one side and wood on the other, and was automatic at least to the extent that it was so designed that, if in good condition and working properly, it would descend whenever the elevator left the first floor landing, making a barrier across the entrance to the shaft. The elevator was operated by a rope which could be reached by a person standing in the elevator lobby close to the entrance to the elevator.\\nOn the plaintiff's first visit with the elder Golden, the electric light in the hallway was on. The only light was from that electric light and from another in the elevator itself that Golden turned on. With the light on in the hallway the gate and tbie elevator platform were plainly seen. When the plaintiff and the elder Golden came down, the plaintiff noticed that the gate stuck, and had to be put down by hand. On Friday, when the plaintiff returned, there was no light in the hallway, and \\\"the plaintiff could not go upstairs.\\\" He went into the store, and the elder Golden sent the janitor with him. The janitor turned on the lights, took the plaintiff to the third floor in the elevator, and came down with him. Again the gate stuck. The visit on the following day, Saturday, was a repetition of that of Friday, except that the elder Golden himself conducted the plaintiff. The gate still stuck.\\nOn Monday, between half past nine and ten o'clock in the morning, the plaintiff entered the building alone. It was dark, and no lights were on. He did not know where the switch was. He groped his way to the elevator and tried to find the gate at the entrance to the elevator. It was not there, and he fell down the shaft, receiving serious injuries. An examination afterwards showed that the grooves in which the gate ran were dry and without lubrication.\\nThe jury returned a verdict for the plaintiff. Under leave reserved (G. L. [Ter. Ed.] c. 231, \\u00a7 120), the judge\\nentered a verdict for the defendant, subject to the plaintiff's exception.\\nThere is grave doubt, to say the least, whether the plaintiff was not guilty of contributory negligence as matter of law in groping in a dark hallway for an elevator gate which he knew might not be in place, when he had only to go out to the store next door to obtain a guide. Benton v. Watson, 231 Mass. 582. Burke v. Crimmins, 256 Mass. 14. Lanstein v. Acme White Lead & Color Works, 285 Mass. 328. Henebury v. Cabot, 288 Mass. 349. Osgood v. Therriault, 290 Mass. 513. Perry v. Loew's Boston Theatres Co. 291 Mass. 332. If the plaintiff had been a tenant, it might well be contended that the defect which caused the injury existed and was known to him at the time he hired the tenement, and consequently that there was no breach of duty to him. Sordillo v. Fradkin, 282 Mass. 255, 257. But it is more clear than it was in Sordillo v. Fradkin, 282 Mass. 255, 257 (compare Stumpf v. Leland, 242 Mass. 168, 176), that the plaintiff had not become a tenant, and he may have been only a licensee. The plaintiff contends that he was neither a tenant nor a licensee, but an invitee. If so, the invitation could not be found to extend to his groping in a dark hallway under the circumstances of this case. A verdict for the defendant was required upon the evidence.\\nExceptions overruled.\"}"
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+"{\"id\": \"891783\", \"name\": \"Antonio Reitano vs. City of Haverhill\", \"name_abbreviation\": \"Reitano v. City of Haverhill\", \"decision_date\": \"1941-05-26\", \"docket_number\": \"\", \"first_page\": \"118\", \"last_page\": \"123\", \"citations\": \"309 Mass. 118\", \"volume\": \"309\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T01:09:52.797269+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Antonio Reitano vs. City of Haverhill.\", \"head_matter\": \"Antonio Reitano vs. City of Haverhill.\\nEssex.\\nApril 9, 1941.\\nMay 26, 1941.\\nPresent: Field, C.J., Lummus, Qua, Dolan, & Cox, JJ.\\nA. H. Salisbury, 2d, (R. A. A. Comparone with him,) for the plaintiff.\\nW. C. McDonald, City Solicitor, (W. S. Soroka with him,) for the defendant.\", \"word_count\": \"1684\", \"char_count\": \"9921\", \"text\": \"Dolan, J.\\nThis is an action of tort to recover compensation for personal injuries, sustained by the plaintiff as a result of the alleged negligence of the \\\"defendant or the person in its service entrusted by it with the duty of superintending the work\\\" upon which the plaintiff was assisting when he was injured. At the close of the evidence the defendant filed a motion for a directed verdict, which the judge allowed subject to the plaintiff's exception. In directing the jury to bring in a verdict for the defendant the judge stated, in substance, that he was doing so solely because, as matter of law, a municipality is exempt from liability for negligence, \\\"if there is any negligence, in a case of this kind.\\\" The case comes before us on the plaintiff's exceptions to the granting of the defendant's motion for a directed verdict and to the exclusion of certain evidence' offered to show negligence on the part of the defendant.\\nThe evidence would warrant the jury in finding the following facts: On November 3, 1937, the plaintiff was, and for some time prior thereto had been, receiving relief from the defendant. He was a \\\"'relief worker,' so called,\\\" receiving $3 a week, in return for which he performed- such work for the defendant as it might direct, at the rate of fifty cents an hour. On the morning of November 3 he reported for work and, under the direction of one Ferretti, a foreman in the defendant's department of p\\u00fablic property, accompanied him and \\\"two other persons\\\" to the Haverhill stadium to aid in the repair of one of the stadium gates. The plaintiff and the two \\\"other persons\\\" were expected to obey such orders as Ferretti might give in directing the work. While following Ferretti's orders in assisting in the work the plaintiff was injured. It is unnecessary to recite the details of the accident, since we assume in favor of the plaintiff, for the purposes of the case, that the jury could find that at the time the accident occurred he was in the exercise of due care and that his injuries were caused by the negligence of Ferretti while exercising superintendence. (See Ryalls v. Mechanics' Mills, 150 Mass. 190, 196.) The plaintiff concedes properly that he was not then an employee of the defendant within the meaning of the workmen's compensation act, the provisions of which applicable to cities had been accepted by the defendant. See Scordis's Case, 305 Mass. 94.\\nSpecial St. 1918, c. 56, provided for a commission to be known as the \\\"Haverhill Stadium and Athletic Field Commission,\\\" to consist of five members, including the mayor and the president of the school committee ex officiis, and three others, each of whom was to be elected annually for a fixed term. The commission was authorized to acquire in the name of the city the land that prior to the enactment of the statute had been leased by the city to the Haverhill High School Athletic Field Association, and the structures thereon, and to hold, manage, control, lease or let the same for the purposes of high school and other athletics and other public events. The statute also provided that the revenue derived from leasing or letting the land should be devoted, first, to the upkeep and maintenance of the land and structures, second, to the payment of interest charges and the retirement of the bonds (authorized to be issued by the statute for the purpose of acquiring the \\\"structures\\\"), and, third, to the enlargement and improvement of the grounds and the development and encouragement of school athletics.\\nStatute 1929, c. 168, provides as follows: \\\"The school committee of the city of Haverhill shall have sole management and control of the Haverhill stadium and athletic field, so called, including the land and structures thereon, located in said city and to be used for purposes of school and other athletics and public events at which an admission fee may or may not be charged. Said school committee may lease or let said stadium and athletic field for any of the aforesaid purposes upon such terms and conditions as it may determine. All revenue received by said school committee from said stadium and athletic field shall be paid into the treasury of said city. Acting on behalf of said city, said school committee shall collect all money due to, and assume all obligations and debts incurred by, the Haverhill stadium and athletic field commission, established by chapter fifty-six of the Special Acts of nineteen hundred and eighteen.\\\"\\nOn January 21, 1930, the school committee voted to rent the stadium to the Haverhill High School Athletic Association at an annual rental of $1 \\\"and other valuable considerations.\\\" The association was a voluntary one, \\\"consisting of several members of the faculty of the . . . High School, among whom was its Athletic Director and Football Coach, the Superintendent of Schools, and a number of high school students. The 'other considerations' . . . were'that, 'The Haverhill Athletic Association should have the use of the Haverhill Stadium, conduct athletic activities there, hold all the income derived from it, and that from such income it was to pay expenses, . . . and that if there was a surplus after any given year such Athletic Association could retain such amount until it felt it had sufficient on hand to conduct activities for the following year, or the next few years, but if said sum ever became so much that it would be more than sufficient for their needs of conducting athletic contests, then such amount should be turned over to the School Committee, which in turn would go to the general funds of the City of Haverhill and the treasurer for the city treasury of Haverhill.' This arrangement between the School Committee and the Association continued to exist from 1930 to, and has existed since, the date of the plaintiff's injury. It was agreed that the principal sources of income from the Stadium were and are the four or five games played therein by the Haverhill High School football team each year, that four or five thousand people attend each such game, and that the average admission fees charged to spectators were and are twenty-five cents for minors and fifty cents for adults.