Allwright v. Skillings

• Decision Date: 27 June 1905
• Citation: 188 Mass. 538,74 N.E. 944
• Parties: ALLWRIGHT v. SKILLINGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 538

74 N.E. 944

ALLWRIGHT v. SKILLINGS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

June 27, 1905

COUNSEL

V. J. Loring, for plaintiff.

Geo. L Huntress, for defendants.

OPINION

LATHROP, J.

This is an action of contract under St. 1890, p. 479, c. 437, as amended by St. 1901, p. 391, c. 459, against the executors of the will of E. D. Bangs, to recover for moneys and securities delivered to the firm of E. D. Bangs & Co. during the years 1893, 1895, and 1896, as margin in certain stock transactions had by the plaintiff with the firm of which E. D. Bangs was a member. The writ is dated October 17 1901. In the superior court the case was sent to an auditor who filed his report on April 5, 1904. At the trial in September, 1904, before a judge without a jury, the plaintiff moved to have the report recommitted to the auditor on the ground that the auditor had admitted incompetent and irrelevant evidence, and that the findings of fact were based upon such evidence. The judge declined to recommit the report, and suggested that the parties go on and argue the case, and he would decide later whether to recommit the report, or to make rulings concerning the law and findings of fact. The case was then heard upon the auditor's report alone, and fully argued. At the close the counsel for the plaintiff said that he would like to save the same rights as he did before the auditor, and save the same exceptions. Subsequently the judge filed the following memorandum: 'After due consideration, I rule that the auditor did not commit any errors which require me, as matter of law, to recommit the report, and, as matter of discretion, I decline to recommit it. And there being no evidence but the auditor's report, I find on that report for the defendant, and I rule that I have the right so to do. Whatever exceptions the plaintiff has under these facts and rulings are saved to her.' The judge subsequently allowed a bill of exceptions which set forth the nature of the case and the evidence, so far as excepted to, before the auditor. The record contains, also, the auditor's report and the pleadings.

We doubt whether there is any question of law properly before us. A motion to recommit an auditor's report is addressed to the discretion of the presiding judge, and his ruling is not subject to exception. Kendall v. Weaver, 1 Allen, 277; Packard v. Reynolds, 100 Mass. 153; Butterworth v. Western Assur. Co., 132 Mass. 489. An exception to this rule has been made where the rule to the auditor provides that his findings on matters of fact are to be final. Tripp v. Macomber, 187 Mass. 109, 72 N.E. 361. In Briggs v. Gilman, 127 Mass. 530, it was said by Chief Justice Gray: 'If one of the findings of the auditor appears to the court, upon the facts reported by him, to be erroneous in matter of law, or in excess of the authority conferred by the rule of reference, the jury may be instructed accordingly, and so much of his report stricken out, leaving the rest to have its proper weight and effect. * * * But an objection to a portion of the evidence upon which the auditor has based his conclusion cannot be taken, as matter of right, except by motion to recommit the report to the auditor before the trial.' See, also, Kendall v. May, 10 Allen, 59, 66; Fair v. Manhattan Ins. Co., 112 Mass. 320, 331; Briggs v. Gilman, 127 Mass. 530; Eagan v. Luby, 133 Mass. 543; Collins v. Wickwire, 162 Mass. 143, 38 N.E. 365. The plaintiff in the case at bar made no motion to recommit until the trial, nor did she ask for any ruling upon any portion of the report.

Assuming that the questions raised are properly before us, we see no error in the finding of the judge. St. 1901, p. 391, c. 459 upon which the plaintiff brings her action, has this qualifying clause: 'But no person shall have any right of action under this act if for his account such other party to the contract or the person so employed makes, in accordance with the terms of the contract or employment, personally or by agent, an actual purchase or sale of such securities or commodities, or a valid contract therefor.' The...