Reid v. Doherty

WAIT, J. This case comes before us upon an appeal from an order of an appellate division dismissing a report of rulings and refusals to rule made by a trial Judge. The trial Judge found that the plaintiff had waived his right to claim damages for breach of a contract to deliver stock; and the chief contention of the appellant is that there was error in the finding in that it was not supported by the evidence. The contention is not open to him. The only matters brought before the appellate division by the report were the propriety of rulings with regard to the interpretation of the contract and the legal effect of failure on the part of the defendant to deliver stock at the time fixed by the contract. All the requests were rendered immaterial by the finding of waiver. The question of waiver is one of fact. Fox v. Harding, 7 Cush. 516, 520; Farlow v. Ellis, 15 Gray, 229, 231, 232; Donovan Motor Car Co. v. Niles, 246 Mass. 106, 107, 140 N.E. 304. Its determination was for the trial Judge; and there is no appeal from his finding of fact. If the plaintiff desired to raise the question of law, whether the evidence would support a finding of waiver, he should have presented a request for a ruling and asked a report to that end. This he did not do. Neither by request for ruling nor motion for finding in regard to waiver did he obtain a determination of law distinct from a finding of fact. The law is settled that in such a case there is no ground for exception, and nothing for an appellate tribunal to pass upon. Keohane, Petitioner, 179 Mass. 69, 60 N.E. 406; Richards v. Appley, 187 Mass. 521, 73 N.E. 555; New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 154 N.E. 263. The order of the appellate division was correct; and it is Affirmed.