\\\" However, there was evidence that, from 1930 through 1937, annual reports were submitted by the association and that only the one dollar set as the basic yearly rental was ever paid by it to the defendant for the use of the stadium, and that, in addition, the defendant's school committee, which continued to \\\"'have the management of the Haverhill Stadium,' paid out for its maintenance, the sum of $1,513.32 in 1936, and $119.70 in 1937, which sums included the compensation of the 'grounds keeper.'\\\" All receipts taken in from the high school athletics are handled by the athletic association. Since 1935 the stadium has been \\\"operating at a deficit.\\\" During the summer time it \\\"is rented gratis to a number of twilight league baseball teams. No charge is made. The only conditions are it be properly policed, and that suitable use should be made of the facilities there, and that the grounds keeper should be paid, the custodian.\\\"\\nThe right of sole control and the duty of management including the maintenance of the stadium having been conferred and imposed upon the school committee by the Legislature, it is settled that in their exercise and performance the members of the committee act as public officers. It is also settled tho/t a municipality can exercise no direction or control over those whose duties have been defined by the Legislature, and that, in the absence of statutory provisions to the contrary, a municipality is not liable for the torts of public officers or for those of their agents or servants acting in the discharge of public duties imposed upon such officers, and this whether the exercise of the authority granted by the Legislature be for profit or otherwise. Sweeney v. Boston, ante, 106, and cases cited. Warburton v. Quincy, ante, 111. In the present case the governing statutes contain no provisions to the contrary.\\nThe work upon which the plaintiff was assisting when injured was not one imposed upon the defendant by mandate of the Legislature, and it cannot be said to have been one voluntarily undertaken by the city by permission of the Legislature for profit or to benefit its corporate interest. (See Bolster v. Lawrence, 225 Mass. 387, 389; Baumgardner v. Boston, 304 Mass. 100, 107, and cases cited.) On the contrary, the work in question was one over which as matter of law the city had no power of control, and in connection with which it had no duties or obligations. The duty of keeping up and maintaining the stadium was placed by the statute exclusively in the hands of the committee.\\nIt is a fair inference, however, that the work in question was being done through the defendant's department of public property with the consent of the school committee. The work upon which Ferretti and the plaintiff were engaged at the time of the accident, that of repairing the gate to the stadium, was obviously one connected with its upkeep and maintenance, and in its superintendence Ferretti must be taken to have been acting in the right of the committee upon the members of which alone the duty of maintenance was imposed by the statutes. See McDermott's Case, 283 Mass. 74, 77; Sweeney v. Boston, ante, 106. Compare Sloper v. Quincy, 301 Mass. 20; Baumgardner v. Boston, 304 Mass. 100, 105.\\nIt follows from what we have said that the defendant is not liable for the torts of Ferretti committed while engaged in the discharge of this public duty, imposed upon the members of the committee as public officers.\\nExceptions overruled.\"}"
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+"{\"id\": \"8981900\", \"name\": \"Suzanne Macht v. Estate of Karen Dobkin et al.\", \"name_abbreviation\": \"Macht v. Estate of Dobkin\", \"decision_date\": \"2005-04-04\", \"docket_number\": \"No. 034823E\", \"first_page\": \"318\", \"last_page\": \"322\", \"citations\": \"19 Mass. L. Rptr. 318\", \"volume\": \"19\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T20:30:21.684277+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Suzanne Macht v. Estate of Karen Dobkin et al.\", \"head_matter\": \"Suzanne Macht v. Estate of Karen Dobkin et al.\\nSuperior Court, Suffolk, SS\\nNo. 034823E\\nMemorandum Dated April 4, 2005\\nEdward M. Stern, Beth L. Aarons, and Rosarme Murphy.\", \"word_count\": \"3632\", \"char_count\": \"22087\", \"text\": \"Burnes, Nonnie S., J.\\nThe defendants, Rosanne Murphy, Estate of Karen Dobkin, Edward M. Stem, and Beth L. Aarons, move for summary judgment on all claims in the plaintiffs, Suzanne Macht, complaint.\\nFor the reasons set forth in this opinion, the defendants' motions for summary judgment are ALLOWED.\\nBACKGROUND\\nIn 1984 Karen Dobkin, now deceased, executed a Will wherein she devised her entire estate to her parents and her sister Rosanne Murphy (\\\"1984 Will\\\"). The 1984 Will was properly executed. In the winter of 2002, Dobkin was diagnosed with cancer, and started to reconsider her estate plan. Initially, Dobkin consulted Marjorie Berkowitz, the wife of the attorney who had drafted the 1984 Will, and she referred Dobkin to attorney Edward M. Stem.\\nIn June of 2003, Dobkin met with attorney Stern to discuss making changes to her estate. Beth L. Aarons, an attorney who occupied the same office complex as attorney Stem, and who had estate planning experience, was also present at the meeting at Stern's request. At the meeting, Dobkin informed both attorneys that she wanted to revoke the 1984 Will and leave the majority of her estate to charities and friends. In response, Stems prompted Dobkin to write a specific list of the charities that she wanted to benefit from her estate, and to contact him when it was completed so that they could effectuate the changes she wanted. In the weeks following the meeting, Stems made efforts to contact Dobkin regarding the list. At each juncture, Dobkin replied that she had not yet completed the list. In July of2003, Stems informed Dobkin that he would be leaving on vacation through the month of August, and that she should direct any pressing issues regarding the changes to her estate to attorney Aarons.\\nShortly after Dobkin left for his vacation in early August, Dobkin fell ill due to her cancer. On August 4th and 5th, Dobkin attempted to contact attorney Aarons to request that a new will be drafted. On August 6, 2003, Carol Rissman, a close friend of Dobkin, found Dobkin in the last stages of her illness. On August 6, 2003, Rissman contacted attorney Aar-ons, allegedly at Dobkin's request, and directed her to draft a will leaving the majority of the estate to the plaintiff, Suzanne Macht (\\\"2003 unexecuted will\\\").\\nAarons drafted the will, and sent it by courier to Dobkin's house with a cover letter instructing Dobkin on the necessary steps to properly execute the instrument. When the will arrived, just hours after the telephone call, Dobkin was in the final stages of her illness, was medicated, lacked consciousness, and was uncommunicative. Dobkin died in the early evening of August 6, 2003. The new will was never executed; the 1984 Will was never revoked.\\nShortly after Dobkin's death, Macht began acting as a temporary self-appointed executrix and began collecting all of Dobkin's assets with no objection from Murphy, Dobkin's sister. According to Macht, she had a number of conversations with Murphy where she told Murphy about Dobkin's wishes prior to her death, and particularly about the desires she expressed in the 2003 unexecuted Will. According to Macht, Murphy indicated that Dobkin's last wishes should be honored. Shortly thereafter Murphy learned from attorney Stem that the 1984 Will was in existence, and that it was the only properly executed Will left by Dobkin. Murphy then requested that attorneys Stem and Aarons represent her in probating the 1984 Will. Attorneys Stem and Aarons agreed, and the 1984 Will was admitted to probate, with Murphy appointed as executor.\\nAfter discovering that Murphy had probated the 1984 Will, Macht filed this present action seeking enforcement of the oral agreement that she alleges she reached with Murphy to have Dobkin's final wishes, as expressed in the unsigned and unexecuted 2003 Will, honored, and to be appointed as the executor of Dobkin's estate. In her complaint, Macht also brings claims against attorneys Aarons and Stern, premised on their failure to ensure that the 2003 Will was properly executed, and their failure to carry out Dobkin's intent that Macht be the principal beneficiary of her estate. Macht posits herself as an intended third-party beneficiary of the engagement between Dobkin and attorneys Stern and Aarons, and seeks to derive from that status her right to bring breach of fiduciary duty and malpractice claims against the attorneys for their alleged failures regarding the 2003 unexecuted Will. Macht ultimately seeks damages, appointment as the executor of Dobkin's estate, and declarations to the effect that, (1) the unexecuted Will is valid, (2) that the 1984 Will was repudiated and revoked, and (3) that Murphy entered into an enforceable agreement to accede to the terms of the unexe-cuted 2003 Will.\\nDISCUSSION\\nThis Court grants summary judgment where there are no genuine issues of material fact and the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson, 404 Mass. at 17.\\nA. Macht's Claims Against Murphy and the Estate of Karen Dobkin\\nIn her complaint, Macht alleges that Murphy entered into a binding and enforceable agreement with her that the disposition of Dobkin's property would be accomplished in conformity with Dobkin's wishes expressed in her 2003 unexecuted Will rather than the executed 1984 Will. The genesis of Macht's claims against the Estate and Murphy are that Murphy repudiated that agreement, and in turn, deprived Macht of the distribution of the estate that she believes she should have received. In order to succeed on her claim, Macht must establish that she and Murphy entered into a valid and enforceable agreement to compromise the 1984 Will, before that Will was allowed, in one of two ways, (1) by entering into a court-approved compromise, pursuant to G.L.c. 204, \\u00a715, or (2) by entering into a mutual agreement at common law. Price v. Price, 348 Mass. 663 (1965); Budin v. Levy, 343 Mass. 644, 649 (1962); MacDonald v. Gough, 327 Mass. 739 (1951). It is undisputed in the summary judgment record that Macht and Murphy never entered into a court-approved compromise, pursuant to G.L.c. 204, \\u00a715. Therefore, Macht's claims against Murphy can only survive if she establishes that she and Murphy entered into a valid and enforceable mutual agreement at common law.