GEORGE M. BARRY vs. MICHAEL P. BARRY.

GEORGE M. BARRY vs. MICHAEL P. BARRY.

2 Mass. App. Ct. 809

March 22, 1974

It was not disputed that $8,000, which the plaintiff seeks to recover in this action of contract, was advanced by the plaintiff to the

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defendant, and was applied by the latter to the purchase of a house. The plaintiff contends that the transaction was either a loan or a gift made upon the condition (not performed by the defendant) that the defendant, who was the plaintiff's nephew, would permit the plaintiff to occupy a room in that house for which the plaintiff expected to pay rent. The defendant has refused to return the money asserting that the transaction was intended as a gift. The defendant excepted to the denial of his motion for a directed verdict at the close of the evidence and to certain instructions given to the jury. There was no error in the denial of the motion for a directed verdict. Viewed in its aspect most favorable to him, the evidence supports a finding for the plaintiff. Lee v. Allied Sports Associates, Inc. 349 Mass. 544 , 545 (1965). Randolph v. Five Guys From Boston, Inc. 354 Mass. 730 , 731 (1968). Since there was evidence to support the allegations declared upon, it was proper for the judge to charge the jury that they could find for the plaintiff if they found there was (1) a loan from the plaintiff to the defendant or (2) a conditional gift from the plaintiff to the defendant and that the defendant did not meet that condition. We need not pass upon an allegation of error to which no exception was taken.

Exceptions overruled.