Whitworth v. Lowell, 178 Mass. 43

Whitworth v. Lowell

178 Mass. 43 | Mass. | 1901

Loring, J.

This case comes up on an appeal from a decree of the Superior Court, overruling the plaintiff’s objections to the master’s report, accepting and confirming the report, overruling the exceptions to the report, and allowing to the defendant taxable costs after the date when he paid to the plaintiff the sums found by the report to be due from him.

*50The decree should not have undertaken to deal with objections to the report. The only purpose served by them is to lay the foundation for exceptions to the report; unless perfected by exceptions founded on them, they give to the party making them no standing in court to contest the master’s report.

The only exception or exceptions filed by the plaintiff were as follows: “ Now comes the plaintiff and excepts to so much of the master's report as is inconsistent with the plaintiff’s objections and his requests for findings and rulings, which objections and copies of the requests are appended to the master’s report.” Accompanying the report are, first, a paper containing four requests for findings of fact and four requests for rulings on the law and the evidence; second, a paper in the form o.f a letter to the master, asking him to draw certain inferences from the evidence ; and, third, a paper containing seven objections, and in the seventh objection there are contained three requests for findings and two objections to the master’s having failed to make two findings there specified. This is not a compliance with Chancery Rule 32 of the Superior Court, and there were no exceptions properly before that court.

But there is no error shown in the points urged by the plaintiff at the argument and on his brief, and he has lost no rights by failing to put them in the proper form.

1. The first point made by the plaintiff is that the master was wrong in making the finding of fact that the defendant never saw the specifications nor the unsigned bid of the plaintiff, Exhibit B, until the hearing before the master, and that the only paper or agreement he had any knowledge of was the contract, Exhibit C. There is nothing in the deposition of the defendant’s engineer Lewis, which is the only evidence before the court which shows that this finding was not warranted. There is no inconsistency between this finding and the fact which appears from the contract between the defendant and Lewis, the engineer, that the defendant had approved specifications for heating the building. The finding is that the specifications submitted to the plaintiff that he might make a bid on the work had not been seen by the defendant. Whether they were an exact copy of the specifications, approved by the defendant, or not, does not appear, and is immaterial. What is material is that so far *51as the defendant’s knowledge went, the paper “C” contained the agreement. The argument that Lewis was acquainted with Exhibits A and B, and the defendant is bound by his knowledge, is disposed of by the master’s ninth finding: “ The evidence fails to satisfy me that either the defendant, or defendant’s engineer Lewis, understood that the agreement was for $2,260 for the two lower floors,” and the finding that the plaintiff had opportunity “ to fully consider and understand the terms of said agreement ‘C.’ I do not find that said Lewis practised any deception or fraud in obtaining the plaintiff’s signature to said agreement.” We cannot say that these findings were not warranted by the evidence. This disposes of the plaintiff’s second point also.

2. The third point is that the master was wrong in finding that the plaintiff did not prove that either the defendant or the defendant’s engineer, Lewis, understood the agreement was for $2,260 for the two lower floors, and in the finding that the failure to limit the price of $2,260 to the two lower floors was not an accident, was not procured by fraud, and was not a mutual mistake of the parties to the contract. The plaintiff’s bid was ambiguous; he had been requested to “ Make price on piping without tanks and elevator pump and with” also to “Make price on complete plant ” and “ Make price on plant without heating system above the second floor.” There is nothing on the face of the plaintiff’s bid to show whether $2,260, which was the plaintiff’s price “ without the tanks and No. 8 Worthington pump,” was his price for the whole building or for the building “ without the three top floors.” It was stated distinctly in the agreement “ C ” which the plaintiff had ample opportunity to study, that this was the price from which $965 was to be deducted if the system was not put in on the three top floors. We are of opinion that there is nothing in Lewis’s deposition which prevented the master from making this finding.

3. The plaintiff’s next point is that the master should have ruled, as a matter of law, that the agreement which was signed, Exhibit C, was ambiguous. On the contrary, we think that the agreement was not ambiguous, and that the plaintiff’s bid, Exhibit B, which he wishes to have considered in determining the true construction of the unambiguous contract, Exhibit C, was ambiguous.

*524. The plaintiff’s next point is that, as a matter of law, the plaintiff is entitled to have the contract, Exhibit C, reformed. This is covered by what already has been said in dealing with the plaintiff’s other points.

The decree, confirming the master’s report, and allowing the defendant taxable costs from January 11,1900, when the defend-, ant brought into court all sums due the plaintiff under the master’s report, should be affirmed.

So ordered.