323 Mass. 753

October 29, 1948

Appeal dismissed. The plaintiff brings this action of contract against the defendant, his former employer, to recover unpaid overtime compensation, liquidated damages and a reasonable attorney's fee and costs under the provisions of Section 16 (b) of the fair labor standards act of 1938. U. S. C. (1946 ed.) Title 29, Section 216 (b). The declaration alleges that the overtime compensation was earned during the period between October 24, 1938, and November, 1942. The defendant filed an answer which, among other things, set up the statute of limitations. At the same time the defendant filed a pleading designated "defendant's plea in bar," which stated that it "pleads in bar to the plaintiff's declaration in so far as applicable to the allegations contained therein, as follows: 1. The defendant pleads the statute of limitations with respect to any amounts claimed prior to June 26, 1941." The writ was dated June 26, 1947. From the action of the judge sustaining the so called "plea in bar," the plaintiff appealed. Since pleas in bar in actions at law are abolished (G. L. [Ter. Ed.] c. 231, Section 22; McGrath v. Sullivan, 303 Mass. 327, 328), we treat the plea as part of the answer in accordance with its true nature. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110. The appeal is not rightly here. The statute governing appeals in actions at law is G. L. (Ter. Ed.) c. 231, Section 96. The appeal here is not authorized by Section 96. Plainly the order appealed from was not "decisive of the case," for it did not preclude the plaintiff from recovering compensation for unpaid overtime for the period subsequent to June 26, 1941. Nor was the order "founded upon matter of law apparent on the record." The order purporting to sustain the so called plea imports a finding by the judge that the defence thereby set up was established as matter of fact. But the facts upon which the finding was based are not incorporated in the record. See Gallo v. Foley, 299 Mass. 1, 5-6; Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22, 23-24. The order, therefore, was not "decisive of the case founded upon matter of law apparent on the record" within the meaning of these words in Section 96. Obviously the order was not within any other class of orders appealable under that section.


323 Mass. 753

November 2, 1948

Decree affirmed. By this bill in equity the plaintiffs seek to have cancelled a promisory note in the sum of $600 executed by the plaintiff Isaac G. Elovitz and payable to the defendant, and a mortgage of personal property given by the plaintiff Lucille C. Elovitz, the wife of Isaac, to secure the payment of the note. After hearing the judge entered separate final decrees dismissing the bill as to each plaintiff. The plaintiff Isaac appealed. The evidence is reported and at the request of the plaintiffs the judge made a report of material facts found by him, adopting as such the facts set out in a statement entitled "finding and order for decree." The facts therein found are these: "The plaintiff Isaac G. Elovitz borrowed several thousand dollars from the defendant over a period of four or five years, some of which had been paid,

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but no tangible evidence has been given to me to warrant a finding that this note and mortgage has been paid and should be cancelled." It does not appear that the plaintiffs made any request for further findings of fact. See Skerrett v. Hartnett, 322 Mass. 452, 454-455. We have examined the evidence in accordance with our duty under the familiar rule. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, and cases cited. The finding of the judge that the plaintiff Isaac, hereinafter referred to as the plaintiff, borrowed from the defendant several thousands of dollars is supported by the evidence which also discloses that, subsequent to the execution of the note and mortgage in question, sums aggregating $2,200 were paid by the plaintiff to the defendant. Receipts given by the defendant to the plaintiff for these payments were put in evidence by the plaintiff, but there is nothing in them to identify the particular loans on account of or in satisfaction of which the payments were made. The plaintiff testified that certain of these payments had been made in satisfaction of the note in question. The defendant testified that none of the payments made by the plaintiff was made on account of the note, and that the note had not been paid. We interpret the statement of the judge, that no tangible evidence had been presented to warrant a finding that the note and mortgage had been paid and should be cancelled, to mean that he found that the plaintiffs had not sustained the burden of proof resting upon them. On the evidence this finding cannot be said to be plainly wrong.