Bloom v. Boston

Lewiton, J. The matter before us is a petition to establish a report in an action of contract in which the plaintiff sought to recover for alleged breach of warranty by the defendant in the sale of a dog to the plaintiff. It appears from the original draft report annexed to the' petition to establish that the defendant denied having sold the dog to the plaintiff, and denied having had any contractual relations whatever with the plaintiff. It further appears that the trial judge found for the defendant on the ground that the plaintiff had not sustained her burden of proving that she ever had a contract with the defendant. The petition contains no allegation verified by affidavit that the original draft report, which was disallowed by the trial judge and [107] is now sought to be established, conforms to the truth, nor is there any other equivalent allegation so verified. For that reason alone the petition to establish report must be denied. Bule 31, Buies of the Boston Municipal Court. Lasell v. Director of Empl. Security, 325 Mass. 23, 25-26. Counsel for the plaintiff conceded in the hearing before us that his original draft report does not contain any reference to several portions of the evidence which the trial judge indicated he deemed material to his findings. Since the draft report must contain all of the facts material to the questions of law reported, this would be an additional reason for denying the petition to establish the plaintiff’s draft report. In passing, we note that the rulings of law sought to be reviewed are all based on the assumption that the defendant had in fact sold the dog in question to the plaintiff. Since the trial judge specifically found that this basic assumption was not established by the plaintiff, the denial of the requested rulings was not erroneous. It being apparent that this draft report, if established, would have presented no substantial question of law for consideration by the Appellate Division, the petition to establish should be denied. Thomas v. McDermott, 307 Mass. 609. Petition to establish report denied. Herbert Zimmerman, of Brookline for the Petitioner-Defendant. Louis Winer, of Boston for the Respondent-Plaintiff.