JOHN J. DONOVAN & another vs. MAC-GRAY CO., INC.

JOHN J. DONOVAN & another vs. MAC-GRAY CO., INC.

358 Mass. 813

December 30, 1970

Mr. Donovan and his wife obtained a verdict on a count in tort for alleged misrepresentations by Joseph O'Brien, a sales representative of the defendant (Mac-Gray). Mac-Gray argues exceptions to the trial judge's refusal to direct a verdict for it and to rulings on evidence. On confused, conflicting evidence, the jury could have concluded that the Donovans, in purchasing from Mac-Gray coin-operated dry cleaning equipment, reasonably relied upon O'Brien's statements, material to the Donovans' decision to purchase, concerning (a) the extent to which the equipment could be employed without an attendant, (b) the scope of a general written survey (if one existed) of the area in which the equipment was to be used and of O'Brien's examination of the books of a laundry run by one Tunha in which the Donovans planned to lease space for the dry-cleaning equipment, and (c) the volume of the laundry business there conducted by Tunha. The jury also could conclude that O'Brien's statements, made as of his own knowledge, were either false or concerned unverified subsidiary facts (underlying the misrepresentations alleged) which were susceptible of verification. See Yorke v. Taylor, 332 Mass. 368 , 371-374. The refusal to direct a verdict was proper. The bill of exceptions does not

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state that it contains all the material evidence (Ginsburg v. Gross, 334 Mass. 709 ) and does not sufficiently show error, or harm to Mac-Gray, in the judge's limitation of cross-examination of Mr. Donovan. Tunha, called as a witness by the Donovans, made contradictory statements in his own testimony. If there was error in permitting the Donovans, without asking appropriate preliminary questions of Tunha (G. L. c. 233, Section 23), to impeach Tunha's testimony on the same subject by that of another witness, the error was harmless. It did no more than what Tunha's own testimony already had done.

Exceptions overruled.