3. Courts 55-Salary of probation officer, of the associate justices, is empowered by G. lawfully fixed by general order of justices until changed by court and concurred in by county commissioners.

Salary of probation officer was lawfully fixed by general order of justices fixing salaries of all male probation officers under G. L. c. 276, § 83, until changed by court and concurred in by county commissioners, who have nothing to do with number of officers that had been or might be thereafter appointed.

4. Courts 55-Salary, established for all probation officers appointed, fixed salary for each appointee and subsequent appointees. Establishment of salary for all probation officers appointed under G. L. c. 276, § 83, fixed salary for each appointee, and separate action as to salary in subsequent appointments was unnecessary.

5. Courts 55-On approval by mayor and council of appointment of probation officer, his salary is payable on approval of vouchers and may be recovered in action at law.

Appointment of petitioner as probation officer at a fixed salary under G. L. c. 276, § 83, having been approved by mayor and council, and petitioner having entered on performance of his duties, his salary was payable by county on vouchers approved by chief justice of municipal court in view of G. L. c. 35, §§ 1, 13, 14, which may be recovered in an action at law, and a subsequent disapproval by council of salary does not affect either his title to office or right to salary.

6. Mandamus 3 (4)-Mandamus by probation officer to compel mayor and council to decide salary not proper remedy.

A probation officer validly appointed under G. L. c. 276, § 83, whose salary has been fixed and approved by mayor and council, but subsequently disapproved by council, cannot bring mandamus to compel mayor and council to decide salary, but may recover same in an action

at law.

L. c. 276, § 83, to appoint probation officers from time to time as may be deemed necessary, the appointee to hold office during the pleasure of the court. The compensation is to be fixed by the court subject to the concurrence of the county commissioners, which shall be paid by the county on vouchers approved by the chief justice. The justices acting under the statute determined on March 28, 1924, that the salaries of all deputy male probation officers shall be $2,800 a year, subject to concurrent action by the county commissioners, whose powers in so far as material under the provisions of G. L. c. 34, § 4, are conferred on the mayor and city council. The action of the court having been communicated to the city council, it voted on April 28, 1924, that salaries of deputy male probation officers and assistant probation officers be approved for $2,800, and this action of the council was approved by the mayor on May 2, 1924. It is of no consequence that the mayor and council did not meet in joint session to consider and pass upon the question. A direct approval only was required, and the action taken was sufficient. Butterworth v. Western Assurance Co., 132 Mass. 489, 494.

[2-6] The power of approval or of disapproval relates, however, solely to the amount of salary. It does not embrace the character, or qualifications of appointees, which is, left to the discretion of the court. The salary therefore was lawfully fixed by the general order until the court changed it, and the county commissioners, who had nothing to do with the number that had been, or who might thereafter be appointed, concurred in the change. G. L. c. 276, § 83. The establishment of the salary for all appointees also fixed the salary for each appointee and separate ac

Report from Supreme Judicial Court, Suf- tion as to salary in subsequent appointments folk County.

Mandamus by Oswald J. McCourt against the Mayor and City Council of Boston, John

A. Donaghue, and others, to compel respondents to decide what salary shall be paid to petitioner. On report for determination by

full court. Petition dismissed.

Wilfred Bolster, of Boston, for petitioner. E. Mark Sullivan, Corp. Counsel, and Samuel Silverman, Asst. Corp. Counsel, both of Boston, for respondents.

was unnecessary. The petitioner's appointment December 4, 1924, as probation officer

to become effective forthwith at an annual

salary of $2,800 having been valid, the salapproved by the chief justice. Catheron v. ary was payable by the county on vouchers County of Suffolk, 227 Mass. 598, 116 N. E. 885, G. L. c. 276, § 83. The notice of his appointment transmitted by the chief justice to the city clerk, and the action of the city council December 15, 1924, disapproving it, do not affect the petitioner's title to the office and his right to the salary. But the petiBRALEY, J. [1] This is a petition for a tion alleges, the demurrer admits, and the writ of mandamus to compel the respondents, single justice found that the petitioner acwho are respectively the mayor and members cepted, has performed, and is now performof the city council of Boston, to meet, consid- ing his official duties. If he obtains the necer and decide, what salary not exceeding $2,- essary vouchers his salary must be paid by 800 shall be paid to the petitioner for serv- the county and is recoverable in an action at ices as a duly appointed probation officer of law. Ransom v. Boston, 192 Mass. 299, 78 the municipal court of the city. The chief N. E. 481, 7 Ann. Cas. 733; Hill v. Mayor justice of the court, subject to the approval of Boston, 193 Mass. 569, 79 N. E. 825; Cath

(149 N.E.)

eron v. County of Suffolk, supra; G. L. c. is alleged the labor was performed and the 35, §§ 1, 13, 14. The petitioner accordingly materials were furnished. has mistaken his remedy, and the petition must be dismissed. Murray v. Stevens, 110 Mass. 95.

