Home JOSEPH RUGO, INC. vs. COMMONWEALTH (and a companion case).

353 Mass. 777

March 4, 1968

Joseph Rugo, Inc. (Rugo) was general contractor on a building contract with the Commonwealth. Louis DeSanctis and another, d.b.a. Acme Plastering Company (Acme), a subcontractor, seek in the companion case, direct payment from the Commonwealth under G. L. c. 30, Section 39F (as amended through St. 1965, c. 856). Rugo, in the principal case, asks recovery of retained sums and of amounts claimed under change orders and for extra work. The consolidated cases were heard by a Superior Court judge upon an auditor's report and a small amount of testimony. The trial judge found for Acme in the sum of $20,215.08 (after an agreed correction). Rugo excepted to the finding. The auditor's report warranted the judge's action in the companion case. Rugo's general exception, bill of exceptions, and brief do not intelligibly suggest any error. In the principal case, the auditor's and the judge's findings are not shown to be inconsistent with those in the companion case. In addition to Rugo's general exception to the judge's finding for Rugo (as modified by stipulation) of $17,387.45, we have before us only exceptions to (a) the judge's total or partial elimination of three items allowed by the auditor, and (b) his refusal to add $5,225 to the amount found owing to Rugo. No exception was supported by any request for ruling. For aught that appears the amounts were warrantably struck out because of absence of findings showing Rugo's compliance with art. 17 (extra work) of the general contract. It is not established that the item of $5,225 was not included in $8,522.16 (change orders approved but not paid) allowed to Rugo. The bill of exceptions does not show this to be part of $12,000 claimed by Rugo for work done by it after Acme left the job, allowed by the auditor (but not by the judge) for $3,995. Whether offers of judgment made by the Commonwealth prevent accrual of costs and interest thereafter is not presented by the bills of exceptions. So far as still open, that issue is for disposition in the Superior Court. See G. L. c. 258, Section 4A (inserted by St. 1945, c. 552).

Exceptions overruled.

Home CITIZENS BANK AND TRUST COMPANY & another, administratrix, vs. ROCKINGHAM TRAILER SALES, INC. & another.

353 Mass. 777

March 5, 1968

This case is here for the second time. In 351 Mass. 457 , we affirmed the decree appealed from

Page 778

with certain modifications. Before the entry of the final decree after rescript, Rockingham Trailer Sales, Inc. (Rockingham) moved that the case be reopened and that it be recommitted to the master in order that his findings be revised. This motion was accompanied by an affidavit of counsel to the effect that the master had told him that "he never intended that his findings should draw [sic] the conclusion that Rockingham was an active participant in the fraud of Bradbury's creditors." An affidavit of the master was also presented in which he stated that "there was never any specific finding to the effect that Rockingham was an active participant in the scheme to defraud Bradbury's creditors in . . . [his] report." The judge denied the motion to recommit and entered a decree in accordance with the rescript. Rockingham appealed. There was no error. In 351 Mass. 457 , we took notice of the absence of the finding alluded to by the master. Yet, for reasons set forth in the opinion, we held that the findings actually made were sufficient to justify the decree that was ordered. The judge rightly concluded that the matter of recommittal for further findings was no longer open and that the only course open to him was to enter a decree in conformity with the rescript. See Carilli v. Hersey, 303 Mass. 82 , 85. Moreover, the motion to recommit, even if open, was addressed to the discretion of the court.

Decree affirmed with double costs.