
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1893        No. 94-1895                          DORIS FREDETTE and PAUL FREDETTE,                                Plaintiffs, Appellees,                                          v.             ALLIED VAN LINES, INC., and TRANSIT HOMES OF AMERICA, INC.,                               Defendants, Appellants.                                 ____________________        No. 94-1894                          DORIS FREDETTE and PAUL FREDETTE,                               Plaintiffs, Appellants,                                          v.              ALLIED VAN LINES, INC., MULLEN BROS., INC. of NORTH ADAMS,                         and TRANSIT HOMES OF AMERICA, INC.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    _____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Joseph B.  Bertrand with whom Marie  G. Leary  and Martin Magnuson            ___________________           _______________      _______________        McCarthy & Kenney were on briefs for defendant Allied Van  Lines, Inc.        _________________        and defendant Mullen Bros., Inc. of North Adams.            William Gordon Prescott with whom David  W. Murphy, Jr., and Katz,            _______________________           _____________________      ____        Lapointe & Murphy,  P.C. were on brief for defendant  Transit Homes of        ________________________        America, Inc.            David R.  Cianflone with whom Cianflone  & Cianflone,  P.C. was on            ___________________           _____________________________        briefs for plaintiffs.                                 ____________________                                  September 28, 1995                                 ____________________                 BOUDIN, Circuit Judge.   We have before us cross-appeals                         _____________            in  a case concerning  long-distance moving arrangements that            went seriously  awry.  The  plaintiffs in the  district court            were Paul and Doris Fredette; the defendants were Allied  Van            Lines, Inc., ("Allied"), Mullen Brothers, Inc. of North Adams            ("Mullen  Brothers")  and  Transit  Homes  of  America,  Inc.            ("Transit").  The facts, taken in the light most favorable to            the  jury verdict, Borden v.  Paul Revere Life  Ins. Co., 935                               ______     __________________________            F.2d 370, 379 (1st Cir. 1991), are as follows.                 In September 1990, General Electric Company ("GE")  laid            off Paul Fredette, who was then working as a machinist in its            Pittsfield, Massachusetts, plant.  GE offered Paul Fredette a            position  in  its  Hickory,  North  Carolina  plant,  and  he            accepted.  The Fredettes  contacted defendant Mullen Brothers            to arrange the move  of their mobile home to  North Carolina.            Mullen  is  a local  Massachusetts  mover  licensed only  for            intrastate moves;  for interstate moves  like the Fredettes',            Mullen acts as an agent for Allied.                 In  January 1991,  a Mullen  sales  representative, Chad            Lindburg, came  to the Fredettes' Pittsfield  home to inspect            and inventory their mobile home and personal belongings.  The            mobile home was a one-bedroom unit with an attached porch and            canopy  and  a  detached  shed. The  Fredettes  explained  to            Lindburg  that they  wanted to move  the home and  all of its            contents and that  they wanted  to be fully  insured.   After                                         -3-                                         -3-            that  meeting,  the Fredettes  left  for  North Carolina  and            stayed with relatives  while Paul Fredette began work  at the            GE plant there.  They also purchased a lot for the home.                 In  mid-February, the  Fredettes returned and  signed an            agreement with Lindburg committing  Allied to move the mobile            home and its  contents at  a cost of  $20,520; the  Fredettes            handed over  a check,  apparently believing that  this amount            represented  all  payments required  for  the  move.   Allied            planned to  transport the  household possessions itself.   It            subcontracted  the  move of  the mobile  home to  Transit and            hired  another company to move the porch and shed.  According            to the contract, the move was to begin on  February 16, 1991,            with a guaranteed  delivery date no  later than February  25,            1991.                 Transit, in turn, hired James Bedford to move the mobile            home and  he inspected  it on the  day that the  contract was            signed.  The Fredettes  then returned to North Carolina.   On            February  21,  1991,  Lindburg  told them  that  Bedford  had            discovered pre-existing  structural damage after he moved the            home off its Pittsfield  lot.  Bedford told Transit  that the            home  was not roadworthy because it was sagging on its axles.            