\\nIn Massachusetts, before a will is allowed, an executor of the will and all of the interested parties who are of legal competence, and whose interests under the will may be affected, may enter into an agreement with regard to the property disposed of in the will. Price, 348 Mass, at 663; Budin, 343 Mass, at 649; MacDonald, 327 Mass, at 739. If this court assumed that Murphy and Macht's stray remarks in August of2003, regarding Dobkin's property were sufficient to constitute an agreement, that agreement would only be enforceable, if at the time it was entered into, (1) Macht was an \\\"interested party\\\" to the Will, (2) all other interested parties who would take under the 1984 Will were parties to the agreement, or had their interests represented, and (3) Murphy was aware that the Will was in existence, and could properly compromise any of the claims contained in it. Id. Macht's claims fail as a matter of law because she does not establish these critical elements.\\nFirst, Macht is not an \\\"interested party\\\" because she was not named as a beneficiary under the 1984 Will, and is not an heir at law of Karen Dobkin. McDonald, 377 Mass. at 742; Ellis v. Hunt, 228 Mass. 39,43-44 (1917) (will, agreement or compromise must be entered into by the beneficiaries under a will, heirs at law, competent legatees, and devisees, as to what they may receive under the will). See also Conley v. Fenelan, 266 Mass. 340, 344 (1929) (recognizing that heirs at law or legatees are the only \\\"persons interested\\\" who can challenge a will). Therefore, Macht was not a party who could enter into a contract regarding the disposition of the Estate of Dobkin's property. Furthermore, any alleged agreement entered into by Macht and Murphy would be invalid because Dobkin's niece and nephew, named in Articles II and III of the 1984 Will, were \\\"interested persons,\\\" because they would gain property under the will if Macht disclaimed her interest or predeceased Dobkin, and were not parties to the alleged agreement. See Budin, 343 Mass, at 649 (parties may settle their differences by mutual agreement, without the aid of G.L.c. 204, \\u00a715, only where \\\"all interested parties are of legal competence and no unrepresented interests would be affected\\\").\\nAdditionally, Macht admits that at the time that she and Murphy entered into this alleged agreement, Murphy had no knowledge that the 1984 Will even existed, and only knew of the unexecuted 2003 Will. Murphy could not, therefore, enter into an agreement to compromise the 1984 Will whose terms she was wholly unaware of. See Ellis, 228 Mass, at 43 (a will agreement is a change made by the legatees or devisees to the disposition to be made \\\"of the interests granted by the will\\\"). Nor could Murphy enter into an agreement as to the only will that she was then aware of, the unexecuted 2003 Will, because it would never be allowed at probate. See Parker v. New England Trust, 215 Mass. 226, 288 (1913). Thus, taking as true Macht's version of the facts, any post-mortem agreement forged by her and Murphy regarding the distribution of property under the 1984 Will, as a matter of law, would have no legal effect. See Baxter v. Treasurer Receiver General, 209 Mass. 459, 463 (1911). The remarks between Murphy and Macht are, in essence, nothing more than an unenforceable promise to make a gift. See e.g., Congregation Kadimah Toras-Moshe v. DeLeo, 405 Mass. 365, 366-68 (1989) (oral promise to make a gift was not an enforceable contract).\\nMacht's alternative argument is that the alleged agreement should be given effect because it reflects Dobkin's true testamentary intent that Macht, and not Murphy, be the primary beneficiary of her estate. For this reason, Macht's counsel argues that summary judgment would not be warranted on this claim until he can obtain additional discoveiy that documents Dobkin's testamentary wishes, and confirm that she had no intention of leaving anything to her sister. See Mass.R.Civ.P. 56(f). Both arguments, however, ignore the well-established precedent that the rights under will agreements are wholly contractual and not testamentary, and may even be contrary to the testator's intent. Budin, 343 Mass, at 649. A will compromise is a reflection of the volition of the parties to the agreement, not of the will or intent of the testator. Ellis 228 Mass, at 43. The additional discoveiy that the plaintiff seeks would, hence, be fruitless to her claims because testamentary intent is irrelevant to finding a valid enforceable agreement to compromise a will. Id.\\nFor these reasons, summary judgment should enter in favor of Rosarme Murphy, and the Estate, on Counts I and V of the plaintiffs complaint.\\nB. Macht's Claims Against Attorneys Aarons and Stern\\nIn her complaint, Macht alleges that Dobkin engaged attorneys Aarons and Stern to draft a new Will that made Macht the principal beneficiary, and that both attorneys breached the terms of their engagement by failing to ensure that the 2003 Will was executed. Macht claims that she was an intended third-party beneficiary of that engagement, and as such, has the right to bring a claim for the attorneys breach of that agreement, breach of fiduciary duty, and professional malpractice. The defendants argue that even if Macht could prove that a contract existed to provide legal services for the creation of the 2003 unexecuted Will, Macht could not be an intended beneficiary of that agreement, and has no right to enforce it, or sue for an alleged breach of its terms. Miller v. Mooney, 431 Mass. 57, 62-63 (2000). To recover as a third-party beneficiary, Macht must show that Dobkin and the attorneys \\\"intended to give her the benefit of the promised performance.\\\" Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 366 (1997). Massachusetts has adopted Restatement (Second) of Contracts 302 (1981) and \\\"limit(s) enforcement by beneficiaries to those who are intended beneficiaries.\\\" Miller, 431 Mass, at 62. For a party to be designated an intended beneficiary, it \\\"must appear from\\\" the language and circumstances of the contract that the parties to the contract \\\"clearly and definitely intended the beneficiaries to benefit from the promised performance.\\\" Id. quoting Anderson, 424 Mass, at 366-67.\\nMacht cannot be an intended beneficiary of the engagement between Aarons, Stem, and Dobkin because in preparing an estate plan or will, the attorneys can \\\"have only one client to whom they owe a duty of undivided loyalty.\\\" Id. at 62, citing Summons v. O'Keeffe, 419 Mass. 288, 300 (1995). That client is the testator Karen Dobkin. Id. Macht could only be an incidental beneficiary with no enforceable rights to that agreement or engagement. Miller, 431 Mass. at 62 (reasoning that even if the plaintiff could point to a contract where the testator required her attorney to draft a particular will, naming the plaintiff as a bene-ficiaiy, the plaintiff would have no right to enforce that agreement), citing Spinner v. Nutt, 417 Mass. 549, 556 (1994) (plaintiffs could not rely on their status as trust beneficiaries to show that they were intended beneficiaries of the contract between the defendants and the trustees).\\nAttorneys have only been held liable to intended beneficiaries of an estate for a breach of fiduciary duty where the lawyer's drafting errors in the will or trust instruments thwarts the intent of the testator, and if there is no conflict between the duties the attorney owes to the decedent and intended beneficiaries. Spinner, 417 Mass, at 554, citing Logotheti v. Gordon, 414 Mass. 308, 311 (1993). A claim is recognized in that limited circumstance of a drafting error only where all the beneficiaries, as would the testator, want the same result of allowing the will, and none are challenging the distribution under the will, and the claim arises only from the attorney's drafting or technical error. The determinative inquiiy is whether the potential for conflict exists. Miller v. Mooney. 431 Mass. 57, 63 (2000). In those cases, where all the beneficiaries and the testator have the same interests, courts reason that there is no potential conflict between the duly an attorney owes the client and to the intended beneficiaries. Logotheti, 414 Mass, at 311. This case does not fall within that limited circumstance because at its core is the dispute between the beneficiaries of the estate named in the executed Will, and the self-proclaimed intended beneficiary, Macht, who are at odds over the distribution of the estate. To hold that in these circumstances the defendant attorneys owed a duly to Macht, a party with a financial interest in the unexe-cuted Will, and a duty to the testator, Dobkin, would be to impermissibly impose potential conflicting duties on Stern and Aarons. Miller, 431 Mass, at 64 (attorney's duty to beneficiary cannot coexist with attorney's duty of undivided loyalty to the client testator where the former creates an incentive to exert pressure on a client to complete and execute estate planning documents and could contravene the attorney's primary responsibility to effectuate the client's wishes); Logotheti, 414 Mass, at 311; Spinner, 417 Mass, at 554.