ROGERS v. ABBOTT

Contract, Implied, Validity. Plumber. Evidence, Judicial notice. Municipal Corporations, By-laws and ordinances.

An action upon an account annexed for plumber's labor and plumber's material alleged to have been furnished by the plaintiff to the defendant was heard by a judge without a jury upon a report by an auditor and testimony by the defendant. The auditor's report did not contain a report of the evidence, but contained findings favorable to the plaintiff. The defendant contended that he made no agreement with the plaintiff, but that he made one with a third party who was not a master plumber and who employed the plaintiff, and that the third party and the plaintiff procured a permit to do the work in the name of one who was a master plumber, which the defendant contended was illegal and fraudulent as in violation of R. L. c. 103, §§ 1, 8. There was no evidence of a municipal ordinance which in the regulation of plumbing required that a permit be obtained by master plumbers or others to do plumbing work; nor was there evidence that either the plaintiff or the third party was not licensed as a journeyman plumber or that either of them employed the other or employed other journeymen plumbers to do work for the defendant, or that they did not do the work as copartners as they legally might under R. L. c. 103, §§ 1, 8. Held, that a finding for the plaintiff was warranted.

No exception lies to the refusal by a judge, hearing an action at law without a jury, to make requested findings of fact or to make rulings of law which are inapplicable to the facts found by him.

PIERCE, J.

The evidence in this case, offered by the auditor's report and by the testimony of the defendant, on the merits warranted the finding by the judge that there was no fraud of which the defendant could complain and that the plaintiff was entitled to judgment in the amount found by the auditor with interest from the date of the writ. G.L.c. 221, § 56. Crocker v. Lowell, 231 Mass. 249.

We are also of opinion on the facts shown by the record that the acts of the plaintiff were not illegal as being in violation of R. L. c. 103, §§ 1, 8. The record does not set out or refer specifically to any ordinance of the city of Boston which, in the regulation of plumbing, requires that a permit should be obtained by master plumbers or others to do plumbing work; and we cannot take judicial notice of such an ordinance or of its provisions. Mahar v. Steuer, 170 Mass. 454. Attorney General v. McCabe, 172 Mass. 417. O'Brien v. Woburn, 184 Mass. 598.

There is nothing in the record to show that the plaintiff Rogers and his associate, MacFadyen, were not both licensed as journeymen plumbers; there is no evidence that either of them employed the other or employed other journeymen plumbers to assist in doing the work which one or both of them did for the defendant; and no evidence that they did not do the work themselves as copartners, as they lawfully might under R. L. c. 103, §§ 1, 8. Barriere v. Depatie, 219 Mass. 33. Burke v. Holyoke Board of Health, 219 Mass. 219. Commonwealth v. McCarthy, 225 Mass. 192, 195. Chubbuck v. Hayward, 217 Mass. 134.

There was no error in refusing to make the requested findings of fact, James Elgar, Inc. v. Newhall, 235 Mass. 373, or to make the rulings of law, which were inapplicable to the facts found by the auditor and by the court. It results that the exceptions must be overruled.

Exceptions overruled.