293 Mass. 207 | Mass. | 1936
This action was tried by a judge of the Superior Court without a jury. He filed findings and rulings on February 29, 1932. The findings were for the plaintiff on counts 2, 3, 4 and 5 of his declaration, for the defendant on counts 1 and 6, and for the defendant on its declaration in set-off. The defendant filed a bill of exceptions on March 19, 1932. The plaintiff filed a bill of exceptions on March 21, 1932. No action having been taken on the bill of exceptions of the defendant for three months after filing, notice was sent to the defendant, to the plaintiff and to the trial judge by the clerk of the court on June 21, 1932, that the time to act on that bill of exceptions would expire on July 22, 1932. Beginning on June 23, 1932, various motions of the defendant for extension of time for the allowance of its bill of exceptions were presented and were allowed by the court, each motion being allowed before the expiration of the time allowed by the next preceding extension. On the same dates motions to extend the time for allowance of the plaintiff’s bill of exceptions were presented and allowed. On April 18, 1933, the defendant’s motion to extend the time for allowance of its exceptions to and including May 10, 1933, was allowed, and on April 20, 1933, the court directed the clerk to note on that motion that the time was extended for filing the defendant’s affidavit of pre
This bill of exceptions requires an interpretation of Rule 74 of the Superior Court (1932). That rule, so far as here material, is in these words: “If within three months after fifing, a bill of exceptions has not been allowed or disallowed by the justice to whose opinion, ruling, direction or judgment the exceptions were taken, the clerk shall forthwith notify the parties interested and such justice that unless within thirty days thereafter, or within such further time as may be allowed, an affidavit is filed with the clerk that the bill of exceptions has been presented by a party to the proper justice for allowance, the bill of exceptions will be dismissed and judgment or decree will be entered as though no exceptions had been filed. If, within such time, the bill of exceptions is neither allowed nor disallowed, and no such affidavit is filed, the exceptions shall be dismissed by the clerk without further notice or order. The justice to whose opinion, ruling, direction or judgment the exceptions were alleged may grant further time, and no other justice may do so, except in the cases provided for by G. L. c. 231, § 115 or in the absence of such justice from the commonwealth or where any one extension does not exceed seven days.” The rule was established pursuant to G. L. (Ter. Ed.) c. 231, § 114. It is thereby provided that, “If an excepting party, in any civil cause in which excep
Both parties and the trial judge in the case at bar failed to conform strictly to said Rule 74 from June 23, 1932, until April 20, 1933. The plaintiff pursued the same course as to his bill of exceptions on the main trial as did the defendant. Precise conformity to this rule required each party to procure a grant of further time for filing the affidavit described in the rule. Neither party did that in terms. Each party did procure a grant of further time for the allowance of the exceptions. Ultimate allowance of their respective bills of exceptions was the end and aim of each party. The action of the trial judge shows that he was trying to cooperate with them in the achievement of that end and aim. Exact conformity to said Rule 74 would have been incidental to that same end and aim. Extension of time for the allowance of the bills of exceptions would have been accomplished by granting extensions of time
The original bill of exceptions of the defendant was filed on March 19, 1932. On June 15, 1933, it filed a second substitute bill of exceptions. On July 13, 1934, it was permitted by leave of court to file a third substitute bill of exceptions and after extended hearing of both parties that substitute bill of exceptions was allowed on the same day. The plaintiff excepted to the order allowing the defendant to file such bill of exceptions and moved that it be dismissed. The grounds stated were that comparison of the third bill with the original bill shows that the latter was
There is no merit in the contention of the plaintiff that no exceptions set forth in the defendant’s claim of exceptions can be considered. That claim of exceptions was filed on March 3, 1932, before the first bill of exceptions was filed. That claim of exceptions was incorporated by reference in the bill of exceptions as originally filed. Specific physical annexation of a copy of it to the bill as allowed did not violate proper practice. It is not argued that otherwise exceptions omitted from the bill of exceptions originally filed have been included in the bill as allowed. There has been no infringement of prevailing principles. Commonwealth v. Dow, 217 Mass. 473, 482-483. Commissioner of Banks v. Tremont Trust Co. 267 Mass. 331, 337. Commonwealth v. Davis, 284 Mass. 41, 53-55.
This action is described in the bill of exceptions as one of contract or tort. It grows out of a sale on September 1, 1927, by the Maple Farm Milk Company of Massachusetts (hereafter called the vendor) to the defendant of the business theretofore conducted by the vendor of pasteurizing and bottling milk and cream and selling those commodities to several hundred customers located mostly in Boston, Cambridge and Watertown. The sale took place in the office of the attorney for the vendor in Boston. There were present the treasurer and general manager of the vendor and his uncle, the plaintiff, and the treasurer of the defendant and its attorney. A bill of sale was executed by the vendor transferring to the defendant its good will and all its assets except milk, cream and coal on hand, bills receivable, choses in action and other claims or demands owing to the vendor^ The purchase price was paid to the attorney for the vendor to be held by him under an escrow agreement for fifteen days pending determination whether the vendor delivered the number of articles or quantity of supplies set forth in a schedule attached to the escrow agreement. That agreement provided for a downward revision of the purchase price in case the number and quantity of articles delivered proved to be less than called for,
So far as these are findings of fact, it is plain that they must stand. This being an action at law, the general and specific findings are conclusive against the plaintiff if there is any evidence to support them. Moss v. Old Colony Trust Co. 246 Mass. 139, 143. Bianco v. Ashley, 284 Mass. 20, 26. Gilbert v. Beacon Hill Credit Union, 287 Mass. 433, 436. Mutual Life Ins. Co. v. Royal, 291 Mass. 487, 490.
