Lewis v. Conrad & Co.

• Decision Date: 28 May 1942
• Citation: 42 N.E.2d 732,311 Mass. 541
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LEWIS v. CONRAD & CO.

311 Mass. 541

42 N.E.2d 732

LEWIS

v.CONRAD & CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1942.

Action by Mayland P. Lewis, administrator of a decedent's estate against Conrad & Company for breach of warranty of a dress sold by defendant to decedent. Judgment for defendant, and plaintiff appeals.

Entry of judgment for plaintiff ordered.Appeal from Superior Court, Suffolk County; Dowd, Judge.

Before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

R. L. Sisk and S. W. Stanton, both of Lynn, for plaintiff.

J. P. Sullivan and A. F. Bickford, both of Boston, for defendant.

COX, Justice.

The plaintiff's intestate brought this action to recover for an alleged breach of warranty of the defendant arising out of the sale of a dress. The plaintiff, as administrator, was admitted as a party. The case was referred to an auditor, whose findings of fact were to be final. The defendant filed two objections to his report, only one of which needs to be considered. That objection is to the finding of the auditor that there was a breach of an implied warranty on the part of the defendant in the sale of the dress to the plaintiff's intestate, and to the finding for the plaintiff and assessment of damages, upon the ground that these findings are not warranted by the subsidiary findings made by the auditor, but are contrary thereto and erroneous as matter of law. The plaintiff moved that the report be confirmed and judgment for the plaintiff ordered thereon. The trial judge, in a ‘Statement of Rulings and Order,’ ‘sustained’ the defendant's objection, denied the plaintiff's motion for judgment (see Heaphy v. Kimball, 293 Mass. 414, 417, 200 N.E. 551;Edinburg v. Allen-Squire Co., 299 Mass. 206, 207, 12 N.E.2d 718), and ordered judgment to be entered for the defendant. He also found for the defendant. See Pittsley v. Allen, 297 Mass. 83, 85, 7 N.E.2d 442. The plaintiff appealed.

The report of the auditor constitutes a case stated. United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 108, 20 N.E.2d 939. He found that the plaintiff's intestate purchased two dresses from the defendant, and that, at the time of the purchase, the salesgirl understood that the dresses were to be worn by her. While she was wearing one of these dresses, she experienced discomfort, and when the dress was removed, found a rash on her body at places where the dress came in direct contract with it. She had never experienced any such rash before. On a later occasion she wore the dress, and again her body became covered with a rash whereever the dress came in contact with it. The dress contained some chemical irritant adequately capable of causing the rash. Further findings are that notice was given to the defendant by the deceased within a reasonable time, which finding the defendant does not now question, and that neither the deceased nor the defendant was negligent, but that there was a breach of implied warranty on the part of the defendant in the sale of the dress. The report concludes with a finding for the plaintiff and assessment of damages.

The objections of the defendant to the report had no standing except as the foundation of a motion to recommit the report for correction of errors. Rules 89 and 90 of the Superior Court (1932). Howland v. Stowe, 290 Mass. 142, 145, 194 N.E. 888. It was the duty of the judge to enter the correct judgment required by the facts found. Heaphy v. Kimball, 293 Mass. 414, 417, 200 N.E. 551. The subsidiary findings must stand unless it appears that there was no evidence sufficient in law to warrant them, but the auditor's conclusions of fact, reached by inference from those subsidiary findings, are open to review as matter of fact, not only by the trial court but also by this court when the case comes here upon appeal. United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 108, 109, 20 N.E.2d 939;Keefe v. Johnson, 304 Mass. 572, 573, 574, 24 N.E.2d 520. The evidence is not reported, and a general finding not based on subsidiary findings imports a finding of subsidiary facts essential to that conclusion. Rosenblum v. Ginis, 297 Mass. 493, 496, 9 N.E.2d 525. Compare Friedman v. Berthiaume, 303 Mass. 159, 162, 163, 21 N.E.2d 261. An agreement of the parties for a reference to an auditor, whose findings of fact are to be final, makes the report of the auditor a statement of all the ultimate facts upon which the rights of the parties are to be determined by law. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 151, 152, 181 N.E. 219. See Brooks v. Davis, 294 Mass. 236, 238, 1 N.E.2d 17.

By the defendant's objections to the auditor's report, the judge's attention was directed specifically to the complaint that the two findings, hereinbefore referred to, were not warranted by the subsidiary findings, but were contrary to them and erroneous as matter of law. In so far as either or both of these conclusions of fact were expressly based solely upon subsidiary findings, it was within the province of the judge to draw contrary conclusions. The drawing of such contrary conclusions or inferences of fact may be implied in the order for judgment, and it is good practice for the judge, if he draws such a contrary conclusion or inference of fact, to do so expressly. United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 110-112, 20 N.E.2d 939. In the case at bar the action of the judge in this respect is indicated by his order that judgment be entered for the defendant, and also by ruling on the defendant's objections that the findings were not warranted by the subsidiary findings, were contrary thereto and erroneous as matter of law. He was not required to make this ruling. In accordance with what has been said, it was his duty to order the correct judgment on the facts found by the auditor. Howland v. Stowe, 290 Mass. 142, 146, 194 N.E. 888;Antoun v. Commonwealth, 303 Mass. 80, 81, 20 N.E.2d 423. It is for this court to determine whether the order for judgment for the defendant was correct upon the facts found by the auditor.

We are of opinion that, from an examination of the auditor's report, it cannot be said that...