263 Mass. 516 | Mass. | 1928
This is a suit in equity seeking the cancellation of a written lease of a dwelling house alleged to have been caused to be executed through the false and fraudulent representations of the agent of the defendant. The judge filed a finding of facts, which was adverse to all the allegations in the bill as to misrepresentations. The only matter now argued to be wrong is the finding touching noise from the heating plant.
The plaintiff alleged that the noise of the heating system is such as to make rest and sleep during the evening and throughout the night almost impossible, that it was represented to him that the heating plant in said premises is in excellent physical condition and that it is noiseless in operation throughout the heating season after being started at the commencement of the heating season, and that this representation was false. The judge was not satisfied that Kaplan, the agent of the defendant, “guaranteed” that “the heater was noiseless after having been started at the beginning of the season.” He found that Kaplan stated in substance that the heating plant was in good working order, and “that the only objectionable noise noted by him . . . was when it was
The substance of these findings is that no misrepresentation was made by Kaplan as to the noise from the heating plant, and that there was no concealment made by him which was the equivalent of a misrepresentation. These findings are in effect that the allegations of the bill in this particular are not sustained. These findings cannot be pronounced plainly wrong, because they rest manifestly on the conclusion
The court rightly excluded the evidence offered by the plaintiff to the effect that the furniture included in the lease was not in good condition. No misrepresentation of this nature is set out in the bill. It is alleged that the furniture was not and was not put in good condition as required by the lease. The only stipulation in the lease was that “the • premises” should be in good condition. The frame and the context of the lease indicate that these words did not include furniture but relate to “the house, garage and grounds.” There is nothing at variance with this in Pratt v. Paine, 119 Mass. 439.
The denial of the motion to dismiss filed in the Superior Court presents no error of law. Whatever delay then existed was justified in view of the facts found by the judge. His decision cannot be reversed. Griffin v. Griffin, 222 Mass. 218.
The motion of the defendant filed in this court to dismiss the plaintiff’s appeal "because not entered “forthwith” as required by G. L. c. 214, § 19, is denied. There was delay in ordering the record to be printed, which, unexplained, would require the granting of the motion. Robinson v. Donaldson, 251 Mass. 334. Crawford v. Roloson, 254 Mass. 163. Anderson v. Second Society of Universalists, 259 Mass. 36, and cases there collected. Building Inspector of Salem v. Gauthier, 259 Mass. 615. That delay was explained at length in an affidavit filed by one of the counsel for the plaintiff, which was accepted by counsel for the defendant as-basis for consideration of the motion. Thus it appears that the delay was due to the fact that parties were negotiating
The result is that the order of the Superior Court denying the motion to dismiss the appeal is affirmed, the motion made in the full court to dismiss the appeal is denied, and the final decree is affirmed.
Ordered accordingly.