Ravage v. Johnson

• Decision Date: 26 June 1944
• Citation: 316 Mass. 558,56 N.E.2d 25
• Parties: RAVAGE et al. v. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 558

56 N.E.2d 25

RAVAGE et al.

v.JOHNSON.

Supreme Judicial Court of Massachusetts, Berkshire.

June 26, 1944.

Exceptions from Superior Court, Berkshire County; Burns, Judge.

Action by Michael Ravage and another against Albert E. Johnson for damages for breach of guaranty contained in a building contract. Judgment for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

L. S. Cain, of Pittsfield, for plaintiffs.

F. M. Myers, of Pittsfield, for defendant.

SPALDING, Justice.

The plaintiffs seek damages for breach of a guaranty contained in a building contract entered into between them and the defendant.

The case was referred to an auditor under an order of reference that his findings of fact were to be final. The findings of the auditor may be summarized as follows: The plaintiffs entered into a written contract with the defendant builder for the construction of a house, the work to commence on August 1, 1938, and to be completed on or about November 15, 1938. The contract contained the following provision which the plaintiffs alleged was violated: ‘As part of the consideration, the contractor guarantees that the cellar of the building to be built by him will be dry.’ The house was completed in December, 1938, and except in certain respects not here material ‘the house was constructed in strict compliance with the plans and specifications as required by the contract.’ In the spring of 1939 there was a ‘small amount of wetness and also some dampness in the * * * [plaintiffs'] cellar, in other words, it was not exactly waterproof. This, however, did not interfere with the use of the cellar by the plaintiffs for the purposes for which it was intended, namely, a playroom, a laundry, a storage room, and for the functioning of a heating unit. In other words, it did not cause damage to the plaintiffs.’ In the spring of 1939 the plaintiffs hired one Latimer to perform certain work in connection with the drains around the house; they also employed one Brett to do some landscaping. We infer from the report that this work had nothing to do with the building contract and was done by persons for whose acts the defendant was in no way responsible. After describing this work in some detail the auditor states: ‘I find that * * * surface water flows into a drainage system intended for ground water and that said surface water is caused to flow into the cellar by acts of Latimer and Brett, namely, the digging of * * * dry wells, the attachment of leaders and gutters to the house, and the landscaping in particular.’

The judge allowed a motion that judgment be entered for the defendant on the auditor's report. The case is here on an exception to the allowance of that motion and certain other exceptions, hereinafter discussed, taken in connection with the report.

1. After the auditor had finally settled the draft of his report and had furnished the parties with copies of it, the plaintiffs filed objections and a request for a summary of the evidence within the time allowed by Rule 90¹ of the Superior Court (1932). The objections need not be discussed in detail; it is enough for present purposes to say that some of them raised the question whether the evidence was sufficient in law to support certain findings of fact made by the auditor. Rule 90 provides in part: ‘But where the objection raises the question whether the evidence was sufficient in law to support a finding of fact made by the master, no such summary shall be made without special order of the court, unless (1) the evidence shall have been taken by a stenographer selected or approved by the master before any evidence was introduced, and (2) the objecting party shall at his expense furnish the master, within the time allowed for bringing in objections, with a transcript of so much of the evidence taken by such stenographer as is material to such question of law.’ A summary of the evidence was not made by the auditor, and the plaintiffs filed in court a motion that the auditor be ordered to append to his report a brief, accurateand fair summary of the evidence for the purpose of determining the questions of law raised by their objections. At the hearing on this motion ‘it was orally agreed by counsel that the evidence was taken by different stenographers brought to the trial for that purpose by the auditor, that at no time was Rule 89-90 expressly invoked by anyone, that no stenographer was sworn, and that counsel for the defendant was not aware of any intent that the evidence was being taken within the meaning of the provisions of said rule.’ It further appears that in denying the motion ‘the court referred to the case of Russo v. Thompson, 294 Mass. 44, at page 47 and stated that * * * [it] was denying the motion as a matter of law since the attention of the auditor was not plainly called to the fact that he was asked to act under and for the purposes of the rule.’ The plaintiffs excepted to the denial of this motion. A motion to recommit, which set forth as one of its grounds that the auditor had failed to furnish a summary of the evidence, was also denied subject to the plaintiffs' exception.

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