Opinion
December 3, 1925.
December 4, 1925.
Present: RUGG, C.J., BRALEY, CROSBY, PIERCE, SANDERSON, JJ.
Practice, Civil, Finding by judge. Evidence, Presumptions and burden of proof.
At the trial in a municipal court of an action for rent alleged to be due under a lease in writing, the sole issue was whether, after the defendant vacated the premises, the plaintiff made proper effort to rent them for the remainder of the term of the lease. Upon a request by the defendant for a finding that the plaintiff had made no such proper effort, the judge found, "Not so found." The Appellate Division dismissed a report by the trial judge. Held, that the question saved by the defendant was a pure question of fact and that the finding by the trial judge must stand.
CONTRACT for $75, rent alleged to be due under a lease in writing. Writ in the Municipal Court of the City of Boston dated October 2, 1924.
Material evidence at the trial in the Municipal Court is described in the opinion. The judge upon a request for a ruling, that "plaintiff made no proper effort to let the said premises during the said three months and the defendant is not liable therefor," stated, "Not so found," found for the plaintiff in the sum of $75, and at the defendant's request reported the action to the Appellate Division, who ordered the report dismissed. The defendant appealed.
A.J. Connell, for the defendant.
J.D. Crook, for the plaintiff, submitted a brief.
This is an action of contract to recover rent due under a written lease.
There was evidence that the defendant vacated and the plaintiff took possession of the demised premises three months before the expiration of the term. The only point argued by the defendant is that as matter of law the judge should have found that the plaintiff made no proper effort to rent the premises for the remainder of the term. Without reciting or even summarizing the evidence in detail, it is enough to say that whether such effort was made by the plaintiff was a pure question of fact. The general finding for the plaintiff imports a finding of all subsidiary facts essential to that conclusion. Adams v. Dick, 226 Mass. 46, 52. There was evidence to support the finding.
No error of law is disclosed on the record.
Order dismissing report affirmed.