James B. Rendle Co. v. Conley & Daggett

• Decision Date: 11 May 1943
• Citation: 48 N.E.2d 676,313 Mass. 712
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JAMES B. RENDLE CO. v. CONLEY & DAGGETT, INC.

313 Mass. 712

48 N.E.2d 676

JAMES B. RENDLE CO. v. CONLEY & DAGGETT, INC.

Supreme Judicial Court of Massachusetts, Essex.

May 11, 1943

May 5, 1943.

Present: FIELD, C.

J., QUA, DOLAN & COX, JJ.

Contract, Building contract. Pleading, Civil, Declaration.

In an action by a contractor upon an account annexed, the plaintiff, upon proof of the performance of work for the defendant under a contract providing for payment at a fixed hourly rate, was not limited, either on the evidence or "upon the pleadings," to recovery "for only the fair market value" of the work.

CONTRACT. Writ in the District Court of Southern Essex dated July 24, 1941.

The action was heard by Kiely, J. R. E. Johnston, for the defendant.

M. R. Flynn &amp J.

F. Maher, for the plaintiff, submitted a brief.

FIELD, C.J. This action of contract on an account annexed for work and materials was brought in a District Court. The account included items for "Crane" for enumerated hours on various dates at $12 an hour, items for labor of men, and some miscellaneous items. The trial judge denied several requests for rulings made by the defendant, made specific findings of fact and found for the plaintiff. He made a report stating that the "defendant claiming to be aggrieved by the denial of its requests for rulings and the refusal of the court to rule as requested, and by the court's findings, I hereby report the same to the Appellate Division for determination." The report was dismissed by the Appellate Division and the defendant appealed to this court. A finding of fact is not a proper subject of a report. Reid v. Doherty, 273 Mass. 388 , 389-390. Lender v. London, 286 Mass. 45 , 47. Stowell v. H. P. Hood & Sons, Inc. 288 Mass. 555 . Sreda v. Kessel, 310 Mass. 588, 589. The findings of fact cannot be reversed on this appeal. McKenna v Andreassi, 292 Mass. 213 , 215.

All six of the defendant's requests for rulings were denied, of which two (requests numbered 5 and 6) were waived. Requested ruling numbered 1 was as follows: "That upon all the evidence in this case the plaintiff is entitled to recover for only the fair market value for the use of the crane and the work and labor of the operator and oiler of the crane." Requested ruling numbered 2 was the same except for the addition at the end thereof of the words "and only for when the crane was in operation in digging." Requested ruling numbered 3 was the same as requested ruling numbered 1, and requested ruling numbered 4 was the same as requested ruling numbered 2, except that in each instance the words "upon the pleadings" were substituted for the words "upon all the evidence." There was no error in the denial of these requests.

The evidence was conflicting and need not be recited in detail. There was evidence, however, that the defendant employed the plaintiff to dig or redig an "excavation" using a crane, that the parties agreed that "the total charge . . . for digging would be at the rate of $12.00 per hour," that is, evidence that there was a contract for a fixed price per hour, and there was evidence that "all of the work and materials claimed by the plaintiff in this action were performed and used." On the other hand, it does not appear that there was any agreement as to the length of time in which the work...