4 Mass. App. Ct. 809 | Mass. App. Ct. | 1976
The judge’s findings that the defendant “state [d] that the policy was to be in his and his wife’s name, intending that it be so as trustees of the Trident Realty Trust,” and that the plaintiff “Dyer, mistakenly, took the information given him to mean that the named insured were to be the two individually,” while binding upon us because not clearly erroneous (Mass.R.Civ.P. 52[a], 365 Mass. 816 [1974]; Marlow v. New Bedford, 369 Mass. 501, 508 [1976]), did not support the ruling that the premium thereon “was not owed and is not owed by the defendant (or his wife) individually.” The ruling was not permissible on a theory (apparently adopted by the judge) of reformation by reason of mutual mistake; for the record, so far as the appendix shows (see Mass.R.A.P. 18[a], 365 Mass. 864 [1974]; Slater v. Burnham Corp., ante, 791 [1976]), discloses no evidence, much less any “full, clear and decisive proof”
So ordered.