Home A. BERNARD FELDMAN & another vs. DAVEY DEVELOPMENT CO., INC.

340 Mass. 784

December 31, 1959

Order dismissing report affirmed. This is an action of contract to recover from the defendant for building materials ordered by one Soper. The plaintiffs contend that the defendant was an undisclosed principal of Soper. The judge found that the plaintiffs "received a note from one Herbert Soper and his son in the amount of $4,743.38 which amount is the amount claimed in the plaintiffs' declaration . . . and I am therefore finding that the plaintiffs extended credit to said Soper and not [to] the defendant." A report to the Appellate Division was dismissed and the plaintiffs appealed. The plaintiffs presented nine requests for rulings. Of these, eight were granted "as correct statements of law." The second request was denied. This asked the judge to rule that on all of the evidence a finding for the plaintiffs was required. At the arguments before us any questions arising out of the denial of the second request were waived. The plaintiffs argue that the action of the judge in allowing the plaintiffs' requests as correct statements of law, taken in conjunction with his findings, prevents them from knowing whether the judge applied correct principles of law in making his decision. We find no basis for this contention. We cannot assume that the judge, having granted the plaintiffs' requests, then proceeded to ignore them in deciding the case. The further contention of the plaintiffs that there is an inconsistency between the general finding and the rulings can be disposed of on the ground that this point must be raised by a motion to correct the inconsistency or by a motion for a new trial, neither of which courses was pursued here. Vieira v. Balsamo, 328 Mass. 37 , 39.

Home TOBA FINN vs. GEORGE M. ROMANOS, JUNIOR, & another.

340 Mass. 784

December 31, 1959

Decree affirmed. The final decree in this suit for a declaration of rights and obligations is justified on the master's report, and as this is the only issue, as the defendants recognize, the decree is affirmed. The master found, inter alia, that the defendants did not complete their contract to install new heating and plumbing equipment; that a substantial part of the work done was done improperly in specified ways, which, it is a necessary inference, could not have been inadvertent; that the contract was procured by intentional false representations specified in the report; and that after the heating system had been taken apart in cold weather by one of them, the defendants "pressured the plaintiff" into signing a note and mortgage for $6,300, although the contract price had been $4,315, and induced this signing by false and fraudulent representations. We cannot agree with the defendants that these findings include conclusions of law, or that they are unsupported by subsidiary findings if to any extent they are based thereon. The master could not rightly have concluded that all of the specified misrepresentations were mere seller's talk, not to be relied on. The findings are mutually consistent. On these facts it could not be ruled that the defendants

Page 785

were entitled either to the contract price or to the worth of their performance ($3,500) less payments on account ($523.58). Hub Constr. Co. v. Dudley Wood Works Co. 274 Mass. 493 . Russo v. Charles I. Hosmer, Inc. 312 Mass. 231 , 232. Ricciardone v. Carvelli, 334 Mass. 228 . The final decree rightly adjudged that the plaintiff is not indebted to the defendants.