\\nIn the alternative, Macht's counsel also argues that summary judgment would not be warranted on the claims against Stern and Aaron until he can obtain additional discovery and elicit facts on which a jury could find that a third-party beneficiary contract existed between them. See Mass.RCiv.P. 56(f). This argument fails because there are no grounds, as a matter of law, on which Macht could bring her claims against attorneys Stem and Aarons as a third-party beneficiary of the attorneys engagement to Dobkin. Miller, 431 Mass, at 63 (reasoning that, even if a plaintiff could point to a contract requiring an attorney to draft a particular will naming the plaintiff as a beneficiary, the \\\"plaintiff could not obtain enforcement where there was no writing to remove the agreement from the statute of frauds\\\"). See also Shopneck v. Rosenbloom, 326 Mass. 81, 83-84 (1950) (oral contract to make will unenforceable as violative of Statute of Frauds, G.L.c. 259, \\u00a75A).\\nMacht's claim that attorney Aarons and Stem breached their fiduciary duty and malpractice claim also fails as a matter of law. When asserting a claim for legal malpractice, \\\"a plaintiff bears the burden of proving that its attorney committed a breach of the duty to use reasonable care, that the plaintiff suffered actual loss, and that the attorney's negligence proximately caused such loss.\\\" Atlas Tack Corp. v. Donabed, 47 Mass.App.Ct. 221, 226 (1999). It is undisputed that Macht had no attorney-client relationship with attorneys Sterns and Aarons. For there to be liability, in the absence of an attorney-client relationship, Macht must establish that the attorneys owed her a duty of care. Miller, 431 Mass, at 61. However, it is well settled that a court \\\"will not impose a duty of reasonable care on an attorney if such an independent duty would potentially conflict with the duty the attorney owes to his or her client.\\\" Id.; See Lomare v. Basbanes, 418 Mass. 274, 276 (1994). The duty of those attorneys who prepared the Will and estate plan is undivided and runs only to Dobkin, the testator, and cannot coexist with any duty to Macht. Symmons, 419 Mass. at 300. In the absence of a duty to Macht, there are no grounds on which she could support her professional malpractice and breach of fiduciary duty claims against attorneys Stem and Aarons. See Logotheti, 414 Mass. at 311-12; Miller, 431 Mass, at 60-61.\\nFor these reasons, summary judgment should appropriately enter in favor of the defendants Stems and Aarons on Counts II, III, IV, and IV of Macht's complaint.\\nORDER\\nFor the foregoing reasons, the motions for summary judgment brought forth by the defendants are ALLOWED, and it is hereby ORDERED that the plaintiffs Complaint be DISMISSED with prejudice.\\nIn her cover letter, attorney Aarons specifically stated that \\\"[T]o avoid any future issues or complications, please be sure that you have a notary public with a valid commission in the Commonwealth of Massachusetts, and two witnesses.\\\" It further instructed that the parties could contact attorney Aarons with any questions, or if the will did not reflect Dobkin's wishes.\\nIt is undisputed that the 2003 Will is invalid and unenforceable because it was never executed or probated. G.L.c. 191, \\u00a77.\\nG.L.c. 204, \\u00a715, provides: \\\"The Supreme Judicial Court or the probate court may authorize the persons named as executors in an instrument purporting to be the last will of a person deceased, or the petitioners for administration with such will annexed, to adjust by arbitration or compromise any controversy between the persons who claim as devisees or legatees under such a will and the persons entitled to the estate of the deceased under the laws regulating the descent and distribution of intestate estates, to which arbitration or compromise the persons named as executors, or the petitioners for administration with the will annexed, as the case may be, those claiming as devisees or legatees whose interests will in the opinion of the court be affected by the proposed arbitration or compromise, and those claiming the estate as intestate shall be parties.\\\"\\nEven if Macht could demonstrate the existence of a duty of care owed to her by attorneys Aarons and Stems, which she has failed to demonstrate in the summary judgment record, she would be unable to establish the necessary causation to support her malpractice claim. To establish the causal connection between the harm she complains of and the alleged malpractice of both attorneys, Macht must show that the errors committed by counsel, either alone or together, more likely than not was the reason why the matter turned out as it did. See Atlas Tack Corp. v. Donabed, 47 Mass.App.Ct. 221, 226 (1999). It is undisputed in the record supported by the affidavits and deposition testimony and affidavits of physicians and psychologists, as well the deposition of the plaintiffs friend Carol Rissman, that on August 6, 2003, Dobkin was unresponsive, uncommunicative, and nearly unconscious, all which suggest that she lacked the capacity to execute the Will, even if someone was going to sign on her behalf. G.L.c. 191, \\u00a71; See e.g., Duchesneau v. Jaskoviak, 360 Mass 730, 732-34 (1972) (eighty-year-old man lacked testamentary capacity when he signed an instrument alleged to be his last will and testamentary capacity his condition, as witnessed by his physician, was that of senility and confusion).\"}"
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+"{\"id\": \"8995160\", \"name\": \"U.S. Environmental Rental Corporation vs. Lease One Corporation\", \"name_abbreviation\": \"U.S. Environmental Rental Corp. v. Lease One Corp.\", \"decision_date\": \"2005-11-21\", \"docket_number\": \"\", \"first_page\": \"149\", \"last_page\": \"151\", \"citations\": \"2005 Mass. App. Div. 149\", \"volume\": \"2005\", \"reporter\": \"Reports of Massachusetts Appellate Division (Annual)\", \"court\": \"Massachusetts Appellate Division\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T23:40:12.922367+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Coven, Greco & Brant, JJ.\", \"parties\": \"U.S. Environmental Rental Corporation vs. Lease One Corporation\", \"head_matter\": \"U.S. Environmental Rental Corporation vs. Lease One Corporation\\nNorthern District\\nNovember 21, 2005.\\nPresent: Coven, Greco & Brant, JJ.\\nStephen P. Wright for the plaintiff.\\nJeffrey J. Phillips for the defendant.\", \"word_count\": \"1095\", \"char_count\": \"6624\", \"text\": \"Brant, J.\\nDefendant Lease One Corporation (\\\"Lease One\\\") was defaulted for failing to answer, an assessment hearing was held, and a default judgment for actual and G.L.c. 93A punitive damages was entered against Lease One for its refusal to return an unearned deposit. Lease One has appealed the denial of its Mass. R. Civ. R, Rule 55(c), motion to vacate the default.\\nOn October 26, 2000, the parties executed a proposal in which Lease One agreed to assist plaintiff U.S. Environmental Rental Corp. in obtaining $2,000,000.00 in lease financing within thirty days. The plaintiff paid Lease One a deposit of $60,000.00, an amount equal to three (3%) percent of the anticipated lease financing. The parties agreed that the deposit would be refunded in the event that Lease One was unable to obtain lease financing in the full amount of the two million dollars sought, and that the plaintiff would be liable to Lease One for only three (3%) percent of the amount of financing actually obtained.\\nIn January, 2002, the plaintiff made several requests to Lease One to either secure the lease financing or return its deposit. On January 23, 2002, Lease One refunded $30,000.00, half of the deposit, because it could not arrange for more than $1,000,000.00 in lease financing. However, by February, 2002, Lease One had obtained only $500,000.00 in financing commitments. The plaintiff demanded that Lease One return an additional $15,000.00 of the deposit in accordance with the parties' agreement that the plaintiffs fee would be limited to three (3%) percent of the financing actually obtained. Lease One never responded to this or additional requests for the return of the $15,000.00 amount.\\nOn September 24, 2002, the plaintiff sent Lease One a G.L.c. 93A demand letter seeking return of the $15,000.00 portion of the deposit. Lease One did not respond.\\nThe plaintiff commenced this action on November 20, 2002. Its five-count complaint sought recovery of the $15,000.00 deposit balance plus G.L.c. 93A punitive damages and attorney's fees. Service of process was made on Lease One on the same date. Lease One did not answer the complaint.\\nOn December 23,2002, almost two weeks after the time for filing an answer had expired, Lease One's president telephoned the plaintiff's counsel to inform him that he was planning on contacting Lease One's attorney sometime after the New Years holiday. On December 24, 2003, the plaintiff filed requests for a default, the entry of judgment by default and a hearing to assess damages and attorney's fees. After a hearing on January 3,2003, the trial judge assessed $15,000.00 in damages on the first four complaint counts, and $30,000.00 in double damages on the plaintiff's G.L.c. 93A claim. The judge instructed the plaintiff to file an affidavit in support of its request for attorney's fees.\\nOn January 15, 2003, Lease One filed a motion for relief from judgment. The court treated the motion as one to vacate the default and, after hearing, denied it. The court also ordered a hearing for the assessment of both G.L.c. 93A damages and attorneys fees. Both parties presented extensive argument on March 7,2003. On December 24, 2003, judgment was entered for the plaintiff in the amount of $15,000.00 on Counts I-IV, $30,000.00 on Count Y, and $8,145.50 in attorney's fees and costs, for a total award to the plaintiff of $54,098.33. This appeal followed.\\nAlthough Lease One characterized its motion as one for relief from judgment under Mass. R. Civ. R, Rule 60(b) (1), no judgment had been entered at the time the motion was filed. The trial court properly treated the motion, therefore, as one to vacate the default pursuant to Mass. R. Civ. R, Rule 55(c). \\\"[Mjotions are decided on the basis of their substance and not their caption.