Ware Savings Bank v. Krupp

This is an action brought on an indemnification agreement executed by the third-party defendants (appellants) in favor of the third-party plaintiffs (appellees). At the conclusion of the evidence the appellants moved to amend the pleadings to conform to the evidence presented (see generally Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 354-355 [1978]), and the appellees moved for a directed verdict. The judge denied the motion to amend and allowed the motion for a directed verdict. There was no error. We think the judge’s ruling that the proposed amendment would have been futile was correct. See Strong v. Merchants Mut. Ins. Co., 5 Mass. App. Ct. 870 (1977). It is manifest from the pleadings, the transcript and the agreement that' regardless of the proposed amendment the appellants did not have a legally sufficient defense to the appellees’ claim, which is otherwise not disputed. There is nothing in this record to support the appellants’ proposed defenses of (1) failure of consideration, (2) impossibility of performance, and (3) frustration of purpose. We need look no further than Baetjer v. New England Alcohol Co., 319 Mass. 592, 600-602 (1946), Essex-Lincoln Garage, Inc. v. Boston, 342 Mass. 719, 721 (1961) (cited by the trial judge), and Johnson v. Norton Housing Authy., 375 Mass. 192, 195 (1978), to conclude that this case was rightly decided for the reasons given by the trial judge. Judgment affirmed.