Electric Supply & Maintenance Co. v. Conway Electric Light & Power Co.

• Decision Date: 17 October 1904
• Citation: 71 N.E. 983,186 Mass. 449
• Parties: ELECTRIC SUPPLY & MAINTENANCE CO. v. CONWAY ELECTRIC LIGHT & POWER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 449

71 N.E. 983

ELECTRIC SUPPLY & MAINTENANCE CO. v. CONWAY ELECTRIC LIGHT & POWER CO.

Supreme Judicial Court of Massachusetts, Berkshire.

October 17, 1904

COUNSEL

Pingree &amp Burke, for plaintiff.

Fredk. L. Greene and Wm. A. Davenport, for defendant.

OPINION

KNOWLTON C.J.

This case is before us on the defendant's exception to an order of the superior court recommitting a report of a referee, with directions to report, disregarding certain matters which he had considered and included in his decision of the case. The original report was for the defendant; but the referee, in obedience to the order of recommittal, and without hearing further evidence, made a supplemental report for the plaintiff. It appears that the court has allowed a motion for confirmation of the supplemental report and for judgment, and the case is therefore ripe for hearing on the bill of exceptions.

The original rule of the court to the referee gave him power to decide finally all questions in the case, both of law and fact. It is not contended by the plaintiff's counsel that it is open to him to attack the original findings of the referee so far as they were within his jurisdiction under the order of reference. The report did not refer any questions of law to the court for its decision. The following language of the court in Gardner v. Boston, 120 Mass. 266, is equally applicable to the present case: 'The claim was submitted without restriction or condition to a tribunal selected by the parties. The judgment of that tribunal cannot be impeached for error in the application of rules of law unless there is something in the terms of the submission or in the award which expressly or impliedly subjects it to the revision of the court. There is nothing here to show an intention to refer to the court any question whatever. It is not enough that the grounds of the award are stated, or the conclusions of law adopted by the arbitrators as applicable to the facts found.' See Fairchild v Adams, 11 Cush. 549; Ellicott v. Coffin, 106 Mass. 365. The only ground on which the order of recommittal is sought to be justified is that a part of the decision of the referee related to a matter which was not included in the submission. It becomes necessary, therefore, to consider his findings in this particular in connection with the pleadings.

The suit is an action of contract upon an account annexed, made up for the most part of items for labor and materials furnished in repairing a machine for generating electricity. The answer, among other things, avers, in substance, that the persons who performed the work were not competent to do it properly, and that the work was done so improperly that it was worthless. The first item is, 'To rewinding generator armature, and repairing fields, and materials therefor, three hundred and forty-five dollars.' The contract for doing this did not definitely fix a price, but only gave an estimate, and the charge was made at what the plaintiff called a reasonable price. One part of the electrical generator was a commutator, which was attached to the shaft and had a bearing upon it from 12 to 14 inches in length. This shaft was tapering. One Phillips, the plaintiff's secretary and agent, contracted with the defendant to do the work. The referee found that he went to Conway, the defendant's place of business, and 'took charge of this work and rewound the armature, repaired the fields, furnishing all materials therefor, finished the work, and started the generator.' While this work was in progress the commutator was sent away to another company, which repaired it. 'When it was returned, and after the armature had been rewound and repaired, and the fields had been repaired, by the plaintiff, the commutator was placed upon the shaft by Mr. Phillips, with the assistance of others in his employ and under his direction.' In about a week afterwards one of...