Alves v. Boulanger

Order dismissing report affirmed. In this action of contract to recover for money alleged to have been lent to the defendant, the trial judge, on evidence which would have warranted a finding either way, found for the defendant. A report to the Appellate Division was dismissed, and the plaintiff appealed. The sole question of law now argued by the plaintiff arises out of the manner in which the judge dealt with the defendant’s first request which reads, “There is no evidence upon which the court can base a finding for the plaintiff.” Since the judge took no action on this request, it must be treated as having been denied. Mitchell v. Silverstein, 323 Mass. 239, 240-241. But this ruling instead of harming the plaintiff, as he seems to argue, was favorable to him, and, in view of the evidence, was the only one that could properly have been made; it was not inconsistent with the finding for the defendant. Godfrey v. Caswell, 321 Mass. 161, 162. The remainder of the plaintiff’s argument requires no discussion as it amounts to no more than a contention that the judge ought to have found for the plaintiff.