EDWARD M. JOYCE vs. GEORGE W. PRESCOTT PUBLISHING COMPANY.

SALVATORE PAUTA & another vs. N. PANDELENA & SON, INC.

348 Mass. 790

February 25, 1965

This action of contract or tort was referred to an auditor whose findings of fact were to be final. The declaration contained two counts. In the first count (in contract) it was alleged that the plaintiffs had engaged the defendant to deliver and place fill on their premises and that the defendant unskillfully and carelessly delivered and placed the fill, causing a retaining wall to break; in the second count (in tort) it was alleged that the wall was caused to collapse because of the negligent and careless manner in which the defendant placed the fill. After the auditor's report was filed, a motion for judgment in their favor was presented by the plaintiffs; the defendant likewise

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presented a motion that judgment be entered for it. The plaintiffs' motion was denied as to count 1 and granted as to count 2, and judgment was ordered for the plaintiffs in the sum of $2,500; the defendant's motion was denied. The defendant appealed. There was no error. The findings of the auditor "are final and conclusive unless tainted in some material particular by error of law." Lunn & Sweet Co. v. Wolfman, 268 Mass. 345 , 349. We are of opinion that the subsidiary facts found by the auditor support his ultimate conclusions that the collapse of the wall was caused by the defendant's lack of skill and care in placing the fill, and that there was no contributory negligence on the part of the plaintiffs. The action of the judge in ordering judgment for the plaintiffs on the second count and in ordering judgment for the defendant on the first count was not, as the defendant contends, inconsistent.

Orders for judgment affirmed.