339 Mass. 775

May 27, 1959

Order sustaining demurrer affirmed. Petition dismissed. To this petition for a writ of mandamus a demurrer was sustained by a single justice, and the petitioner appealed. The purpose of the petition is to compel the respondents to permit the petitioner to practise law before them. The petition alleges that the petitioner has been disbarred by a single justice of the Supreme Judicial Court. There was no error. Mandamus cannot be used as a substitute for ordinary appellate procedure. Rines v. Justices of the Superior Court, 330 Mass. 368, 371-372. MacNeil Bros. Co. v. Superior Court, 337 Mass. 772.


339 Mass. 775

May 29, 1959

Exceptions overruled. This is an action of contract. In count 1 of the plaintiff's declaration he seeks to recover a balance due him on a building contract entered into by the plaintiff and the defendant, and in count 2 he seeks to recover on an account annexed in quantum meruit. The action was referred to an auditor whose findings of facts were to be final. The auditor found that the amount to be paid under the contract and for extras was $10,693.55 and that the defendant paid the sum of $9,216.01, leaving a balance of $1,477.54. He credited the defendant with $17 on account of a change in the size of the heater and a difference in the price of some locks. He found that the plaintiff did not completely soundproof the house and omitted to put paper under the shingles where required. For these omissions he allowed the defendant $500, leaving a balance due of $960.54. He expressly found that the plaintiff had attempted to do all of the work required to be done under the contract and substantially completed it, with the extras. Upon the coming in of the auditor's report, the defendant filed objections to it. She also excepted to the denial of her motion to recommit and to the allowance of the plaintiff's motion for judgment in accordance with the auditor's report. It has been established that although a party may not recover on a building contract unless there has been strict compliance with all of its terms, he may recover in quantum meruit upon proving both that he has substantially completed the contract and that he made an endeavor in good faith to perform fully. Glazer v. Schwartz, 276 Mass. 54, 57. Andre v. Maguire, 305 Mass. 515, 516. Russo v. Charles I. Hosmer, Inc. 312 Mass. 231, 232-233. In the instant case the auditor did not expressly find that the plaintiff was acting in good faith but he did find that the plaintiff had attempted to do all of the work required to be done under the contract and substantially completed it. We think it implicit from this finding that the plaintiff acted in good faith. "The general findings by the auditor do not purport to be based upon his subsidiary findings . . . but rest upon all the evidence heard by him; and the general findings made by him imply the making of all subsidiary findings not inconsistent with those appearing in the report and necessary to support the general findings." Weiss v. Balaban, 315 Mass. 390, 390-391. See Soares v. Weitzman, 281 Mass. 409, 412; Morello v. Levakis, 293 Mass. 450, 453. We are of opinion that the findings of the auditor warranted the inference that there was no intentional deviation from the terms of the contract and that the plaintiff was acting in good faith. He is entitled to recover on the second count of his declaration.

Home E. F. HODGSON CO., INC. vs. VINCENT F. LISANTI (and a companion case).

339 Mass. 775

June 8, 1959

Exceptions overruled. These are exceptions to the denial of motions for new trials made by the owner in an action brought against him by a

Page 776

building contractor and in his cross action against the contractor. The actions were consolidated for trial and after being heard by an auditor were tried before a jury. There was an exception saved by the owner during the trial to the denial of his motion to amend his declaration by adding a count alleging intentional breach of contract -- a matter of discretion, Rich v. Finley, 325 Mass. 99, 108, and not preserved by incorporating it in a bill of exceptions. Haines Corp. v. Winthrop Square Cafe, Inc. 335 Mass. 152, 154. The owner contends that the verdicts were inconsistent, and that the one awarded to the contractor contained mathematical errors. The time for raising either point as a matter of right was when the verdicts were returned and before they were recorded. There was no error in the denial of the motions for new trials. Low Supply Co. v. Pappacostopoulous, 283 Mass. 633, 635. Leonard v. Woodward, 305 Mass. 332, 338. Phillips v. Larson, 323 Mass. 87, 91. Chaplain v. Dugas, 323 Mass. 91, 95.