Division One - Arizona Judicial Branch 730, 734-735, 604 N.E.2d 30 (1992). ThaiTurkish at 32, 49. at 1611. Click. WebForms for filing in the Court of Appeals Division One. All rights reserved. He left office on July 31, 2022. Contrast Boston Five Cents Sav. The board next considered promotions in Boston Sch. The board concluded that the following nonexhaustive list of topics were mandatory subjects of impact bargaining (subjects): the scheduling and timing of the assessment center and the orientation; the types of information to be addressed in the orientation; the format and the adequacy of training materials; the availability of paid leave time to prepare for the examination; the cost to participate; the security of the assessment process; and the right of unsuccessful applicants to feedback. In concluding that the balancing test set forth in Town of Danvers, 3 M.L.C. Washington Courts - Public Document Access Intermediate appellate court of Massachusetts, "General Information About the Appeals Court", "Clerk's guide to filing cases in the Supreme Judicial Court", "Governor Administers Ceremonial Oath of Office Swearing In Honorable Mark V. Green as Chief Justice of the Massachusetts Appeals Court", "Associate Justice Gabrielle R. Wolohojian", "Associate Justice Kenneth V. Desmond Jr", "Associate Justice Andrew M. D'Angelo | Mass.gov", "Associate Justice Robert A. Brennan | Mass.gov", https://www.mass.gov/service-details/associate-justice-christopher-p-hodgens, https://www.mass.gov/service-details/associate-justice-paul-h-smyth, "Legal challenges come from all directions", "Susan Beck, political activist became Appeals Court judge", "Susan Beck Obituary - Boston, MA | Boston Globe", "Gerald Gillerman, 86, judge known for concise decisions", "Gerald GILLERMAN's Obituary on Boston Globe", "Attorneys - Seder & Chandler, LLP - Massachusetts", "ALLEN vs. BATCHELDER, 17 Mass. UkrainianUrdu ALPHA MA Court of Appeals Opinions and Cases | FindLaw The result reached by the majority, in my view, works a substantial injustice. 547, 549, 57 N.E. Hayeck's coexecutors appeal the dismissal of his counterclaim for relief under G.L. 2023 NY Slip Op 02128. 17th Judicial District 4. Click here to review. The following facts are not in dispute. CzechDanish The above precedent establishes that the city had no duty to bargain with the union over the procedures for choosing its fire chief. of Police Officers v. Labor Relations Comm'n, 391 Mass. The finding that the notes were integrated documents is supported by the lack of ambiguity in the terms of the notes, see Plasko v. Orser, supra, and by their apparent completeness, see Sherman v. Koufman, 349 Mass. 31, 35, 422 N.E.2d 1369 (1981). Howard v. Burlington, 399 Mass. Powered by, CourTools Performance Measures And Report. They will continue their Hayeck tried this case on the theory that the renewal note was an extension of the original note, and the judge expressly so found. See Restatement (Second) of Contracts 164(1) (1981). Arizona Revised Statutes, Career/Volunteer Author: Terry Wong Created Date: The board instructed that the interests of the employees in bargaining over a particular subject should be balanced with the interest of the employer in maintaining its management prerogative. The judge found that Commerce unjustifiably impaired the collateral given as security for the loan when, contrary to its representations, it permitted a withdrawal of $50,000 from the NENMCO account containing the loan proceeds and also when it failed to take action on the pledge agreement, as noted above, to set off the $32,956.96 of NENMCO funds it held on deposit against the outstanding debt. Comm. Francis R. Fecteau, associate justice, 20082015. 4. Federal Deposit Ins. COA #824074. Staff Login, Translate this Page: See generally Staveley v. Lowell, 71 Mass. 1559 (1977), favored the employees, see note 12, infra, the board explained that the subjects directly impact bargaining unit members' ability to prepare for and participate in the assessment center, potentially improve their performance on future assessment centers, and with respect to security-related subjects, help ensure the fairness of the assessment center and the validity of the results. City of Everett, 48 M.L.C. This begs the question whether the procedures for selecting a managerial employee -- by definition, a position outside of any bargaining unit -- constitute terms and conditions of employment subject to mandatory bargaining. Appellate Division, Second Department. Job Openings Acushnet Fed. Brewer Lumber Co., 184 Mass. Justice