306 Mass. 347 | Mass. | 1940
This petition comes to this court by report of interlocutory orders of a judge of the Superior Court. (See G. L. [Ter. Ed.] c. 214, § 30; c. 231, § 111.) The report recites that the petition is under G. L. (Ter. Ed.) c. 258, whereby the petitioner seeks the “recovery of damages under a written contract resulting from alleged breach of warranty, or, in the alternative, the rescission of the contract upon the ground of fraud and a recovery upon quantum meruit.” The petition, when entered, was recorded by the clerk on the law docket. It was referred to an auditor upon motion of the petitioner, assented to by the respondent, and there was no agreement that his findings of fact were to be final. There were no objections to the auditor’s report. The respondent seasonably filed a reservation of
The petitioner filed no election as required. An order was entered denying its motion, and the petitioner claimed an “exception.” At the hearing upon the motion the petitioner contended that the petition, “in fact,” presented a claim in equity under said c. 258, and that the report of the auditor was, in fact, that of a master; and it made the further contention that even if there were a claim of law set forth 'in the petition, said Rule 88 of the Superior Court was not applicable, and that in any aspect, the respondent, under said c. 258, was not entitled to a retrial of the case.
The petitioner’s claim arises out of a contract with the Commonwealth for the construction of the embankment of the dike of Quabbin Reservoir in connection with the procurement of a larger supply of water for Boston and other cities and towns in the Commonwealth. The work involved
The petitioner states in its brief alternative grounds for recovery, one upon a claim at law for breach of a warranty as to the honesty of the representations made, and the other upon a claim in equity to rescind the contract on the ground of fraud and to recover on quantum meruit.
We are of opinion that there was no error.
The Commonwealth cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent provided in the statute. Glickman v. Commonwealth, 244 Mass. 148, 149, 150, and cases cited. G. L. (Ter. Ed.) c. 258, makes provision for the enforcement of claims in law and equity against the Commonwealth. See Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28; Glickman v. Commonwealth, 244 Mass. 148, 150.
St. 1905, c. 370, which amended the law as appearing in R. L. c. 201 relative to the prosecution of claims against the Commonwealth, provided in § 2, among other things, that “the case shall be tried by the court without a jury,” and that “All hearings shall be in open court . . . .” The case of McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, decided in 1908, reviewed the history of the statutory liability of the Commonwealth for claims and held that the appointment of an auditor was not a permissible practice
One question to be determined is whether the findings of fact by an auditor appointed under the provisions of said § 2 of c. 258 are to be final or whether his findings, in the absence of some agreement of the parties that they are to be final, are merely prima facie evidence in accordance with the provisions of G. L. (Ter. Ed.) c. 221, § 56.
The force and effect of the findings of an auditor appointed under said § 56 may be said to be settled. Cook v. Farm Service Stores, Inc. 301 Mass. 564. That opinion points out, at page 565, that what was said was not to be applied to an auditor whose findings of fact are to be final by agreement, .and, consequently, are governed by the rules applicable to a case stated. See Merrimac Chemical Co. v. Moore, 279 Mass. 147, 151-153, where it is said at page 151: "The case [an action of contract] could have been sent to an auditor, under a rule that his findings of fact should be final, only by agreement of parties.” In the case at bar the respondent assented to the appointment of the auditor, but not to the finality of facts to be found by him, and its assent to the reference, or even if it had failed to object to such a reference, is not equivalent to a surrender of the claim for a jury trial, if such a trial were possible under said c. 258, Farnham v. Lenox Motor Car Co. 229 Mass. 478, 484, or of its right to a trial by the court in accordance with its rele
We are of opinion that it was not the intention of the Legislature in providing in said c. 258 for the appointment of an auditor that he should be clothed with any powers different from or greater than those of an auditor appointed under the provisions of § 56 of said c. 221. It is an old rule that in the ascertainment of the meaning of the Legislature’s use of words in statutes relating to courts and legal process, we are to consider the Legislature as speaking technically unless from the statute itself it appears that it made use of the terms “in a more popular sense.” Merchants Bank v. Cook, 4 Pick. 405, 411. See Ex parte Hall, 1 Pick. 261; Dexter v. Dexter, 283 Mass. 327, 330; G. L. (Ter. Ed.) c. 4, § 6. The object of said c. 258 was not to create a new class of claims for which the Commonwealth had never been held responsible, but to provide a convenient tribunal for the hearing of claims of the character that civilized governments had always recognized, although the satisfaction of them has usually been sought by direct appeal through the Legislature. Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 31. In Boston & Albany Railroad v. Commonwealth, 296 Mass. 426, 430, it was said that the proceedings under said c. 258 “in form a petition, is in substance,an action of contract and not a suit in equity. It follows that this court does not review or revise the decision. We determine only whether it can be supported in law, or whether as a matter of law it must be reversed.” See Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495, 498, where, in a proceeding under said c. 258, the court said: “We think that the proceedings should be regarded as setting forth an alleged claim at law although brought in the form prescribed by c. 258”; and Cambridge v. West Springfield, 303 Mass. 63, 66, where a proceeding under said statute was said to be, in substance, an action in contract.
The language of the court in Lovell v. Commonwealth Thread Co. Inc. 280 Mass. 243, is significant where it was said, at pages 245 and 246: “The decisions are plain to the effect that from the earliest to the latest statute in this
In McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, it would seem that the court had in mind the auditor as we know him generally in its discussion of the reasons why, as the statute then stood, an auditor could not be appointed in statutory proceedings upon claims against the Commonwealth. See also George A. Fuller Co. v. Commonwealth, 303 Mass. 216; Franklin A. Snow Co. v. Commonwealth, 303 Mass. 511.
St. 1879, c. 255, conferred upon the Superior Court jurisdiction, among other things, of all claims against the Commonwealth founded on contract for the payment of money. Section 3 provided that “The cause shall be tried in the
The petitioner contends, however, that its claim has a double aspect in that the “petition in the case at bar presented a claim at law and a claim in equity,” and that the auditor herein was in reality functioning as a master. The question remains whether the magistrate in the case at bar was functioning in such a capacity that the petitioner’s motion should have been allowed. The judge has reported the questions of law raised by his orders on the motion to
Interlocutory order denying motion to strike out affirmed.