Opinion
November 15, 1971.
Exceptions sustained. Willard Krasnow for Stoneham Laundry, Inc.
Charles H. Loring for Norman H. Quinn, submitted a brief.
In these cross-actions of contract tried before a judge and a jury in the Superior Court, in which a verdict was returned for Norman H. Quinn as plaintiff and also as defendant, exceptions were lodged by Stoneham Laundry, Inc. as a defendant. Those exceptions are now before us. We concern ourselves principally with the language of the judge's charge in which he commented on evidence given by a witness for the defendant laundry. The evidence related to the price charged by the witness for oil sold to the laundry. The judge's statement in effect undercuts that evidence; he told the jury that the witness had not testified relative to the distance which he had to transport the oil for delivery and that "the price of oil as testified to . . . really doesn't mean much because it's subject to a qualification and that's the qualification of the distance it has to be hauled." He did not, however, apply the same qualification to the testimony of the plaintiff Quinn who also did not testify relative to the distance he hauled the oil, for the delivery and sale of which he brought his action. The question of the effect of distance on price was thus raised and commented on in the charge in one instance but not in the other. Thus "the effect . . . was to throw the weight of the judge's opinion in the scales against the defendant." Commonwealth v. Foran, 110 Mass. 179, 180. Cahalane v. Poust, 333 Mass. 689, 692-694. This was error. That we have considered this matter notwithstanding noncompliance by the excepting party with S.J.C. Rule 1:22, 354 Mass. 742, is not to be construed as an indication that the rule may be disregarded.