Quirico also was still a recall judge in the Superior Court until approximately 1990. [1] It was created in 1972[2] as a court of general appellate jurisdiction. Rules of Procedure for Special Actions. On January 22, 1993, Commerce closed the NENMCO account containing the remaining loan proceeds, $15,874.76, as well as two other NENMCO accounts containing approximately $17,082.20. Hayeck testified that when Bryson first approached him, Bryson had only represented that the note would be secured by a certificate of deposit in the amount of the loan, together with a pledge of NENMCO's stock. Cynthia J. Cohen, associate justice, 2001-2017. First African-American appointed to an appellate court in Massachusetts, served nearly 40 years on the Appeals Court. Rather, the selection process has to do with the deputies' efforts to leave the bargaining unit and to become part of management, where they would occupy a supervisory and in some ways adverse position to the bargaining unit. In reaching its ultimate conclusion, the board relied on its prior precedent, stating that issues relating to promotions are a most important condition of employment for those employees who aspire to the promotional position because of the relationship between promotions and increased pay, benefits and prestige and movement on a career ladder. City of Everett, 48 M.L.C. On May 14, 2018, the union notified its members that the next fire chief's examination would be held in March 2019. An additional typewritten memorandum from the loan file of Commerce, dated the date of the closing on the first loan, confirms the agreed arrangement: Repayment [of the loan] will come from cash flow of [NENMCO] or from a $65,000 certificate of deposit which [NENMCO] will have in our bank once the note closes [or] from personal assets of Bryson (emphasis added). 229, 234-235, 486 N.E.2d 737 (1985). The number for the Clerk's Office is now (602)452-6700. Feedback Susan S. Beck, associate justice, 19972006. Appellate court - Wikipedia That was not done here, and the issue is deemed waived. WebA court of appeals, also called a court of appeal, [1] appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to The FY2016 CourTools Report has been posted. 322 (1845); Walker v. Mayo, 143 Mass. The fire chief is a managerial position outside the bargaining unit of the deputy chiefs that is not covered by G. L. c. 150E. The new email addresses are, The Court of Appeals, Division One is holding Oral Argument in Case SA 21-0141 Fann et. 1 CA-CV 22-0299 FC FILED 4-27-2023 Appeal from the Superior Court in Maricopa County No. LithuanianMacedonian General Laws c. 106, 3-606, as in effect prior to St.1998, c. 24, 8, states:(1)The holder discharges any party to the instrument to the extent that without such party's consent the holder (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.. FinnishFrench No. 339, 340, 28 N.E. There was no evidence that Hayeck's ability to recover from Bryson deteriorated between the time of Gennaro's misrepresentation and the date Commerce filed suit. WebRules of Criminal Procedure. No case so holds, and indeed, the board's own precedents establish that processes for choosing managerial employees such as fire chiefs are not subjects of mandatory bargaining. SwahiliSwedish Broomfield Combined Courts. First Chief Justice of the court. App. Click here to view. 4. That case prescribes proof of knowledge, actual or constructive, that the other party (Bryson) wrongfully diverted funds. SlovenianSpanish For more information, Governor Ducey has announced the appointment of D. Steven Williams to the Court of Appeals, Division One. The history continues: there never was a CD. The FY2016 CourTools Report has been posted. Courts have sanctioned the use of a balancing test to assess the duty to bargain. To see the guide click, CourTools Performance Measures And Report, https://www.azcourts.gov/coa1/Court-Programs/Pro-Bono-Program, The Arizona Court of Appeals, Divison One is accepting applications for Law Clerks to begin in August 2024. All Decisions 2007 - Present Before signing, Hayeck asked James Gennaro, senior vice-president and senior loan officer at Commerce, if the stocks and the certificate of deposit were in place, and Gennaro assured Hayeck that they were. On January 31, 2019, the city posted notice that an assessment center would be held on March 14, 2019, for the position of fire chief, and that the center would comprise 100% of the final score. The union immediately filed a prohibited practice charge at the Department of Labor Relations (DLR). ), Thus Commerce, Bryson, and Hayeck entered into an unlawful scheme to conceal from HUD the fact that the apparent increase in the net worth of NENMCO was in fact false. