Newell v. Chesley

122 Mass. 522, 1877 Mass. LEXIS 173

Opinion

Gray, C. J.

The auditor’s conclusion -vas primá facie evidence

in favor of the plaintiff, unless it appeared by his report to be inconsistent, as matter of law, with other facts therein stated. Gen. Sts. c. 121, § 46. Ropes v. Lane, 9 Allen, 502. Morrill v. Keyes, 14 Allen, 222. Holmes v. Hunt, ante, 505. No such inconsistency appears. The auditor's- report shows that the contract between the parties was oral, and does not purport to state its exact terms. The statement, that “ the) labor was to be chiefly performed ” by a particular workman of special skill, might mean that that workman was to do more than any other workman, or was to do the most important part of the work; and the report shows that he did about one third of the whole work, and that those who did the rest were reasonably qualified for their business. Or the auditor may have been of opinion that the defendant had received the benefit of the work done, and had waived a strict performance of the terms of the contract. The auditor has not reported, and was not bound to report, the grounds of his conclusion, or all the evidence introduced before him. Any ambiguity or incompleteness of the report in that respect could be taken advantage of only by motion to recommit it to the auditor. Fair v. Manhattan Ins. Co. 112 Mass. 320. The instruction requested was therefore rightly refused, and the instructions given were correct. Exceptions overruled.