Sheffield & Birmingham Coal, Iron & Railway Co. v. Gordon

after stating the case, delivered the . opinion of the court.

An interlocutory decree was entered in this case by consent, and the questions in issue arise upon exceptions to the report

“1. That the defences set up by the defendants are not sustained by the evidence;

“ 2. That the petitioners, Gordon, Strobel & Laureau, are entitled to be paid the contract price for their work and • material;

“3. That the sum of $57,808.12, with interest from the 18th day of September, 1888, is the amount due the inter-venors; and

“ 4. That the- intervenors have a lien upon the property described in their petition; and for grounds and reasons for such exceptions they assign the following :

“1st. Because the evidence in the case sustained the defencés set up by the defendants; and showed, 2d, that the work and materials, done and furnished by intervenors were not up to the requirement and guaranty of their contract, by which the value of the plant, as built and equipped, was worth sixty or seventy-five thousand dollars less than the con-, tract price; and, 3d, because.such report is contrary to the weight of testimony on each of the matters so reported.”

There are-two difficulties in the way of considering the case upon these exceptions.

(1) The exceptions themselves are too broad, and amount simply to a general denial of the facts and conclusions of the master. The first three are tó the finding of .the master that the defences are not sustained, that the petitioners are entitled to the contract price, and that the sum awarded is the amount due. In other words, they are general denials of the merits of the claim. The fourth is a denial of petitioners’ lien because the evidence sustained the defences, because the work was not up to the requirements of the contract, .and because the report was against the weight of testimony. This exception is scarcely more definite than the- other. There are no. exceptions here to the findings of the master, now assigned

Proper practice in equity requires that exceptions to the report of a master should point out specifically the errors upon which the party relies, not only that the opposite party may be apprised of what he has to meet, but that the master may know in what particular his report is objectionable, and may have an opportunity of correcting his errors or reconsidering his opinions. The court, too, ought not to be obliged to rehear the whole case upon the evidence, as the main object of a reference to a master is to lighten its labors in this particular. In the case of Dexter v. Arnold, 2 Sumner, 108, 125, an exception to a report of a master that he had stated and certified that there was due on a certain mortgage a certain ^sum when he ought to have reported that there was nothing ddé, was held by Mr. Justice - Story to be quite untenable. “ It is too loose and general in its terms,” said he, “ and points to no particulars. It comes to nothing, unless specific errors are shown in the report; and those errors, if they exist, should have been brought directly to the view of the court in the form of the exception itself. At present it amounts only to a general assignment of errors, and the argument on this exception has shown none.”

The same rule was laid down in Story v. Livingston, 13 Pet. 359 , 366, wherein the exceptions to the report of a master, were held to be too general, indicating nothing but dissatisfaction with the entire report; and furnishing no specific grounds, as they should have done, wherein the defendant had suffered any wrong, or as to which of his rights had been disregarded. The court observed that “ exceptions to a report of a master must state, article by article, those parts of the report which are intended to be excepted to.” The court cited with ap

So in Greene v. Bishop, 1 Cliff. 186 , 191, Mr. Justice Clifford held that “ general allegations, of error, without pointing to any particulars, are clearly insufficient, for the reason that, if allowable, the losing party might always compel the court to hear the case anew, and should that practice prevail, references such as made in this case would become both useless and burdensome, as they would only operate to promote delay and increase the expenses of litigation, without relieving the court from any of the labor of the trial or ever accomplishing anything of value to either party.” See also Stanton v. Alabama &c. Railroad, 2 Woods, 506 , 518.

That this is not a novel practice in Alabama is evident from a number of decisions of the Supreme Court of that State affirming the general doctrine in the most specific terms. Alexander v. Alexander, 8 Alabama, 797; Royall's Administrator v. McKenzie, 25 Alabama, 363; O'Reilly v. Brady, 28 Alabama, 530; Mahone v. Williams, 39 Alabama, 202. See also White v. Hampton, 10 Iowa, 238 ; Reed v. Jones, 15 Wisconsin, 40; Smalley v. Corliss, 37 Vermont, 486, 492. Cases are referred to a master, not on account of his presumed superior wisdom, but to economize the time and labor of the court, and as exceptions are usually filed to his report, if they are so general as to require a rehearing of the entire case, there is really nothing saved by a reference.

It is true that if the report of the master is clearly erroneous in any particular, it is within the discretion of the court to • correct the error, but we see no- occasion for exercising such discretion in this case. It would appear from the report and the recital in the final decree of the court that the main contest was over the construction of a certain guaranty in the contract that “ all the work ” wAs “ to be done in good and workmanlike manner and of suitable material, and each part to be adequate in design, strength, capacity, and workman

The master-and the court agreed in holding that the inter-venors did not guarantee in their contract that the work or plant as a vjhoh should be adequate in design, strength, capacity, and workmanship for the purposes intended and specified, and that, as an acceptance pf the work bi-weekly as it progressed was shown, and a further acceptance of the whole on completion of the. contract was made by the superintendent in compliance with the terms of the contract, such .acceptance in the.absence of fraud or mistake on the part of the superintendent was conclusive - upon the company. ¥e see no reason to question the correctness of -this conclusion. It is difficult to see what effect- should be given the acceptance of the work by the superintendent, if not to foreclose the-parties from thereafter claiming that the contract had not been performed according to its terms. Martinsburg &c. Railroad v. March, 114 U. S. 549 . There was, it is true, a proposal for an additional.remuneration of $20,000 to guarantee a certain

(2) There is another objection, however, to our examination of the facts'in this case. The order referring the case to the special master, though minute in its details, did not require him to send up the testimony ; neither does he purport to do this in his report; ' and while a number of depositions taken before him are filed, there is nothing to indicate that these were all the testimony in the case. He finds in this connection that the defences set up by the defendants are not sustained by the evidence, and that the petitioners, Gordon, Strobel, and Laureau, are entitled to be paid the contract price for the material.

In the absence of any certificate that the entire evidence taken by the master was sent up with his report, it is impossible to impeach his conclusion in this particular. Scotten v. Sutter, 37 Michigan, 526; Nay v. Byers, 13 Indiana, 412; Fellenzer v. Van Valzah, 95 Indiana, 128. There is no presumption that all the testimony was sent up.

(3) A further objection is made that the proofs contained in the recoi’d do not disclose the filing of the claim of lien in the office of the judge of probate of Colbert County, as required by the statute. The master, however, finds that on the 18th of January, 1889, a verified statement of the amount claimed to be due on this contract was filed with the judge of probate of Colbert County in substantial conformity with section 3022 of the Code of Alabama of 1886, and there is no evidence to

Upon the whole, we think the decree of the court below was correct, and it is, therefore,

Affirmed.