
    
      Northern District
    
    No. 6113
    CAIRA CONSTRUCTION CORP. v. CARL DE SANTIS
    Present: Brooks, P.J., Connolly & Parker, JJ.
    Case tried to McKenney, J. in the Second District Court of Eastern Middlesex.
    No. 4619 of 1962.
   Connolly, J.

The report in this case as established by this Division is as follows:

“This is an action of contract in which the plaintiff seeks to recover damages for alleged breach of contract by the defendant in furnishing materials of inferior quality and performing work in an unworkmanlike manner on property of the plaintiff.
The answer is a general denial, denial of breach of contract, and affirmatively sets up ‘that the job in question was accepted by the plaintiff since the defendant had sued the present plaintiff in another .case arising from the same cause of action, and the present plaintiff paid the defendant in full.’
The case was marked for hearing on December 18, 1964, on which date there was a conference in Chambers between counsel for both parties and Justice Elwood S. Mc-Kenney, assigned to hear the case. It was the understanding of the trial justice gained at this conference: that the only contention pressed by the defendant was that the action was barred by an adjudication in another law action between the parties of the same issues raised in this action, that the facts with respect to this defense of res adjudicata were not controverted, and that there remained for the court only to decide questions of law based on orally agreed to facts. The trial judge requested counsel to submit memoranda of law. It was his understanding that he was to proceed to decide the case on those facts. Counsel for. the plaintiff, on the other hand, understood that a trial was to be held.
Memoranda of iaw were submitted and the trial judge on January 20, 1965 found for the defendant without taking evidence or holding any hearing other than in Chambers aforesaid. Counsel for both parties had appeared in court on January 15, 1965, with witnesses, ready for trial.”
“This report contains all the facts material to the question presented.
The plaintiff claiming to be aggrieved by the finding for the defendant, I hereby report the same to the Appellate Division for determination.”

Garber & Garber for the Plaintiff.

P. Alfred Pannesi 8t Philip S. Juliano for the Defendant.

It is apparent that there was a misunderstanding in this case.

The fact that counsel for both parties appeared in court with witnesses ready for trial after the initial conference is strong support for the contention of the plaintiff that the parties did not intend to submit on a set of orally agreed facts.

The finding for the defendant is vacated and the 'case remanded to the District Court of origin for a new trial.  