Barnett v. Rosenberg , 209 Mass. 421 ( 1911 )

Hammond, J.

This case is before us upon the defendants’ appeal from the order denying the motion to recommit the report to the master in order that he may report the evidence, from the order overruling the defendants’ exceptions to the master’s report and from the final decree.

A motion to recommit is addressed to the discretion of the court, and ordinarily will not be granted in the absence of a special reason for it. Henderson v. Foster, 182 Mass. 447. Nothing appears in the present case to show that the judge improperly exercised his discretion in denying the motion.

Eight exceptions were taken to the master’s report. They will be considered in their logical rather than their numerical order. The third, fifth, sixth and seventh exceptions relate solely to questions of evidence and are overruled. The fifth, sixth and seventh concern matters within the discretion of the master, and no error is shown in his action in this respect. The third exception relates to the exclusion of the original bill of complaint which with the jurat attached was offered by the defendant “ as bearing upon the genuineness of the plaintiff’s claim ” and also as contradictory to his testimony. It was excluded. The original bill is not before us, and having been superseded by the final bill of complaint upon which alone the case was tried although among the files, its office as a part of the pleadings is defunct. There is no copy of it in the record before us, nor any statement of its contents, nor does it appear in what way it was contradictory either to the claim made on the amended bill or to the testimony of the plaintiff. For aught that appears it may have been excluded by the master upon the ground that the variances and contradictions were so far immaterial upon the real questions before him as to render him no assistance. But, however that may be, the exception is too indefinite, and we are of opinion that it does not appear that the defendants might or could have been harmed by its exclusion.

The eighth exception concerns the “ statements, rulings, refusals to rule and refusals to report evidence and findings” contained in the report of the master under the head of “ Defendants’ requests of the master on various matters relating to the report in the foregoing case.” There are thirty-six different requests set out under this heading. Some of them, like the fifth and ninth, call for portions of the evidence, and are properly refused on that account; some, like the first and fifteenth, ask for findings upon the evidence and cannot be considered by us because the evidence is not reported; some, like the third and seventeenth, are granted in part and in part refused; and in some, such as the second, the master has complied with the defendants’ request. It is unnecessary to state in detail our conclusions upon these thirty-six requests. We have carefully examined them all, and as to all but the last, the thirty-sixth, which will be considered in connection with the first general exception, we find no error in law in the manner in which the master has dealt with them.

The fourth general exception sets up the statute of frauds as to that part of the plaintiffs claim for work done for Green-berg and Eosenberg for which they owed him. But we think it sufficiently appears that there was a novation. This exception was therefore properly overruled. Ellis v. Felt, 206 Mass. 472, and cases cited.

The second exception deals with a matter of fact dependent upon the evidence and was properly refused.

Upon the facts found by the master the contract was upon a trainable consideration, was not within the statute of frauds, and the defendants have failed to pay the plaintiff in accordance with the terms of the contract. The first general request and the thirty-sixth request contained in the “ statement ” alluded to in the eighth general request were properly overruled. The orders denying the motion to recommit and overruling the exceptions to the master’s report are affirmed, as is also the final decree.

So ordered.