238 Mass. 113 | Mass. | 1921
This is an action of contract to recover premiums, alleged to be due the plaintiff for acting as surety on bonds, given by the defendant to different obligees, for the faithful performance of construction contracts entered into by the defendant with such obligees. The action was heard by a judge without a jury. The declaration contains eleven counts, the last being upon an account annexed which includes the amounts of premiums alleged to be due under counts one to ten inclusive. The record recites that counts three, five and eight were waived.
The contracts described in each count are referred to in the
“First. To pay in advance a premium or fees hereinafter agreed upon, namely . . . dollars annually, and an additional premium to be adjusted and paid upon the completion of the contract, based on any increase of the original contract price, such annual payments to be made until the undersigned shall serve upon said Company at its Home Office in the City of Scranton, Pennsylvania, competent written evidence of its discharge from such suretyship and all liability by reason thereof;” — the blank space in each application being filled in with the amount of the advance premium. There was evidence that the original premiums, and any additional premiums were to be computed on the basis of one half of one per cent of the contract price. The plaintiff received in- each case the advance premium. It seeks to recover additional sums as premiums on two grounds, namely: (1) because thé defendant never has served upon the plaintiff at its home office in Scranton, Pennsylvania, competent written evidence of its discharge from such suretyship and all liability by reason thereof; and (2) that on all the contracts in question the amounts, paid to the defendant by the obligees of the bonds for work under the contracts for which the bonds were given, were in excess of the contract price of the work as stated by the defendant in its application to the plaintiff to become surety on its bond. It appears from the record that the defendant never served written notice upon the plaintiff at its home office of its discharge from suretyship on any of the bonds in question; and that in each cáse referred to in the several counts the amount received by the defendant under the contracts with the different obligees named in the bonds was in excess of the contract price as stated by the defendant in its application; and that, to inquiries by the plaintiff, the defendant replied that there had been no increase in the contract price.
The- case was referred to an auditor, who found that in the cases under counts two, four, six and seven, there was no controversy between the parties that the work was completed within
It appeared that the defendant made its applications through the plaintiff’s local agents, Oppenheimer and Field, at Springfield in this Commonwealth; that the business between it and the plaintiff was conducted through the office of G. R. Griffin and Company, the plaintiff’s general agents in Boston; that it was the practice for the plaintiff frequently to send to G. R. Griffin and Com-
The case was heard by a judge without a jury, and evidence other than the auditor’s report was introduced. Although the auditor in connection with the findings reports certain evidence, it does not appear that the report includes all the evidence upon which they are based. In these circumstances the report is prima facie evidence and the findings must stand unless either in the report or outside of it there is evidence to control them. Anderson v. Metropolitan Stock Exchange, 191 Mass. 117. Wakefield v. American Surety Co. 209 Mass. 173. Barrell v. Paine, 236 Mass. 157, 162.
The plaintiff excepted to the refusal of the judge to make
The judge stated that upon the evidence he saw no reason to differ from the auditor, and found for the plaintiff on counts one, two, four, six, seven, nine and ten in the same amounts for which the auditor found, except that he added interest to the date of the finding. The findings of fact made by the judge upon those of the auditor are not open to revision in this court. While it appeared that in each case the amounts received by the defendant
We are of opinion that, upon the reported evidence and the proper inferences to be drawn therefrom, it could have been found that the plaintiff did not rely on the statements so made by the defendant. The findings that the plaintiff waived its right to collect premiums until it received written notice of the completion of the contract, and waived its right to collect premiums after the date of the actual completion of the work, were not unwarranted; it is a reasonable inference from the evidence that the plaintiff determined these facts through its own independent investigation and “impliedly adopted as the criterion for fixing the time when all liability by reason of its suretyship had ended and the payment of premiums should cease, its own determination, based on its own investigation, that the work was actually completed, and . . . that the defendant had fully, exactly, and in all respects performed its contract.” Whether the plaintiff waived its rights under the application, as found by the judge, was a question of fáct. McGrath v. Quinn, 218 Mass. 27. It could' be proved by express declaration or by such a course of acts and conduct as to induce a belief that it was intended to be waived. Farlow v. Ellis, 15 Gray, 229. Waiver may be established by direct evidence or it can be inferred from the circumstances, which in the case at bar include the course of dealing between the parties after the plaintiff became obligated as surety on the bonds and its acts and conduct thereafter. Holdsworth v. Tucker, 143 Mass. 369. Eaton v. Globe & Rutgers Fire Ins. Co. 227 Mass. 354, 364.
Many of the plaintiff’s requests were for findings of fact. It is well settled that in an action at law the court is not' required to make findings of fact even if requested by the parties to do so. Lowell v. Bickford, 201 Mass. 543, 545. Davis v. Boston Elevated Railway, 235 Mass. 482, 494. As it could not properly have been ruled that the plaintiff had not waived its right to claim from the defendant premiums by reason of the contracts of suretyship until the defendant furnished it with “competent written evidence of its discharge from such suretyship and all liability by reason thereof,” the plaintiff’s thirteenth request, for reasons previously stated, was rightly refused. The twentieth request for ruling was adopted with the following addition: “but that the date of the physical completion may not determine such period, if the parties subsequently agree upon such date as the point of time when the payment of premiums shall cease, is refused.” The request adopted as so modified was correct. The remaining requests are for findings of fact, and need not be considered.
As we perceive no error of law in the conduct of the trial, the entry must be
Exceptions overruled.