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. Please review, The Court of Appeals, Division One, now allows credit and debit card payments to be made utilizing a web-based application accessed through computers in the Clerks Office. Hayeck contends that Bryson told him of this agreement, and that he was a beneficiary of the trust. at 1607-1608. State Bar of Arizona GalicianGeorgian ALPHA Notwithstanding the dissent's contention that counsel for Commerce made a judicial admission that the second note may have superceded the original note, the issue remained alive. No. Court of Appeals There being no release of the collateral for the first note-other than the withdrawal of $50,000 from the NENMCO account without objection from Commerce-the presumption is not rebutted. Legal Associations Packets that can be used to file for an appeal in the Court of Appeals Division One. Compare New Bedford Inst. The single justice may review interlocutory orders and orders for injunctive relief issued by certain Trial Court departments, as well as requests for review of summary process appeal bonds, certain attorney's fee awards, motions for stays (postponement) of civil proceedings or criminal sentences pending appeal, and motions to review impoundment orders. 514, 517, 434 N.E.2d 1029 (1982). Questions regarding this option can be addressed by calling the Clerks Office at 602.452.6700 or emailing, Governor Doug Ducey has appointed Judge Jennifer M. Perkins and Judge James B. Morseto the Court of Appeals, Division One. LithuanianMacedonian at 1575 n.17. Legal Associations Comm., 3 M.L.C. See Local 346, Int'l Bhd. More important, there was no evidence that Hayeck relied upon any misrepresentation about the note that could have been charged to Commerce. Below is a list of State Supreme Court and Court of Appeals abbreviations. The city could not use an assessment center unless it received a delegation of authority from HRD. 40, 44, 194 N.E. See G.L. COURT OF APPEALS Each associate justice sits as single justice for a month at a time. KELLY v. HON BLANCHARD/GOINGS :: 2023 :: Arizona Court of A creditor, even one having fault in the making of an illegal or fraudulent renewal note, is permitted to sue on an original valid obligation in these circumstances. 1. App. In affirming the hearing officer's decision and firmly embracing the rationale of Boston Sch. This page was last edited on 14 April 2023, at 23:06. WebPhone. See Board of Higher Educ. 56077-1-II 2 Also in the unpublished portion of this opinion, we address Hicklins arguments that the trial court imposed an unconstitutionally vague community custody condition and improperly required him to pay community custody supervision fees. There was no evidence that Commerce knew or should have known of any misrepresentation made by Bryson to induce Hayeck's signature. Washington State Appellate Courts WebCourt of Appeals Division Two April 25, 2023 . Governor Doug Ducey has appointed Hon. Commerce argues that the judge's finding that the parties agreed that the NENMCO account with the loan proceeds would remain on deposit as security for repayment of the loan is inconsistent with his finding that the notes were integrated documents and thus cannot stand. Under those circumstances, it is incorrect to say that the processes for selecting the fire chief impact the terms and conditions of employment of the deputy fire chiefs. Where the evidence supports that finding, including Commerce's retention of the original note and not stamping it as paid, Freedman v. Peoples Natl. That is enough to make the contractual arrangements-designed to carry out an illegal scheme-unenforceable. WebFollowing a dispute with a condominium association, a condominium unit owner, Randall Steichen, sued the association, the associations property management company, and the associations law firm. Green. Please try again. Staff Login, Translate this Page: c. 93A that Commerce had acted unfairly by permitting Bryson to wrongfully divert funds which Commerce knew Bryson held for the particular purpose of securing payment of the note. See G. L. c. 150E, 1. The 2020 third Ragucci had a previously scheduled family vacation and did not participate. Frederick L. Brown, associate justice, 19762003, recall justice, 20032015. 