Opinion
October 29, 1964.
William S. Monahan for the defendant.
Francis J. DiMento for the plaintiff.
Exceptions overruled. In an action of contract in two counts, one on an account annexed and the other on an express agreement for services as an accountant to the defendant, the judge, sitting without jury, made a general finding for the plaintiff, and, subject to exception, denied the defendant's request which read, "The evidence requires a finding for the defendant because: . . . [of six propositions of mixed law and fact designated (a) through (f)]." The anomalous request was properly denied. Viewed as purely a request for a ruling of law, it could not be granted since the defendant concedes, and the record shows, that a finding for the plaintiff on the first count was warranted. Further, the request did not specifically refer to each count in the declaration, and therefore could not be granted unless the defendant was entitled to prevail on both counts. Shumway v. Home Fire Marine Ins. Co. 301 Mass. 391, 396. In so far as the request could be construed as a request for findings of fact, the judge was not required to act upon it. Crowninshield Shipbuilding Co. v. Jackman, 283 Mass. 21, 22. Strachan v. Prudential Ins. Co. 321 Mass. 507, 508. In these circumstances, the rule in John Hetherington Sons, Ltd. v. William First Co. 210 Mass. 8, 19, relied upon by the defendant, is inapplicable.