Assessors of Pittsfield v. W.T. Grant Co.

• Decision Date: 31 October 1952
• Citation: 329 Mass. 359,108 N.E.2d 536
• Parties: ASSESSORS OF PITTSFIELD v. W. T. GRANT CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 536

108 N.E.2d 536

329 Mass. 359

ASSESSORS OF PITTSFIELD v. W. T. GRANT CO. (two cases).

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 16, 1952.

Decided Oct. 31, 1952.

Samuel Markell, Boston, Frederick M. Myers and Frederick M. Myers, Jr., Pittsfield, for the taxpayer.

Paul A. Tamburello, Edwin E. Reder, Pittsfield, for Assessors of Pittsfield.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and WILLIAMS, JJ.

LUMMUS, Justice.

These are petitions for the abatement of taxes for the year 1949 upon two parcels of improved land, with brick buildings thereon, in Pittsfield, occupied by the taxpayer as a lessee, under a lease which required it to pay the taxes. The taxpayer paid the taxes for 1949, and petitioned for an abatement. The assessors granted an abatement which the taxpayer deemed insufficient. The taxpayer appealed to the Appellate Tax Board. On December 8, 1950, the Appellate Tax Board granted a further abatement, on the ground of over valuation by the assessors. The assessors appealed to this court.

The taxpayer called as a witness one Harold J. Bridgman, who was its only witness as to the valuation of its property. He testified that the buildings were worth $80,000 and the land $265,895, on January 1, 1949. On cross-examination the assessors brought out that he with other real estate men took part in a discussion of this and other neighboring properties which the assessors conducted for the year 1949, at which the value of the property in question was discussed. Plans were shown to Bridgman at that discussion on which were marked the valuations proposed and later made by the assessors. The Appellate Tax Board excluded evidence that Bridgman never expressed disapproval of those valuations. Along the same line, the assessors offered to show by the witness Howard D. Sammis that Bridgman had said that the valuations proposed and later made by the assessors were 'rather too low,' and that the land was worth more. To the exclusion of all this evidence the assessors excepted.

In Hill v. Crompton, 119 Mass. 376, 382, it was said that it is competent to contradict a witness 'by showing that he had made statements inconsistent with his testimony' or 'that he was silent when statements inconsistent with it had been made in his presence.' See also Langan v. Pianowski, 307 Mass. 149, 29 N.E.2d 700; Carson v. Boston Elevated Railway, 309 Mass. 32, 33, 33 N.E.2d 701; Kislowski v. Monkiewicz, 310 Mass. 257, 258, 37 N.E.2d 458; Commonwealth v. West, 312 Mass. 438, 440, 45 N.E.2d 260; Commonwealth v. Granito, 326 Mass. 494, 500, 95 N.E.2d 539. This right to prove statements inconsistent with the testimony cannot be denied by the judge when the testimony bears directly upon a material and not collateral issue in the case, as it did here. Robinson v. Old Colony Street Railway, 189 Mass. 594, 596, 76 N.E. 190. Slotnick v. Silberstein, 221 Mass. 59, 62, 108 N.E. 899. Commonwealth v. West, 312 Mass. 438, 440, 45 N.E.2d 260; McGeorge v. Grand Realty Trust, Inc., 316 Mass. 373, 376, 55 N.E.2d 694. In our opinion the exclusion of evidence of the conduct and statements of the witness Bridgman, prior to his testimony, constituted error of law.

One James M. Cleminshaw was offered as an expert witness on value by the...