Transit told Bedford  not to  move the home  and told  Allied            that  the  home  would  not  be  moved  until  the  Fredettes            furnished  Transit  with  a  broad liability  release.    The            Fredettes' personal belongings were placed in storage.                                         -4-                                         -4-                 The Fredettes returned  to Pittsfield, photographed  the            home  and   hired  their  own  expert,   Stanley  Bator,  who            determined  that the home could  be safely moved  if a fourth            axle were added.   The  Fredettes refused to  sign the  broad            release  demanded by  Transit, but  on March  1, 1991,  Doris            Fredette  signed a promissory note to Allied for up to $2,500            to  cover costs of adding an axle.   A fourth axle was added,            and on March 7, 1991, Bedford moved the home from Pittsfield,            arriving  in North  Carolina on  March 12.   On  arrival, the            Fredettes and  an expert they hired  found (and photographed)            substantial damage to the interior and exterior of the home.                 Bedford  refused to  place the  mobile home  on the  lot            until  the   Fredettes  removed   a  fence  and   made  other            adjustments.  The  Fredettes hired Irvin Finger,  who did the            required work,  but Bedford still  refused to  move the  home            onto the lot,  saying that the ground was too hilly and muddy            to do it safely.   After consulting with Allied  and Transit,            Bedford left the  mobile home  near the lot  and returned  to            Massachusetts.   The  Fredettes hired  a local  company which            promptly placed the home onto the lot for an additional fee.                 A  week  later,  after  a  number  of  requests  by  the            Fredettes,  Allied sent a crew  to block and  level the home.            The contents of the  home and the porch, including  the front            steps, had  not  yet  arrived.   Apparently  Allied  and  the            Fredettes were engaged  in a dispute  about the storage  fees                                         -5-                                         -5-            incurred  during  the moving  delay,  and  Allied refused  to            deliver  the personal  belongings until  the storage  fee was            paid.  Delivery occurred on April 11, 1991, and the Fredettes            moved  into  their  home the  next  day,  45  days after  the            original guaranteed delivery date.                 While  the  home  was  en route,  Paul  Fredette  became            depressed  and, as a result, was terminated from his job with            GE.   His anxiety and depression continued after the move and            were confirmed by medical testimony at trial.  He returned to            work  in  May of  1991, but  left  again in  September, again            because  of  depression.     Doris  Fredette   also  suffered            emotional distress.  Ultimately,  the Fredettes brought  suit            in  Massachusetts state  court, alleging  a number  of claims            against Allied, Transit and Mullen.                 The  defendants  removed the  suit  to  federal district            court,  and  ultimately the  parties  went to  trial  on four            counts:    count  I  alleged  a  violation   of  the  Carmack            Amendment, 49  U.S.C.    11707; count  II  charged breach  of            contract;  count IV  alleged  a  violation  of  Massachusetts            consumer  protection law, Mass. Gen. L. ch. 93A, based on the            intentional  infliction of  emotional distress;  and count  V            charged intentional infliction of emotional distress.1                                            ____________________                 1Count III,  a state-law claim for  property damage, was            dismissed as preempted by the Carmack Amendment.                                         -6-                                         -6-                 Counts I, II and V were tried to a  jury beginning April            11,  1994; Count  IV, the 93A  claim, was heard  by the court            afterward.   After the  Fredettes rested, the  district court            dismissed Mullen as  a party.   On April 14,  1994, the  jury            found for the Fredettes  and against Allied on the  breach of            contract  claim and  the claim  of intentional  infliction of            emotional  distress.  It found  for the Fredettes and against            Transit on  the  Carmack Amendment  claim  and the  claim  of            intentional  infliction  of  emotional  distress.   The  jury            awarded   $36,000,  representing   $18,500  on   the  Carmack            Amendment claim against Transit; $7,500 on the contract claim            against Allied;  and $5,000 each against  these defendants on            the emotional distress claim.  The district court then  found            in favor of Allied and Transit on the Fredettes' 93A claim.                 