Joseph Rugo, Inc. v. Commonwealth , 1968 Mass. LEXIS 929 ( 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, § 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, § 4A (inserted by St. 1945, c. 552).

Exceptions overruled.