2023 NY Slip Op 02128. COMMERCE BANK & TRUST COMPANY v. Paul G. HAYECK & another,1 coexecutors.2. IrishItalian RomanianRussian at 1577. Having found for Hayeck on Commerce's complaint, the judge dismissed Hayeck's third-party complaint against Bryson's estate. Good faith requests for extension of time related to the Coronavirus will be considered good cause by the Court. James Verellen Ct. 574, 579 (2021). at 50. Under the [National Labor Relations Act (NLRA)], there is no mandatory duty for an employer to bargain regarding its non discriminatory choice of supervisory personnel. Id., citing Kono-TV-Mission Telecasting Corp., 163 N.L.R.B. Had Hayeck learned that Bryson drew down the account containing the loan proceeds and refused to sign the renewal note, his position would have been no different. Legal Reference & Links MalayMaltese CITY OF EVERETT v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD. Allan M. Hale, chief justice, 19721984, recall justice, 1984. at 1575. 40, 44, 364 N.E.2d 1220 (1977). 218, 222, 108 N.E. at 49, quoting Boston Sch. 891 (1915). One of the original six justices of the court, fourth Chief Justice and the longest serving of the original members. Stay up-to-date with how the law affects your life. Judges' Lobby (617) 725-8085. The board rejected only one topic suggested by the union -- the weight to be given to education and experience -- as a matter falling outside the scope of mandatory bargaining. Appeals Court Clerk's Office | Mass.gov Media Inquiries, Helpful Links For the reasons that follow, we affirm. 789, 801-802, 39 N.E.2d 961 (1942), which include misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statement to the detriment of the person relying. Hogan v. Riemer, 35 Mass.App.Ct. Generally, a party appealing a judgment on the basis of inconsistent findings must, to preserve the issue for appeal, present a motion under Mass.R.Civ.P. Following a trial without jury, a Superior Court judge found Hayeck not liable on the note because he signed it in reliance on misrepresentations by Bryson and by an officer of Commerce, and because Commerce had unjustifiably impaired collateral securing the note. Father also appeals the courts denial of his request for attorneys fees under A.R.S. 506, 509, 517 N.E.2d 472 (1988). Commerce next argues that the judge's finding that Hayeck was fraudulently induced into executing the notes was not supported by the evidence. Following Gorman, two decisions from the court of appeals applied the Supreme Courts holdings. 59(a)(2), 365 Mass. 546, 552, 471 N.E.2d 1332 (1984) (no prejudice where case submitted on stated facts decided on theory not argued in trial court or in Appellate Division, but issue correctly identified by the Appellate Division). The judgment for Hayeck on Commerce's complaint is reversed. The trial court imposed a low end, standard range sentence of 240 months confinement. However, a contemporaneous memorandum handwritten by the chief executive officer of Commerce records the understanding that NENMCO was to use the loan proceeds to buy a CD [i.e., a certificate of deposit] [which was to be] pledged to Bank. Co. v. Indemnity Ins. Appellate Forms for the Court of Appeals Division 1 in Phoenix The selection processes for chief do not change, alter, or impose upon the current jobs of the deputy chiefs or other bargaining unit employees. at 1574. There was no evidence that Hayeck had seen the loan history documents before signing either note. SerbianSlovak [emailprotected] Your Service Confidential and/or restricted Appellate case documents. Third woman appointed to the court after Charlotte Peretta and Raya Dreben. 2022-00150 Cedeno v 155 W 162 2022-02392 Rules of the Supreme Court of Arizona. Welcome to the Court of Appeals Website! )", https://www.mass.gov/service-details/associate-justice-c-jeffrey-kinder, https://www.mass.gov/service-details/associate-justice-james-lemire, "Joseph Nolan; SJC justice known as social conservative - The Boston Globe", "OLSON, COMMONWEALTH vs., 24 Mass. Gordon Doerfer, associate justice, 20012007. 276, 278, 68 N.E. Although the issues were not before it, the board expressed two views of relevance here: (1) residency as a condition of promotion from one job to another within the same bargaining unit is a mandatory subject of bargaining, citing Town of Danvers; and (2) residency as a pre-condition of promotion to a job in a different bargaining unit is a mandatory subject of bargaining, where the promotional position constitutes a step in an established career ladder or is a position which is typically filled from within the bargaining unit. Id. See G.L. at 1560-1561. Judgment is to enter for Commerce for the balance due on the renewal note, with interest and costs. WebCourt of Appeals Division Two April 25, 2023 . Court Leadership Division One judges have elected Peter B. Swann to serve as Chief Judge, and Kent E. Cattani to serve as Vice Chief Judge beginning on July 1, 2019. Contact us. c. 106, 3-606(1)(b). Plasko v. Orser, 373 Mass. [14] In addition to its panel sittings, the Appeals Court runs a continuous "single justice" session, with a separate docket. 