Allied  and  Transit   duly  filed  post-trial  motions,            generally  preserving  the claims  now  made  on appeal,  but            motions  were denied.  Allied and Transit now appeal from the            judgments against  them.  The Fredettes cross appeal from the            rejection  of their  claim  against Mullen  and the  district            court's denial of their 93A claim.                   1.  The Carmack Amendment Claim.  The Carmack Amendment,                     ___________________________            49  U.S.C.    11707,  incorporates common  law principles  of            liability and makes  a common carrier liable  for "the actual            loss  or   injury  to   the  property"  that   it  transports            interstate.  Id.    11707(a)(1).  Transit was responsible for                         ___                                         -7-                                         -7-            the  move  of  the mobile  home,  and  the  jury awarded  the            Fredettes $18,500  against Transit  for damages to  the home.            Transit  argues   that  the  Fredettes   failed  to   present            sufficient  evidence of the damages  to take the  case to the            jury;   alternatively  it   seeks  remittitur   or,   in  the            alternative, a new trial on the issue of damages.                 A  plaintiff  suing  under  the  Carmack  Amendment  may            recover as damages  only the  "actual loss or  injury to  the            property," ordinarily  measured  either by  the reduction  in            market value caused  by the  defendant or  by replacement  or            repair costs occasioned by the harm.  See, e.g., Oak Hall Cap                                                  ___  ____  ____________            & Gown Co., Inc. v. Old Dominion Freight Line, Inc., 899 F.2d            ________________    _______________________________            291,  296 (4th  Cir. 1990).   There is no  recovery under the            statute for punitive damages or  for damages unrelated to the            property at  issue.  Cleveland  v. Beltman  North Amer.  Co.,                                 _________     __________________________            Inc., 30 F.3d 373, 379 (2d  Cir. 1994), cert. denied, 115  S.            ____                                    _____ ______            Ct. 901 (1995).                 Evidence as to the nature and extent of physical damages            sustained by the home  move was presented primarily  by Doris            and   Paul  Fredette  and  by  Irvin  Finger;  Finger  was  a            contractor  who  had  examined  the home  at  the  Fredettes'            request  when it arrived in North Carolina and compared it to            photographs  of   the  home  taken  on   the  Pittsfield  lot            immediately prior  to the move.   Finger  supplied a  written            list  of  repair tasks  and  a  proposed  price  of  $10,500.                                         -8-                                         -8-            "Before and after" photographs of the home were also admitted            into evidence.                 Although Transit  argues that little  beyond normal wear            and tear  was demonstrated,  the  jury was  entitled to  find            otherwise.  The Fredettes described the condition of the home            before the  move and after,  testifying to the  broken window            and  door casing,  missing shingles,  soiled rugs,  damage to            aluminum siding and to  the roof, a broken sink,  and similar            injuries discovered  when the move was over.  Another witness            confirmed the existence of damage to the roof and an exterior            wall.     The  jury   was  also  entitled   to  consider  the            photographs.  Thus, there was ample proof of injury.                 What is of more concern is the amount of damages awarded            by the  jury for injury  to the  mobile home.   Even assuming            that the jury fully accepted Finger's estimate, the  award of            $18,500 against  Transit--or $8,350 in excess  of the damages            estimated  by   him--is  puzzling.     Possibly,  as  Transit            speculates, the jury included other damages for which Transit            was not liable (e.g., damage to the porch and shed which were                            ____            moved  by another company), although the figures do not quite            mesh.   But  Transit  has  not  claimed  that  the  jury  was            misinstructed, so we  have to assume  that the jury  intended            the award to cover the mobile home itself.                 That presents the question whether the jury was entitled            to  take the descriptions and  photographs of the injuries to                                         -9-                                         -9-            the mobile home  and then  value those  injuries more  highly            than  the  amount assigned  by  the  Fredettes' own  witness.            