8 Mass. App. Ct. 932 | Mass. App. Ct. | 1979
1. The master was not obliged to report any of the evidence under the terms of the order of reference, which tracked the language set out in Form B of Rule 86 of the Superior Court, as amended effective June 1, 1970, and as in effect until July 1, 1974. Jones v. Wayland, 4 Mass. App. Ct. 725, 729 (1976), S.C., 374 Mass. 249 (1978). See now Rule 49, § 2, of the Superior Court (1974). 2. Nor was the master obliged to make summaries of the evidence, because there had been no compliance with the requirements of the second sentence of the second paragraph of Rule 90 of the Superior Court (1954). 3. As none of the exhibits was appended to the master’s report or incorporated by reference therein, all the objections to the report (regardless of the form in which they were advanced) which were directed to alleged inconsistencies between the contents of the exhibits and the master’s findings were properly overruled. See Chopelas v. Chopelas, 303 Mass. 33, 36 (1939); Milbank v. J.C. Littlefield, Inc., 310 Mass. 55, 59-60 (1941); Jones v. Wayland, 4 Mass. App. Ct. at 728-729. 4. The motion to strike the entire report was properly denied, because the report was not objectionable as a whole and the judge could not be required to assume the burden of separating the good from the bad. Hill v. Associated Transp., Inc., 345 Mass. 55, 58 (1962). Freitas v. Olson & Appleby, Inc., 4 Mass. App. Ct. 801, 801 (1976). 5. There are two instances of inconsistencies between the master’s subsidiary findings which vitiate certain of his ultimate (“general”) findings and infect two paragraphs of the judgment: first, there are inconsistent subsidiary findings as to the due date of the mortgage note (variously stated as January 20,1970, and October 20, 1970) which vitiate the master’s fourth ultimate finding and infect the third paragraph of the judgment; second, there is a discrepancy of $6.77 between (a) the balance of the total mortgage proceeds ($6,000) remaining after deducting the sum of (i) the disbursements from those proceeds which were found by the master ($4,357.48) and (ii) the attorney’s fee retained by the individual defendant ($100.00) and (b) the
So ordered.