338 Mass. 795

February 3, 1959

Judgment affirmed. This is an appeal from a final judgment of the Superior Court ordering the issuance of a writ of mandamus declaring the petitioner duly elected to the office of treasurer and collector of taxes by a margin of three votes over the appellant, a rival candidate, at the 1957 town election held in Chelmsford. Recounts were held in every one of the six precincts of the town for the office of town clerk and the office of town treasurer and collector of taxes. The board of registrars of voters attached the two petitions for recounts for each precinct together and examined them. In accordance with a stipulation of the parties, the real issue is whether the names of the voters included in precinct 2 on the petition for a recount of the votes for the office of town treasurer and collector of taxes have been certified by the board. The petition for recount of the votes for this office had been stapled by the board on top of the petition for the recount of the votes for town clerk as shown by the position of the staple. The names of the voters upon the latter petition had been certified by the board, but no formal certification was written by the board on the petition for a recount of the votes for the office of town treasurer and collector of taxes. We have inspected the lists upon both of these petitions. The signatures upon each are similar; the names, residences and the order in which they were signed indicate that the same persons whose signatures appear on the one list signed the other and with the same kind of ink. In a word, the lists on the petitions are identical in every respect. Both petitions were considered together and decided by the board upon the basis that the lists of voters upon these two petitions were similar and were adequate in number. The five protested ballots were correctly counted by the judge.


338 Mass. 795

February 12, 1959

Exceptions overruled. This is an action of contract by a real estate broker to recover a commission. An auditor, to whom the case was referred and whose findings were not final, filed a report in which he found for the plaintiff in the sum of $2,500. The case was heard by a judge of the Superior Court solely on the auditor's report. The plaintiff moved for judgment on the report and the motion was allowed. The defendant filed eight requests for "rulings of law and fact" which, not being acted upon, must be deemed to have been denied. Mitchell v. Silverstein, 323 Mass. 239, 240-241. The defendant excepted to the allowance of the motion for judgment and to the denial of her requests. Findings of the auditor briefly summarized are these. The plaintiff was a real estate broker whom the defendant had employed to sell her property in Rockport for $50,000. In September, 1954, the plaintiff brought a customer, one Millyan, to see the property but no sale resulted from that visit. Later the property was sold to Millyan for $50,000 through a broker named Rogers who was paid a commission by the defendant. Rogers "did nothing further to promote the sale than that originally accomplished by [the plaintiff]" and was not the "predominantly efficient cause of this sale." The plaintiff produced

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a customer ready, able and willing to buy the property at the defendant's price and was the "predominating efficient cause of the sale." There was no error. The ultimate findings of the auditor, just stated, were not inconsistent with other findings, and were sufficient to warrant the order for judgment entered by the judge. Rosenblum v. Ginis, 297 Mass. 493, 496. The implied denial of the defendant's requests reveals no error. Requests numbered 1 and 2 asked for a finding for the defendant as matter of law; some were based on facts which the judge was not required to find; and others were either incorrect in law or immaterial. Nothing would be gained by discussing them in detail.