
    M. SPINELLI & SONS COMPANY, INC. vs. CITY OF CAMBRIDGE
    Suffolk, ss. Municipal Court of the City of Boston
    Argued October 2, 1939
    Opinion filed December 11, 1939.
    Present: Putnam, C. J., Duff & Riley, JJ.
    
    
      A. M. MacNeil, for the Plaintiff.
    
      B. C. Evarts, for the Defendant.
   Putnam, C. J.

In each of these cases the second ruling of law requested by the defendant was as follows:

“2. If the plaintiff made the payment it alleges it made, it cannot recover it back unless it proves that the same was made because of either fraud, duress, or a mutual mistake of fact.”

.. The', trial judge declined to give this ruling in either case. The making of the payments was not disputed.

The evidence contained in each report is meager. All that appears with respect to the plaintiff’s making of these payments is that, after the issuance of the building permits, the plaintiff on demand paid the sums demanded therefor by the city officials, and did so “under protest.” Under these circumstances, payment “under protest” does not entitle the plaintiff to the return of his money. Rosenfeld v. Boston Mutual Life Ins. Co., 222 Mass. 284, McLaughlin v. Exchange Trust Co., 272 Mass. 158.

In each case the second requested ruling should have been given, and in both cases the entry must be

Judgment for the defendant.  