Winick v. Padovani

283 Mass. 126 | Mass. | 1933

Wait, J.

The plaintiff appeals from, an interlocutory-decree which adjudged that “the exceptions be and are hereby overruled, and the master’s report be and is hereby confirmed”; and from a final decree that “the bill be and hereby is dismissed.”

The interlocutory decree must be affirmed. The record shows that a report filed by the master on June 11, 1932, was, on objections filed by the plaintiff, after hearing, recommitted to the master by interlocutory decree entered July 15, 1932, “for the purpose of redrafting his report, and of making it more full, definite and adequate as to his findings of facts on the issues.” The master reviewed the evidence, and filed a “Report upon Order Remanding” on August 1, 1932. This report dealt, seriatim, with the allegations of the bill, paragraph by paragraph, and ended with findings covering the dealings of the parties in the transactions involved in the subject matter of the controversy. The master appended to the report a document which he describes as “requests of findings of fact” presented by the plaintiff, which was entitled “Plaintiff’s Requests” and which begins: “Plaintiff requests that the Master add the following.” We infer that these “requests” were presented at the hearing on the settling of the report and were not filed with the master at or before the close of the taking of evidence or review of evidence previously heard. There are more than twenty “requests.” They relate to findings of fact; and seek restatement of facts reported or addition of what the plaintiff alleges to be facts. There properly is no report of the evidence. At the hearing upon confirmation of the report, these “requests,” apparently, were treated as objections and exceptions to the report. We think they had no such standing. A party who wishes to rely upon an objection as an exception under Rule 90 of the Superior Court (1932), should indicate clearly that he not only requests that what he asks be done, but that he claims a remedy if it be not done. There is here no assertion in words that the plaintiff controverts the ultimate decision of the master. Nor is there any transcript of evidence such as the rule requires where the contention is made that the evidence will not support the finding of the master; or any request for a brief, accurate and fair summary of evidence by the master, sufficient to enable the court to pass upon a question of law. These “requests” do not meet the requirements for valid objections set up by the rule. Even if they be treated as exceptions, they relate merely to findings of fact which the master has refused to make, and were overruled properly. Warfield v. Adams, 215 Mass. 506, 519.

Although made on the same day and passed by the same judge, the final decree as entered does not fully comply with the order for final decree. The bill does not in terms pray for an accounting, but, in substance, it is a bill for an accounting and for appropriate orders with reference to foreclosure of a mortgage. The master made findings in regard to the mortgage transactions, found the mortgages upon the premises due and unpaid with conditions broken, and stated the account between mortgagor and the mortgagees, showing a balance to be due to the mortgagees. The judge, upon the hearing for decree upon the merits, ruled that an allowance of $220 should have been made to the plaintiff in respect to rents not collected, and that a further deduction for taxes, properly chargeable but in fact not paid, should be made from the balance found against the plaintiff. He ordered the bill to be dismissed. Inasmuch as the defendants were entitled to foreclose, and as none of the specific prayers of the bill could be granted, a decree dismissing the bill was warranted. Nevertheless, as the case had been fully heard and an account had been stated in the report, the plaintiff was entitled to a statement in the decree of the true amount found by the court to be due to the defendants from the plaintiff. Daniels v. Briggs, 279 Mass. 87, 95.

We find no other error in the final decree. The plaintiff contends that damages should have been found due to him in consequence of -wrongful failures of the defendants to perform undertakings with regard to the care and upkeep of the premises, and in the renting of apartments and failures to obtain and collect rents. The master found that there had been no wrongful action; unless rentings at lower prices than those fixed by the plaintiff had, as matter of law, been wrongful. These rentings, made pursuant to a provision in the third mortgage, he found resulted in a loss of $220. It was this loss which the judge ruled was due to the plaintiff. Without discussing the facts in detail we are satisfied that the master’s findings, substantially all in favor of the defendants, are justified. The authority to collect and account for rentals conferred upon the defendants by the third mortgage did not cover the oral undertakings with reference to care of the buildings which the plaintiff alleges were subsequently assumed by them. The master was right in his incidental ruling of law,that the alleged oral undertakings, if ever made, were collateral to the mortgage and did not become conditions of it. His findings of fact that the female defendant did not make any of the alleged oral promises dispose of the matter so far as material to the case against her, while the finding that the male defendant did all that the plaintiff could rightfully ask relieves that defendant. We think the finding that the plaintiff waived any right to complain against the male defendant was justified in view of his intimate knowledge of what was carried on at the premises. No agreement to look only to rents for payment of the third mortgage was found by the master.

If the deductions found by the court properly to be made are subtracted from the balance of account as shown by the master, the decree should show $2,208.22 to be the balance remaining due in April, 1932. The final decree should be modified by declaring this amount to be due; and, as so amended, should be affirmed, with costs.

Ordered accordingly.