Practice, Civil, Finding by trial judge; Amendment; Appeal: frivolous.
An appeal by a plaintiff from an order of an Appellate Division dismissing a report by a trial judge was adjudged frivolous where, from the report, it appeared that the action was for alleged conversion of merchandise, that the plaintiff's evidence tended to show that the defendant procured the merchandise by fraudulently representing himself to be the proprietor of an establishment, while the defendant's evidence tended to show that he procured the merchandise on credit; and that the judge refused to find that the defendant made the representations alleged by the plaintiff to have been made by him, and found for the defendant.
BY THE COURT.
This action was originally in contract or tort. The plaintiffs waived the count in contract and relied on the count in tort alone. That count alleged conversion of a chattel. There was evidence tending to show a sale of that chattel by the plaintiffs to the defendant on credit. There was a general finding in favor of the defendant. Denial of the plaintiffs' requests for rulings, numbered one and two, to the effect that the plaintiffs were entitled to judgment, presents no error of law. The credibility of the witnesses was entirely for the trial judge. Commonwealth v. Russ, 232 Mass. 58, 70. Lindenbaum v. New York, New Haven Hartford Railroad, 197 Mass. 314, 323. If he believed the testimony of the defendant, the plaintiffs were not entitled to recover. Request three was posited upon an alleged fact which the trial judge found did not exist. It was denied rightly.
Whether any amendment changing the form of action to contract ought to be allowed in the circumstances here disclosed is a matter within the jurisdiction of the trial court. Johnson's Case, 242 Mass. 489,495, and cases there collected.
This appeal appears to be frivolous, and double costs are awarded against the appellants from the time when the appeal to this court was taken. G.L.c. 211, § 10.
Order dismissing report affirmed with double costs.