Home FRANK W. CROCKER & others, trustees, vs. CITY OF LOWELL.

231 Mass. 249

November 13, 1918 - November 14, 1918

Middlesex County


Practice, Civil, Findings of judge.

Where a case is tried before a judge without a jury, a finding of fact by the judge warranted by the evidence is final.

CONTRACT by the trustees under the will of Edwin C. Swift, late of Beverly, against the city of Lowell, for the sum of $9,540 paid under protest by the plaintiffs as a tax and alleged to have been assessed illegally because no trustee or beneficiary of the trust resided in Lowell. Writ dated November 13, 1916.

In the Superior Court the case was tried before Chase, J., without a jury. The question at issue and the essential evidence are stated or described in the opinion. At the close of the evidence the defendant filed a motion asking the judge to rule that upon all the evidence the finding should be for the defendant. The judge denied the motion. The defendant then asked the judge to make, among others, the following findings:

"3. The plaintiff Bailey's domicil in 1916 was in the city of Lowell and he was properly taxed by the board of assessors.

Page 250

"4. The plaintiff Bailey's domicil on April 1, 1916, was in the city of Lowell."

The judge refused to make either of these findings, and found for the plaintiffs in the sum of $9,897.75. The defendant alleged exceptions.

W. D. Regan, for the defendant.

F. Hutchinson & P. B. Smith, for the plaintiffs, were not called upon.

BY THE COURT . The only question involved in this case was whether one of the plaintiffs, named Bailey, was domiciled in Lowell or in Greenfield in the State of New Hampshire in 1916. Bailey testified to facts which showed that his domicil was in Greenfield. It is manifest from the general finding in favor of the plaintiffs that the judge believed this testimony. The credibility of this evidence was wholly for the determination of the trial judge. Therefore there was no error of law in the refusal to make the findings requested by the defendant.

Exceptions overruled.