Davis v. Gay , 141 Mass. 531 ( 1886 )

W. Allen, J.

This case comes before us on appeal from a judgment of the Superior Court. The record shows no error in the judgment, and it must be affirmed.

In fact, though the record does not show it, the case was heard by the court below upon the report of an auditor, including evidence reported by him, and both parties have proceeded as if that fact and the auditor’s report were in the record. This is wrong, because an auditor’s report is only evidence, and is no part of the record, unless made so as agreed facts, or by being made part of a report, or of exceptions.

But, as both parties have presented the ease as if the report of the auditor were before us as the only evidence on which the court below rendered judgment for the defendant, we have considered the questions which have been argued, and which the parties intended to present by the appeal.

The auditor found, in effect, that the defendant was not an innholder; that he was not guilty of gross negligence ; and that he was not a bailee for hire, or such a bailee that he would be liable without gross negligence. The only questions of law presented upon the record seem to be as to the sufficiency of the evidence to sustain these findings, and the correctness of the conclusion from them that the defendant is not liable.

The argument for the plaintiff is, that the defendant was a bailee for hire; or, if not, that he made a special undertaking to keep the goods safely. But these are precisely the points that the auditor decided, upon conflicting evidence, adversely to the plaintiff. There was sufficient evidence to sustain the findings of fact, and we find no error of law in the record.

Judgment for the defendant affirmed.