Leshefsky v. American Employers' Ins. Co.
Decision Date | 04 January 1936 |
Parties | REBECCA LESHEFSKY, administratrix, v. AMERICAN EMPLOYERS' INSURANCE COMPANY. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 4, 1935.
Present: RUGG, C.
Practice, Civil Exceptions: construction of bill, what questions open, when exception lies. Bond, For payment of taxes. Mortgage, Of real estate: taxes. Damages, For breach of contract.
In a bill of exceptions the statement that certain "facts appeared" meant that they were admitted.
After hearing of an action without jury and without oral testimony upon the pleadings and admitted facts, and a general finding for the defendant, and upon the plaintiff's bill of exceptions reciting such proceedings, an exception to the finding raised the question of law whether the finding was permissible on the facts.
A surety bond running to a third mortgagee was construed to be conditioned upon a junior mortgagee's payment of overdue taxes by a certain date or upon full payment of the third mortgage; and (the third mortgage not having been paid) there was a breach upon the failure of the obligor so to pay the taxes, and in an action on the bond the obligee was entitled to recover at least nominal damages.
Forfeiture of such bond was not saved by foreclosure, after the breach of the second mortgage and purchase, subject to the taxes, by the obligee of the bond at the foreclosure sale, nor by the obligee's subsequent payment of the taxes.
In an action upon such bond, the measure of damages would be the amount, not in excess of the amount of the taxes, by which the plaintiff's security was diminished by their nonpayment.
CONTRACT. Writ in the Municipal Court of the City of Boston dated April 11 1933.
Upon removal to the Superior Court, the action was heard without jury by Donnelly, J., as described in the opinion.
N. Efron, for the plaintiff. H. L. Barrett, for the defendant.
This is an action of contract brought against the surety on a bond as sole defendant for damages for breach of the bond. G.L. (Ter Ed.) c. 235, Section 13. The case was tried before a judge sitting without a jury who found generally for the defendant. The plaintiff excepted to this finding. No motion or request for a ruling of law made by either party is set forth or referred to in the bill of exceptions.
The bill of exceptions states that the The bill states further that The facts so appearing are set forth in the bill of exceptions which states that it "contains all of the evidence material to the questions raised herein."
The statement in the bill of exceptions that "the following facts appeared" must be construed "to mean that they were undisputed, or in other words that they were admitted." Neal v. Scherber, 207 Mass. 323 , 325. Compare Pye v. Faxon, 156 Mass. 471 , 473. The recital of those facts in the bill of exceptions refers to the bond in such a way that the copy thereof attached to the plaintiff's declaration must be regarded as incorporated in such recital. Apart from the admitted facts no evidence is set out in the bill of exceptions. The exception to the finding for the defendant, therefore, at most presents for decision only the question whether as matter of law on the admitted facts this finding was permissible. Moss v. Old Colony Trust Co. 246 Mass. 139 , 143. Ashapa v. Reed, 280 Mass. 514 , 516.
The defendant contends, however, (a) that the exception to the finding presents no question of law for decision and (b) that even if it does no error of law is disclosed.
Doubtless a general finding for the defendant in a case tried by a judge sitting without a jury implies a ruling that such a finding was permissible as matter of law on the evidence. But in the ordinary case of a trial on evidence an exception to a general finding is not sufficient to bring such an implied ruling before us for review. For this purpose there must be an exception to a specific ruling of law, or to the denial of a request for a specific ruling of law or of a pertinent motion. Keohane, petitioner, 179 Mass. 69, 73. Stowell v. H. P. Hood & Sons, Inc. 288 Mass. 555 , 557, and cases cited. See also Fisher v. Drew, 247 Mass. 178 , 181; New Bedford Cotton Waste Co. v. Eugen C. Andres Co. 258 Mass. 13 , 16. This requirement rests upon the principle that no exception lies to the finding of a judge on a question of fact (Ames v. McCamber, 124 Mass. 85 , 91) and that a separation of the questions of fact and of law involved therein must be made so that the question of law is brought specifically to his attention. Where, however, all material subsidiary facts have been found or are agreed, though inferences of fact may be drawn therefrom, the separation of the questions of fact and of law involved in a general finding based thereon has been largely made and a motion or a request for a specific ruling of law would serve little purpose. In such a case an exception to a general finding brings before us the question of law whether it was permissible on the subsidiary facts established. See Andrews v. Registrars of Voters of Easton, 246 Mass. 572 , 576-577. Bianco v. Ashley, 284 Mass. 20 , 26. Compare the somewhat analogous situation in the case of an appeal under G.L. (Ter. Ed.) c. 231, Section 96, from a decision on facts agreed as evidence. Frati v. Jannini, 226 Mass. 430 , 432, and cases cited.
Material facts admitted include the following: including the balance of the 1929 tax, interest and costs. G.L. (Ter. Ed.) c. 60, Section 68. The bond describes the obligee, the plaintiff in this case, as "the holder of a mortgage," which is the mortgage referred to in the admitted facts, and recites that the "mortgagee has made demand upon the owner of the equity that certain taxes be paid upon said property."
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