The plaintiffs, by their bill for declaratory relief against one Frank Capaldi and his father, ask that the court determine (a) what persons are parties to a written contract with the plaintiffs for the construction of a dwelling in Belmont and (b) "the validity and construction of" the contract and "the damage sustained ... by the fraud, negligence, improper and faulty construction, delay and improper materials, and the wilful and deliberate departure from the plans and specifications, in connection with the construction." The somewhat ambiguous contract for the construction of the house in about 120 working days recites that "many changes ... have been ... mutually agreed" and that the "specifications and plans will be used as a guide only." The agreed price was to be $35,500.
The bill alleged, among other things, that the "work was done in a slovenly and unworkmanlike manner by subcontractors of defendants' choice and the materials used were not according to specifications"; that "construction dragged on and was not completed in about 120 working days" (as required by the contract); and that in "many other respects, there was a deliberate ... departure ... from the requirements of the plans and specifications."
The case was referred to a master (to be heard with an action at law brought by the defendant Frank Capaldi against the present plaintiffs) to "find the facts and the subsidiary facts upon which his ultimate conclusions are based." Despite the terms of the order referring the cases
The master made the following findings, among others, (a) "that there was no substantial performance in good faith" by Frank Capaldi (specifying certain deficiencies); (b) that the payments made by the plaintiffs "were made promptly" and Frank Capaldi "was not justified in leaving the work which ... he did not complete" (specifying the work which he did not complete); (c) "that under the circumstances" the plaintiffs were "justified in calling off the contract and taking possession of the premises"; (d) that Frank Capaldi is "responsible for the ... reasonable costs ... of completing the work ... left undone" (specifying work in the aggregate sum of $2,397.26); (e) that the "list of defects [apparently referring to a table of defects stated in his recitals of the testimony] included above in detail are directly related to the failure of Frank Capaldi to build such of the house as he did build in a ... workmanlike manner and that the cost of repairing the same was" $5,160.80; (f) "that the value of the house had the contract been completed would have been" $35,500 and that "the value of the house as left by ... Capaldi" was
1. We need not consider those objections (now exceptions under Rule 90 of the Superior Court ) to the master's report which seek merely revisions in the master's recitals of the testimony, or which assert that particular findings had no support in the evidence. No transcript appears to have been taken by a stenographer selected or approved by the master before any evidence was introduced and summaries of evidence to determine "whether the evidence was sufficient in law to support a finding of fact" could not be obtained under Rule 90 for that purpose.
2. Various exceptions are directed to the issue, apparently much discussed before the master, whether the plaintiffs' payments under the contract were made promptly. The master has found that they were made promptly under the circumstances. Since there are no summaries of the evidence, obtained in compliance with Rule 90 (see Sheppard Envelope Co. v. Arcade Malleable Iron Co. 335 Mass. 180, 184-185), we cannot say on the present record that this conclusion was erroneous. There is thus no basis on this record for considering whether delays in payments by the plaintiffs excused any performance required of the defendant under the contract.
3. The defendant argues that the bill should be dismissed because the master's findings show a variance between the bill of complaint and the proof, in that the bill alleged misrepresentations by (or in behalf of) the defendant, leading the plaintiffs to make the contract, whereas the master found that these charges had not been sustained. The bill (designated as one for a declaratory judgment), however, also seeks (as already stated) a construction of the contract and a determination of the damages caused by the defendant's somewhat generally alleged
4. The defendant contends that the master's finding that the plaintiffs were "justified in calling off the contract" is inconsistent with his finding that the defendant "was not justified in leaving the job." Even if these findings are in fact inconsistent, the master has made definite findings with respect to the serious deficiencies of the defendant's work which justify charging the defendant with the damages caused by those deficiencies without regard to whether he stopped work wrongfully, leaving work undone and badly done, or was prevented from further performance by the plaintiffs' justified termination of the contract for cause. The materiality of the inconsistency, if one exists, has not been shown.
5. With respect to the issue of damages, the defendant filed various objections to the report, principally drawing attention to the inadequacy or absence of subsidiary findings. The matter of recommitting a master's report for more complete subsidiary findings is normally a matter within the discretion of the court which appointed him (see Black v. Parker Manuf. Co. 329 Mass. 105, 117-118). Although the master's subsidiary findings on damages are not as complete and clear as would be desirable, this is not a case (compare Turgeon v. Turgeon, 326 Mass. 384, 386) where a failure to make any subsidiary findings, touching relevant and vital issues of the case, requires recommittal or a new trial as a matter of law. Accordingly, we must limit our review of the case on the issue of damages to the question whether a proper decree was entered upon the basis of the findings in the master's report. See Zuckernik v. Jordan Marsh Co. 290 Mass. 151, 156; Dartmouth v. Silva, 325 Mass. 401, 403-404.
The report of the master shows on its face a basic error in computing damages. The master determined the principal amount of the damages to the plaintiffs to be $7,558.06, which he found to be the reasonable cost of completing the
The defendant argues that it was improper to include, as the cost of a defect to be cured, the $500 difference between (a) the cost of two General Electric oil burners and (b) the cost of one International oil burner actually furnished. The contract seems to call for only one "oil burner of General Electric, Lennox, Garwood or its equal." Although
The defendant's other exceptions and contentions relating to damages are not sufficiently presented by this record to require consideration.
6. The defendant's exceptions to certain rulings of law reported by the master are without merit. Assuming that the testimony, referred to in these rulings, was offered in relation to this bill in equity as well as with respect to the action at law heard by the master at the same time, we see no error in the rulings.
The master excluded expert testimony offered by the defendant. There is nothing in the record to show the alleged qualifications of the witness, and, therefore, we cannot pass upon the correctness of the master's ruling.
The master excluded evidence offered by the defendant that the plaintiffs did not carry their "own fire insurance ... [i]ncreasing the insurance as home progresses in construction," as the contract required. It is by no means clear that the somewhat indefinite language of the particular contract provision (compare the very specific terms of the contract clause considered in Parker and Adams, The A.I.A. Standard Contract Forms and the Law, 45-47)
Evidence offered by the defendant that he had a builder's license in Boston related only to the issue of misrepresentation, on which the master's findings were favorable to the defendant. Its materiality, even on the issue of misrepresentation, is not apparent on the record.
There is nothing in the record to show any impropriety in admitting in cross-examination pleadings in other litigation in which the plaintiffs were defendants and Frank Capaldi Construction Company was the plaintiff. The master here found that the parties to this contract were the plaintiffs and Frank Capaldi doing business as Frank Capaldi Construction Company. The present parties thus
7. The interlocutory decrees denying the motion to recommit the report to the master and confirming the master's report are affirmed. The final decree is to be modified by reducing the principal amount of the indebtedness of the defendant to the plaintiffs (as stated in paragraph 1 of the final decree) to $6,039.64
We discover no basis in the record for the action of the trial judge in the final decree in setting the principal amount of damages at $7,750 rather than at the figure (Item 1 above) set by the master.