
    J. C. Best, Inc. vs. Charles W. Donovan, Jr., executor.
    April 9, 1971.
    
      Barry L. Wieder, for the plaintiff, submitted a brief.
   The plaintiff appeals from a final decree dismissing its bill in equity. By the terms of a lease between the plaintiff as lessee and the defendant’s testator as lessor, the plaintiff was obligated to pay an annual rental of $12,000 plus five per cent of the gross sales of its carpeting business. The dispute between the plaintiff and the defendant arose as to the meaning of the words “gross sales” in the lease. The evidence is reported. At the trial there was testimony that the lessor agreed orally to change the terms of the lease by omitting the charges for carpet installation from the total of “gross sales” and that the lessor agreed to write the plaintiff a letter “setting forth that he understood gross sales would no longer include installation costs.” The court below found “that no such letter was ever written” and made further findings of fact and “rule[d] that . . . [the plaintiff had] not sustained the burden of proof that the lessor intended to vary the written lease or amendment thereto by any letter, or in any other fashion.” The subsidiary findings were ample to support the judge’s ruling. “The question to be decided is . . . whether it can rightly be said that the findings made by the judge who saw the witnesses and heard them testify . . . [are] plainly wrong.” Berman v. Coakley, 257 Mass. 159, 162. There was no error.

Decree affirmed with costs of appeal to the defendant.  