This is an action of contract to recover upon an account annexed with a declaration in set-off by the defendant. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant.
The chief item in dispute relates to a quantity of sand for which the plaintiff seeks to hold the defendant accountable. The auditor found against the plaintiff in regard to this item. The defendant asked the trial judge to instruct the jury that on all the evidence the plaintiff was not entitled to recover for any part of the sand. The judge refused so to rule and, subject to the defendant’s exceptions, left the question of the plaintiff’s right to recover to the jury, who found for the plaintiff. We tbink that the judge dealt with the matter correctly.
The defendant was the general contractor with the county of Norfolk for the construction of the new registry of deeds building. The plaintiff was a subcontractor under the defendant. He was to do the excavating, grading and the rough stone work, and was required “to cart away and dispose of all soil, rocks, etc., left over from the excavations and filling.” This provision was also in the defendant’s contract with the county. The land on which the building was to be erected belonged to the county. The sand in question was part of the material which under his contract with the defendant the plaintiff was obliged to excavate and cart away and dispose of. In malting the excavation required he had dug it out and had piled it up on the premises preliminary, as could be found, to selling it or otherwise disposing of it. The *406sand originally belonged to the county as part of the land from which it was taken. It is not contended by the defendant that the contract between him and the county operated as a conveyance to him by the county of an interest in the land. Except for the provision in the contract that soil left over from excavations and filling shall be carted away and disposed of, the sand would have belonged to the county. But no claim to it is made or has been made by the county and the effect of the provision referred to is to operate, we think, as an abandonment of the sand by the county to the party making the excavations. The defendant did not excavate the sand in question and there is nothing in the contract between him and the plaintiff which gives him any claim to it. It is difficult to see what ground he has on which to base a right to it or to any part of it. There was testimony in regard to custom before the auditor and the auditor found either on the ground of custom or as matter of law that as between contractor and subcontractor each was entitled to use the sand required for his purposes, and that neither was entitled to charge the other for the sand so used. But at the trial all evidence of custom was excluded by the judge without any exception being saved, and the rights of the parties were left to be determined independently of custom, if there was any. As the case stands, looked at from any point of view, we do not see why there was not evidence warranting a finding for the plaintiff. The ruling requested could not therefore have been given.
Subject to the defendant’s exceptions the plaintiff was permitted to testify that he placed and maintained for some time upon the material described as sand a sign “Sand for sale.” The defendant testified that he never saw or knew of the sign. But there was testimony tending to show that the pile of sand was of substantial size, and on the right of the main building near the corner of two streets, and that the defendant was frequently on the premises. The jury were not bound to believe the defendant; and if the sign was placed there by the plaintiff it constituted or could be found to constitute an assertion of title by him, and if known to the defendant and not objected to by him, his conduct could be found to constitute an admission of the plaintiff’s title. The evidence was, we think, plainly admissible.
The next two exceptions argued by the defendant relate to two *407items, one for teaming, and for labor and materials, and the other for laying 1,265 perch of stone. The rulings requested were that the findings of the auditor in relation thereto were not admissible in evidence. No objection was made to the report when it was introduced in evidence, and the rulings requested well may have been refused on the ground that the objections came too late. But it is well settled that the findings of fact included in an auditor’s report are admissible in evidence (Newell v. Chesley, 122 Mass. 522), and we see nothing to take the report in this case out of the well settled rule.
The last question argued by the defendant on his brief relates to the burden of proof in regard to items in the declaration in set-off. The declaration in set-off was for labor, materials, equipment and appliances furnished by the defendant to the plaintiff. The defendant asked the judge to rule in substance that if the plaintiff had the use of labor, materials and appliances furnished by the defendant the law implied an agreement on his part to pay a reasonable sum therefor unless there was an express agreement to the contrary, and that the burden was on the plaintiff to prove that there was an express agreement for such free use. The judge gave the first part of the request, but declined to instruct the jury that the burden was on the plaintiff to prove an express agreement for such free use. The ruling of the judge was clearly right. Starratt v. Mullen, 148 Mass. 570. Phipps v. Mahon, 141 Mass. 471.
We have dealt only with such exceptions as we understand the defendant to have argued, treating the others as waived.
The result is that the entry must be
Exceptions overruled.