Thurston v. Blunt

• Decision Date: 15 December 1913
• Citation: 103 N.E. 478,216 Mass. 264
• Parties: THURSTON et al. v. BLUNT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 264

103 N.E. 478

THURSTON et al. v. BLUNT.

Supreme Judicial Court of Massachusetts, Essex.

December 15, 1913

COUNSEL

Frederick H. Tarr, of Gloucester, for petitioners.

E. O Howard, of Boston, for respondent.

OPINION

LORING J.

This is a petition for a mechanic's lien tried by a judge sitting without a jury. At the trial both the parties asked for rulings. The judge reserved his decision and later filed his findings of fact and rulings of law. The findings and rulings were filed on Thursday, February 20th. Notice of them was given to the attorneys of record on Friday, February 21st. On Tuesday, February 25th, the petitioners' attorney waited upon the judge and stated to him that 'the petitioners excepted to the rulings.' But he 'did not indicate what particular rulings he excepted to, whether to the refusal to adopt certain requests filed by him or to the adoption of certain requests filed by the respondent.'

On these facts the respondent contends that no exceptions were saved. But we are of opinion that the statement made by the petitioners' attorney on February 25th was sufficient to save an exception to all the rulings set forth in the judge's findings of fact. To save an exception no form of words is necessary; it is enough that the judge understands that the party wishes to save an exception. Leyland v. Pingree, 134 Mass. 367, 370; Thwing v. Clifford, 136 Mass. 482; Newton v. Worcester, 169 Mass. 516, 48 N.E. 274; Jones v. Newton St. Ry., 186 Mass. 113, 114, 71 N.E. 114.

We are also of opinion that the exceptions were saved in time. Where a case is tried without a jury and the judge reserves his decision (there being no rule of court dealing with the matter), an exception must be saved within a reasonable time after the ruling of law excepted to is made. That is settled. The rule is fully explained in the recent cases of Richards v. Appley, 187 Mass. 521, 73 N.E. 555, Graves v. Hicks, 194 Mass. 524, 80 N.E. 605, and Hurley v. Boston Elev. Ry., 213 Mass. 192, 99 N.E. 1056. In the case at bar Saturday, February 22d, being a holiday, the exceptions were saved on the second court day next after the attorney received notice of the rulings made. That was within a reasonable time. It follows that the exceptions are properly before us.

We are of opinion that the exceptions must be sustained. It was found by the judge that the plaintiff was hired as a subcontractor to do and furnish the plumbing and heating for a house being built for the respondent by one Smith as general contractor. Included in the petitioner's contract was the installation of a range and boiler with connecting pipes. By their contract the petitioners were bound to 'furnish the plumbing and heating for the building complete, doing first-class work and leaving everything in a first-class condition, ready for immediate use.' The judge found that 'the petitioners substantially completed their contract in August,' but that at that time 'there was a slight leak in the connecting pipes between the boiler and the range,' and that they had put the hot water disc on the cold water faucet and vice versa. At that time, although the attention of the petitioners 'was called by contractor Smith to this leak in the kitchen, they did not repair the same, thinking, and so informing the contractor, that as time went on the joints would tighten and the leaks would stop.' On September 23d the respondent 'wrote a letter to the petitioners, calling their attention to the leak and requesting that they go to his house and stop the same and also change the hot and cold discs' already referred to. 'On September 28th, the petitioners went to the house of the respondent Blunt and drew off the water from the fixtures and proceeded to do the necessary work, taking out the pipes, putting red lead upon the joints of the same, screwing the same tighter, and putting the said work in first-class condition. The petitioners also changed the labels on the hot and cold water pipes. * * * After completing these repairs and changes the water was turned on again, the work thoroughly tested, and all this consumed a period of about 2 1/2 hours. * * * The leak was not caused by any use which had been made of the range, the boiler or the piping, but had existed, to a greater or less extent, from the time the work was first done, owing to the fact that the joints were not sufficiently leaded and the pipes were not screwed together in a manner sufficiently tight. * * * Said lien was filed within 30 days thereafter.' The...