Cunningham v. Worcester Five Cents Savings Bank

Carroll, J. The plaintiffs made a contract with Francis J. Yates to build a house. The plaintiffs borrowed from the defendant savings bank $4,800 and gave a note for that amount, secured by a mortgage, and left with the bank an order directing it to “pay to the order of Francis J. Yates, on architect’s order and authorization by James Cunningham, $4,800.” The bank paid $1,600 on the joint order, in writing, of Cunningham and the architect, and later it made a payment of $2,000 to Yates on the written order of the architect, not authorized, in writing, by Cunningham but orally, by him. The case was referred to a master. He found that Yates demanded of Cunningham the balance due on the contract, and Cunningham said, “Go to the architect and if he says it is all — 363 — right, you can get your money.” The architect gave Yates a certificate, he presented it at the bank and was paid $2,000. Under the agreement filed with the bank, Cunningham could have authorized Yates to receive the money, without any writing to that effect or notification. With the written order, all that it was necessary for the bank to know was that Yates was authorized by Cunningham to receive the amount stated. The master found that Yates was so authorized. The evidence is not reported and we cannot disturb the finding. O’Brien v. Murphy, 189 Mass. 353. The master’s first draft report was submitted to counsel on October 2, 1914. Certain requests of the plaintiffs were considered by the master and dealt with in his final draft, which was submitted to counsel on November 9, 1914. When this report was submitted, counsel were notified that five days were allowed to bring in written objections. Within the five days objections were filed and, at the same time, requests for rulings were filed by the plaintiffs. The master refused to consider these requests. There was no error in refusing them. They were not asked for at the proper time. As was said by Hammond, J., in Graves v. Hicks, 194 Mass. 524, when considering Rule 45 of the Superior Court, providing that an exception, to be allowed, must be taken at the time the opinion, ruling, direction or judgment was given, “we think that the principle should be applied to orders in equity.” The plaintiffs then filed exceptions fourteen to sixteen. Exception fourteen was properly overruled. It was based on the master’s refusal to grant the requests above referred to. The fifteenth exception,- in effect, was that the report was incomplete. This was a matter to be passed upon by the judge, on proper motion, and the motion of the plaintiffs to this effect was later considered by him. This exception was properly overruled. There was no error in overruling the sixteenth exception. The plaintiffs then filed seven motions, some of which were allowed. The judge refused the motions, (1) to recommit the report, (2) to vacate the report and commit it to another master, (3) to report the evidence, (4) to strike out from draft report, (5) for further hearing. These were all matters within the discretion of the court and we see nothing wrong in the decision. — 364 — Bakshian v. Hassanoff, 186 Mass. 255. Parker v. Nickerson, 137 Mass. 487. Henderson v. Foster, 182 Mass. 447. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391. Ginn v. Almy, 212 Mass. 486, 496. To these rulings of the judge the plaintiffs filed exceptions, they also appealed. No final decree could be entered when exceptions were pending, and we treat the form of decree as an order for a decree. Exceptions overruled. Order for a decree dismissing plaintiffs’ bill affirmed.