548, 553 (1973) (fire chiefs participate in development of department policy and implement it on behalf of management). CatalanChinese (Simplified) NOTE: The Court of Appeals will never ask for money to be paid over the phone. National Center for State Courts Ct. 546", "PORRAZZO, COMMONWEALTH vs., 25 Mass. Yiddish Id. 873 (1886); National Granite Bank v. Tyndale, 176 Mass. 52(a), as amended, 423 Mass. Commerce Bank and Trust Company (Commerce) commenced suit against George N. Hayeck in the Superior Court for the balance due on a promissory note, of which Hayeck was comaker with one Edward Bryson. All Rights Reserved. 32, 32 (2021). was a mentor to 11 justices on Appeals Court. Hayeck was liable on the original note. There was no evidence of Bryson's intentions at the time he made that statement, see McComb v. C.R. King County Superior Court #18-2-57978-3. A $65,000 check, payable to Bryson and Hayeck, was endorsed by both, and the monies were deposited to a new account at Commerce in the name of NENMCO. Andre Gelinas, associate justice, 19992008. The State concedes that the challenged 827 (1974), to alter or amend the judgment or for a new trial. 2023 Arizona Supreme Court. Please click on either link below: WebAppeals Court of Massachusetts. The board adopted the mandatory/permissive doctrine for purposes of resolving scope of bargaining issues under G. L. c. 150E, see Town of Danvers, 3 M.L.C. Division One has issued Administrative Order 2016-01, which allows the Chief Judge to assign additional panels to assist with case processing. The board is the successor to the Labor Relations Commission. Rudolph Kass, associate justice, 19792000, recall justice, 20002003. Domingo-Cornelio was also notified of his requirement to [16], Twenty-five justices sit on the Appeals Court: one chief justice and twenty-four associate justices. Mitchell J. Sikora, Jr. associate justice, 2006-2014. Ct. 169", "Associate Justice Mitchell J. Sikora, Jr", "Retired Massachusettts Appeals Court Judge Kent Smith of Longmeadow dies at age 85", Department of Elementary and Secondary Education, Office of Energy and Environmental Affairs, Office of Housing and Economic Development, Office of Labor and Workforce Development, https://en.wikipedia.org/w/index.php?title=Massachusetts_Appeals_Court&oldid=1149867757, State appellate courts of the United States, All articles with bare URLs for citations, Articles with bare URLs for citations from April 2023, Creative Commons Attribution-ShareAlike License 3.0. The trial court imposed a low end, standard range sentence of 240 months confinement. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. [emailprotected] Your Service 310, 310 n.1 (2019). The agreement named the city's human resources director as the delegation administrator (delegation administrator). 220, 222-223, 143 N.E.2d 534 (1957). The email address cannot be subscribed. Id. The revised version can be found here. Yiddish [3] The court is located at the John Adams Courthouse at Pemberton Square in Boston,[4] the same building which houses the Supreme Judicial Court and the Social Law Library. National Center for State Courts Court Leadership Division One judges have re-elected Samuel A. Thumma to serve as Chief Judge, and Peter B. Swann to serve as Vice Chief Judge. 1-22-0045 . Bryson died of cancer on September 10, 1992. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Credit Union v. Roderick, 26 Mass.App.Ct. The judge found that Bryson led Hayeck to believe, when the note was signed, that an arrangement with Commerce was in place where the funds would remain on deposit at [Commerce] as security for repayment of the loan and that Hayeck reasonably relied on that representation. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF 223, 227, 172 N.E. On further appeal, the board reversed that decision, holding that an employer has a statutory duty to bargain over aspects of the promotional process affecting bargaining unit members' participation in that process that do not implicate the employer's managerial right[s including] [the right] to select the assessment center as the sole basis for scoring and ranking candidates on an eligible list for promotion to Fire Chief. City of Everett, 48 M.L.C. at 709, 712, 563 N.E.2d 188. Although there were also other NENMCO and personal Bryson funds on deposit at the bank, none of these were ever set off to reduce the loan, and Commerce never attempted to exercise its voting rights in the stock so as to effectuate repayment from NENMCO's bank accounts or other assets.. 