Lawrence v. Old Silver Beach, Inc.
| Decision Date | 29 June 1939 |
| Citation | 21 N.E.2d 956,303 Mass. 377 |
| Parties | LAWRENCE v. OLD SILVER BEACH, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by Frederick V. Lawrence against Old Silver Beach, Inc., for labor, equipment and material furnished, wherein an auditor reported in favor of plaintiff. From denial of its motion to recommit and motion for judgment in its favor, defendant attempts to appeal, and from allowance of plaintiff's motion for judgment and from a finding for plaintiff, defendant appeals.
Appeals from orders denying defendant's motions dismissed, and orders for judgment for plaintiff affirmed.Appeal from Superior Court, Barnstable County; Brogna, Judge.
M. Tobey, of Boston, for appellant.
H. E. Hunziker, of Falmouth, for appellee.
This is an action for labor, equipment and material furnished by the plaintiff to the defendant in ‘hardening’ with loam and gravel an area of the defendant's beach at Falmouth. An auditor whose findings of fact were to be final reported in favor of the plaintiff. The defendant attempts to appeal from the denial of its motion to recommit and of its motion for judgment in its favor and appeals from the allowance of the plaintiff's motion for judgment in the plaintiff's favor and from a finding for the plaintiff, also equivalent to an order for judgment.
The order denying the defendant's motion to recommit was not appealable. This was not an ‘order decisive of the case founded upon matter of law apparent on the record.’ G.L.(Ter.Ed.) c. 231, § 96. Carbonneau v. Cavanaugh, 290 Mass. 139, 140, 194 N.E. 724;Edinburg v. Allen Squire Co., Mass., 12 N.E.2d 718.
Likewise, the order denying the defendant's motion for judgment was not an ‘order decisive of the case.’
The report of the auditor, whose findings of fact were to be final, is equivalent to a case stated. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152, 181 N.E. 219. The orders for judgment for the plaintiff upon it are properly here by appeal. Pesce v. Brecher, Mass., 19 N.E.2d 36. However, the report shows no error, and we cannot on this appeal look beyond the face of the report, as nothing else is before us. The defendant relies upon a statement in the report that at a view taken by the auditor ‘the plaintiff while on the lot pointed out and marked on the surface just what he had hardened.’ We do not regard this as equivalent to saying that the auditor heard testimony at the view. The plaintiff may have merely pointed out on the ground the limits about which he testified on the stand. This is no more than is customarily done at a view. Commonwealth v. Dascalakis, 246 Mass. 12, 29, 140 N.E. 470. We need not decide whether it would...
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