Gladstone v. Treasurer and Receiver General

Citation147 N.E.2d 786,337 Mass. 48
PartiesDavid GLADSTONE v. TREASURER AND RECEIVER GENERAL.
Decision Date19 February 1958
CourtUnited States State Supreme Judicial Court of Massachusetts

Alan M. Qua, Lowell (Francis M. Qua, Lowell, with him), for plaintiff.

Samuel W. Gaffer, Asst. Atty. Gen. (Jacob M. Levenson, Boston, with him), for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

RONAN, Justice.

This is the plaintiff's exception to the direction of a verdict for the defendant in an action of contract brought under G.L. (Ter.Ed.) c. 185, §§ 101, 102, by the assignee of the owner of registered lands in Billerica to receive compensation from the assurance fund for loss of land or his interest therein due to the alleged error, omission, or mistake of the assistant recorder or assistants of the Land Court in issuing two certificates of title to a purchaser at the foreclosure sales of mortgages upon said land. The main contention of the plaintiff is that the foreclosure proceedings were not in conformity with the statute in that the notice of the sale was published in the 'Lowell Sun' when it should have been published in the 'Billerica News.'

General Laws (Ter.Ed.) c. 244, § 14, provides that a foreclosure under a power of sale shall be ineffectual unless notice has been published 'in a newspaper, if any, published in the town where the land lies. If no newspaper is published in such town, notice may be published in a newspaper published in the county where the land lies, and this provision shall be implied in every power of sale mortgage in which it is not expressly set forth. A newspaper which by its title page purports to be printed or published in such town, city or county, and having a circulation therein, shall be sufficient for the purpose.' See also G.L. (Ter.Ed.) c. 4, § 6, Eighth, and c. 236, § 28.

The place of publication of a newspaper is a question of fact to be decided by the judge or jury like any other issue involving domicial. See Tuells v. Flint, 283 Mass. 106, 109, 186 N.E. 222; Russell v. Holland, 309 Mass. 187, 191, 34 N.E.2d 668; Levanosky v. Levanosky, 311 Mass. 638, 642, 42 N.E.2d 561; Rummel v. Peters, 314 Mass. 504, 517, 51 N.E.2d 57; Hopkins v. Commissioner of Corporations and Taxation, 320 Mass. 168, 173, 68 N.E.2d 659. Since the trial judge directed a verdict for the defendant, the issue is whether the plaintiff introduced sufficient evidence to present an issue of fact for the consideration of the jury. DeAngelis v. Boston Elevated Railway Co., 304 Mass. 461, 463, 23 N.E.2d 859.

The only evidence presented on the question of publication was by two witnesses called by the plaintiff, whose testimony was uncontroverted. Copies of the 'Billerica News' (hereinafter called the News) were also introduced in evidence. One of these witnesses was the general manager of the Lowell Sun who testified that both the Lowell Sun and the News are printed in Lowell, that the billing departments of both are in Lowell, and that the Lowell Sun had a daily circulation of 1,860 copies in Billerica.

The other witness, one Bocko, testified as follows: The News was a weekly with an average circulation of about 1,400 copies in Billerica. During the entire year of 1950 he was the sole owner, editor, and publisher of the News which was 'published' in Billerica and which was entered as second class matter in the post office in North Billerica, a part of Billerica. Upon the title page appeared: 'The Billerica News is published every Thursday at North Billerica, Massachusetts, entered as second class matter, April 19, 1928 at the Post Office at North Billerica, Massachusetts, under the Act of March 3d, 1879, by the Billerica Publishing Company, Stanley J. Bocko, managing editor, home address Mount Pleasant St., North Billerica, home telephone, Billerica 687, Lowell office Lowell 8-8812.' The Billerica address was changed when he changed his residence. The only facility at his home to conduct a newspaper was a typewriter. The Billerica Publishing Company which prints and publishes the News has no address in Billerica and no property or room there but has its main office and printing plant in Lowell. Both are listed in Lowell in the telephone and city directories. The News is listed in the Billerica telephone book with his home address and under his name. The paper is printed in Lowell. The largest percentage of the news items is obtained in Billerica by about ten correspondents there. There is one advertising man working there. The witness's wife answers the telephone at his home all day. The other employees of the publishing company work in the printing plant in Lowell. There is no suggestion that the editorial office is not located there. Other printing is done in this plant.

What Bocko had in mind when he testified that the News was published in Billerica is clear from his testimony of the following incident. The Wilmington Crusader, owned by the Billerica Publishing Company (also the owner of the News), is distributed in Wilmington. It is printed in the same plant in Lowell as the News. The Crusader has no office in Wilmington, although it appears from its masthead that it is published in Wilmington. The witness was of the opinion that it was published in Wilmington because of these words in the masthead. He was also of the opinion that the Lowell Sun could not be said to be published in Billerica because it had no second class post office permit issued from that town. His opinion was...

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6 cases
  • Sevigny's Case
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 25, 1958
    ...Nass v. Town of Duxbury, 327 Mass. 396, 401, 99 N.E.2d 54; Ralph's Case, 331 Mass. 86, 90, 117 N.E.2d 142; Gladstone v. Treasurer and Receiver General, 337 Mass. ----, 147 N.E.2d 786. In those cases 2 the opinions did not have probative value because the basic facts upon which they were bas......
  • Cerutti-o'brien v. Cerutti-o'brien
    • United States
    • Appeals Court of Massachusetts
    • July 1, 2010
    ...Findings based on conjecture and on the defendant's opinions or beliefs should be disregarded. See Gladstone v. Treasurer & Receiver Gen., 337 Mass. 48, 51, 147 N.E.2d 786 (1958) (“a guess or conjecture in the form of a conclusion from basic facts that do not tend toward that conclusion has......
  • Gichner v. Antonio Troiano Tile & Marble Co.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 10, 1969
    ...Case, 337 Mass. 747, 151 N.E.2d 258 (1958); In re Cormier's Case, 337 Mass. 714, 151 N.E.2d 269 (1958); Gladstone v. Treasurer and Receiver General, 337 Mass. 48, 147 N.E.2d 786 (1958); Pansky v. Abrams, 333 Mass. 427, 131 N.E.2d 183 (1956); Ralph's Case, 331 Mass. 86, 117 N.E.2d 142 (1954)......
  • Com. v. Club Caravan, Inc.
    • United States
    • Appeals Court of Massachusetts
    • May 13, 1991
    ...facts on which it was based. 3 Compare Nass v. Duxbury, 327 Mass. 396, 401, 99 N.E.2d 54 (1951); Gladstone v. Treasurer & Recr. Gen., 337 Mass. 48, 51, 147 N.E.2d 786 (1958); Swartz v. General Motors Corp., 375 Mass. 628, 633, 378 N.E.2d 61 (1978); Reed v. Canada Dry Corp., 5 Mass.App.Ct. 1......
  • Request a trial to view additional results

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