Home WILLIAM BROOKMAN & another vs. ANTHONY DEGREGORIO.

355 Mass. 791

February 3, 1969

This action of tort by husband and wife arises out of a collision between a car driven by the wife and a car driven by the defendant in Charles Street Circle, Boston. An auditor, whose findings of fact were not to be final, found that both drivers were negligent and made a general finding for the defendant. On retrial in the Superior Court there were verdicts for the plaintiffs. "The auditor's findings of fact shall be prima facie evidence . . .." G. L. (Ter. Ed.) c. 221, Section 56. As stated in Cook v. Farm Serv. Stores, Inc. 301 Mass. 564 , 566-567, "Prima facie evidence means evidence which not only remains evidence throughout the trial but also has up to a certain point an artificial legal force which compels the conclusion that the evidence is true. . . . [This is] only until evidence appears that warrants a finding to the contrary. . . . The evidence that warrants a finding contrary to that of the auditor, and therefore deprives the auditor's finding of its artificial force, may consist of evidence outside the report, introduced at the trial . . . or of subsidiary or specific findings of fact by the auditor, from which an inference may be drawn as to an ultimate or other fact, contrary to the finding of the auditor with reference to that fact." In the case at bar there were subsidiary or specific findings in the report which warranted the drawing of inferences contrary to the finding of the auditor. This is sufficient ground to uphold the result. The judge's charge gave most aspects of the Cook case, but did not mention that the additional evidence should warrant a contrary finding. The defendant orally moved that the judge rephrase his charge, based upon a suggested revision which failed to recognize that the report could lose its artificial legal force where evidence appeared to the contrary. The judge denied the motion and the defendant excepted. There was no error. There likewise was no error in the denial of the defendant's motion for a new trial.

Exceptions overruled.

Home THE CECO CORPORATION vs. JOSEPH E. BENNETT.

355 Mass. 791

February 4, 1969

In this action of contract the plaintiff seeks recovery for work performed by it for the subcontractor of the defendant on an apartment building in Salem. The subcontractor under a standard subcontract agreement commenced its work about January 27, 1964, and the plaintiff started its work shortly thereafter. In early May, with the subcontractor in financial difficulty, the defendant took over its work to complete it. At this time the subcontractor owed the plaintiff money under the agreement between them. On May 28, 1964, the defendant agreed by letter to the plaintiff to make all payments "direct" to the plaintiff which would be due to it under its contract with the subcontractor for work performed after May 11, 1964. In the same letter the defendant said, "We will withhold all funds properly due . . . [the subcontractor] on

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their contract for work performed by you prior to May 11, 1964, to guarantee payment properly due you." The plaintiff argues that this is an unconditional guaranty of payment to it for work performed for the subcontractor prior to May 11, 1964. The construction of a written agreement is a matter of law for the court. Ingalls v. Green, 337 Mass. 444 , 447. Doral Country Club, Inc. v. O'Connor, ante, 27, 31. This instrument was merely an assurance that money due to the plaintiff for work prior to May 11, 1964, would not be directed by the subcontractor to another purpose. It cannot be read as a promise to be liable for money due for that work. The court did not err in its finding for the defendant nor in granting those requests of the defendant to which exception was taken. Compare Zeo v. Loomis, 246 Mass. 366 , 368, and cases cited.

Exceptions overruled.