MARY E. C. CARROLL vs. JOHN A. CARROLL.

LATHROP, J. This is an action of contract, with a count on an account annexed, for money lent by the plaintiff to the defendant. In the Superior Court the case was sent to an auditor who made a report which was in general in favor of the plaintiff. On the coming in of the report, the case was tried before a judge of that court without a jury. No question was raised as to the pleadings. The auditor's report was put in evidence, and the plaintiff and the defendant testified. The judge found for the plaintiff, and the case is before us on the defendant's exceptions. But two items are in dispute, which we will consider separately.

1. The auditor found that the plaintiff and the defendant were tenants in common of certain lands and buildings in Worcester; that by the consent and acquiescence of the defendant

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the plaintiff had the care of the property, collected most of the rents, and out of the rents paid interest on mortgages, taxes, repairs, and other expenses connected therewith; that the defendant occupied an office on Green Street in one of the buildings owned in common, from January, 1897, until August 8, 1902, and that the defendant should be charged with the rent of the office from July, 1898, to August 8, 1902, at the rate of ten dollars per month, which he found to be the fair rental value.

At the trial in the Superior Court the defendant testified that he occupied the premises as found by the auditor, but that there never was any understanding that he should pay rent, and that no demand had been made upon him. The bill of exceptions states that this was the only evidence upon the subject in addition to the auditor's report. The plaintiff was also charged by the auditor for rent of the premises occupied by her, but for an amount much less than that charged the defendant.

The judge refused to give the third request for instructions, which was: "That there is no evidence that it was understood that the plaintiff or defendant was to pay rent for the part of the premises occupied by each."

The mere occupation of premises owned in common by one of two co-tenants does not entitle his co-tenant to call him to account, or render him in any way liable to an action for the use and occupation of the estate. Badger v. Holmes, 6 Gray 118. Brown v. Wellington, 106 Mass. 318. Kirchgassner v. Rodick, 170 Mass. 543. But if there is an agreement, although not definite in amount, by one tenant in common who is in occupation to pay his co-tenant therefor, this is enough to take his case out of the general rule, even if no amount is mentioned. Kites v. Church, 142 Mass. 586. Evidently the auditor found that such an agreement had been made, and was justified in holding both parties to account for the reasonable rent of the respective parts of the property used and occupied by each.

The auditor's report is made by statute prima facie evidence. R. L. c. 165, § 55. And, as the defendant admits, a finding upon the general question of liability may furnish the evidence of facts which are involved in and may be inferred from that general finding. Peru Steel & Iron Co. v. Whipple File & Steel

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Manuf. Co. 109 Mass. 464. Holmes v. Hunt, 122 Mass. 505, 515. Newell v. Chesley, 122 Mass. 522, 524. Quin v. Bay State Distilling Co. 171 Mass. 283, 290.

The auditor's report was in evidence, and the judge was not bound to believe the testimony of the defendant.

2. The bill of exceptions states that the auditor allowed the plaintiff $340.88 as a five per cent commission on rents collected by her as compensation for the care of the property; and this the judge allowed. We are of opinion that this is governed by what has already been said.

Exceptions overruled.

A. Lincoln, for the defendant.

J. B. Ratigan, (J. E. Swift with him,) for the plaintiff.