There is no report of the evidence before the auditor in the record so that "the general finding of the auditor must stand." J.W. Grady Co. v. Herrick, 288 Mass. 304, 310. Furthermore the plaintiff offered no evidence before the judge to contradict the findings of the auditor.
There was no error in denying the motions to recommit. Tobin v. Kells, 207 Mass. 304, 309. J.W. Grady Co. v. Herrick, 288 Mass. 304, 310. Rosenblum v. Ginis, 297 Mass. 493, 496. The auditor, after making subsidiary findings in considerable detail, summarized these findings in each case, and upon them based his general findings in that particular case.
In the absence of a report of the evidence, the general finding of the auditor must stand. J.W. Grady Co. v. Herrick, 288 Mass. 304, 310. Tobin v. Kells, 207 Mass. 304.
Neither contention can be sustained." (See, also, Rodier v. Klines Inc., (1932) 226 Mo. App. 474 [ 47 S.W.2d 230]; Grady Co. v. Herrick, (1934) 288 Mass. 304 [ 192 N.E. 748]; Kirshenbaum v. General Outdoor Advertising Co., (1932) 258 N.Y. 489 [ 180 N.E. 245, 84 A.L.R. 645]; Weirick v. Hamm Realty Co., (1929) 179 Minn. 25 [ 228 N.W. 175]; Day v. Mill-Owners' Mut. Fire Ins. Co. of Iowa, (1886) 70 Iowa, 710 [29 N.W. 443]; Buchanan Smock Lumber Co. v. East Jersey Coast Water Co., (1904) 71 N.J.L. 350 [59 A. 31].)
Cook v. Farm Serv. Stores, Inc. 301 Mass. 564, 567. "If the . . . [defendant] desired to test the conclusions of the auditor by comparison with the evidence or further subsidiary findings, proper procedure would have been to file a motion to recommit the report with instructions." J.W. Grady Co. v. Herrick, 288 Mass. 304, 310. This was not done. Since the auditor's conclusion has not been shown to be improper, the defendant's motions to strike were properly denied. The auditor's findings on this issue were as follows: "The testimony disclosed, and I find that one other method could have been used, namely the so called pin and feather method, which consisted of making small holes in the ramp, and inserting of wedges, for the purpose of breaking up the concrete in said ramp. I find that this method would have taken eight or ten times the time used by the steel ball for the purpose of breaking up said concrete, and that the cost would have been eight or ten times the cost of using the steel ball, as it was used, so that it would have been impractical to have the pin and feather method, because of the time element, as set out by the Commonwealth in its contract and specifications."
The present case is clearly an instance in which recommittal of the report to the auditor for clarification and amplification of the findings would be within the discretion of a judge of the Superior Court, before submitting the case to another jury. See W.R. Grace Co. v. National Wholesale Grocery Co. Inc. 251 Mass. 251, 253; J.W. Grady Co. v. Herrick, 288 Mass. 304, 310; Staples Coal Co. v. Ucello, 333 Mass. 464, 467. See also Lombardi v. Bailey, 336 Mass. 587, 595-596.
It is difficult to see how the defendant can be held liable to any of the lessee plaintiffs, or to the plaintiffs whose material was in the lessees' possession, in view of terms of the leases that the lessor shall not be held liable for any damage done or occasioned from plumbing, water, steam, or other pipes, or the bursting, leaking or running of any pipes. Fera v. Child, 115 Mass. 32. Henry H. Tuttle Co. v. Phipps, 219 Mass. 474. J.W. Grady Co. v. Herrick, 288 Mass. 304. American Sandpaper Co. v. Waltham Factories, Inc. 299 Mass. 369. Malden Knitting Mills v. United States Rubber Co. 301 Mass. 229.
Tuttle v. Metz Co. 229 Mass. 272. Banionis v. Lake, 289 Mass. 146. Sherman v. Sidman, 300 Mass. 102. Zlotnick v. McNamara, 301 Mass. 224. J.P. O'Connell Co. v. Maryland Casualty Co. 302 Mass. 232. The finding of the judge that the notes were given by the defendant and accepted by the plaintiffs in satisfaction and extinguishment of the original indebtedness was warranted. J.W. Grady Co. v. Herrick, 288 Mass. 304. Cook v. Farm Service Stores, Inc. 301 Mass. 564. The defendant never made any payments upon the original indebtedness.
Brooks v. Davis, 294 Mass. 236. Savin v. Block, 297 Mass. 487. Knapp v. Amero, 298 Mass. 517. There was nothing adduced at the trial that tended to contradict, weaken or shake this conclusion. Wakefield v. American Surety Co. 209 Mass. 173. J.W. Grady Co. v. Herrick, 288 Mass. 304. Conte v. Mizzoni, 298 Mass. 463. Cook v. Farm Service Stores, Inc. 301 Mass. 564. This bill of exceptions purports to contain an exception saved to the refusal of a judge, other than the one who presided at the trial, to strike out the finding of the auditor that the piazza railing was in the control of the tenant.
The drawing of such inferences is a question of fact, and in actions of law the decision of the trial judge is not to be reversed if there is any evidence to support it. Standard Oil Co. of New York v. Malaguti, 269 Mass. 126. Ballou v. Fitzpatrick, 283 Mass. 336. Bianco v. Ashley, 284 Mass. 20. J.W. Grady Co. v. Herrick, 288 Mass. 304. Brooks v. Davis, 294 Mass. 236. Rosenblum v. Ginis, 297 Mass. 493. United States Fidelity Guaranty Co. v. English Construction Co. 303 Mass. 105, 109.