Browne v. Merrikin

Massachusetts Supreme Judicial Court

Browne v. Merrikin

254 Mass. 375

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 7, 1926

StatusPublished

This text of 254 Mass. 375 (Browne v. Merrikin) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Browne v. Merrikin, 254 Mass. 375 (Mass. 1926).

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Opinion

Braley, J.

The defendant appealed from the interlocutory decree overruling his exceptions and confirming the master’s report. But, the evidence not having been reported, the findings of fact by the master are conclusive and the decree must stand, leaving nothing open on appeal from the final decree except the question, whether it is in conformity with the pleadings and the report.

It is contended there is a variance between the original bill and the findings by the master that “from January, 1923, until the time he left, the defendant was frequently under the influence of intoxicating liquor, was ugly, had trouble with some of the boarders and was very quarrelsome with the plaintiff. Because of his actions,” the plaintiff, who kept a boarding house, “was finally forced to ask him to leave the house,” where he was living when the plaintiff executed and delivered the mortgage described in the original bill. But the decree, restraining the defendant from foreclosing, assigning or disposing of the mortgage, and cancelling and discharging the xiiortgage, rests on the bill as amended, which substantially states the contract between the parties as found by the master. The master also reports that the mutual performance of the contract described in the original bill was the consideration for the mortgage, and that, while the plaintiff committed no breach, the defendant refused performance.

The exceptions having been finally disposed of, the defendant cannot under the guise of variance maintain objections to the final decree which do nothing more than repeat in another form the overruled exceptions. Malden & Melrose Gas Light Co. v. Chandler, 209 Mass. 354, 358. Fordyce v. Dillaway, 212 Mass. 404. Arnold v. Maxwell, 223 Mass. 47,48,49. Pizer v. Hunt, 253 Mass. 321. We must assume in the absence of any appeal by the plaintiff that she was satisfied with the measure, and form of relief decreed, and, finding no error of law on the defendant’s appeal, the decree is affirmed with costs.

Ordered accordingly.

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Braley, J.

The defendant appealed from the interlocutory decree overruling his exceptions and confirming the master’s report. But, the evidence not having been reported, the findings of fact by the master are conclusive and the decree must stand, leaving nothing open on appeal from the final decree except the question, whether it is in conformity with the pleadings and the report.

It is contended there is a variance between the original bill and the findings by the master that “from January, 1923, until the time he left, the defendant was frequently under the influence of intoxicating liquor, was ugly, had trouble with some of the boarders and was very quarrelsome with the plaintiff. Because of his actions,” the plaintiff, who kept a boarding house, “was finally forced to ask him to leave the house,” where he was living when the plaintiff executed and delivered the mortgage described in the original bill. But the decree, restraining the defendant from foreclosing, assigning or disposing of the mortgage, and cancelling and discharging the xiiortgage, rests on the bill as amended, which substantially states the contract between the parties as found by the master. The master also reports that the mutual performance of the contract described in the original bill was the consideration for the mortgage, and that, while the plaintiff committed no breach, the defendant refused performance.

The exceptions having been finally disposed of, the defendant cannot under the guise of variance maintain objections to the final decree which do nothing more than repeat in another form the overruled exceptions. Malden & Melrose Gas Light Co. v. Chandler, 209 Mass. 354, 358. Fordyce v. Dillaway, 212 Mass. 404. Arnold v. Maxwell, 223 Mass. 47,48,49. Pizer v. Hunt, 253 Mass. 321. We must assume in the absence of any appeal by the plaintiff that she was satisfied with the measure, and form of relief decreed, and, finding no error of law on the defendant’s appeal, the decree is affirmed with costs.

Ordered accordingly.

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Bluebook (online)

254 Mass. 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browne-v-merrikin-mass-1926.

Opinion

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