Under the  case law, the jury  can depart upward, as  well as            downward, from the opinion of the expert; and this makes good            sense  wherever the  jury  could reasonably  have valued  the            damage without any  expert opinion.2   The jury  could do  so            for  a broken  window or  dented fender;  a  defective dynamo            would probably be beyond its ken.                 The  injuries to the mobile home are in between but much            closer to the broken window.  The injuries here (e.g., soiled                                                             ____            rugs, repainting,  damaged  sidings  and  roof,  broken  door            frame) were  not especially  exotic in character  and nothing            prevented  the jurors  from  using their  own experience  and            common sense  to adjust upward  or downward the  expert's own            estimate.  The award was certainly very generous, in light of            Finger's testimony, and a remittitur could have been ordered;            but it  is hard to  say that  it was irrational  or that  the            refusal to grant a new trial or remittitur on damages was  an            abuse of discretion.                 2.   The  Contract  Claim.   The  Fredettes also  won  a                      ____________________            judgment  of $7,500  against  Allied for  breach of  contract                                            ____________________                 2See, e.g., Weber v. Chicago & Northwestern Transp. Co.,                  ___  ____  _____    __________________________________            530 N.W.2d 25, 29 (Wis. App.) ("[t]he jury is not bound by an            expert's estimate of damages"),  review denied, 534 N.W.2d 85                                             ______ ______            (Wis. 1995); Birmingham Slag Div. of  Vulcan Materials Co. v.                         _____________________________________________            Chandler, 231 So.2d 329,  331 (Ala. Civ. App. 1970)  ("a jury            ________            is  not   bound  by  opinion  evidence   of  damages,  though            undisputed").                                         -10-                                         -10-            based  on Allied's failure to deliver their home and goods by            the guaranteed delivery date.  Allied contends that the delay            resulted  from  events  outside  its control  and  sought  an            instruction on  frustration of  purpose.  The  district court            declined to give such  an instruction on the ground  that the            evidence did not support it.                 A party is entitled to have its legal theories presented            to  the  jury,  if  legally  correct  and  supported  by  the            evidence.   Sullivan  v.  National Football  League, 34  F.3d                        ________      _________________________            1091,  1106-07 (1st Cir. 1994), cert. denied, 115 S. Ct. 1252                                            ____________            (1995).   The  determination  of whether  there was  evidence            sufficient to require an instruction  is made by the district            court in the  first instance, but  is subject to  appropriate            appellate review.   Id. at  1107-09.  Assuming  arguendo that                                ___                         ________            frustration of  purpose is to be determined  by the jury in a            proper case, see generally E. Farnsworth, Contracts   9.7, at                         _____________                _________            722  (2d ed. 1990),  no reasonable jury  could have concluded            here that the contract's purpose had been frustrated.                 The doctrine  of frustration  of purpose, recognized  in            Massachusetts as elsewhere, excuses  a party from contractual            obligations under certain defined circumstances.  The central            condition,   but   not  the   only  one,   is  that--although            "[p]erformance  remains  possible"--"the  expected  value  of            performance  to the  party  seeking to  be  excused has  been            destroyed  by [the] fortuitous event.  . . ."   Chase Precast                                                            _____________                                         -11-                                         -11-            Corp.  v.  Paonessa Co.,  566 N.E.2d  603, 608  (Mass. 1991),            _____      ____________            quoting Lloyd v. Murphy, 153 P.2d 47, 50 (Cal. 1944).  If the                    _____    ______            GE plant  in North  Carolina had  burned down,  the Fredettes            might  have argued  (not necessarily  with success)  that the            purpose of the agreement had been frustrated.                 Obviously, the  purpose of the Fredettes'  contract with            Allied--to  arrange for  a move  of home  and  possessions to            North Carolina--was not frustrated by need for a fourth axle.            Allied might  have sought an instruction  on impossibility or                                                         _____________            impracticability of  performance, or even  on mutual  mistake            ________________                              _______________            relating  to the  immediate fitness  of  the mobile  home for            transportation.  