Spear v. Hardon

• Decision Date: 24 May 1913
• Citation: 215 Mass. 89,102 N.E. 126
• Parties: SPEAR v. HARDON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 89

102 N.E. 126

SPEAR v. HARDON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1913

COUNSEL

George H. Elwell, of Boston, for appellant Hardon.

Charles T. Cottrell and Albert Garceau, both of Boston, for appellee.

OPINION

RUGG C.J.

This is an appeal from the appellate division of the municipal court of the city of Boston under St. 1912, c. 649. A word needs to be said as to the form in which the case comes before us. There is in the record an unsigned recital entitled '(Memo)' setting out the history of the case and the action of the appellate division. There is no judgment signed by the judges nor indorsement by the clerk that it is by order of the court. The decision of the appellate division should be set forth in the form in which it is entered. Under the statute that court 'may reverse, vacate or modify' the ruling complained of 'or order a new trial in whole or in part' or 'dismiss the report.' The practice of other courts indicates as the procedure an order by the court for the entry of the decision, attested by the clerk, or instead the decision may be signed by the judges and filed. As is pointed out in Cohen v. Berkowitz, 102 N.E. 124, an opinion (if one is written) which is a statement of the reasons for the decision, is no part of the record, and should not be printed. When no question of practice is raised, only the report, the decision of the appellate division and the appeal to this court need be printed showing the dates of filing or allowance of each with an attestation by the clerk. If any question of practice is raised, enough of the record of the municipal court should be printed to show clearly the point presented.

This is an action of contract to recover installments of rent due under a written lease. The defendant and the plaintiff executed the lease, and the defendant entered into possession of the premises, but left before the expiration of the term. The defendant offered to prove that, before the execution of the lease, the plaintiff proposed to let the premises described in the lease 'as they then stood at a monthly rental of $42, and for the monthly rental of $45, which was named in the lease, she then agreed to build a veranda,' and had not done so. The question of law presented is whether this evidence was excluded rightly. This precise point was decided adversely to the contention of the defendant in Brigham v. Rogers, 17 Mass....