Howland v. Stowe
| Citation | 194 N.E. 888,290 Mass. 142 |
| Parties | HOWLAND v. STOWE. |
| Decision Date | 13 March 1935 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Worcester County; Dillon Judge.
Action of contract by Fred A. Howland against Martin L. Stowe, tried without a jury. There was a finding for defendant for a balance on a declaration in set-off in the sum of $1,975.04 and plaintiff brings exceptions.
Exceptions sustained, and judgment to be entered for defendant in accordance with opinion.
C. E. Tupper, of Worcester, for plaintiff.
P. R. O'Connell, of Worcester, for defendant.
The facts appear in the report of an auditor. A farm in Shrewsbury was conveyed on February 24, 1921, to three persons as tenants in common. They were the defendant, his sister Caroline R. Howland, and her son, the plaintiff. The defendant and the plaintiff each paid $2,500 on account of the purchase price, and the farm was acquired subject to a mortgage for $2,800 which the grantees assumed and agreed to pay. Caroline R. Howland paid nothing on account of the purchase price. She died intestate May 19, 1930, leaving the plaintiff and his brother George Howland as her only heirs.
All three of the cotenants lived together on the farm from the early part of 1921 until the death of Mrs. Howland. She kept house for the two men, got her living from them, and received no other compensation. The plaintiff worked in Worcester and did little work on the farm, but paid most of the bills. The defendant worked on the farm, and furnished much of the food for the family table. The parties lived together in domestic peace until after Mrs. Howland died and until the plaintiff married at some time before August 1, 1931.
On December 21, 1931, the plaintiff brought this action of contract to recover for various expenses of the maintenance of the property, covering the entire period of ownership. The defendant filed a declaration in set-off, covering the same period, and claiming payment for labor and expenses upon the property. On September 23, 1932, the case was referred to an auditor, whose findings of fact were to be final.
The auditor allowed the defendant for mortgage interest, $336, mortgage principal and interest, $2,889.13, and taxes for 1921, 1922 and 1923, $393, paid out of his own money, a total of $3,618.13. The plaintiff was found to owe him half of that, or $1,809.07. On the other hand, the auditor allowed the plaintiff for taxes paid in more recent years, out of his own money, the amount of $1,293.09. The defendant was found to owe him half of that, or $646.55. The net balance owed to the defendant from the plaintiff, exclusive of interest, was found to be $1,162.52.
All the other items claimed by either side are disposed of by the finding of the auditor that they were voluntary contributions of labor, goods or money, made without expectation or promise, express or implied, that they would be paid for. One item in the account annexed to the plaintiff's declaration, if proper for an account annexed, is disposed of by the finding that he was never ousted or excluded from the common property. Nickerson v. Nickerson, 235 Mass. 348, 352, 126 N.E. 834; Carroll v. Caroll, 188 Mass. 558, 74 N.E. 913; Giuggio v. Paoli, 244 Mass. 279, 138 N.E. 814.
The plaintiff brought in forty-two objections, which were appended to the auditor's report as required by Rules 89 and 90 of the Superior Court (1932). These objections had no standing except as the foundation of a motion to recommit the report for the correction of errors, which has long been the proper remedy for errors by an auditor whose findings of fact are final. Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 349, 167 N.E. 641, and cases cited. McClintic-Marshall Co. v. Freedman, 274 Mass. 558, 561, 175 N.E. 55. Compare Spilios v. Papps (Mass.) 192 N.E. 155. No such motion was filed. Instead, the plaintiff moved ‘ to discharge the rule to the auditor, and the report.’ If allowed, that motion would not have corrected errors of the auditor, but would have annulled his work. Since the objections were not properly brought before the Superior Court nor before us, the request of the plaintiff to supplement and explain them by a brief, accurate and fair summary of evidence, as provided by the rules cited, becomes unimportant, to say nothing of the fact that the plaintiff failed to show error by the record under the practice outlined in Pearson v. Mulloney (Mass.) 194 N.E. 458.
The printed record contains a document, containing thirty-two numbered statements, under the heading ‘ Plaintiff's requests for rulings and findings among other things.’ The statements are as varied as the heading indicates. The brief for the defendant asserts that this document was addressed to the auditor, though this is not altogether clear. If so, and if there was error in refusing any of the requests, the proper remedy was by written objection under the rules cited, followed by motion to recommit for the correction of the error. As has been shown, this remedy was not taken.
If, on the other hand, this document was addressed to the judge, it had no legal standing. Requests for rulings are useful in actions at law heard by a judge without jury, because he may make a general finding without stating the facts, and a party can have no assurance that the result was not reached through error of law except by requiring the judge, by means of requests for rulings, to instruct himself upon the law. John Hetherington & Sons, Ltd., v. William Firth Co., 210 Mass. 8, 17-19, 95 N.E. 961; Castano v. Leone, 278 Mass. 429, 180 N.E. 312; Ashapa v. Reed, 280 Mass. 514, 182 N.E. 859. In the present case, there was no need of requests. The facts were finally settled by the report of the auditor. The duty of the judge was to order the correct judgment on those facts. Any error on his part could be corrected not only upon exceptions but also by a simple appeal to this court. Royal Paper Box Co. v. Munro & Church Co., 284 Mass. 446, 449, 188 N.E. 223. If he should fail to order the correct judgment, right rulings upon all the requests would not save him from reversal. If he should order the correct judgment, error in responding to some of the requests would be merely academic, immaterial and harmless. In a case like this, requests for rulings have no technical standing, need not be granted or denied specifically, and amount only to arguments upon the report. Jablonski v. Rojcewicz, 246 Mass. 336, 141 N.E. 77; Graustein v. Dolan, 282 Mass. 579, 583, 584, 185 N.E. 489; Albert Richards Co., Inc., v. The Mayfair, Inc. (Mass.) 191 N.E. 430; Eckle v. Ryland, 256 Mo. 424, 438, 439, 165 S.W. 1035; Tevis v. Tevis, 259 Mo. 19, 32, 167 S.W. 1003, Ann.Cas. 1917A, 865.
We treat the general exception to the order for judgment as presenting the correctness of that order upon the facts stated by the auditor.
One tenant in common may recover from another his proportionate share of money expended in paying interest or principal of a mortgage, or taxes, constituting an encumbrance upon the common property. Dickinson v. Williams, 11 Cush. 258,59 Am.Dec. 142; Kites v. Church, 142 Mass. 586, 588, 8 N.E. 743; Dewing v. Dewing, 165 Mass. 230, 232, 42 N.E. 1128.
The plaintiff contends that the auditor and the judge lacked power to determine the shares in which the...
To continue reading
Request your trial