Compare Farnsworth, supra,    9.3, 9.5, 9.6.                             _______             _____            Whether  any of  these sister  doctrines could  properly have            been invoked is open to dispute;  but the dispute need not be            resolved because no such instructions were sought.                 3.  Intentional Infliction  of Emotional Distress.  Both                     _____________________________________________            Allied  and  Transit  argue  that the  trial  judge  erred in            instructing  the jury  about  the elements  of the  emotional            distress claim.   The trial judge  described the elements  of            intentional infliction of emotional distress as follows:                 First, that  the defendants  intended to  cause, or                 should  have  known that  its  [sic] conduct  would                 cause  emotional  distress; and,  Second,  that the                 defendants'  conduct  was  extreme and  outrageous;                 and, Third,  that  the actions  of  the  defendants                 caused plaintiffs distress;  and, Fourth, that  the                 plaintiffs   suffered   emotional  distress.     In                 determining whether a defendants' [sic] conduct was                 extreme   and  utterly  outrageous,  you  must  ask                 yourselves  whether  the  conduct  was  beyond  all                                         -12-                                         -12-                 bounds  of  decency and  utterly  intolerable  in a                 civilized community.  Liability can't be founded on                 mere insults, threats, or annoyances.  It should be                 noted that physical harm to the plaintiffs in [sic]                 not a required element of this claim.                 The  district  court's  instructions  are  taken  almost            verbatim from a recent  decision by the Massachusetts Supreme            Judicial  Court, Sena  v. Commonwealth,  629 N.E.2d  986, 994                             ____     ____________            (Mass.  1994).    In  this  case,  the  defendants  submitted            proposed instructions that would have required, on the fourth            element, that the plaintiffs' emotional distress  be "severe"            and  "of a nature that no reasonable person could be expected            ___            to  endure it."   That  language is  taken from  that court's            watershed decision on the tort  nearly twenty years ago, Agis                                                                     ____            v.  Howard  Johnson Co.,  355  N.E.2d 315,  319  (Mass. 1976)                ___________________            (quotations omitted).  The district court declined to include            the "reasonable  person" language,  and an objection  to this            omission was preserved.3                 Since Agis, the SJC has all but  ignored the "reasonable                       ____            person" language.  Every  time that the court has  decided an            intentional infliction  claim since Agis, it  has omitted the                                                ____            "reasonable   person"  language   and  simply   required  the                                            ____________________                 3The judge apparently intended to use the word "severe,"            but may  well have failed to  do so.  The  transcript and the            court's  post-trial memorandum  and  order  are seemingly  in            conflict.  But  if "severe" was omitted, no  proper objection            was preserved.                                         -13-                                         -13-            plaintiff to show "severe"  emotional distress.4  This  is so            even in cases where the severity of the plaintiff's emotional            distress is at  issue.   See, e.g., Haddad  v. Gonzalez,  576                                     _________  ______     ________            N.E.2d 658, 667-68 (Mass. 1991).  Because the district  court            defined the tort  precisely as the state's  highest court has            done for more  than a  decade, we  find no  error, much  less            prejudicial error.                 Both  Allied  and Transit  also  contend  that they  are            entitled to  judgment as a  matter of law  or a new  trial on            this claim.  The  former remedy requires that  "no reasonable            jury  could have  returned a  verdict  adverse to  the moving            party."  Havinga  v. Crowley  Towing & Trans.  Co., Inc.,  24                     _______     ___________________________________            F.3d 1480,  1483 (1st Cir. 1994),  and we review  de novo the                                                              _______            district court's  decision on such a  motion.  Id.   