
    Weir River Plumbing and Heating Supply, Inc. vs. Joel Harder
    Western District
    June 4, 1987.
    Present: Lenhoff, Larkin & Dohoney, JJ.
    Joel Pentlarge for the defendant.
   Dohoney, J.

This case involves a claim for labor and material which the plaintiff claims it supplied to the defendant. The Trial Justice found for the plaintiff in the amount of $2900.00. The defendant claimed to be aggrieved and filed a Draft Report.

The Trial Justice disallowed the Draft Report stating that it “does not contain all the evidence material to the question reported.” The defendant filed a Petition for the Establishment of the Draft Report. A hearing was held before three justices of the Appellate Division. The defendant has made a transcript of the proceedings available to us.

A reading of the transcripts clearly establishes the finding of the Trial Justice that the Draft Report did not contain all the evidence. There was substantial evidence tending to show that the plaintiff and the defendant had entered into an agreement for certain plumbing work, that the charge for the rough plumbing was to be $7800.00 and that the price for the finish plumbing was to be $3800.00 and that the work was completed. There was also evidence to the contrary. However, the Draft Report fails to include the evidence favorable to the plaintiff and the evidence which apparently was relied upon by the Trial Justice in his findings.

The role of a Draft Report is to present all the evidence relevant to a particular issue. Here the Draft Report fails to do this. Thus the defendant has failed to discharge his duty that the report now sought to be established constitutes an accurate and complete recital of all the evidence. This case is similar to Photiou v. Del Sordo, 1982 Mass. App. Div. 251, which states that:

The burden rested upon the plaintiff herein to establish the validity of the allegations of his petition, including the allegation that his draft report was complete and conformed to the truth. Burick v. Boston Elev. Rwy., 293 Mass. 431, 435 (1936);

It would be unavailing for either party for us to seek to establish a Report based upon the transcript. It is clear that any such report would contain sufficient evidence to support the findings of the Trial Justice. It would be beyond our function to determine which of the conflicting evidence we would believe.

Therefore, the Petition to Establish the Draft Report is disallowed.  