Shaw v. United Cape Cod Cranberry Co.

• Decision Date: 09 June 1955
• Citation: 332 Mass. 675,127 N.E.2d 296
• Parties: Henry G. SHAW and another v. UNITED CAPE COD CRANBERRY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 296

127 N.E.2d 296

332 Mass. 675

Henry G. SHAW and another v. UNITED CAPE COD CRANBERRY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 10, 1954.

Decided June 9, 1955.

Jules E. Angoff, Boston, for plaintiff.

Frank W. Crocker, Boston, Levin H. Campbell, for defendants.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

By this bill the plaintiffs, husband and wife, seek an accounting by the defendant of sums claimed to be due from the defendant to the plaintiffs in accordance with a sealed contract entered into between the parties under date of November 17, 1939. By amendment with the consent of the defendant there was added a claim for a 'commission' or, as otherwise expressed, for 'the fair value of * * * services' alleged to be due to the husband or to the husband and wife jointly for procuring a purchaser for the 'Starr' bog, owned by the defendant. This last mentioned claim has been treated by both parties as properly to be included in a suit for accounting under the contract. There is no reason why we should not treat it in the same manner.

By the terms of the contract the plaintiffs were to superintend the operation of certain cranberry bogs in Plympton also owned by the defendant. The defendant was to have the net income until its investment in the property should have been paid with five per cent interest. The plaintiffs were to have a drawing account of not exceeding $100 a month from half the annual net income. After the defendant's capital investment should have been repaid with interest the annual net income less necessary working capital, to be maintained at not less than $100 an acre, should be divided equally between the plaintiffs and the defendant. If the defendant should sell the property, the balance of the sale price, after deducting any amounts due the defendant under the contract, should be equally divided between the plaintiffs and the defendant. Further details of the contract need not be stated.

The cause was referred to a master. The hearing covered an accounting and examination of the defendant's books for almost eleven years, consumed parts of twenty-one days, and resulted in a transcript of fourteen hundred fifty-one pages. The report of the master established these facts: The contract was 'operative until it was mutually dissolved in August, 1948.' The plaintiffs sowed and reaped the crops, hired the help, and delivered the berries to the National Cranberry Association, which accounted to the defendant. The defendant financed the venture and kept the books. From time to time the plaintiff Henry G. Shaw sought accounting from the defendant, and 'certain accountings were made and adjustments executed.' The plaintiffs kept the payroll record and the record of miscellaneous expenses. The defendant accepted these records as submitted to it as they accrued and relied upon the plaintiffs 'for the accuracy and honesty of such records.' The plaintiffs relied upon the defendant 'for the accuracy and honesty of the records' kept by the defendant. From time to time there were inaccuracies in the payroll records submitted by the plaintiffs and in the books of the defendant, so that these books did not show an accurate account between the parties. 'There was never any intent of either party to commit fraud on the other.' The plaintiffs on a number of occasions asked for clarification of the account between the parties and for adjustments. In 1943 adjustments on the defendant's books were made, credits of $9,838.90 were given to the plaintiffs, and the parties agreed 'that the adjustments made were a satisfactory accounting of all transactions between them through the year 1943.' In August, 1948, the parties agreed to a cancellation of the contract and the purchase of the bogs by 'the plaintiff' from the defendant for $45,000. 'As a part of the agreement entered into at that time, any sums due either party by the other, as a result of the joint venture, were cancelled by agreement, so that the only thing due was the purchase price of $45,000.' The plaintiffs did purchase the bogs for that price.

There were, however, further findings that the defendant had erroneously charged the plaintiffs $175 for labor of the plaintiff Henry G. Shaw performed in the sole interest of the defendant; that this item was not cancelled by the agreement of August, 1948; and that there accrued to the joint venture after August, 1948, another item not cancelled by the agreement as of that time. On account of these items the master found that there was due from the defendant to the plaintiffs $466.05.

As to the claim for a commission or for services for procuring a purchaser for the 'Starr' bog the finding of the master was, 'The defendant agreed to and did sell the 'Star Bog' for the price of $350,000. It did not agree to pay a commission to the plaintiffs for a sale at that price, and no commission is due the plaintiffs for this sale.'

The trial judge by interlocutory decree denied motions of the plaintiffs to vacate the rule to the master and to recommit, and overruled the plaintiffs' exceptions to the master's report and confirmed the report. He also entered a final decree in favor of the plaintiffs for the small sum found by the master, with interest. The plaintiffs appeal from the interlocutory and final decrees.

The plaintiffs filed sixty-nine numbered objections, which became exceptions, to the master's report, some of them containing numerous subdivisions. The evidence before the master is not reported. Obviously it is impossible to discuss these exceptions separately. Most of them are to failure of the master to make findings desired by the plaintiffs or to findings asserted to be contrary to the evidence or are otherwise dependent upon the unreported evidence. All these have no standing. The report does not disclose error in its face in respect to them. Minot v. Minot, 319 Mass. 253, 258-259, 66 N.E.2d 5, and cases cited; Cantor v. Cantor, 325 Mass. 719, 722, 92 N.E.2d 368; Garfield v. Garfield, 327 Mass. 529, 533, 99 N.E.2d 645. A few are to the failure of the master to report evidence. But the master was right in not reporting evidence in the absence of an order of the court. Rosman v. Rosman, 302 Mass. 158, 160, 19 N.E.2d 41; Leventhal v. Jennings, 311 Mass. 622, 624, 42 N.E.2d 595. Some of the exceptions are on the ground that the master 'failed to consider the law' in certain respects. Exceptions of this kind have no standing. If the report shows error of law on its face objections can be filed on that ground. Some exceptions are immaterial for other reasons. Still other exceptions are directed to the contention that the master should have made more detailed and subsidiary findings on various points. We shall deal with this contention in connection with the motion to recommit.

The plaintiffs' motion to recommit states eighty-six numbered purposes for recommittal, some of them containing subdivisions. Many of them ask for reports of the evidence taken by the master either as a whole or as to specified matters. It has long been settled that whether a master shall report evidence for the purpose of having his findings of fact reviewed by the court rests in the discretion of the court. Cook v. Scheffreen, 215 Mass. 444, 448, 102 N.E. 715; Smith v. Lloyd, 224 Mass. 173, 112 N.E. 615; Morin v. Clark, 296 Mass. 479, 483, 6 N.E.2d 830; Minot v. Minot, 319 Mass. 253, 258, 66 N.E.2d 5. Reports of evidence are to be distinguished from the summaries of evidence provided for in Rule 90 of the Superior Court (1954). Reports of evidence include all the evidence as to the point on which the court orders such reports, and are for the purpose of enabling the court to review the master's findings of fact. Such reports are not frequently ordered. The summaries of evidence provided for in Rule 90 are not for the purpose of reviewing findings of fact, but are 'for the sole purpose of enabling the court to determine * * * [a] question of law' raised by an objection presented to the master. Such summaries are not necessarily of all the evidence or even of all the evidence on a particular point, but are only 'of so much of the evidence as shall be necessary' to determine whether the master's ruling of law was correct. The plaintiffs' requests for reports of evidence in their motion to recommit are of 'all of the evidence' on the several points. They are not for summaries of evidence under Rule 90. They are not tied in as required by Rule 90 with objections presented to the master clarly raising questions of law. Epstein v. Epstein, 287 Mass. 248, 253-254, 191 N.E. 418; ...