FRANK B. HOWES vs. CLARENCE A. WARREN.

FRANK B. HOWES vs. CLARENCE A. WARREN.

321 Mass. 475

November 25, 1946 - June 25, 1947

Barnstable County

Present: FIELD, C.J., LUMMUS, QUA, DOLAN, & SPALDING, JJ.

A general finding by an auditor, whose findings of fact were to be final, was controlled by his subsidiary findings showing that his general finding was for too large a sum, and judgment was ordered for a smaller sum which accorded with the subsidiary findings.

CONTRACT. Writ in the Superior Court dated October 7, 1944.

The case was heard by Warner, J., upon an auditor's report.

In this court the case was submitted on briefs.

R. L. Cummings, for the defendant.

A. G. Castonguay, for the plaintiff.

LUMMUS, J. The plaintiff, a contractor, sues in contract upon an account annexed to recover for labor and materials furnished in the alteration and repair of a house in Yarmouth owned by the defendant. The case was presented to the Superior Court upon the report of an auditor whose findings of fact were to be final. No price was fixed for the job or any part of it. The defendant was simply bound to pay the fair value of the work done by the plaintiff.

The auditor found that that fair value was $500, and the judge ordered judgment for the plaintiff accordingly. The defendant appealed.

The subsidiary findings of the auditor, which prevail over his general finding or conclusion (United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105 ) show that a general finding for the plaintiff in excess of $352.50 was not justified, even though the auditor took a view. The defendant rightly objected to the entry of a general finding for a larger amount. We see nothing in the suggestion that there was a variance.

Page 476

The order for judgment for the plaintiff is reversed. The order denying the defendant's motion for judgment in his favor is affirmed. Judgment is to be entered for the plaintiff in the sum of $352.50 plus interest from the date of the writ (McGrimley v. Hill, 232 Mass. 462 ), compounded as of the date of filing of the auditor's report. Buckley & Scott Utilities, Inc. v. Petroleum Heat & Power Co. 313 Mass. 498 , 509. Anchor Steel Co. v. Granville, 318 Mass. 688 , 692.

So ordered.