Fisher v. Doe

• Decision Date: 05 January 1910
• Citation: 204 Mass. 34,90 N.E. 592
• Parties: FISHER et al. v. DOE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 34

90 N.E. 592

FISHER et al. v. DOE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1910

Jan. 5 1910.

COUNSEL

Noble Davis & Stone, for plaintiffs.

H. T. Richardson, for defendant.

OPINION

RUGG, J.

This is an action of contract growing out of the construction of a house for the defendant. The plaintiffs are dealers in lumber, who furnished a substantial part along technical lines and it is therefore necessary along techincal lines and it is therefore necessary to state the proceedings in some detail. The plaintiffs brought two actions. The only part of the declaration in the first action now material was a count upon an account annexed for certain lumber sold to the defendant. The answer among other defenses set up a general denial. The original declaration in the second or present action contained a single count, also upon an account annexed, for labor and materials furnished to the defendant by one Grant, and by him assigned to the plaintiffs. The answer set up a general denial, payment, and the pendency of the first action, wherein 'the first 262 items' of the account annexed to its declaration were 'the same and identical with the first 262 items of the declaration in the present action.' In this state of the pleadings, both causes were referred to an auditor, who filed one report covering the issues in both cases. He found for the plaintiffs in the first action for the amount claimed. This was a finding in effect that the defendant was originally responsible for the materials furnished by the plaintiffs for the defendant's house. The report also stated among other facts respecting the present action, that the defendant and Grant made an oral contract for furnishing the labor and materials for, and for constructing, the house for the entire price of $4,450, and that for extras Grant was entitled to $350 in addition, making a total of $4,800, and that the defendant was entitled to credits aggregating $4,402.94, leaving a balance due of $397.06, and that under the declaration the plaintiffs were not entitled to recover, and for this reason concluded with a general finding for the defendant.

After the filing of the report, the plaintiffs amended their declaration in the second or present action by adding another count with an account annexed precisely in the form stated by the auditor, showing a balance due of $397.06. Thereafter both cases came on to be tried together in the superior court. Evidence was introduced in the first action and the jury found for the plaintiff for approximately the sum reported by the auditor. In the present case, the plaintiffs waived their first count and relied on that set out in the amendment. The only evidence proffered was the auditor's report and both sides rested. The presiding judge directed a verdict for the plaintiffs for $397.06. The defendant's exceptions relate to this ruling and to the court's refusal to direct a verdict in his favor.

1. The presiding judge acted rightly in not directing a verdict in favor of the defendant. The auditor's report plainly showed that his finding against the plaintiffs was based not upon the merits, but solely upon a defect in the pleadings. This had been remedied by an amendment filed before the trial. It would have been unjust to follow the technical finding of the auditor to a result utterly at variance with the substance of his conclusions, when the technical difficulty upon which alone it was based had been removed.

2. The more difficult question is whether the trial court was justified in directing a verdict for the plaintiffs. This involves consideration from two points of view.

When the case was referred to the auditor, the only claim set out in the plaintiffs' declaration was that upon an account annexed for a large number of items of materials and labor furnished. It was not based upon the theory of a special contract for the construction of the house for a definite price. It may be inferred that one of the defenses interposed was the existence of this special contract. The defendant had not pleaded such a contract, but it was not necessary for him to do so. It was open to him to disprove the account annexed alleged by the plaintiffs, by showing that the whole subject was covered by a special contract of a different character. This issue was raised by the pleadings as they then stood. McDonald v. Sargent, 171 Mass. 492, 51 N.E. 17; West End Mfg. Co. v. Warren Co., 198 Mass. 320-324, 84 N.E. 488; Wylie v. Marinofsky, 201 Mass. 583-584, 88 N.E. 448. Hence it was plainly the duty of the auditor to hear all the evidence and make a finding touching this subject. The defendant having pleaded payment, it was also within the auditor's province to ascertain whether there was anything due. If the evidence had brought his mind to the conclusion that there was not only a special contract, but the amount due under it had been paid in full, the defendant was entitled to a finding to this effect and upon the pleadings he would have secured a finding in his favor. He was equally entitled to a finding, which should show by its items the partial extent to which his defense of payment had been substantiated. The report of the auditor in this respect was within the scope of the reference to him. The subjects investigated and reported were either directly involved or incidently pertinent to the issues and necessary for their intelligent solution. Corbett v. Greenlaw, 117 Mass. 167. As the plaintiffs had not pleaded the special contract, however, the auditor could not find in their favor for the balance due, but was compelled to make his general finding for the defendant. After the coming in of the auditor's report, the plaintiffs filed an amendment to their declaration. They did not then in express terms plead the special contract, but set up by an account annexed the exact items reported by the auditor, one of which was the contract price. As the contract had been performed, according to the auditor's finding, before the commencement of the action and nothing remained but the payment of money, this was not open to objection. They could declare either on the contract or on a general count. Morse v. Sherman, 106 Mass. 430; Quin v. Bay State Distilling Co., 171 Mass. 283-291, 50 N.E. 637. The pleadings then conformed to the auditor's report. No objection was made to the allowance of the amendment and no question of law is open upon it. Beers v. McGinnis, 191 Mass. 279-282, 77 N.E. 768.

The other aspect of the question is whether under these circumstances the auditor's report justified the direction of a verdict in favor of the plaintiffs. It is urged by the defendant that as the special contract had not been pleaded, the report of the auditor did not conform to the order appointing him and the amendment to the declaration having been filed after the coming in of the auditor's report, it was not prima...