\\\" Dombrowski v. Cronin, 2001 Mass. App. Div. 194, 195. See also Tracor, Inc. v. Crawley, 1993 Mass. App. Div. 13, 14. While the \\\"good cause\\\" standard for default removal under Rule 55(c) is more lenient than the \\\"excusable neglect\\\" requirement of Rule 60(b)(1), MVP, Inc. v. Department of Revenue, 26 Mass. App. Ct. 932, 932-933 (1988); Continental Data Corp. v. Old Colony Group Leasing, Inc., 1993 Mass. App. Div. 44, 45-46, Lease One was still obligated to justify its failure to respond to the complaint. Further, Lease One was required to demonstrate by affidavit that it acted promptly to vacate the default and that it had meritorious defenses to the plaintiff's claims. Bissanti Design/ Build Group v. McClay, 32 Mass. App. Ct. 469, 470 (1992); Coady v. Stack, 1995 Mass. App. Div. 135, 136. Whether Lease One satisfied the prerequisites to Rule 55(c) default removal was an issue addressed to the sound discretion of the motion judge. Burger Chef Systems, Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289 (1984); Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805 (2002).\\nWhile Lease One moved expeditiously to vacate the default, it failed to offer any explanation, much less good cause, for its failure to file a timely answer to the plaintiffs complaint. Lease One points only to the fact that its president was considering contacting the company's lawyer after the New Years holiday, more than three weeks after the expiration of the twenty-day period for submitting an answer. The motion judge may well have concluded that Lease One merely elected to treat this action with the same apparent nonchalance and indifference it had shown to the plaintiffs earlier requests for repayment of the $15,000.00 deposit monies and the plaintiffs G.L.c. 93A demand letter. Further, Lease One advanced no substantial defense to the plaintiffs claim for a return of the $15,000.00, which was due upon Lease One's failure to arrange more than $500,000.00 in lease financing. In short, there was no abuse of discretion in the trial court's denial of Lease One's Rule 55(c) motion to remove the default on Counts I through IV of the complaint.\\nThe judge also proceeded correctly in adjudicating the plaintiff's G.L.c. 93A claim. An extensive hearing to assess both damages and attorney's fees was held. See Coady v. Stack, supra at 137. Both parties were afforded an ample opportunity to be heard. We find no error of law in the court's ultimate ruling that Lease One's continuing refusal, after repeated demands, to refund the $15,000.00 in question constituted conduct warranting the imposition of punitive damages.\\nSo ordered.\"}"
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+"{\"id\": \"912946\", \"name\": \"Robert L. Pritsker & others vs. David Brudnoy & another\", \"name_abbreviation\": \"Pritsker v. Brudnoy\", \"decision_date\": \"1983-07-27\", \"docket_number\": \"\", \"first_page\": \"776\", \"last_page\": \"783\", \"citations\": \"389 Mass. 776\", \"volume\": \"389\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T17:46:08.057556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert L. Pritsker & others vs. David Brudnoy & another.\", \"head_matter\": \"Robert L. Pritsker & others vs. David Brudnoy & another.\\nNorfolk.\\nMay 5, 1983. \\u2014\\nJuly 27, 1983.\\nPresent: Hennessey, C.J., Liacos, Nolan, Lynch, & O\\u2019Connor, JJ.\\nJohn Taylor Williams {Molly H. Sherden with him) for the defendants.\\nDavid C. Lucal for the plaintiffs.\\nKaren C. Pritsker and Karenkir, Inc.\\nWHDH Corporation.\", \"word_count\": \"2800\", \"char_count\": \"17308\", \"text\": \"Nolan, J.\\nThe plaintiffs, Robert L. and Karen C. Pritsker (Pritskers) and Karenkir, Inc., claim that they were defamed and damaged by certain statements made by the defendant David Brudnoy during the broadcast of a program on the radio station owned and operated by the defendant WHDH Corporation (WHDH). After a judge in the Superior Court denied both parties' motions for summary judgment, the defendants petitioned a single justice of the Appeals Court for authorization to appeal the denial under G. L. c. 231, \\u00a7 118, first par. The single justice granted the defendants' application and the defendants entered the appeal in the Appeals Court. We transferred the case here on our own motion. We now reverse the order of the Superior Court judge and order that judgments enter for the defendants.\\nThe essential facts are not in dispute. In 1976, the Pritskers operated \\\"dodin-bouffant\\\" (the lower case is consistent with the name used in the record), a gourmet French restaurant owned by Karenkir, Inc., a corporation which was, in turn, wholly owned by the Pritskers. Brudnoy is a well known critic and radio talk show host. In 1976, he was employed by WHDH as the host of \\\"Nightline,\\\" a nightly program which followed the familiar listener \\\"call-in\\\" or \\\"two-way\\\" format. On his program on September 10, 1976, Brudnoy and two guests from the restaurant industry discussed restaurants in the Boston area. This was the only major topic of the program. Shortly after the final segment of the program began, Brudnoy and his guests resumed their discussion of the custom of tipping which they had begun during the previous hour. Brudnoy criticized the European practice of some restaurants of adding the gratuity to the bill which Brudnoy opined interfered with the diner's right to communicate his or her pleasure or displeasure with the service. Brudnoy mentioned two restaurants by name, one of which was dodin-bouffant. When a guest attempted to \\\"rise to the defense\\\" of dodin-bouffant, Brudnoy acknowledged that the \\\"[fjood is fine . . . superb . . . absolutely.\\\" When the guest then commented on how well the restaurant's service staff coordinated a meal, Brudnoy replied: \\\"They have gotten better. They have gotten better and better. It's just as I've said in all fairness. I praise the book, . . . the restaurant in my book. The manage . . . the people who own the place are unconscionably rude and vulgar people. And the attitude that they communicate is awful. But the food is fine. And it kills me to say this because I would like to be able to dump on their restaurant. I keep going there hoping it will decline and it doesn't. The food is fine, the people who run it are PIGS.\\\" Brudnoy admits that his remarks were intended to refer to the Pritskers.\\nIn three recent cases we have defined the contours of an action of defamation. Cole v. Westinghouse Broadcasting Co., 386 Mass. 303 (1982), cert. denied, 459 U.S. 1037 (1983). Myers v. Boston Magazine Co., 380 Mass. 336 (1980). National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220 (1979), cert. denied, 446 U.S. 935 (1980). In these cases we acknowledged the common ground that, for purposes of the First Amendment to the United States Constitution, \\\"[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.\\\" Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974). However, these cases also recognized the distinction, expressed in Restatement (Second) of Torts \\u00a7 566 (1977), between \\\"pure\\\" opinions \\u2014 those based on disclosed or assumed nondefamatory facts \\u2014 and \\\"mixed\\\" opinions \\u2014 those opinions \\\"apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication.\\\" Id. at comment b. A \\\"pure\\\" opinion by itself is not actionable \\\"no matter how unjustified and unreasonable the opinion may be or how derogatory it is.\\\" Id. at comment c. But a \\\"mixed\\\" opinion is actionable \\\"if the comment is reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion.\\\" Id. Conceding that Brudnoy's comments were in the form of opinion, the plaintiffs contend that they are nonetheless actionable because they implied the existence of undisclosed defamatory facts about the plaintiffs.\\n\\\"It is the function of the court to determine whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct . . . .\\\" Restatement (Second) of Torts \\u00a7 566 comment c (1977). In making this determination we look to the entire context of the communication. See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 313 (1982). In all the circumstances, we think that the average listener could not reasonably conclude that Brudnoy's comments were based on undisclosed defamatory facts.\\nBrudnoy was a recognized restaurant critic and his guests were experienced in the restaurant field. Brudnoy's comments arose during the course of a two-hour discussion about restaurants. With such participants engaged in such a discussion, the listener could expect the topic to go beyond simply the quality of food served and include consideration of such things as service and atmosphere. Indeed, the listener could expect to hear critical evaluation of all aspects of dining at the various restaurants under discussion. Further, the listener might expect that any opinions offered by Brudnoy or his guests about a particular restaurant would be based upon the totality of the speaker's observations of and experiences with the restaurant. Finally, the listener could expect that Brudnoy and his guests would invoke some hyperbolic or rhetorical language both in their praise and in their criticism of the restaurants.\\nWithin this framework, we look to the three underlying facts which Brudnoy disclosed. The first is that he disliked dodin-bouffant's practice of adding the gratuity to the bill; the second is that he had reviewed the restaurant in his book; and the third is that he had visited the restaurant on a number of occasions looking for reasons to criticize it. With these facts revealed within the general context described above, we think that the average listener would assume that Brudnoy's comments were based only on his observations of conditions at the restaurant, such as its service, decor, and atmosphere, and would regard his comments simply as his opinion of conditions which he, as a professional restaurant critic, found unsatisfactory or distasteful and which he reasonably attributed to the owners of the restaurant. As such, Brudnoy's comments would represent pure opinion, based on partly disclosed and partly assumed facts, and would not be actionable.