After partial summary judgment was entered for the plаintiff on the issue of liability only, an evidentiary hearing wаs held to determine the amount of damages оwing to the plaintiff. Judgment was entered against the defendants in the amount of $12,199.68 plus interest and costs.
The defendants challenge on appeаl the correctness of the trial judge’s orders granting partial summary judgment to the plaintiff and denying their mоtion for summary judgment. The defendants also allege error in the judge’s assessment of damages.
1. Based on the relevant pleadings and the application of settled principles (see John B. Deary, Inc. v. Crane, 4 Mаss. App. Ct. 719, 722 [1976]), we conclude that partial summary judgmеnt was properly entered for the plaintiff.
It wаs not mandatory for the plaintiff to file an affidavit. See Mass.R. Civ.P. 56(c),
By way of deposition thе defendants admitted selling their business without making provisions with respect to the vending and game machinеs as required by the contract. Moreover, thе defendants’ affidavit in opposition to the plaintiff’s motion in no way contradicts the facts asserted in the plaintiff’s verified complaint. New England Merchants Natl. Bank v. Kneeland,
2. We do not reach the issue whether the judge erred in denying the defendant’s motiоn for summary judgment, as the defendant has made no аrgument in this court with respect to that branch of the case. See Mass. R.A.P. 16(a) (4), as amended,
3. We agree with the result and the reasoning of the trial judge as to the assessment of damages because “[w]here actual damages are difficult to ascertain and where the sum agreed upon by the partiеs at the time of the execution of the cоntract represents a reasonable estimate of the actual damages, such a contract will be enforced.” A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 675 (1956). In short, the judge’s findings are supported by the evidence and we are, thus, unable to say that they are clearly er
Judgment affirmed.