Opinion
June 8, 1959.
J. Fleet Cowden, for Lisanti.
Charles L. Donahue, for E.F. Hodgson Co., Inc.
Exceptions overruled. These are exceptions to the denial of motions for new trials made by the owner in an action brought against him by a building contractor and in his cross action against the contractor. The actions were consolidated for trial and after being heard by an auditor were tried before a jury. There was an exception saved by the owner during the trial to the denial of his motion to amend his declaration by adding a count alleging intentional breach of contract — a matter of discretion, Rich v. Finley, 325 Mass. 99, 108, and not preserved by incorporating it in a bill of exceptions. Haines Corp. v. Winthrop Square Cafe, Inc. 335 Mass. 152, 154. The owner contends that the verdicts were inconsistent, and that the one awarded to the contractor contained mathematical errors. The time for raising either point as a matter of right was when the verdicts were returned and before they were recorded. There was no error in the denial of the motions for new trials. Low Supply Co. v. Pappacostopoulous, 283 Mass. 633, 635. Leonard v. Woodward, 305 Mass. 332, 338. Phillips v. Larson, 323 Mass. 87, 91. Chaplain v. Dugas, 323 Mass. 91, 95.