\\nThe case of Myers v. Boston Magazine Co., 380 Mass. 336 (1980), is instructive here. In Myers, we held that a statement in a satirical magazine article that Myers, a television sports news announcer, was \\\"enrolled in a course for remedial speaking,\\\" was not actionable as a defamatory statement of fact. Id. at 341. We viewed the statement rather as an expression of opinion and concluded that \\\"Myers' performances [which] were often on view . . . furnished the assumed facts from which the critic fashioned his barb.\\\" Id. In this case, we think that the conditions of the restaurant, which was open to the public, represent the \\\"performances\\\" of its owners and serve a similar purpose.\\nThe specific context of Brudnoy's comments further supports our view that his remarks were based on assumed facts and did not imply the existence of undisclosed defamatory facts. The topic of conversation immediately preceding the challenged comments was the custom of tipping. The name \\\"dodin-bouffant\\\" arose because it was one of two local restaurants that added the gratuity to the bill. Brudnoy stated, \\\"I praise their restaurants because the cuisine is right: the attitude stinks. And the reason the attitude stinks is that . . . they tell you that you are to tip . .\\\" The thrust of the rest of his comments was directed at his dislike of this practice. It was not until the guest mounted his defense of dodin-bouffant by praising its food and service staff that Brudnoy responded with the statements challenged here. Although this was surely not the kind of \\\"public debate\\\" we spoke of in National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 228 (1979), Brudnoy's comments were made during a discursive, critical conversation and only in response to comments of his guests which had caused the focus of the conversation to shift from the practice of adding the gratuity to the bill to the quality of the service staff's performance at dodinbouffant. In this context, we think that the average listener would regard Brudnoy's comments concerning the restaurant's owners as simply a short-hand expression to describe the sum of his opinion of all the conditions he found to exist at dodin-bouffant.\\nAs to the Pritskers' contention that Brudnoy's comments imply the existence of undisclosed, defamatory facts, what we said in Cole v. Westinghouse Broadcasting Co., 386 Mass. 303 (1982), is apt. \\\"In the present case, it is not clear that any undisclosed facts are implied, or if any are implied, it is unclear what they are. Finally, it is entirely unclear (even assuming that facts are implied) that they are defamatory facts.\\\" Id. at 313. This holds true whether we would assume that any implied facts related only to the conditions of the restaurant, attributed to the Pritskers, or were direct personal references to the Pritskers. What may be \\\"unconscionably rude and vulgar\\\" and suggestive of \\\"pigs,\\\" to one person may be only mildly offensive to a second, merely not to the taste of a third, or even pleasing to a fourth. \\\"[I]n order for an opinion to be actionable, the undisclosed facts must be defamatory.\\\" Id. at 313. The average listener could not, in context, reasonably conclude that the facts, if any, implied by Brudnoy's comments must have been de famatory. Thus, although Brudnoy's comments may have given the false impression that he knew the Pritskers and had observed them at the restaurant, his opinion is still not actionable because it does not reasonably imply defamatory facts.\\nFor the above reasons, we conclude that Brudnoy and WHDH were entitled to summary judgment and we therefore reverse the order of the Superior Court denying summary judgment and order that judgment be entered for the defendants.\\nSo ordered.\\nBrudnoy is the author of a book of restaurant reviews.\\nIn his answer to the complaint, Brudnoy admitted that he had \\\"never formally met the [Pritskers].\\\" In his deposition, which was submitted to the judge in support of the motion for summary judgment, Brudnoy stated that he did not know the Pritskers by sight but that he knew their names and had been informed that the people who owned the restaurant also operated it.\\nSuch hyperbole and rhetoric were used in the discussion. Brudnoy used the word \\\"superb\\\" to describe the food at dodin-bouffant and one of his guests called it a \\\"superb restaurant\\\" and gave its service staff an \\\"A + \\\" for its coordination of meals. When discussing the two restaurants that added the gratuity to the bill, Brudnoy had said earlier, \\\"It bothers me enormously. I praise their restaurants because the cuisine is right: the attitude stinks. And the reason the attitude stinks is that they tell you whether or not you \\u2014 they tell you that you are to tip by putting it into your bill. I want to be able to tip. I want to tip more if the service is good, and I want to tip nothing if the service is lousy . . . .\\\" In speaking specifically of dodin-bouffant, Brudnoy noted, \\\"The first time I was there they didn't [add the tip]. And then they got this horrible idea. It's done in Europe. But the Europeans, of course, also have socialism. And we don't have to imitate them.\\\"\\nBrudnoy's earlier, unchallenged comment that \\\"the attitude stinks,\\\" his use of the pronoun \\\"they\\\" when referring to individual restaurants, and his use of colloquial words such as \\\"stinks,\\\" \\\"lousy,\\\" and \\\"horrible\\\" are indications that Brudnoy was attributing the unpleasant conditions he found at restaurants to the operators in less than flattering terms.\\nThe plaintiffs attempt to distinguish Myers v. Boston Magazine Co., 380 Mass. 336 (1980), on the grounds that Myers concerned the plaintiff's characteristic, readily observable manner of speech whereas Brudnoy's comments imply specific vulgar or rude acts on the part of the Pritskers which a visitor to the restaurant could not be sure of witnessing. Thus, someone who visited dodin-bouffant without incident \\\"would not know whether he had seen the facts upon which Brudnoy based his opinion.\\\" The problem with this argument is, as we have held, that in the present context the average listener would be unreasonable to assume that Brudnoy implied the existence of undisclosed, defamatory facts. The plaintiffs also attempt to distinguish Myers on the ground that Myers' performances were available for viewing to a wide television audience whereas the conditions of dodin-bouffant could be observed only by that small percentage of Brudnoy's listeners who lived near and could afford dodin-bouffant. The distinction fails to persuade us. We think it most likely that the majority of Brudnoy's listeners had dined in restaurants and were familiar with the kinds of conditions upon which Brudnoy presumably based his opinion.\\nWe reject the Pritskers' assertion that Brudnoy's use of the term \\\"pigs\\\" implied that \\\"the Pritskers and their restaurant were unhygienic and unsanitary and were infested with cockroaches or other vermin.\\\" Brudnoy had characterized the food served at dodin-bouffant as superb. It would be unreasonable for a listener to assume that a restaurant critic would employ such an encomium if he had knowledge that the food was prepared in unsanitary conditions without, at least, qualifying his praise. In context, it is evident that Brudnoy was instead contrasting the superior quality of food served with the \\\"attitude\\\" of the owners expressed in the restaurant's conditions. We note that, in their depositions, the Pritskers indicate that they did not understand the word \\\"pigs\\\" as a reference to poor hygiene. Mr. Pritsker stated that he understood the word to mean that he was [n]ot dirty, [but] rude and vulgar.\\\" Mrs. Pritsker stated that she did not believe Brudnoy meant that she ran a dirty restaurant but instead she understood \\\"pigs\\\" as a word \\\"used to describe someone who[ ] the writer believes is offensive, awful.\\\"\\nAlthough Brudnoy did not know the Pritskers personally, he knew of them and had indirectly had some correspondence with them. After Brudnoy's unfavorable review of their restaurant appeared in a locally published magazine in February, 1975, the Pritskers wrote a letter to the editor of the magazine, \\\"[f]or [the] readers who have been offered only Mr. Brudnoy's outrageous non-truths about our restaurant,\\\" in which they cited a number of favorable reviews by other critics. The letter was not without negative comments directed personally at Brudnoy. Brudnoy responded to the letter in the same issue and concluded by saying: \\\"[T]he Pritskers do protest too much, methinks. A course of action more promising than shrieking at the bearer of sad tidings would be some corrective surgery on the unpleasant warts, boils, and wens affecting Dodin-Bouffont. Bon chance, mes chers.\\\"\\nIn December, 1975, roughly nine months before the broadcast, Brudnoy published a second review of dodin-bouffant in the same magazine. He mentioned \\\"the howls of D-B's outraged owners and their aggrieved friends\\\" after his previous review and noted that the restaurant \\\"cavalierly adds a fifteen percent service charge (an ill-advised custom . . .).\\\" However, Brudnoy stated that \\\"[e] very thing that had annoyed me before had vanished,\\\" and the review was otherwise quite favorable.\\\" There was no personal reference to the Pritskers other than that quoted above. If Brudnoy had developed a personal animosity towards the Pritskers as a result of these exchanges, this would not make his comments on the radio broadcast actionable, even if he had intended them as personal attacks. \\\"[Although the person making the communication intends it to convey a defamatory meaning, there is no defamation if the recipient does not so understand it.\\\" Restatement (Second) of Torts \\u00a7 563 comment b (1977). Here, we have concluded that the average listener could not have reasonably understood Brudnoy's comments as being directed towards the Pritskers personally.\"}"
