Home MARY A. BALLARD vs. JOHN J. WALSH & another.

353 Mass. 767

January 31, 1968

This is an action of tort or contract in two counts, involving the purchase and sale of real estate. The trial judge directed a verdict for the defendants on count 1, and the jury returned a verdict for the defendants on count 2. The case is here on the plaintiff's exceptions. Count 1 was for damages because of the defendants' failure to repair shingles on the house in accordance with the purchase and sale agreement. The agreement stated that "the acceptance of a deed and possession by the . . . [plaintiff] shall be deemed to be a full performance and discharge hereof." The defendants' promise to repair the shingles was not collateral to the conveyance, and was merged with the deed. The plaintiff's right was thus extinguished when the deed was apparently accepted. Pybus v. Grasso, 317 Mass. 716 . Lipson v. Southgate Park Corp. 345 Mass. 621 . There was no error in directing a verdict for the defendants on count 1. Count 2 alleged that the defendants falsely represented that the house "had a dry cellar." The plaintiff excepted to the judge's charge in that he "failed to instruct that the Jury could infer, from the evidence that there was or could have been water in the cellar." We are satisfied from our examination of the record that such a conclusion would have been conjectural. There was no error.

Exceptions overruled.

Home MILANO BROS., INC. vs. JOSEPH RUGO, INC. & others. [Note 1]

353 Mass. 767

February 1, 1968

Milano, a supplier of gravel and equipment to Rufo Construction Company, a subcontractor of Rugo, the general contractor for the construction of a hangar at Logan Airport, intervened in Rufo's suit against Rugo under G. L. c. 149, Section 29. The entire case was referred to a master who appointed stenographers

Page 768

under Rule 90 of the Superior Court (1954). The trial took ninety-eight days during a period of two years. The defendants Rugo and its sureties appeal (1) from the denial of their motions for recommittal on the grounds that, having filed objections and furnished the master with ninety-eight volumes of testimony consisting of thousands of pages, they were entitled to brief, accurate and fair summaries of the evidence to enable the court (a) to test its sufficiency in law to support nineteen findings of fact made by the master and (b) to pass upon the propriety of twenty-two rulings on evidence relating to certain exhibits and (2) from the final decree based on the confirmed report. There was no error. The alleged failure of the appellants to comply with Rule 90 need not be discussed. The objections, read in light of the master's report which on its face is clear, well organized, complete in all essentials and consistent in its findings, would require the master to summarize all the evidence in the case. Rule 90 may not be thus subverted. Tzitzon Realty Co. v. Mustonen, 352 Mass. 648 , 650. The final decree is not defective. Under G. L. c. 149, Section 29, the liability of Rugo and its sureties to Milano is not contingent upon Rugo's liability to Rufo which hired Milano. Philip Carey Mfg. Co. v. Joseph Rugo, 346 Mass. 206 , 208. Rufo was a party to the litigation when the master's report was confirmed establishing Rufo's indebtedness to Milano. When Rufo's claim against Rugo and its sureties is established, the latters' payment to Milano may be asserted as a pro tanto payment to Rufo. 346 Mass. 206 , 208. Double costs and interest at the rate of eight per cent are awarded to Milano in accordance with G. L. c. 211, Section 10.

Interlocutory and final decrees affirmed.


[Note 1] Aetna Insurance Company and American Employers' Insurance Company, sureties on Rugo's statutory bond. G. L. c. 149, Section 29. Rufo Construction Company, the plaintiff in the suit in which Milano intervened, and the Massachusetts Port Authority, the awarding authority, are not parties to these appeals.