Lembo v. Town of Framingham

• Decision Date: 29 October 1953
• Citation: 115 N.E.2d 370,330 Mass. 461
• Parties: LEMBO et al. v. TOWN OF FRAMINGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 370

115 N.E.2d 370

330 Mass. 461

LEMBO et al. v.TOWN OF FRAMINGHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 6, 1953.

Decided Oct. 29, 1953.

John F. Sullivan, Boston, for plaintiffs.

Dewey C. Kadra and E. John Ferrazzi, Town Counsel, Framingham, for defendantTown of Framingham.

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

LUMMUS, Justice.

The county commissioners of Middlesex County in 1948 took land of the petitioners in Framingham for highway purposes, awarding $5,000 to the petitioners as damages to be paid by the respondent town.The premises taken consisted of 5,150 square feet of land, with a frame building on it which contained on the first floor a grocery store operated by the petitioners, two rooms in the rear in which they lived, and two other rooms let for $8 a week, and on the second floor two living apartments rented for $7 a week each.

The jury awarded the petitioners $8,965, and they alleged exceptions to rulings as to the admission and exclusion of evidence.

The petitionerRosario Lembo testified that the fair market value of the entire real estate at the time of the taking was $40,000.He was asked by his own counsel what was the fair rental value of the store.That was excluded, and the petitioners excepted and offered to prove that the answer would be $75 a month with $75 more for the storage room.Ordinarily the rental value of real estate may be received in evidence as affording some indication of the fair market value.Lincoln v. Commonwealth, 164 Mass. 368, 380, 41 N.E. 489;Matter of City of New York, 118 App.Div. 272, 103 N.Y.S. 441.But the ultimate question is the fair market value for the purpose of sale.That question was fully tried upon the evidence of expert witnesses for both parties.Rosario Lembo was not shown to have had any experience in hiring or letting stores.The judge was not required to find him qualified to express an opinion as to the rental value of a store.Though Rosario Lembo owned the store, his ownership alone did not require the judge to admit his opinion as to its rental value, even if in his discretion he might have done so.Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503, et seq., 189 N.E. 839;Rubin v. Town of Arlington, 327 Mass. 382, 99 N.E.2d 30.Moreover, an expert witness for the petitioners was later permitted to testify as to the rental value of the store.Bishop v. Burke, 216 Mass. 231, 233-234, 103 N.E. 691.

The respondent was permitted, subject to the exception of the petitioners, to show that they paid only $4,000 for the real estate in 1944.That evidence was competent, unless the lapse of four years from the purchase makes it incompetent.Ham v. City of Salem, 100 Mass. 350, 352;Manning v. City of Lowell, 173 Mass. 100, 104, 53 N.E. 160.The petitioners contend that we should notice judicially a rapid rise in real estate values during those four years.Whether the time of buying the property was so remote in time that the price...