As for a                                                           ___            new  trial, this may be  granted if the  district court finds            that  the jury's verdict is  against the clear  weight of the            evidence; a refusal to grant a new trial is reviewed only for            abuse  of discretion.  Phav v. Trueblood, Inc., 915 F.2d 764,                                   ____    _______________            766 (1st Cir. 1990).                 Allied  and Transit  argue that  their conduct,  even if            wrongful,  was  not  bad  enough to  be  deemed  extreme  and                                            ____________________                 4See, e.g., Bowman  v. Heller, 651  N.E.2d 369, 373  n.6                  _________  ______     ______            (Mass. 1995);  Sena, 629 N.E.2d  at 994; Haddad  v. Gonzalez,                           ____                      ______     ________            576 N.E.2d 658, 667-68 (Mass. 1991); Nancy P. v. D'Amato, 517                                                 ________    _______            N.E.2d  824, 827  (Mass. 1988).   The  court referred  to the            "reasonable person"  language in  an opinion  about negligent                                                                _________            infliction  of emotional  distress in  1982.   See  Payton v.                                                           ___  ______            Abbott Labs, 437 N.E.2d 171, 180 (Mass. 1982).            ___________                                         -14-                                         -14-            outrageous.  In  part, this  argument rests on  an effort  to            disassociate  themselves from Bedford,  who refused  to place            the home  on the lot  even after  the Fredettes had  made the            initial adjustment  Bedford  demanded.    But  the  Fredettes            presented  evidence  that  Transit  had   ratified  Bedford's            demands that the North Carolina lot be levelled  further, and            that Transit  and Allied  had approved Bedford's  decision to            leave the site with the home still not in place.                 There  was other  conduct of  which the jury  might have            disapproved.   Transit took the  lead in seeking  to obtain a            release from  the Fredettes  that seemingly went  well beyond            the  danger that occasioned the demand.  Allied waited a week            before sending  a crew to block  and level the  site once the            home was moved to  North Carolina, and it waited  three weeks            more to deliver  the Fredettes'  belongings (including  their            car,  furniture  and the  steps  to  their  home)  until  the            Fredettes paid the disputed storage charges.                   Most  of  the  Massachusetts  cases  cited  to  us  by            defendants are distinguishable, but  Transit has a  plausible            argument  that the conduct here  is not much  worse than that            held insufficient in  Foley v. Polaroid Corp.,  508 N.E.2d 72                                  _____    ______________            (Mass.  1987); there,  an employee  acquitted of  assault was            sidetracked  in his  job and  ostracized by  other employees.            Still, in  Foley the SJC  thought that  the company's  formal                       _____            actions were consistent with "a good faith effort to maintain                                         -15-                                         -15-            Foley's  employment  in a  manner consistent  with Polaroid's            legitimate  business  concerns," id.  at  82;  and the  court                                             ___            apparently  equated   the  harassment  with   "mere  insults,            indignities, threats, annoyances, petty oppressions, or other            trivialities" for which recovery  is not permitted under this            claim.  Id.                    ___                 Here,  we think  that  the jury  was entitled,  although            hardly compelled,  to  find bad  faith;  and the  delays  and            withholding of  property and services go  somewhat beyond the            verbal  and  other  minor  abuses  that  Polaroid   employees            directed against Foley.  Further, given the interplay between            Allied, Transit  and Bedford, the  jury was entitled  to view            the conduct as a whole and not as isolated minor  wrongs.  So            viewed, we think  that the  deference to be  accorded to  the            jury's judgment on issues of this kind keeps the verdict just            this side of the dividing line.                  4.    The  Fredettes'  93A Claim.    The  Fredettes also                       __________________________            claimed   against    the   defendants   for    violation   of            Massachusetts'  far-reaching  consumer protection  law, Mass.            Gen.  L. ch. 93A.   That law proscribes  "unfair or deceptive            acts  or practices in the  conduct of any  trade or commerce"            and  provides  a  private   right  of  action  for  aggrieved            individuals.  