
    
      Southern District
    
    No. 32192
    COLONIAL DRUG COMPANY OF SCITUATE, INC. v. CLERKIN
    Argued: Nov. 29, 1967
    Decided: Jan., 1968
    
      
      Present: Nash, P. J., Cox, Murphy, J. J.
    Tried to Tamkin, J. in the Second District Court of Plymouth. No. 32192
   Murphy, J.

This case and case No. 37613, James Clerkin v. Paul J. Hailer and Colonial Drug Company, Inc., are before this Division on separate established reports.

This case is an action of contract in which the plaintiff seeks to recover monies had and received by the defendant. The plaintiff’s declaration is in two counts, as follows:

Count I is for money had and received by the defendant to the plaintiff’s use.

Count II is for breach of contract.

The answer is a general denial and an allegation of payment on behalf of the defendant.

The justice who heard the case found the following facts:

“The court finds that said Colonial Drug Company of Scituate, Inc. has received the $1,500.00 from the Guaranty Trust Co. and in consideration thereof the Colonial Drug Co. of Scituate, Inc. has assigned its rights against Clerkin to the Guaranty Trust Co.; The Guaranty Trust Co. brings the present suit in the name of the Colonial Drug Company of Scituate, Inc.”

David S. Kunian, of Boston, for the Plaintiff.

George M. Tull, of Quincy, for the Defendant.

The case is reported to this Division because the defendant Claims to be aggrieved by the decision of the justice, which he contends is inconsistent with the allowance of his request f or rulings of law.

If there was any inconsistency, it is not shown by the rather slim record before us, and furthermore, assuming there was, the proper method to correct the alleged inconsistency was by a motion to do so filed with the trial judge; this the defendant failed to do, and this omission or failure is fatal. Biggs v. Densmore, 323 Mass. 106 and cases cited. Kelsey v. Hampton Court Hotel Company, 327 Mass. 150.

An order should be entered dismissing the report.  