Covich v. Chambers

Decision Date27 November 1979
PartiesSidney COVICH v. Anthony G. CHAMBERS et al. 1
CourtAppeals Court of Massachusetts

Frank L. Kozol, Boston (Joel A. Kozol, Boston, with him), for plaintiff.

Charles E. Bennett, Attleboro, for defendants.


GREANEY, Justice.

In June, 1973, the plaintiff Sidney Covich purchased land owned by the defendants in Mansfield, intending to construct a housing development. His complaint sought cancellation of a note and mortgage given in connection with the financing of the sale on the grounds of mutual mistake or fraud. He also sought rescission of the purchase and reimbursement for overpayments made on the note because of an error in calculating the land area conveyed by the deed. The defendants admitted an error in the description of the land conveyed, asked that the amount due on the note be reduced proportionately and counterclaimed for the proportional amount due and unpaid under the note. 2 The dispute was referred to a master (Mass.R.Civ.P. 53, 365 Mass. 817 (1974)), who concluded that the sale was not vitiated by mutual mistake or fraud and that the defendants were entitled to the sum of $84,716 as the adjusted amount still owing on the note. The master left the assessment of attorney's fees and costs under the note to the judge. The judge overruled the plaintiff's objections to the report, ordered it adopted, and, after an evidentiary hearing, made an assessment of costs and attorney's fees on the note. Judgment was entered accordingly. The plaintiff appeals, claiming that the master's general findings of no mutual mistake or fraud are not supported by the evidence, that the master applied the wrong standard of proof in reaching his result, and that the judge erred in the award of counsel fees. We affirm the judgment.

1. Procedural issue. The plaintiff has submitted as part of the appendix in excess of 150 transcript pages of evidence before the master. He asks us to review this evidence and conclude that the master took an erroneous view of numerous questions of fact. This we decline to do. Peters v. Wallach, 366 Mass. 622, 626, 321 N.E.2d 806 (1975). Blakeley v. Pilgrim Packing Co., 4 Mass.App. 19, 20 n.2, 340 N.E.2d 511 (1976). In view of the recurring frequency of the reproduction on appeal of evidence before a master with the request that the master's findings be measured against the evidence, we reiterate that "absent an order that a master file a transcript with his report, such a transcript is not part of the record on appeal." 3 Michelson v. Aronson, 4 Mass.App. 182, 186, 344 N.E.2d 423 (1976). The proper method by which a party may preserve his right to raise the question whether the evidence was legally sufficient to support a master's findings of fact is precisely set forth in Superior Court Rule 49, § 7 (1976). 4 So far as the record discloses no requests for summaries of evidence were filed as required by the rule, nor did the plaintiff observe the procedures described in the rule as prerequisites for obtaining summaries. Bare unsupported objections to findings or statements in the objections that certain of the master's findings did not conform to the plaintiff's requested findings of fact are insufficient. Failure to follow the requirements of the rule confines review to matters apparent on the face of the report. See generally Michelson v. Aronson, supra at 190, 344 N.E.2d 423 (decided under the 1974 version of the rule). Requests to act otherwise seek to impose unwarranted burdens on trial and appellate courts and clash with the purpose of a master's referral "to have the facts settled . . . and to put the case in a position where nothing remains to be done except for the judge to apply correct principles of law to the facts found." Shelburne Shirt Co., Inc. v. Singer, 322 Mass. 262, 265, 76 N.E.2d 762, 764 (1948). Peters v. Wallach, supra 366 Mass. at 626, 321 N.E.2d 806.

2. Master's findings. When the evidence is not reported or otherwise summarized, the master's findings of fact are conclusive unless "they are mutually inconsistent, contradictory, plainly wrong or vitiated in view of the controlling law." Wormstead v. Town Manager of Saugus, 366 Mass. 659, 660, 322 N.E.2d 171, 172 (1975), quoting from Selectmen of Hatfield v. Garvey, 362 Mass. 821, 825, 291 N.E.2d 593 (1973). First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass.App. 234, 235, 326 N.E.2d 363 (1975). In this light we summarize the master's material findings.

