Statuto v. Phillips

170 N.E.2d 916, 341 Mass. 734, 1960 Mass. LEXIS 799

• Court: Massachusetts Supreme Judicial Court
• Decided: December 30, 1960
• Status: Published

Opinion

Order for judgment affirmed. These two actions of contract have been consolidated for purposes of appeal. A judge of the Superior Court, after hearing upon the report of an auditor whose findings of fact were to be final, made a “finding” in each case for the plaintiff which was in effect an order for judgment. Kuzmeskus v. Pickup Motor Co. Inc. 330 Mass. 490, 494. The plaintiff, a stone mason, had done all the masonry work at the defendants’ new residence. Among other things he had constructed a stone wall. The wall later cracked and bulged. The defendants claim recoupment. The sole question was whether the wall had been constructed by the plaintiff in a proper and workmanlike manner. The auditor concluded that it had been so constructed and made a general finding for the plaintiff. The defendant Pauline Phillips filed objections to the auditor’s report which, pursuant to Rules 89 and 90 of the Superior Court (1954), were appended to the report. No motion to recommit for the correction of the alleged errors was made. Hence the objections have no standing before us. Murphy v. Nelson, 306 Mass. 49, 53. Howland v. Stowe, 290 Mass. 142, 145. The general finding that the wall was properly constructed impliedly disposes of the claim in recoupment. The general finding as to damages, not being based solely on the subsidiary findings, imports a finding of subsidiary facts essential to that conclusion. Lewis v. Conrad v Co. Inc. 311 Mass. 541, 543.

Maurice H. Kramer, for the defendants. James S. Ellis, for the plaintiff.