O'Connor v. Lamothe

38 Mass. App. Dec. 163 | Mass. Dist. Ct., App. Div. | 1967

Allen, J.

This is an action of tort for conversion, brought in the District Court of Springfield, in which the plaintiff seeks to recover the value of certain personal articles allegedly converted by the defendant. The judge found for the defendant.

At the trial there was evidence that the plaintiff rented an apartment from the defendant on a weekly basis; that the plaintiff was away from the apartment during November and part of December, 1957. Sometime in November, 1957, the defendant entered the plaintiff’s apartment without his knowledge or consent and removed his personal possessions. She did this because the defendant’s rent was five weeks in arrears and she did not know if he was coming back. After his return, he demanded the articles and the defendant gave some to his agent on December 7, 1957, and said she would deliver the rest upon payment of Ms back rent. Apparently, although the report is not clear, he paid the back rent in September, 1958, and she gave him additional articles she had taken from his room. Plaintiff claimed that some of the articles that were in Ms apartment when he left at the beginmng of November, 1957, had never been returned.

At the close of the evidence and before final argument, the plaintiff filed requests for rulings of law. The judge allowed the plaintiff’s requests and found for the defendant but filed no other written findings. The plaintiff contends the finding for the defendant is inconsistent with the evidence and with his granting of the plaintiff’s requests.

In case of an inconsistency between the rulings of the trial judge and Ms findings on the evidence “the proper ‘remedy is not a report but a motion to correct the inconsistency or a motion for a new trial. ’ ’ ’

Cook v. Kozlowski, 357 Mass. 708. Vieira v. Balsamo, 328 Mass. 37, 39. Kesley v. Hampton Court Hotel Co., 327 Mass. 150. National Shawmut Bank v. Johnson, 317 Mass. 485. DeLorenzo v. Atlantic National Bank, 278 Mass. 321, 323.

S. Thomas Martinelli, for the Plaintiff. A. Robert Draymore, for the Defendant.

The evidence warranted the finding made by the trial judge. The report is to be dismissed.