Howes v. Warren

321 Mass. 475 | Mass. | 1947

Lummus, J.

The plaintiff, a contractor, sues in contract upon an account annexed to recover for labor and materials furnished in the alteration and repair of a house in Yarmouth owned by the defendant. The case was presented to the Superior Court upon the report of an auditor whose findings of fact were to be final. No price was fixed for the job or any part of it. The defendant was simply bound to pay the fair value of the work done by the plaintiff.

The auditor found that that fair value was $500, and the judge ordered judgment for the plaintiff accordingly. The defendant appealed.

The subsidiary findings of the auditor, which prevail over his general finding or conclusion (United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105) show that a general finding for the plaintiff in excess of $352.50 was not justified, even though the auditor took a view. The defendant rightly objected to the entry of a general finding for a larger amount. We see nothing in the suggestion that there was a variance.

The order for judgment for the plaintiff is reversed. The order denying the defendant’s motion for judgment in his favor is affirmed. Judgment is to be entered for the plaintiff in the sum of $352.50 plus interest from the date of the writ (McGrimley v. Hill, 232 Mass. 462), compounded as of the date of filing of the auditor’s report. Buckley & Scott Utilities, Inc. v. Petroleum Heat & Power Co. 313 Mass. 498, 509. Anchor Steel Co. v. Granville, 318 Mass. 688, 692.

So ordered.