210 Mass. 327

November 9, 1911 - November 29, 1911

Essex County


Practice, Civil, Findings of trial judge, Exceptions.

Where, at the trial of an action of contract before a judge without a jury, the plaintiff introduces evidence of facts which entitle him to recover the full amount claimed by him, and the defendant, after testifying in direct contradiction to the plaintiff's evidence, asks the judge to find the facts in accordance with his testimony and on such facts to rule that the plaintiff cannot recover, if the judge, without passing expressly on the defendant's requests, finds for the plaintiff for the full amount of his claim, this necessarily implies that the judge did not believe the defendant's testimony and refused to make the finding and ruling asked for by him, and the defendant can have no ground for an exception.

DECOURCY, J. This was an action of contract by an attorney at law to recover for professional services and disbursements. The defendant left with the plaintiff some bills for collection and brought to his office a certain probate matter. It is agreed that the charges as set forth in the declaration were reasonable.

Page 328

In direct contradiction to the plaintiff's evidence the defendant testified that the plaintiff agreed to accept a certain percentage of the amount recovered as full compensation in the collection cases; and that he never agreed to be responsible for the legal services in the probate proceedings. He requested the judge [Note 1] so to find the facts, and in accordance therewith to rule that the plaintiff could not recover. Although the judge did not expressly pass on the requests, his finding for the plaintiff for the full amount of his bill necessarily implies a refusal to give them. And he was justified in such refusal, as evidently he did not credit the defendant's testimony.

The exceptions are frivolous and appear to have been intended for delay. Upon the motion of the plaintiff the exceptions are overruled with double costs and interest at the rate of twelve per cent from the date when the exceptions were allowed.

So ordered.

J. W. Morton & F. M. Furbush, for the defendant, submitted a brief.

T. S. Bubier, for the plaintiff.


[Note 1] Bell, J., sitting without a jury.