James J. Derba, Inc. v. Hamilton Service, Inc.

Decision Date03 January 1969
PartiesJAMES J. DERBA, INC. v. HAMILTON SERVICE, INC.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jerome P. Facher, Boston, for plaintiff.

Harold Lavien, Boston, for defendant.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

Commonwealth Management, Inc. (Commonwealth) owed an amount for meat products for which the plaintiff (Derba) was about to sue. This action is to recover on an agreement by the defendant (Hamilton) to pay the indebtedness in consideration that Derba would forbear to sue Commonwealth. Hamilton's main reliance is the Statute of Frauds, G.L. c. 259, § 1, which was the only ground of demurrer relied upon. The same defence is set up in the answer.

The demurrer was overruled. After a trial on the merits another judge found for Derba. Upon reports, the Appellate Division upheld the overruling of the demurrer, but vacated the finding for Derba and ordered a finding entered for Hamilton. Both parties appealed from the order of the Appellate Division.

As we shall consider the issues raised at the trial on the merits, we do not discuss the artificial case raised by the demurrer. See Walcott v. City of Cambridge, 351 Mass. 32, 33, 217 N.E.2d 723; Massachusetts Bar Ass'n v. Cronin, 351 Mass. 321, 324, 220 N.E.2d 629, and cases cited.

Hamilton owned a motel, known as Hamilton House, at 1110 Commonwealth Avenue, Boston. Derba was a wholesale dealer, which sold meat for the motel to Commonwealth, a corporation controlled by one Zirpolo. The motel contained the Kismet Lounge and the Royal Colony Restaurant, which were managed and operated by Commonwealth. The restaurant ran into financial difficulties, and Hamilton became concerned about its continued operation.

In these circumstances Hamilton sent Derba a form letter 1 (exhibit 1) bearing date of October 15, 1965. Below the typed name and address of Derba, the mimeographed body of the letter stated that the management of Royal Colony Restaurant, formerly managed by Commonwealth, had been turned over to Hamilton, and asked creditors not to extend further credit without Hamilton's written approval. The signature was 'Hamilton Service Inc., George M. Brown (handwritten), George M. Brown, President.' The typewritten postscript on the second letter was as follows: 'P. S. Enclosed please find check for 1/3 of bill ending 9/30/65. We will pay 1/3 in Dec. 1965 and the Balance in Jan. 1966. We appreciate your patience in this matter.' The enclosed check (exhibit 3) was for $2,244.25, bore date of November 19, was payable to James J. Derba and signed 'George M. Brown.' On the face of the check to the left there is printed, 'By endorsement this check when paid is accepted in full payment of the following account.' This is followed by this statement in ink: 'Date 10/1/65 Total Bill Amount 6,732.77 1/3 of Bill 2,244.25 Loss of Guarantee Michael Zirpolo Royal Colony Rest.'

The trial judge found that 'George M. Brown, president of the defendant was authorized to act in behalf of the defendant in its dealings with the plaintiff.' He also concluded: 'The contents of exhibits 1--3 signed by George M. Brown constitute a binding written contract of the defendant to pay to the plaintiff the debt owed to the plaintiff by the Commonwealth Management, Inc. in the amount of * * * (4,488.52).' 'There was adequate consideration for the contract.'

Hamilton submitted requests for rulings. Of these the judge denied requests numbered 1, 2, 3, 4, 5, 6, and 10, and reported these rulings, and no others, to the Appellate Division.

The Appellate Division considered only the first two requests. These were: '1. If the court finds that the defendant promised to pay to the plaintiff the debt owed the plaintiff by Commonwealth Management, Inc., such promise falls within G.L. c. 259, § 1, Second. 2. If the court finds that the defendant promised to pay to the plaintiff the debt owed to the plaintiff by Commonwealth Management, Inc., in consideration of the plaintiff's forbearance to sue Commonwealth Management, Inc., such promise falls within G.C. c. 259, § 1, Second.' Both were denied by the trial judge with the notation 'Inapplicable to facts found.' This was harmless error.

The Appellate Division stated 'the (trial) court found as a fact that the letters of October 15, November 15, and the check of November 15 sufficed to produce a binding written contract of the defendant to pay to Derba the debt of Commonwealth. This finding (sic) was inconsistent with the court's ruling with respect to request for ruling Number 1. This request properly stated the law. If Hamilton agreed with Derba to pay the debt of...

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4 cases
  • Bushnell v. Bushnell
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 11 Diciembre 1984
    ...G.L. c. 273A. 4 The Appellate Division is required to consider questions of law reported to it, James J. Derba, Inc. v. Hamilton Serv., Inc., 355 Mass. 127, 130, 243 N.E.2d 178 (1969), and has the duty to consider legal questions necessarily attendant to those reported. See Henry L. Sawyer ......
  • Coyne v. John S. Tilley Co., Inc.
    • United States
    • Appeals Court of Massachusetts
    • 5 Noviembre 1974
    ...to the Appellate Division and questions of law touching the action of the Appellate Division.' James J. Derba, Inc. v. Hamilton Serv. Inc., 355 Mass. 127, 130, 243 N.E.2d 178, 181, (1969). See also Butler v. Cromartie, 339 Mass. 4, 5--6, 157 N.E.2d 649 (1959); Huikari v. Eastman, Mass., 285......
  • MacDonald v. Carr
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 Enero 1969
  • Huikari v. Eastman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 15 Junio 1972
    ...Cummings Co., 277 Mass. 445, 449, 178 N.E. 825; Butler v. Cromartie, 339 Mass. 4, 6, 157 N.E.2d 649; James J. Derba, Inc. v. Hamilton Serv., Inc., 355 Mass. 127, 130, 243 N.E.2d 178. To the extent that the requests were for rulings of law, the judge's action thereon was free from error. Eas......

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