Opinion
October 16, 1973.
Francis V. Matera ( John W. DiNicola with him) for the plaintiff.
James P. McAllister, Assistant Attorney General ( Robert H. Quinn, Attorney General, with him) for the Commonwealth.
This petition under G.L.c. 258 is to recover payment for certain dredging work under a contract with the Commonwealth. The case was heard on agreed facts and the petitioner appeals from a "finding" for the Commonwealth. The finding was equivalent to an order for judgment. Woodworth v. Commonwealth, 353 Mass. 229, 229-230 (1967). It appears from "Findings and Rulings" entered by the trial judge that the order for judgment was based primarily on his misunderstanding of the agreed facts, wherein it appears that the order eliminating the work for which payment is sought, and relied upon by the trial judge as excusing payment therefor, had been rescinded and the petitioner directed to perform the work. Nor is there any basis in the agreed facts for the "finding" that the petitioner had accepted final payment under the contract and thereby released the Commonwealth from the present claim. The order for judgment is reversed, and in accordance with the agreed facts judgment is to be entered for the petitioner in the amount of $61,041.12 with interest and costs thereon.
So ordered.