ANN A. LUPIA vs. ANN R. MARINO.

POWERS REGULATOR COMPANY vs. LORETO F. TOCCI & others. [Note 1]

353 Mass. 749

November 3, 1967

The final decree from which the general contractor, Tocci, appeals in this suit brought under G. L. c. 149, Section 29, by the plaintiff subcontractor (Powers) established the indebtedness of another defendant subcontractor (Kimball) to Powers, ordered Kimball to pay the indebtedness, and provided that if Kimball should fail to pay, Tocci should pay, and if Tocci should fail to pay, then the surety should pay the established indebtedness to Powers.

Page 750

In form and content the decree followed the suggestion in Powers Regulator Co. v. Joseph Rugo, Inc. 348 Mass. 233 , 234. The decree was based upon a confirmed master's report. There was no motion to recommit and no request for a summary of the evidence on which the master's findings were based. The motion to strike the report was inappropriate. Respro, Inc. v. Worcester Backing Co. 291 Mass. 467 , 472. The master's findings are not mutually inconsistent or plainly wrong and they support the decree.

Decree affirmed with costs of appeal.

FOOTNOTES

[Note 1] W. D. Kimball Company, Inc. and Maryland Casualty Company.