So ordered.

MURPHY v. MITCHELL. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 24, 1925.)

1. Appeal and error 1017-Findings of auditor must stand, where rule provided they should be final.

Where case was referred to auditor under stipulation and rule that his findings of fact should be final, facts found by him must stand. 2. Work and labor 10-Where parties mistakenly supposed work was performed under binding contract, contract to pay therefor will be implied.

Where parties were mutually mistaken in supposing they had binding contract, and labor and materials were furnished at defendant's request, a contract was implied by defendant to pay for value of labor and materials.

3. Work and labor 15-Use of cheaper materials by plaintiff held not to prevent recov

ery.

Where there was no express contract for alteration of defendant's building, but implied contract by him to pay for value of labor and materials thereon, fact that plaintiff, to save expense, used cheaper materials, which could not have been allowed if forbidden by specifications, did not preclude his recovery for value of work done; especially where defendant was acquainted with character and progress of the

work.

Appeal and Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action of contract by James H. Murphy against Byron R. Mitchell. From a decree allowing an amendment to the declaration, and from an order for judgment for plaintiff, defendant appeals and excepts. Exceptions overruled; orders appealed from af

firmed.

R. J. Cram, of Boston, for appellee.
G. R. Farnum, of Boston, for appellant.

CROSBY, J. This is an action to recover an alleged balance of $2,649.17 for labor performed and materials furnished in the alteration of a certain building belonging to the defendant in the city of Boston. The case was referred to an auditor under a stipulation and rule that his findings of fact should be final.

The case was tried before the auditor on a substituted declaration consisting of two counts, the first on account annexed, and the second on special contract under which it

It appears from the auditor's report that, on April 10, 1923, by written contract the plaintiff agreed to remodel and reconstruct a certain building belonging to the defendant in accordance with plans and specifications to be furnished by the latter, for which he was to pay the sum of $4,000. The report recites: The plaintiff testified that certain plans and specifications, previously used in the remodeling of another building of the defendant, were furnished to him; that the building department of the city refused to issue a permit on these plans and specifications, and stated that a new set would have to be filed before a permit could be issued; that the plaintiff made new plans, but they were not satisfactory to the department and a permit was refused; that the defendant was notified by the plaintiff of such refusal; that the plaintiff suggested to the defendant that one Smith, an architect, be employed, to which the defendant agreed; that Smith prepared new plans and specifications, which were approved by the department, and that they governed the contract and were constantly on the work.

It is further recited in the report: The defendant testified that he gave the old plans and specifications to the plaintiff, who said he would do the work for $4,000 if he (the plaintiff) could furnish the plans; that the defendant accepted the offer; that the first time he ever saw the plans drawn by Smith was in October, when the work was completed; and that he had never seen the specifications prepared by Smith, but assumed all the time that the old plans and specifications previously used in the reconstruction of another building and given by him to the plaintiff governed the work; and that it was a week or ten days before the contract was signed when the plaintiff told him he would have to get new plans drawn by an architect.

Upon the foregoing and other testimony the auditor finds that there was never any express or formal contract entered into between the parties, "that their minds never met, as each had in mind something different from the oth

er." He also found that the defendant admitted he did not furnish plans by which the work was to be done, although the contract signed by the parties so provides; that the plaintiff admitted when the job could be "skinned" to save expense it was done. This admission the auditor interprets as meaning "that where a corner could be turned, or specifications 'got by,' the inspector permitting, that this was done." The auditor further found that the defendant was on the job frequently enough to acquaint himself with the character and progress of the work, and admitted assenting to the failure to encase in cement the Lally columns which the inspector passed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"The law implies an obligation to pay for what has been done and furnished under such circumstances, and the defendant, upon whose property the work was done, has no right to say that it is not to be paid for."

The ultimate finding of the auditor was Mass. 247 at page 249, 88 N. E. 835, 26 L. R. that the total claim of the plaintiff, according A. (N. S.) 810: to his account annexed, amounted to $6,297.96; that he had been paid $3,648.79; and that a further deduction of $884.70 should be made, leaving a balance of $1,764.47, which the plaintiff was entitled to recover on an implied contract as the value of his labor and materials furnished. The evidence before the auditor is not reported, and we are unable to say that his finding is unwarranted.

