293 Mass. 435 | Mass. | 1936
These are two actions of contract. In the first action the plaintiff seeks to recover rent reserved in a written lease for the months of October, November and December, 1933, at $75 a month; and in the second action rent for January, February and March, 1934, at the same rate. In the first case the defendant filed a claim of recoupment for alleged breach of covenant to supply hot water and to furnish heat; for personal injuries because of alleged “vibrations” and “shocks” of the steam pipes and radiators; for the diminishing of his “efficiency for his work” and that of his wife “for her work”; for failure to supply janitor's service; and for failure to keep the flooring in a clothes yard in safe condition. In the second case the allegations of the answer in respect to recoupment were the same, except that there was no complaint of failure to provide janitor service and there were additional allegations that the plaintiff suffered two broken window cords to remain unreplaced, allowed the bathroom toilet, a waste pipe and a radiator to leak, failed to keep the stairways clean and failed to remove the garbage promptly.
The lease contained the provision: “It is further understood and agreed that, except so far as hereinafter provided and as necessarily prevented by accident, the said Lessor will supply said suite with water from the town or city water works and supply continuous hot water during reasonable hours and keep the rooms composing said suite, containing radiators, warmed during the cold season. Inability on the part of the Lessor to procure coal due to causes beyond the Lessor's control shall not be deemed a violation of this lease.” The lease contains no covenant of the lessor to furnish janitor service, to keep the premises clean and in repair or to keep a flooring in a clothes yard in safe condition.
The two actions were heard together in the Municipal Court of Brookline upon substantially the same evidence.
The trial judge denied the motion and refused the requests for rulings of law. Under Rule 28 of the District Courts (1932) he set forth the facts and reasons for the disallowance of the claim for report as follows: (1) “The
The report was established March 29, 1935, by the Apellate Division for the Southern District, and the cause came on to be heard on May 17, 1935. It was submitted on briefs by the plaintiff and argued by the defendant. The Appellate Division in each case ordered the “Report Dismissed” on July 2, 1935. The cases come before this court on the appeals of the defendant filed July 9, 1935.
The defendant contends that his answer set forth his contentions and that he was not obliged to make specific requests for rulings of law. He further contends that the trial judge did not obey the commands of G. L. (Ter. Ed.) c. 231, § 124, in that in the circumstances of this case it was expedient that he should “ascertain so far as is practicable all the facts both as to liability and damages.”
Rule 27 of the District Courts (1932) is otherwise and requires that such requests be filed and rights saved thereon. Holton v. American Pastry Products Corp. 274 Mass. 268, 269. Almeida v. Alsdorf, 291 Mass. 115. No question of law can be raised .on a motion for a new trial which could have been raised at the trial on the merits, unless the trial judge see fit to entertain it. Skudris v. Williams, 287 Mass. 568, 570. The first two requests for rulings of law made at the time of the motion for a new trial presented questions of law which could have been dealt with at the trial on the merits. They should have been then presented if the defendant wished to claim a report as a matter of right. Nerbonne v. New England Steamship Co. 288 Mass. 508. In Hallett v. Jordan Marsh Co. 240 Mass. 110, it was held that a question of law which might have been saved at the trial on the merits could not be raised as a matter of right on a motion for a new trial.
The last two requests were not argued before the Appellate Division and are treated as waived.
We find no occasion for further consideration of the defendant’s argument. In each case the entry may be
Order dismissing report affirmed.