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+"{\"id\": \"936543\", \"name\": \"Marie Collier's Case\", \"name_abbreviation\": \"Collier's Case\", \"decision_date\": \"1954-04-27\", \"docket_number\": \"\", \"first_page\": \"374\", \"last_page\": \"377\", \"citations\": \"331 Mass. 374\", \"volume\": \"331\", \"reporter\": \"Massachusetts Reports\", \"court\": \"Massachusetts Supreme Judicial Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-11T00:31:50.292734+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Marie Collier\\u2019s Case.\", \"head_matter\": \"Marie Collier\\u2019s Case.\\nSuffolk.\\nMarch 1, 1954.\\nApril 27, 1954.\\nPresent: Qua, C.J., Honan, Wilkins, Spalding, & Williams, JJ.\\nReuben H. Nitkin, for the claimant.\\nW. Warren Jump, for the insurer.\", \"word_count\": \"1067\", \"char_count\": \"6218\", \"text\": \"Williams, J.\\nThe employee appeals from a final decree of the Superior Court dismissing her claim for compensation under the workmen's compensation law. G. L. (Ter. Ed.) c. 152. According to her testimony and the findings of the single member she was employed as a waitress in a restaurant called Columbia Gardens which was located on Washington Street, Boston, at the corner of Castle Street. Her working hours were from approximately 8 p.m. until 1 a.m. when the restaurant closed. About 11:30 on the night of November 2, 1951, a man entered the restaurant and asked to be served liquor. According to instructions, she refused to serve him because he was already under the influence of liquor. He became abusive and threatened her with physical harm. She left the restaurant shortly before 1 a.m., about one hour after the customer had left. While walking along Washington Street some 58 feet from the door of the restaurant on her way to take an elevated train home, she was assaulted by this man. He pushed her and in falling her hip was fractured. The single member of the Industrial Accident Board found \\\"that what happened in the street was merely a continuation of the quarrel the customer had begun on the premises during the course of her employment and flowed from it as a rational consequence,\\\" and cited McGrinder v. Sullivan, 264 App. Div. (N. Y.) 640. She awarded compensation to the employee. The reviewing board affirmed and adopted the findings of the single member \\\"excepting the finding made in effect . . . that the employee's injury arose in the course of her employment and except also the award of compensation.\\\" It reversed the decision and held \\\"that as matter of law, the injury was not received by the employee while she was in the course of her employment.\\\" On certification to the Superior Court the claim for compensation was dismissed.\\nOrdinarily injuries to an employee which are received on the public street after the employee has completed his work for the day and is proceeding to his home are not compensable. Fumiciello's Case, 219 Mass. 488. Rourke's Case, 237 Mass. 360. Bell's Case, 238 Mass. 46. Chernick's Case, 286 Mass. 168, 172. Smith's Case, 326 Mass. 160. Lampert v. Siemons, 235 N. Y. 311.\\nWithout questioning this general rule the employee contends that in the peculiar circumstances of this case it could be found that the assault was a part of a continuing altercation which started in the restaurant during working hours and that her injuries were received in the course of her employment. In support of her contention she refers us to the decision in Field v. Charmette Knitted Fabric Co. 245 N. Y. 139. In that case the employee was a mill superintendent who just before closing time had an altercation within the mill with a workman he had discharged. A few minutes later the employee left the premises and was attacked and injured by the discharged workman on the sidewalk three or four feet from the door of the mill. On appeal to the Court of Appeals a decision of the State Industrial Board awarding compensation was confirmed. In the opinion written by Chief Judge Cardozo it was said, \\\"The quarrel outside of the mill was merely a continuation or extension of the quarrel begun within . . . . No reasonable opportunity had been offered the assaulted man to separate himself from the plant . Continuity of cause has been so combined with contiguity in time and space that the quarrel from origin to ending must be taken to be one. The facts being what they are, there is no occasion to consider whether a recovery would be permitted though the unity of the transaction were less apparent than it is.\\\" Page 142.\\nIn a later case, McGrinder v. Sullivan, 290 N. Y. 11, the employee was a barkeeper and in ejecting a customer shortly before closing horns was threatened by the customer. After the barroom closed the employee walked four city blocks and was then assaulted by the person who had threatened him. The State Industrial Board denied a claim for . compensation. The Appellate Division of the Supreme Court reversed the decision of the board, 264 App. Div. (N. Y.) 640 (cited in the decision of the single member). The decision of the Appellate Division was in turn reversed by the Court of Appeals in a per curiam decision, wherein it was said, \\\"The question was whether continuity of cause was so combined with continuity in time and space that the quarrel from origin to ending should be taken to be one.. . . The negative answer given by the Board was an act of judgment upon a debatable matter of fact.\\\" Page 12.\\nIt is unnecessary to decide whether on facts like those in the Field case this court would sustain an award of compensation by the Industrial Accident Board. The facts in the instant case more closely resemble those appearing in the McGrinder case. In that case the court sustained the decision of the State board denying compensation, but seems to have assumed that there was an issue of fact for the board. The question before us is whether the reviewing board was right in denying compensation as matter of law. The board undoubtedly could have found that the intent of the customer to assault the employee arose from her refusal to serve him liquor and that this intent continued from the time of the refusal to the time of the assault. But such continuance of cause alone was not sufficient to warrant an award of compensation. See Rourke's Case, 237 Mass. 360; Lampert v. Siemons, 235 N. Y. 311. The altercation between the employee and the customer did not continue but ended when he abandoned his demand for a drink and left the restaurant. Thereafter an hour elapsed during which the employee completed her work for the night, left her employer's premises, and walked along the street for a substantial distance. In these circumstances it could not be found that there was one continuing event and the board was right in ruling that the injuries of the employee were not received in the course of her employment.\\nDecree affirmed.\"}"
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+"{\"id\": \"9476375\", \"name\": \"Estrella Long, Administratrix of the Estate of Alan Long v. Simon Roy, M.D. et al.\", \"name_abbreviation\": \"Long v. Roy\", \"decision_date\": \"1999-05-20\", \"docket_number\": \"No. 966864\", \"first_page\": \"140\", \"last_page\": \"143\", \"citations\": \"10 Mass. L. Rptr. 140\", \"volume\": \"10\", \"reporter\": \"The Massachusetts law reporter.\", \"court\": \"Massachusetts Superior Court\", \"jurisdiction\": \"Massachusetts\", \"last_updated\": \"2021-08-10T18:12:50.677544+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Estrella Long, Administratrix of the Estate of Alan Long v. Simon Roy, M.D. et al.\", \"head_matter\": \"Estrella Long, Administratrix of the Estate of Alan Long v. Simon Roy, M.D. et al.\\nSuperior Court, Middlesex, SS\\nNo. 966864\\nMemorandum Dated May 20, 1999\", \"word_count\": \"2133\", \"char_count\": \"12827\", \"text\": \"Gants, J.\\nThe plaintiff, Estrella Long (\\\"Long\\\"), the administratrix of the estate of her late husband, Alan Long, has filed suit against Dr. Simon Roy and two other defendants, claiming that their negligent failure properly to diagnose his illness on November 26, 1993 caused his death on December 2, 1993. On March 3, 1999, during discovery in this action, Long's attorney deposed Dr. Roy. During that deposition, Dr. Roy's attorney instructed his client not to answer questions eleven times, thereby cutting off at least eight lines of inquiry, as detailed below:\\n1. whether he met with his attorneys at the City of Boston (p. 46);\\n2. after Dr. Roy testified that Long's pain had not been relieved by the medications he was taking\\u2014 Percocet, Vicodin, and Toradel \\u2014 what Dr. Roy, based on his education, training, and experience today, makes of pain of that type that is not relieved by these medications (pp. 67-68);\\n3. whether it was his position in the litigation that, whatever the pathological processes that led to Long's death, they were not present on November 26, 1993 (p. 74 and p. 75);\\n4. whether in Dr. Roy's opinion, the pathological process that killed Long was not present when he saw Long on November 26, 1993 (p 75);\\n5. whether Dr. Roy knows today that a patient who is immuno-suppressed may be slow in developing a febrile response to infection (p. 92);\\n6. what Dr. Roy today would think about shortness of breath with the pain that Long complained of (pp. 95-97);\\n7. whether Dr. Roy knows now that shortness of breath may be associated with cardiac failure (p. 99); and\\n8. whether Dr. Roy today would agree that fever is usually present in pericarditis but may be absent if the process affecting the pericardium does not evoke fever (pp. 154-56).\\nApart from the first instruction not to answer, which was based on the attorney-client privilege, all the instructions of Dr. Roy's attorney not to answer were based on the contention that his client could be required to answer questions based on his knowledge in 1993 but could not be asked about his knowledge today or about any opinion he may hold on any subject.\\nDr. Roy's attorney did not suspend the deposition and move for a protective order. Rather, at the close of the deposition, Long filed this motion to compel answers to the deposition questions that Dr. Roy's attorney prevented from being answered. Long also moves for the costs and attorney's fees to be incurred from the anticipated resumption of Dr. Roy's deposition, and for sanctions. Dr. Roy has filed a counter-motion seeking the costs and fees of having to defend this motion. For the reasons detailed below, Long's motion to compel Dr. Roy's deposition testimony is ALLOWED. Long shall be awarded the costs and attorneys fees that Long incurs from the need to resume Dr. Roy's deposition to answer those questions and pursue those lines of inquiry that were foreclosed by Dr. Roy's attorney's improper instructions to his client. Dr. Roy's counter-motion is DENIED.