2023 Arizona Supreme Court. Latin ALPHALatvian Latin ALPHALatvian Hayeck claims that the judge dismissed his c. 93A counterclaim because he found that Commerce (and Bryson) had acted negligently, rather than knowingly. at 1575. 47, 54 n. 12, 661 N.E.2d 111 (1996). Compare G.L. Here are some custom-made videos showing how to create text-searchable briefs with bookmarks and hyperlinks for e-filing, and how to create a combined brief and appendix for e-filing. See Green v. Board of Appeal of Norwood, 358 Mass. While perhaps an accurate statement of law, it is neither an accurate representation of his counterclaim nor an accurate description of the judge's ruling. The judge found that the note was signed on or about December 5, 1991. UNITED STATES COURT OF APPEALS FOR THE FIRST HOME. 880 (1922), and the renewal note is unenforceable as having been induced by fraud. Educator Links Click. 253, 257, 263 N.E.2d 423 (1970); Royal Indem. We decline to consider Hayeck's argument, presented for the first time on appeal, because it is based upon a different theory than that on which the case was tried, and prejudices Commerce by denying it the opportunity to pursue undeveloped factual issues, including the acceptability to HUD of using funds held in a trust restricted to payment of the note to meet net worth requirements. Powered by, Court now accepting applications for the IT Desktop Support Specialist position. 82 (1930).4 That presumption is rebutted only where the security for the original debt would be released to the detriment of the creditor. One party cannot enforce a contract against another whose signature he has procured by fraud or fraudulent representations, which induced the signer reasonably to believe and understand that the instrument was substantially different from what it really was. Boston Five Cents Sav. Site Map App. 431, 434, 450 N.E.2d 612 (1983). Bank, 290 Mass. ANALYSIS Thomas contends that the trial court erred by granting the Districts motion for summary judgment and dismissing her claims. 481, 484, 452 N.E.2d 281 (1983). Appellate court Still was serving actively on recall at the time of his death. The judge found that Gennaro misled Hayeck to believe that Commerce was holding $65,000 in a separate NENMCO account from which the loan would be repaid before Hayeck signed the renewal note (emphasis original). Each will be discussed in turn. 57013-1-II 2 Thomas appeals the trial courts summary judgment dismissal of her claims. Defendant Muneshwar Naurang appeals from a September 14, 2012 Special Civil Part order denying his motion for reconsideration of an August 1, 2012 judgment for $15,000 entered in favor of plaintiff Latrice George, following a thirty-minute summary proceeding. See Restatement (Second) of Contracts 164(2) (1981). Matter of Sealy v Peart (2023 NY Slip Op 02128) Matter of Sealy v Peart. WebCourt of Appeals Division Two April 25, 2023 . This may help self-represented litigants that file cases in paper at the counter, individuals paying for copies, and those who have court approved payment plans. Chinese (Traditional)Croatian One of the deputy chiefs, Michael Ragucci, was unable to attend the orientation session due to a conflict with his wife's medical procedure. 604, 608-609, 530 N.E.2d 1243 (1988). No. 207 (1930). Language links are at the top of the page across from the title. There was no evidence of any other statement. Individual Forms For the Court of Appeals. The money, $32,956.96, was paid to NENMCO at the request of Bryson's widow, acting as clerk of NENMCO. Governor Doug Ducey has appointed Judge Maria Elena Cruz (Yuma County) and Judge Jennifer B. Campbell (Yavapai County) to the Court of Appeals, Division One. The judge also found that first Bryson, then Gennaro, expressly assured Hayeck that the collateral would never be released. Contrast Bond Bros. v. Robinson, 393 Mass. No. Court [8], Some types of appeals are not heard before the Appeals Court. Commerce further argues that because the notes were unambiguous, they were necessarily integrated, and the judge should not have considered parol evidence to show that the agreement of the parties was other than as written.