Practice, Civil, Amendment, Referee, Appeal. Reference and Referee. Pleading, Civil.
It is not an improper exercise of discretion for a judge to refuse to allow a defendant in an action of contract to amend his answer by setting up the statute of frauds after the case by agreement of parties has been referred to a referee, before whom the question was not raised, and the referee has filed a report containing no allusion to such a defense.
Where in an action of contract the terms of a reference without limitation by agreement of parties are that judgment upon the referee's report is "to be final and execution to issue accordingly," the decision of the referee is final upon all questions of law and fact, unless some question voluntarily is reserved by the referee for revision by the court where the action is pending.
Where an action of contract has been referred to a referee without any limitation by agreement of parties, all defects in the pleadings are waived, and, it seems, that the defendant can urge as a defense before the referee non-compliance with the statute of frauds, although such non-compliance is not set up in the answer. By BRALEY, J.
The report of one to whom by agreement of parties an action of contract was referred without any limitation, judgment on the report "to be final," contained the following language: "Under the terms of the reference, my findings are to be final, but this I understand to mean that my findings are not to be final if upon the facts reported they are manifestly erroneous, and therefore I deem it only fair to the defendant to go more fully into the defendant's contention than I should if I were submitting my report as auditor." Following the above passage was a detailed statement of the contention made by the defendant before the referee as to what conclusions of fact should be reached upon the evidence submitted, and a statement by the referee of his reasons for not reaching such conclusions. Held, that the referee did not in his report reserve any question for revision by the court to which his report was made.
Whether, on an appeal to this court from the granting of a motion for judgment upon the report of a referee to whom an action of contract has been referred by agreement of parties without any limitation, judgment upon the report "to be final," the report itself is a part of the record, here was not decided, since it appeared that the referee in his report reserved no question for revision by the court to which his report was made, and therefore no question was before this court.
BRALEY, J.
While this action was pending, the parties agreed to refer the controversy under a rule of court to an arbitrator, upon whose report judgment should be final. The award being in favor of the plaintiff, he is entitled to judgment, unless the defendant's contention that his oral acceptance of the order was within R.L.c. 74, § 1, cl. 2, is sustained.
If, after the reference and the coming in of the report, the case is treated as still governed by the rules of law which would have controlled had it been tried in court, this defense was not open because not pleaded. R.L.c. 173, § 27. Nor is the refusal to allow an amendment pleading the statute reviewable, as the record fails to show that the denial was not discretionary. Friedenwald Co. v. Warren, 195 Mass. 432, 433.
But the defendant has mistaken the effect of the reference. The plaintiff's claim was submitted without any limitation to the tribunal which the parties selected, whose decision was final as to all questions of law and fact, unless voluntarily reserved by the arbitrator for revision by the court where the case still remained. Seavey v. Beckler, 132 Mass. 203, 204. It was open to the defendant to urge this defense before him if it was applicable, although not pleaded, as the submission operated as a waiver of all defects or omissions in the pleadings. Forseth v. Shaw, 10 Mass. 253. Ames v. Stevens, 120 Mass. 218.
It is further contended that this question was reserved, because the arbitrator states that his findings are not to be final if upon the facts reported they are manifestly erroneous. But he also says in this connection that he makes his report more full by a discussion which follows of the questions of fact as presented by the defendant. In so doing there is nothing to show that he did not intend to rest the award upon his own judgment of the law, as the amplification appears to have been merely for the purpose of attempting to satisfy the defendant that his view of the evidence was not well founded. Rogers v. Mayer, 151 Mass. 279. Danvers v. Commonwealth, 184 Mass. 502. The award, being consistent with this purpose, cannot be held to have been intended as leaving open questions of law to be decided. Smith v. Boston Maine Railroad, 16 Gray, 521. The report, moreover, while stating fully the grounds of the award, neither makes any reference to this defense nor refers specifically any questions of law to the court for the purpose of revision. Ellicott v. Coffin, 106 Mass. 365. If the report, therefore, is considered a part of the record no error of law appears. Electric Supply Maintenance Co. v. Conway Electric Light Power Co. 186 Mass. 449, 450, 451.
Judgment affirmed.