The 93A  claim was tried to the  district court            after the  jury verdict on the other counts.  The court found                                         -16-                                         -16-            that no violation  had occurred,  and ruled in  favor of  the            defendants.  The Fredettes argue that this ruling was error.                 Although  93A is  phrased  in terms  different than  the            emotional distress tort, the  analogy is closer than language            might suggest.  The "unfair or deceptive" label sounds like a            very  low  threshold,  but   the  Massachusetts  courts  have            repeatedly held  that 93A  requires conduct that  is immoral,            unethical  or unscrupulous or  at least  attains "a  level of            rascality" that  goes  well beyond  ordinary  tough  business            practice.   Industrial  Gen.  Corp. v.  Sequoia Pacific  Sys.                        _______________________     _____________________            Corp.,  44  F.3d 40,  43  (1st  Cir.  1995) (citing  numerous            _____            Massachusetts cases).                 Here, in deciding the  93A claim as the finder  of fact,            the  district   judge  was  entitled  to   reach  a  judgment            independent of the jury  on such issues as the  existence and            extent of deception,  unfairness and bad  faith.  Whether  or            not  the judge's findings can be squared with the jury's does            not  matter, so long as the former's findings are not clearly            erroneous and the latter's  are within the bounds  of reason.            Wallace  Motor Sales, Inc. v. American Motor Sales Corp., 780            __________________________    __________________________            F.2d 1049, 1063-64  (1st Cir. 1985).   Precisely because this            is a borderline case, we think that the respective  standards            of review protect both factfinders.                 The Fredettes  also rely on  a regulation issued  by the            Massachusetts Attorney General  which provides that  "[i]t is                                         -17-                                         -17-            an  unfair and deceptive act or practice: (a) To advertise or            promise prompt delivery where  delivery is neither prompt nor            expeditious."  940 C.M.R. 3.15.  But we read this to refer to            a pattern of conduct,  or at least to an  individual occasion            in  which  the  promisor  knows  that  it  is  making  untrue            representations.   Whatever other  criticisms may be  made of            Allied, nothing suggests that  its original delivery date was            a representation made in bad faith.                 The  Fredettes'  other  theory  is  that the  defendants            behaved unfairly  and deceptively by specifying  a price that            the Fredettes believed to  be all-inclusive and then imposing            a  succession of  additional charges  and demands  (e.g., the                                                                ____            storage fees, expenses  relating to  the new lot).   But  the            district judge  as the trier of  fact was entitled to  take a            more benign  view  and  regard  these extra  demands  as  not            clearly  beyond  what was  agreed  to  or  as  occasioned  by            developments that no one had  foreseen.  This view,  although            not compelled, was not clearly erroneous.                 5.   The Dismissal  of Mullen.   At  the close of  their                      _________________________            brief as  appellants, the Fredettes argue  that Mullen should            not  have been dismissed as  a defendant at  the close of the            evidence.   Lindburg, they say,  acted as the  agent for both            Mullen and Allied; and Mullen is responsible, they argue, for            the wrongs  they attribute to  Lindburg.   These wrongs  they            identify as (1) misadvising the Fredettes that their move was                                         -18-                                         -18-            "fully covered"  and "fully insured" and  (2) mishandling the            original inspection and measurements  of the home and thereby            causing a significant portion of the delay in the move.                 It  is not clear why  this claimed error  matters to the            Fredettes since  Allied and  Transit are presumably  solvent,            and  the Fredettes cannot collect twice  for the same wrongs.            But in any event  we see little indication that  Lindburg was            independently culpable: there is no evidence that he told the            Fredettes anything he had reason to believe to be untrue; and            the  Fredettes point us to  nothing in the  record that would            show  that Lindburg knew or should have known that the mobile            home would sag when removed from its supports.                 Affirmed.                 _________                                         -19-                                         -19-
