Houde v. Bailey

73 N.E.2d 827, 321 Mass. 494, 1947 Mass. LEXIS 657

• Court: Massachusetts Supreme Judicial Court
• Decided: June 25, 1947
• Status: Published

Opinion

Lummus, J.

A bill in equity was brought by a builder to recover for labor and materials furnished by him in the remodeling of a house for the defendants Bailey, and to reach and apply in payment of the debt the proceeds of an insurance policy on the house issued by the defendant Eagle Star Insurance Company, Ltd.

The house was destroyed during the building operations by a fire that was started by the plaintiff’s workmen and servants in a fireplace and left without attention for three hours and a half, with the result that the fire spread to the house and burned it. The judge found that the plaintiff’s workmen were negligent, and that the plaintiff was entitled to no recovery. Upon the counterclaims of the defendants, he entered a final decree awarding them damages against the plaintiff for the injury caused by the fire, with costs. There was no appeal.

Subsequently the plaintiff by leave of court filed a bill of review on the ground that newly discovered evidence showed that the fire was of incendiary origin and not the result of negligence on the part of the plaintiff’s workmen.

On the hearing of the bill of review it was found that there was no newly discovered evidence not available to the plaintiff at the hearing of the original bill. Consequently the judge entered a final decree dismissing the bill of review. The reported evidence supports the finding of the judge. Curley v. Boston, 312 Mass. 58.

No error appearing upon this record, the entry must be

Decree affirmed with costs.