Lowe v. Pimental

• Decision Date: 11 March 1874
• Citation: 115 Mass. 44
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Lowe & another v. Julia Pimental

115 Mass. 44

William Lowe & another v. Julia Pimental

Supreme Court of Massachusetts

March 11, 1874

[Syllabus Material] [Syllabus Material]

Suffolk. Contract upon an account annexed for work done and material furnished, in repairing and fitting up certain buildings of the defendant.

Trial in the Superior Court before Devens, J., who after verdict for the plaintiffs allowed a bill of exceptions in substance as follows:

"It appeared by the testimony, that there was a conflict between the plaintiffs and the defendant as to the terms of the agreement under which the work was done. The plaintiffs contended that they performed the work and furnished the materials under an agreement that they were to receive four dollars per day for the labor of themselves and their men and were to furnish the materials at reasonable prices. The defendant claimed that the work was done and materials furnished under a special contract that the plaintiffs were to put the premises in complete condition for occupancy for the sum of twenty-five hundred dollars. The case was sent to an auditor, who found that the contract was as stated by the plaintiffs. The testimony also tended to show that the plaintiffs had left the work unfinished without the consent of the defendant, there being a dispute between them as to the terms of the contract. Thereupon the defendant claimed that the plaintiffs had no declaration upon which they could proceed to the trial of their case; but this point was overruled. The defendant objected to the admission of the auditor's report in evidence, on the ground that it undertook, without right or authority, to report upon and find as to whether there was a special contract as alleged by the defendant, and failing in that moved that it be recommitted to the auditor to strike out that part of the report. The court overruled the objections, and admitted the report. The plaintiffs read the same and rested their case. Thereupon the defendant moved for a nonsuit, which motion was denied. The defendant then went into evidence tending to prove the special contract as alleged, and offered to show its breach by non-completion against her will, and the value of the work when completed and entire, and what it cost her to complete it. The court ruled the first offer incompetent upon the ground that if a special contract existed for a fixed sum, nothing could be recovered by the plaintiffs under the present declaration, and the question of amount of damages for breach of special contract by the plaintiffs would not arise; and also the assessed value of the estate. These two last offers were ruled incompetent. At end of the defendant's testimony, the plaintiffs claimed to open and extend their affirmative case, the defendant contending that they should be limited to testimony in reply. The objection was overruled, and the plaintiffs put in their entire case to sustain the auditor's report.

"The defendant asked the court to give to the jury the following instructions: 1. The burden is upon the plaintiffs by fair preponderance of evidence to satisfy the jury on their declaration that there was no special contract for this work. 2. There is no ground for claim of pay or quantum meruit on the plaintiffs theory, as their claim is that it was a special contract for four dollars per day. 3. It is not competent for the legislative power to establish what is, or is not, prima facie evidence in regard to an auditor's report, and the jury are at liberty to give it as much or as little weight in the balance of the proofs as they shall think it merits, upon all the facts in evidence. 4. At the strongest, it is not prima facie evidence of anything beyond a mere statement of the accounts. 5. The report of the auditor is merely a piece of testimony, and in its bearing upon the whole case, such weight only is to be given to it as the jury may think it fairly entitled to. If they believe its conclusion is not in accordance with the preponderance of proved facts produced at the trial, they may entirely disregard it. 6. When the statute declares it prima facie evidence, &c., this means only that if standing alone on both sides, it would justify the jury in following its conclusions as the basis of a verdict; but it does not shift the general burden which remains with the plaintiffs.

"Upon these prayers for instructions, the court instructed the jury as follows: The plaintiffs make a claim against the defendant upon the ground that they have rendered labor and services to her in the repair of her houses, and furnished materials therefor; that this contract was made originally for the larger house, and was afterwards extended to the other house or houses, and that in pursuance of this contract they did the work and furnished the materials t...