Decree affirmed with costs of this appeal. An appeal from a final decree brings to us this case wherein no appeal had been taken from an interlocutory decree confirming, and overruling exceptions to, a master's report and report on recommittal. Therefore, the only questions presented are whether the findings of the master are mutually inconsistent or plainly wrong (Flynn v. Korsack, 343 Mass. 15 , 17, and cases cited), and whether the decree is within the scope of the pleadings and supported by the facts found. Regan v. Tierney, 306 Mass. 168 , 170, and cases cited. No error in these respects is shown on the face of the record. The real grievance of the appellant is that the master's findings are not the findings desired by him. See Shaw v. United Cape Cod Cranberry Co. 332 Mass. 675 , 678. The decree, however, is properly based on the facts found.
Exceptions overruled. In this action of contract, the plaintiff excepted to the entry of a verdict for the defendant under leave reserved. As an integral part of the contract (assuming a contract had in fact been made) the plaintiff was to remove topsoil from the land of a third party to the adjacent land of the defendant and spread it, with other material, on the defendant's golf course. Before performance began, through no fault of the defendant, the third party, who had agreed to provide the defendant with the topsoil free of charge, denied access to his land by the plaintiff to remove the topsoil. It appears that the parties from the beginning contemplated accessibility to the third party's land by the plaintiff, and, there being no warranty by the defendant of accessibility, the denial of access releases both parties from performance and gives no right to either to claim damages from the other for breach of contract. Boston
Plate & Window Glass Co. v. John Bowen Co. Inc. 335 Mass. 697 , 699-700, and cases cited. See Restatement: Contracts, Sections 460-461.