| Mass. App. Ct. | Jan 12, 1973
The plaintiff, Loranger Construction Corporation, appeals from an order of the Superior Court denying its motion for leave to file a second substituted declaration. Prior to this, demurrers to the original declaration and a first substituted declaration had been sustained. Ordinarily, a motion for leave to amend is within the trial judge’s discretion and is not appealable under G. L. c. 231, § 96. Means v. Leveroni, 297 Mass. 61" date_filed="1937-03-29" court="Mass." case_name="Means v. Leveroni">297 Mass. 61, 64. Abrams v. Factory Mutual Liability Insurance Company, 298 Mass. 141" date_filed="1937-09-15" court="Mass." case_name="Abrams v. Factory Mutual Liability Insurance">298 Mass. 141, 146. In the instant case, however, the trial judge stated as his reason for denial: “Court being of opinion there is no cause of action.” This is a ruling of law as to a matter apparent on the record, in the circumstances is decisive of the case, and hence is appealable under §96. Looking at count 1 of the plaintiffs amended declaration, we find that it does set out a cause of action in contract. It alleges an agreement, a breach and the resultant damages. Clark v. Gulesian, 197 Mass. 492" date_filed="1908-02-28" court="Mass." case_name="Clark v. Gulesian">197 Mass. 492. Daddario v. Pittsfield, 301 Mass. 552" date_filed="1938-12-08" court="Mass." case_name="Daddario v. City of Pittsfield">301 Mass. 552. It is only necessary that the plaintiff state the substantive facts necessary to constitute the cause of action with substantial certainty. G. L. c. 231, § 7. The order denying the plaintiffs motion for leave to amend is reversed and an order is to be entered allowing that motion.
So ordered.