
    W. A. Webster Co. vs. Guaranty Mortgage and Securities Corporation. Same vs. Same.
    Suffolk.
    October 22, 1926.
    October 26, 1926.
    Present: Rugg, C.J., Crosby, Carroll, Wait, & Sanderson, JJ.
    
      Practice, Civil, Common Law Rule 44 of the Superior Court (1923), Requests, rulings and instructions.
    No exception lies to a refusal by a judge at a trial in the Superior Court before a jury to grant a request for a ruling that the “plaintiff cannot recover”: that question can be raised only by a motion under Common Law Rule 44 of the Superior Court (1923).
    Two actions of contract. Writs dated August 21 and August 27, 1923.
    In the Superior Court, the actions were tried together before O’Connell, J. The request described in the opinion was denied. There were verdicts for the plaintiff in the first action in the sum of $588.72 and in the second action in the sum of $1,928.45. The defendant alleged exceptions.
    The cases were submitted on briefs.
    
      S. W. C. Downey, for the defendant.
    
      W. P. Murray, E. M. Murray, & I. E. Simons, for the plaintiff.
   By the Court.

These exceptions rest solely on the refusal of the Superior Court to grant a request for a ruling, “The plaintiff cannot recover.” There was no error in this refusal because that question must be raised by a motion for a directed verdict under Common Law Rule 44 of the Superior Court (1923). Carp v. Kaplan, 251 Mass. 225. If the case be considered on its merits it is enough to say that there was ample evidence, which need not be recited, to support a verdict for the plaintiff.

Exceptions overruled.  