Tobin v. Kells ( 1911 )

Sheldon, J.

1. The defendant’s motion for the recommital of the auditor’s report with the instruction to the auditor to report all the evidence upon which was based the finding that the special contract had been annulled by the parties was addressed solely to the discretion of the presiding judge, and the defendant had no right of exception to the denial of the motion. This has been so often declared that we cite only a few of the later cases. Butterworth v. Western Assurance Co. 132 Mass. 489. Carew v. Stubbs, 161 Mass. 294. Craig v. French, 181 Mass. 282. Tripp v. Macomber, 187 Mass. 109, 110. Allwright v. Skillings, 188 Mass. 538. No doubt it would be a proper exercise of judicial discretion to recommit a report if it appeared that the auditor had made an erroneous ruling which would be likely to deprive a party of important rights. But ordinarily the opportunity given to try a case fully before a jury and thus to raise all questions of law, with the fact that the auditor’s findings are not conclusive, will enable both parties to safeguard their rights on all material questions. The mere fact that an auditor may have erred on some abstract questions of law would not make it necessary to recommit his report.

But upon these exceptions, as in Hunneman v. Phelps, 199 Mass. 15, even if we had authority to review the discretion of the judge below, we have not the means of doing so. • We do not know what facts, if any, were shown or agreed to before him; we could not say that his action was wrong upon the face of the report, and nothing else is before us.

2. Under the clear and distinct instructions given them, the jury must have found that the written contract between the parties was no longer in force; that either the defendant had prevented the plaintiff from performing that contract and so the latter had a right to treat it as no longer binding (Bailey v. Marden, 193 Mass. 277 ; Posner v. Seder, 184 Mass. 331, 333; Brown v. Woodbury, 183 Mass. 279), or else that it had been annulled by the consent of both parties. But the defendant contends that such a finding was unwarranted upon either ground.

The auditor found and reported that the contract had been annulled by the parties. This furnished prima facie evidence in favor of that contention. Fisher v. Doe, 204 Mass. 34, 39, 40. The jury had a right so to find. And the plaintiff’s testimony indicated that his proposition to abandon the work had been assented to by the defendant. Nickerson v. Weld, 204 Mass. 346, 357. An assent would be sufficient though given angrily and with an oath. This too was for the jury.

But the verdict may have been based merely upon the ground that the plaintiff was not at fault for not having completed his contract, but was prevented from doing so by the wrongful conduct of the defendant. Was such a finding warranted ?

The plaintiff contends that' the defendant on June 7 wrongfully refused to make a payment which he was then under obligation to make, and without which, as the defendant knew, the plaintiff could not go on with the work. This payment was not due under the terms of the original contract. But the plaintiff contended and testified that shortly after the contract was made he told the defendant that he, the plaintiff, had been disappointed in obtaining some money to use upon the work, and that it would be very hard for him to keep on with the contract; and that an oral agreement was then made between the parties, changing the terms of the written contract as to the payments to be made *by the defendant, so that the defendant should pay to the plaintiff the sum of $250 per week, if the payments thus to be made did not exceed the next instalment fixed by the contract. The defendant denied this assertion; the plaintiff’s testimony was somewhat weakened on cross-examination, and the auditor’s report did not fully sustain the contention; but the question was for the jury. They could find that the modification was made, and that it was made in consequence of the plaintiff’s statement to the defendant, which was understood by both parties to be in substance a statement that the plaintiff could not go on with his work and must and would abandon the contract unless it was modified. This makes it necessary under our decisions to say that the modification had, or could be found to have had, a good consideration, and that it was valid. Munroe v. Perkins, 9 Pick. 298. Holmes v. Doane, 9 Cush. 135. Peck v. Requa, 13 Gray, 407. Hastings v. Lovejoy, 140 Mass. 261, 264. Earnshaw v. Whittemore, 194 Mass. 187. Hanson & Parker v. Wittenberg, 205 Mass. 319, 324. Parrot v. Mexican Central Railway, ante, 184.

It follows that the jury could find that the defendant did unjustifiably prevent the plaintiff from going on with his work under the written contract. They could find that the defendant’s refusal to make the payment due on June 7, or any future payments under the modified agreement, was not justified by the disputes that had arisen about plastering or the excavations to be made, or by the contention that the plaintiff’s woi-k had not been done to the defendant’s “ perfect satisfaction.” These words are no stronger than the expression “ entire satisfaction,” which was considered in Handy v. Bliss, 204 Mass. 513. The instructions given conformed to the rule laid down in that case, and were correct.

These considerations make most of the defendant’s requests for instructions immaterial. So far as necessary, they are covered by what has been said.

Exceptions overruled.