Anthony G. Chambers and his mother owned two parcels of agriculturally zoned land in Mansfield, the first containing 10.59 acres, the second containing approximately fifty acres. They had inherited the land from Chambers' father, who had entered a contract with a construction company for the sale of gravel from the fifty-acre parcel. The zoning board of appeals granted a permit with conditions 5 for the removal of the gravel, and the construction company filed a $40,000 performance bond. In 1968, upon completion of the gravel removal, the performance bond was released.

Chambers' mother lived on the smaller parcel, but Chambers himself was a Connecticut resident who only visited the site once or twice during the gravel removal operations. Chambers and his mother authorized a family friend, one Alpert, to act as a finder for the sale of the fifty-acre parcel. Alpert was only authorized to convey offers, and he was given no authority to negotiate or bargain for the sellers.

Covich is an experienced builder and developer of commercial and residential properties who had previously developed a single-family residential subdivision in Mansfield. In the spring of 1972 Covich became interested in the Chambers' property. He approached Alpert, who arranged a meeting between Covich and the sellers, at which time an offer to purchase was made by Covich but not accepted. 6 Ten months of negotiations ensued, culminating in the signing of a sale agreement on February 12, 1973, for the fifty-acre parcel at a price of $2,500 per acre.

Before he entered the agreement, Covich engaged a registered engineer and surveyor who had been a member of the Mansfield planning board during the period of the gravel excavation and who was aware of its removal. The engineer searched the records of the zoning board for the contour map referred to in the special permit (note 4, Supra ) but was unable to obtain it because the records had been destroyed by a fire. He also walked the perimeter of the land in early 1973 and knew on his first inspection that fill would be needed for certain lots. The engineer prepared a preliminary plan prior to the closing and discovered that the proposed form of deed overstated the area of the property by about five acres. 7 Prior to signing the sale agreement, Covich had also walked the boundaries with his engineer and knew that gravel had been removed from the property. The master found that Covich made a conscious choice not to dig test holes or to perform percolation tests to determine the water table, although he had done so in other developments and would not have been prevented from so doing on this tract. The master also observed on his view a swamp in the southeast section of the land. The master found that Chambers knew that the performance bond had been released but that Covich was unaware of its release before he agreed to purchase the property. He also found that Chambers did not rely on the bond's release or performance of the conditions of the permit in entering the contract.

A closing took place on June 1 or 4, 1973, during which Chambers and his mother, for consideration of $137,875, sold to Covich a parcel of land "containing 55.15 acres more or less." Covich paid $39,984 including the original deposit in cash, and executed a promissory note for $97,891, secured by a mortgage on the land. 8

In December, 1973 (six months after the closing), Covich dug test holes on the property. In the holes dug, the water table varied from six inches to thirty-four inches below the surface. This did not meet the minimum depth requirement of the State Sanitary Code that ground water disposal fields should not be constructed in areas where the maximum ground water elevation is less than four feet below the bottom of the disposal field. The parties stipulated that prior to the date of the agreement 497,168 cubic yards of gravel had been removed from the land and that Chambers was aware of this removal. Without considering the fill necessary for the roads, it was estimated that 150,000 cubic yards of fill would be necessary to make forty to forty-five buildable lots. 9

Although he concluded that Chambers knew about Covich's plan to develop the property prior to signing the sale agreement, the master found "no evidence that . . . Chambers was aware of the water table problem or that he had enough knowledge so that he was put on notice that a water problem existed." He found that "it is good engineering practice to dig test holes to find the water table before purchasing land, a step which plaintiff failed to take." He detected no evidence that either Chambers or his mother made a false representation as to the property upon which Covich could have relied. He concluded that there was no evidence of reliance on the gravel permit or the bond prior to the parties' entering the contract and that no mutual mistake had occurred.

3. Standard of proof. Relying on certain gratuitous language in the report, 10 the plaintiff claims that the master erroneously replaced the usual preponderance standard with one of proof "beyond doubt" as the measure of evidence justifying rescission for mutual mistake. We reject this argument.

We note first that the plaintiff filed a list of specific objections to the report. None of the objections brought to the judge's attention the current claim as to the standard of proof. An...

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