Muir Bros. Co. v. Sawyer Const. Co.

• Decision Date: 27 February 1952
• Citation: 104 N.E.2d 160,328 Mass. 413
• Parties: MUIR BROS. CO. v. SAWYER CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 160

104 N.E.2d 160

328 Mass. 413

MUIR BROS. CO. v. SAWYER CONST. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6, 1951.

Decided Feb. 27, 1952.

N. M. Hussey, Boston, for plaintiff.

Joseph G. Bryer, Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, and SPALDING, JJ.

SPALDING, Justice.

On April 29, 1949, the plaintiff as a subcontractor entered into a contract with the defendant corporation for plastering in connection with the construction of an addition to the Newton-Wellesley Hospital which the defendant had undertaken as general contractor. In this action of contract the plaintiff seeks to recover on an account annexed for labor and materials furnished to the defendant. There was a finding for the plaintiff. A report to the Appellate Division was dismissed and the defendant appealed.

The report discloses the following: Of the items contained in the account annexed only one, item 14, is in dispute. This was a charge for extra work and material which arose in these circumstances. While the work was in progress it was found necessary to lower the ceilings in some of the rooms so that exposed pipes would be covered with laths and plaster. At a conference held on November 29, 1949, a representative of the plaintiff stated that this work should be paid for as an extra. The representatives of the plaintiff and the defendant then entered into an oral agreement, the terms of which are in dispute. The defendant's version was that the 'work should be done at a cost of the labor and materials, not to exceed $1,000.' The plaintiff's evidence was that it was to be done at a cost of 'approximately $900 or $1,000.' The judge in substance adopted the plaintiff's version, and found that the plaintiff undertook to do the work for 'an approximate figure of $1,000' but did not agree that the price would not exceed that amount. He also found that the defendant had waived article 17 of the written agreement which provided that there could be no departures from the written agreement unless 'upon a written order signed by a properly authorized officer or agent' of the defendant.

The plaintiff performed the work in question and submitted a bill to the defendant in the amount of $1,759.38. The judge found for the plaintiff in the sum of $1,454. The defendant concedes that it ordered the work in question. It further concedes that $1,000 was due, and it appears that this sum has been paid to the plaintiff. The sole question is issue is whether the judge erred in finding for the plaintiff in the amount of $1,454. That question is raised by the defendant's claim of report of the 'court's findings,' which we interpret as challenging the general finding as well as the specific findings. Ordinarily the question of the correctness of a general finding or decision cannot be raised by an exception or claim of report. Stowell v. H. P. Hood & Sons, Inc., 288 Mass. 555, 193 N.E. 234; Leshefsky v. American Employers' Ins. Co., 293 Mass. 164, 167, 199 N.E. 395, 103 A.L.R. 1388; Barton v. Cambridge, 318 Mass. 420, 424, 61 N.E.2d 830. The reason is that exceptions or claims of report lie only to questions of law, and where there is a general finding, without more, fact and law are interwoven to such an extent that no question of law is presented. 'Where, however, all material subsidiary facts have been found or are agreed * * * 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 [or claim of report from] a general finding brings before us the question of law whether it was permissible on the subsidiary facts established.' Lashefsky v. American Employees' Ins. Co. supra, 293 Mass. at page 167, 199 N.E. at page 396. That is the case here. The subsidiary findings are sufficient to demonstrate whether the ultimate finding for the plaintiff in the sum of $1,454...