JOSE R. PERES vs. MARIA AUGUSTINE MIRANDA Y COSTA.

JOSEPH RUDNICK & others vs. JOSEPH B. GROSSMAN & others, trustees.

3 Mass. App. Ct. 719

March 10, 1975

In this action to recover the deposit paid by the plaintiffs when they submitted their allegedly unaccepted offer to purchase the defendants' building, the plaintiffs' motion for summary judgment under G. L. c. 231, Section 59 (as amended through St. 1965, c. 491, Section 1), was improperly allowed, as it appears from the answers of one of the defendants to certain interrogatories which accompanied the motion, read in the light most favorable to the defendants (McMahon v. M & D Builders, Inc. 360 Mass. 54 , 56 [1971], and case cited), that the plaintiffs' offer may have been orally accepted and thereby caused

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to ripen into a contract enforceable against them (but see Wasserman v. Roach, 336 Mass. 564 , 567-568 [1958]). For purposes of the motion it is immaterial that those answers may have been disbelieved (compare Kesler v. Pritchard, 362 Mass. 132 , 134 [1972]); and while some of the other answers contained admissions damaging to the defendants, that will not prevent their introducing additional evidence on those issues or explaining those admissions at trial (McMahon v. M & D Builders, Inc., supra, at 61). It follows that the plaintiffs failed to sustain their burden of affirmatively showing the absence of any genuine issue of material fact. Kesler v. Pritchard, supra, and cases cited.

Order for judgment reversed.