4 Mass. App. Ct. 862 | Mass. App. Ct. | 1976
The plaintiff appeals from a judgment of the Superior Court dismissing his action for failure to state a claim upon which relief can be granted. Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). A motion under Rule 12(b) (6) should not be allowed “unless it appears to a certainty that [the claiming pleader] is entitled to no relief under any state of facts which could be proved in support of the claim” (empha
So ordered.
Our disposition of this case makes it unnecessary for us to decide whether the Statute of Frauds must in these circumstances be pleaded as an affirmative defense. Compare Keene Lumber Co. v. Leventhal, 165 F. 2d 815, 820 (1st Cir. 1948), with Currier v. Knapp, 442 F. 2d 422, 423 (3d Cir. 1971).
We express no opinion on whether the supporting materials which the defendants claim are in their possession (some of which are appended to their brief) are sufficient to warrant the allowance of a motion for summary judgment in their favor (Mass.R.Civ.P. 56, 365 Mass. 824 [1974]), as these materials do not appear to have been brought to the attention of the judge who acted on the motion to dismiss. Compare Carter v. Stanton, 405 U. S. 669, 671 (1972).