\\nUnder Mass.R.Civ.P. 30(c), adopted in 1998 specifically to address the problems caused by attorneys telling their clients not to answer deposition questions:\\nCounsel for a witness or a parly may not instruct a deponent not to answer except where necessary to assert or preserve a privilege or protection against disclosure, to enforce alimitation on evidence directed by the court or stipulated in writing by the parties, or to terminate the deposition and present a motion to the court pursuant to Rules 30(d) or 37(d).\\nMass.R.Civ.P. 30(c). Dr. Roy's attorney contends that he was justified in directing his client \\u2014 a fact witness \\u2014 not to answer when the questions that were asked were appropriate only to an expert witness, since Mass.R.Civ.P. 26(b)(4)(A) permits expert witnesses to be deposed only with the approval of the Court, and no such approval had been sought or obtained with regard to Dr. Roy. He argues that instructing Dr. Roy not to answer was \\\"necessary to assert or preserve a . . . protection against disclosure\\\" \\u2014 the protection against a fact witness being asked at deposition to assert expert opinions. This Court does not share this interpretation of Mass.R.Civ.P. 30(c). It does not reflect the apparent intention of the authors of the amended rule or, in the practical context of medical malpractice litigation, reflect its purpose.\\nWhen Mass.R.Civ.P. 30(c) permitted an attorney to instruct a deponent not to answer a question when \\\"necessary to assert or preserve a . . . protection against disclosure,\\\" it was referring to statutory or common law rules, such as the work product protections set forth in Mass.R.Civ.P. 26(b)(3), that protect information from being disclosed to an adverse party in the absence of a showing of compelling need. See Mass.R.Civ.P. 30, Reporter's Notes \\u2014 1998. Mass.R.Civ.P. 26(b)(4)(A) does not protect an expert's opinions or any other information from being disclosed; it simply prevents an expert from being deposed without the approval of the Court. An expert's opinions and the grounds for such opinions are always discoverable through answers to interrogatories. See Mass.R.Civ.P. 26(b)(4)(A). Mass.R.Civ.P. 30, therefore, cannot be stretched so broadly as to permit an attorney, without first terminating the deposition and seeking a protective order, to instruct his client not to answer questions that call for an opinion.\\nNor would allowing such a refusal make any sense in the context of medical malpractice litigation. The implicit premise of Dr. Roy's argument is that there is a clear line in medical malpractice cases between a doctor defendant and an opinion witness that would justify fact questions to be asked of a doctor defendant at deposition but bar questions eliciting any opinions. Any such line is an illusion. A physician, by the nature of his medical training, is an expert; if he were not, he should not be practicing medicine. See Delaney v. Rosenthal, 347 Mass. 143, 146 (1964). When, as here, in answer to the complaint he denies that he failed to exercise the degree of skill and care of the average qualified physician in his area of specialty, he essentially is proffering an opinion. The plaintiff is entitled to explore the basis for that opinion at deposition. If Dr. Roy were to have retreated from that opinion in his deposition and admitted that he did indeed fail to act in accordance with the standard of care, that admission alone would permit a jury to find him negligent even in the absence of any expert testimony. Collins v. Baron, 392 Mass. 565, 567-568 (1984) (\\\"A finding that such an admission was made entitled, but did not require, the jury to return a verdict for the plaintiff even if the jury would not have reached that result on the basis of the expert testimony before them\\\"). The plaintiff was permitted in deposition to determine whether he could obtain such an admission from the defendant doctor. Even if the doctor held to his opinion that he acted in accordance with the standard of care, the plaintiff was permitted to ask questions at deposition designed to elicit information that may assist him in cross-examining the doctor at trial.\\nThe plaintiff here was justified in asking questions of Dr. Roy exploring whether, based on the present state of his knowledge, he believed that the care he provided to Mr. Long was in accord with sound medical practice. While in substance he was soliciting the opinions of Dr. Roy, he also was soliciting possible admissions or, at least, obtaining information that he may use at trial to cross-examine Dr. Roy if he were to testify, as defendant doctors generally do in medical malpractice trials, that he acted in accordance with the standard of care. Moreover, questions regarding the present state of Dr. Roy's knowledge may be valuable in ascertaining whether Dr. Roy knew in November 1993 what he knows today. While the standard of care in 1993 may not have required doctors in Dr. Roy's specialty to know what they know today, if Dr. Roy today has information that would have caused him to treat Mr. Long differently, that certainly is an appropriate line of inquiry in deposition.\\nWhile Dr. Roy's attorney contended at the hearing on this motion that Dr. Roy at trial would not offer any opinion regarding the adequacy of his care of Mr. Long, it is important to note that he made no such representation during Dr. Roy's deposition even when specifically questioned on the point. After Dr. Roy's attorney had instructed his client not to answer questions about the present state of his medical knowledge, Long's attorney asked, \\\"So, he's not going to give any opinions when he testifies at trial about the nature of his \\u2014 Mr. Long's condition and whether his treatment was in accordance with good medical practice or not? We're not going to hear any of that from him at trial?\\\" Dr. Roy's attorney replied, \\\"I've already indicated to you that I'm not here to answer your questions.\\\" Deposition at 94-95. Having specifically refused to foreclose opinion testimony by his client at trial, he can hardly foreclose questioning at deposition intended to prepare for cross-examination regarding any such opinions.\\nOf course, permitting such questioning at deposition does not mean that the answers are necessarily admissible at trial. The better course, as dictated now by Mass.R.Civ.P. 30(c), is to allow the answers to be given by the deponent and let their admissibility at trial be decided by the trial judge in the context of an objection or, preferably, a motion in limine.\\nIn considering the question of sanctions, I am mindful that the question of whether a party deponent in a medical malpractice case may be required to answer opinion questions has not been definitively answered in the case law. Indeed, the Massachusetts Continuing Legal Education's Massachusetts Deposition Practice Manual acknowledges that counsel for party deponents commonly resist inquiry into opinions except those formed during the course of treatment, and that little guidance has been given as to whether such resistance is permitted. MCLE Massachusetts Deposition Practice Manual Supp. 1998, \\u00a713-7 at 13/10-11. Dr. Roy's attorney, therefore, while in error, cannot be said to have acted in bad faith or without legal basis. Nor do I believe he is the only defense attorney who has taken this position, even after the enactment of the revised Mass.R.Civ.P. 30(c). Therefore, I do not believe it appropriate to order the sanctions sought by the plaintiff. However, the instructions not to answer questions were contrary to Mass.R.Civ.P. 30(c) and will require Dr. Roy to be deposed again so that the plaintiff can obtain answers to the questions he refused to answer and pursue the lines of inquiry emerging from those answers. A resumption of this deposition entails costs: the attorney's fees incurred by Long's attorney in attending the deposition and the expense of transcribing it. Since Dr. Roy's attorney has caused the need for the resumption of this deposition by instructing his client not to answer certain questions, he must bear its costs. Dr. Roy's attorney, therefore, is ordered to pay to the plaintiff the reasonable attorneys fees incurred by Long's attorney in attending the resumed deposition and the expense of transcribing it.\\nORDER\\nFor the reasons stated above, Long's motion to compel Dr. Roy's deposition testimony is ALLOWED. Dr. Roy's deposition may be resumed so that Long can obtain answers to the questions Dr. Roy refused to answer and pursue the lines of inquiry emerging from those answers. Dr. Roy's attorney is ordered to pay to Long the reasonable attorney's fees incurred by Long's attorney in attending the resumed deposition of Dr. Roy and the expense of transcribing it. Dr. Roy's counter-motion is DENIED.\\nThis question was formulated in two ways. Dr. Roy, on the instructions of his counsel, did not answer either question.\\nThe first instruction not to answer \\u2014 as to whether Dr. Roy had met with his attorney \\u2014 was based on the attorney-client privilege rather than any claim of protection of expert opinions. This instruction was improper because the question did not seek to elicit the content of the conversation between Dr. Roy and his attorney at the meeting, but simply to establish that they had met. The mere fact of a meeting between an attorney and client is not protected by the attorney-client privilege. Upjohn Co. v. United States, 449 U.S. 383, 394 (1981).\\nIndeed, this Manual declares that the \\\"more well-reasoned opinions\\\" do not require the deponent to testify to any opinion he had not voluntarily considered earlier, but fails to cite those opinions.\"}"
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