See, also, Vickery v. Ritchie, 207 Mass. 318, 93 N. E. 578; Lonnqvist v. Lammi, 240 Mass. 371, 134 N. E. 255.

[3] The court rightly ruled that, in view of the facts found by the auditor, the law as stated in Smedley v. Walden, 246 Mass. 393,

After the filing of the report, the case was heard by a judge of the superior court, who ruled that the plaintiff could not recover on the pleadings, but as the case was fully cov-141 N. E. 281, was not applicable, as there was ered by the auditor's report he might amend his declaration by adding a count upon a quantum meruit; and that upon the filing of such an amendment, the plaintiff's motion for the entry of judgment on the report should be allowed. The amendment having been filed and allowed, judgment was entered as ordered. The defendant appealed from the order allowing the amendment to the declaration, and from the order for judgment, and excepted to the refusal of the court to grant his requests and to the order for judgment on the report.

[1] The facts found by the auditor, including the fact that there was no express contract between the parties, and that the fair cash value of the labor and materials furnished under an implied contract was the sum found, must stand, as the rule provided that such findings should be final.

no express contract respecting the manner in
which the work was to be performed. If the
plaintiff to save expense used cheaper mate-
rials that he should have in certain parts of
the work, which could not have been allowed
if forbidden by specifications, he is not pre-
cluded from recovery for the value of the
work done, especially as it is found that the
defendant was "on the job frequently enough
to acquaint himself
[its]
character and progress."

with

We perceive no inconsistency in the findings of fact made by the auditor. It is plain from what has been said that the defendant's requests for rulings could not properly have been given.

[2] The contention of the defendant that he is not liable for the labor performed and materials furnished because the plaintiff intentionally disregarded the plans and specifications cannot be sustained; the auditor has found that the parties never mutually agreed either upon the original plans and specifica-. tions or those prepared by Smith. In these circumstances the work was performed without any plans or specifications whatever. The plaintiff and the defendant were mutually mistaken in supposing that they had made a binding contract. Their minds never met in any agreement respecting the details of the alterations to be made. The labor and materials were furnished at the defendant's

request and for his benefit. It is plain from the findings that the law implies a contract on the part of the defendant to pay for the value of the labor and materials. The fact that the parties mistakenly supposed that the work was performed in accordance with plans and specifications does not prevent this implication. Both parties understood the work was to be paid for. Their mutual mistake left them with no plans or specifications under which the work was to be performed or by which their respective rights and liabilities could be determined. It was said by Chief Justice Knowlton in Vickery v. Ritchie, 202

Exceptions overruled.

Orders appealed from affirmed.

Petition of BULLOCK.

(Supreme Judicial Court of Massachusetts. Middlesex. Nov. 25, 1925.)

Exceptions, bill of 55 (3)—Amendment to petition to establish truth of exceptions not permissible.

No amendment to a petition to establish truth of exceptions is permissible.

2. Appeal and error 117-No appeal lies from finding that exceptions were immaterial, frivolous, and intended for delay.

Under G. L. c. 231, § 116, bill of exceptions

relating to interlocutory matter may be found and adjudged to be immaterial, frivolous, and intended for delay, and no appeal lies therefrom.

3. Exceptions, bill of 51-Judge bound to consider exceptions and allow them, if found conformable to truth.

Where exceptions were presented under G. L. c. 231, § 113, it was judge's duty to consider and allow them if found conformable to truth, mere fact that they had been found and adjuged by him to be immaterial, frivolous, and intended for delay being no reason why they should not be allowed, if otherwise proper in form and conformable to truth.

(149 N.E.)

4. Exceptions, bill of 55(1)—Order disal-hearing that the fact was that the exceptions lowing exceptions entered nunc pro tunc held not to deprive petitioner of right to file petition to establish truth of exceptions.

Where, after exceptions were filed but before consideration thereof, motion to dismiss them under G. L. c. 231, § 116, was allowed on May 29, and from order thereof petitioner appealed and later presented exceptions under section 113, order of judge on June 20, that disallowance of exceptions should be entered nunc pro tunc as of May 29, held not to deprive petitioner of right to file petition to establish truth thereof under section 117 and rule 6 of the Supreme Judicial Court.

5. Exceptions, bill of 55(2)-Petition to establish exceptions held seasonably filed.

Where order on June 20, that disallowance of exceptions should be entered nunc pro tunc as of May 29, did not deprive petitioner of right to file petition to establish truth of exceptions under G. L. c. 231, § 117, and rule 6 of Supreme Judicial Court, petition was seasonably filed after June 20, when order of disallowance was in fact entered.

