Mathews v. Hathaway Baking Co.

187 N.E. 359, 284 Mass. 328, 1933 Mass. LEXIS 1071

• Court: Massachusetts Supreme Judicial Court
• Decided: October 25, 1933
• Status: Published

Opinion

By the Court.

This is an action of contract or tort. It was referred to an auditor whose findings of fact were not final. The defendant in accordance with Rule 88 of the Superior Court (1932) made reservation of the right to introduce further evidence. The case was heard on its merits, the plaintiff introducing only the report of the auditor and the defendant offering evidence on the question of damages. After this trial the trial judge made a finding for the plaintiff. The record consists of the auditor’s report, the defendant’s requests for rulings with certain memoranda of action thereon by the trial judge, and the findings. The defendant appealed from the order of the court finding for the plaintiff and denying the defendant’s requests for rulings.

The case is improperly before us by appeal. The only way in which the defendant could have brought the case here was by exceptions. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Check v. Kaplan, 280 Mass. 170, 174. Ballou v. Fitzpatrick, 283 Mass. 336.

Appeal dismissed.