6. Attachment

192-Decree directing plaintiff to file bond and ordering dissolution of attachment held not erroneous.

Where, during proceedings to reduce attachment, plaintiff gave partial release of attachment in return for bond in named sum, delivered to him without approval of surety on bond as required by G. L. c. 223, § 120 et seq., and thereafter defendants proffered proper bond and prayed for order that plaintiff deliver first bond, and that on filing of second bond attachment be dissolved, interlocutory decree requiring plaintiff to file first bond with clerk of court and ordering dissolution of attachment on filing of both bonds held, in view of section 114, without error.

7. Appeal and error 900-Every presumption of fact made in favor of judge's action. Every presumption of fact is to be made in favor of action of the judge.

were filed on April 6, 1925. This motion relates to a mere clerical error and is allowed, although no amendment to a petition to establish the truth of exceptions is permissible. Freedman, Petitioner, 222 Mass. 179, 181, 110 N. E. 161; Barnett, Petitioner, 240 Mass. 228, 133 N. E. 111; Reynolds, Petitioner, 251 Mass. ——,

149 N. E. 154.

The defendants have filed a motion to dismiss the petition, based on several grounds. [2, 3] 1. It is alleged in the petition that after the exceptions were filed but before they were considered by the presiding judge, the defendants made a motion under G. L. C. 231, § 116, to dismiss the exceptions because they were immaterial, frivolous, and intended for delay and without ground in law. That motion was "allowed" on May 29, 1925. From this the petitioner appealed. Later the exceptions were presented by the petitioner to the judge for action under G. L. c. 231, § 113. The matter came on for hearing on June 20, 1925; whereupon the judge wrote and signed on the exceptions, "Disallowed as of May 29, 1925, by reason of allowance of motion on said date." The adjudication under G. L. c. 231, § 116, that the exceptions were frivolous, might have been made before the bill as filed was considered as to its conformability to the truth under section 113, or even before the bill was filed. Common

wealth v. Clifford, 145 Mass. 97, 13 N. E. 345. The bill of exceptions related to an interloc utory matter, and no judgment was entered. But we are of opinion that under section 116 such exceptions may be found and adjudged to be immaterial, frivolous and intended for delay. No appeal lies from such a finding or adjudication. Williams V. Clarke, 182 Mass. 316, 65 N. E. 419; Keith v. Marcus, 182 Mass. 320, 65 N. E. 421. Nevertheless, it was the duty of the judge to consider the exceptions and allow them if found conformable to the truth. The mere fact that the exceptions had been found and adjudged by him to be immaterial, frivolous Generally, no inquiry is made into merits of and intended for delay was no reason why exceptions on petition to establish them. but the exceptions should not be allowed if othwhere alleged exceptions on face thereof pre-erwise proper in form and conformable to sent no questions of law of sufficient gravity for consideration, petition ought to be dismissed.

8. Exceptions, bill of 55(4)-Petition to establish exceptions dismissed, where insufficient question of law presented.

Petition to establish truth of exceptions by Harry F. Bullock against Mary A. J. Harrington and others. On motion to dismiss petition. Petition dismissed.

W. L. Scoville, of Boston, for petitioner.
J. E. Crowley, of Boston, for respondents.

RUGG, C. J. [1] This is a petition to establish the truth of exceptions. The petitioner has filed a motion for the correction of the petition by substituting April 6, 1925, for May 6, 1925, as the date when the bill of exceptions was filed. It was agreed at the

the truth. Commonwealth v. Fleckner, 167 Mass. 13, 44 N. E. 1053.

[4] 2. The order of the judge on June 20, 1925, that the disallowance of the exceptions should be entered nunc pro tunc as of May 29, 1925, did not operate under the circumstances here disclosed to deprive the petitioner of his right to file a petition to establish the truth of his exceptions under G. L. c. 231, § 117, and rule 6 of the full court. The entry of such an order would deprive the plaintiff, without his fault, of a right secured to him by statute to obtain review of the rulings of law made by the judge; an intention we should be loath to attribute to the Legislature without unequivocal statu

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tory words. The authority to enter nunc pro | present no question of law of sufficient gravtunc orders does not go to this extent. Per-ity properly to call for consideration by the kins v. Perkins, 225 Mass. 392, 114 N. E. 713; court, then the petition ought to be disG. L. c. 235, § 4.

[6] 4. The exceptions as set forth in the That principle is applicable to the present petition relate solely to divers orders respect-petition.