The rulings of law were right. The instruments to be construed were in writing. They were drafted by attorneys in the presence of the executive officer of each party to them. The meaning of their words was clear and not ambiguous. They could not be varied by paroi evidence. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 132-133. Marston v. Boston Publishing Co. 271 Mass. 307, 313. Goldband v. Commissioner of Banks, 245 Mass. 143, 150. Kennedy Bros. Inc. v. Bird, 287 Mass. 477, 482 — 483. The case at bar is distinguishable in this respect from cases like Martin v. Jablonski, 253 Mass. 451, 456-457, and Clark v. State Street Trust Co. 270 Mass. 140, 152-153.
At the meeting on September 1, 1927, a contract was made whereby the vendor agreed to sell and the defendant to buy land and buildings in East St. Johnsbury, Vermont, for $2,600. Conveyance was to be made on or before September 15, 1927. The plaintiff was a creditor of the vendor in a substantial amount and held a chattel mortgage on much of the tangible personal property of the vendor as security. The plaintiff executed and delivered a discharge of this mortgage in order to enable the vendor to make the sale to the defendant. He received from the vendor a written assignment of "all the accounts receivable
There was no error in this. The plaintiff is seeking not to enforce a sealed instrument to which he is not a party but simply to recover a debt due which has been assigned to him. Universal Adjustment Corp. v. Midland Bank, Ltd., of London, 281 Mass. 303, 311. No reason is disclosed why the defendant should not be bound by the admission made in its behalf. Wyness v. Crowley, 292 Mass. 461. The case at bar is distinguishable from Goldstein v. Tucker, 230 Mass. 259, 262. The assignment was made contemporaneously with the sale of the assets of the vendor and the contract for the sale of the real estate in Vermont. The debt arising from the sale of that real estate had a potential, if not an actual, existence at that time. All the engagements were parts of a single transaction. In these circumstances the assignment to the plaintiff from the
There was no error in the admission of testimony of the treasurer, director and general manager of the vendor as to the value of its coal at its plant in Vermont. He saw it, estimated its quantity, and gave opinion as to its value. He saw the bill for this coal, had been doing business in that place for three years, and had been in the habit of making inquiry as to the cost of coal from dealers. He manifested familiarity with the subject. Whether testimony of this nature should be admitted rests largely in the discretion of the trial judge, whose decision will not be .reversed unless plainly wrong. Johnson v. Lowell, 240 Mass. 546, 549. Guinan v. Boston Elevated Railway, 267 Mass. 526, 528. Compare Maher v. Commonwealth, 291 Mass. 343.
Another contention between the parties relates to the accounts receivable of the vendor. The findings of the judge on this matter were these: “At the meeting on September 1, 1927, question was raised as to who should collect the vendor’s accounts receivable, which were then assigned to the plaintiff. Defendant’s representatives said that they desired that its accounts with vendor’s customers should commence on the first of the month, and that it would be advantageous to the defendant if its agents alone should collect accounts receivable prior to September 1. It was thereupon agreed between the parties that the defendant alone should collect the vendor’s accounts receivable as agent for the plaintiff, and that it should be entitled to retain seven per cent of the amount collected for its services. It was understood that the defendant would undertake to collect only such accounts in the main as had accrued within sixty days prior to September 1 and were regarded by the vendor as collectible. At the defendant’s request, for its assistance in collecting the accounts, all and the only books and records of the vendor which showed the amounts due from customers (except dealers),
The defendant has argued at length that the finding of the trial judge touching the agreement of parties as to the collection of the accounts receivable by the defendant is unreasonable and is not warranted by the evidence. It is not for this court in an action at law to weigh evidence and to revise findings of fact. The findings made by the trial judge must stand if there is any evidence to support them. Moss v. Old Colony Trust Co. 246 Mass. 139, 143, and cases cited. State Street Trust Co. v. Lawrence Manuf. Co. 284 Mass. 355, 359-360. Gilbert v. Beacon Hill Credit Union, 287 Mass. 433, 436. It is not necessary to analyze the testimony in detail. It was highly contradictory. It cannot rightly be said that the finding as to the terms of the agreement between the plaintiff and the defendant is without basis in the evidence. The main argument of the defendant on this point is that the weight of the evidence is contrary to the finding. To pass upon that question is not within our province. That agreement is not so vague as to be unenforceable.
There was evidence as to the amount and value of those-accounts receivable; it was not wanting in definiteness; its credibility was for the trial judge. There was testimony to the effect that the amount of these book accounts was about $10,000 and that these debtors had theretofore paid promptly. The amount found to have been collectible by the defendant in the exercise of due diligence cannot be pronounced unreasonable. Damages of that nature are not so uncertain, remote and conjectural as to be beyond the range of estimate from the evidence, if found reliable. This branch of the case is governed by the principles dis
The finding that the books of account were lost by the defendant and that the accounts receivable were uncollectible without the books has some support in the evidence and cannot be pronounced unwarranted. Loss to the plaintiff of these accounts might have been found to be the necessary result, and it cannot be held that the damages found exceeded the actual loss sustained by the plaintiff. National Non-Theatrical Motion Picture Bureau, Inc. v. Old Colony Trust Co. 270 Mass. 34, 36-37. It could not rightly have been ruled as matter of law that such damages were not the proximate result of the failure of the defendant to perform its undertaking and might not reasonably have been contemplated by the parties as consequence of breach of its obligation by the defendant. Denny v. New York Central Railroad, 13 Gray, 481, 485. Johnston v. Faxon, 172 Mass. 466. See Wallace v. Ludwig, 292 Mass. 251, 254-255.
There was error in the computation of damages. The finding was that, if the defendant had discharged its undertaking to the plaintiff, it could have collected $8,500 of the accounts receivable. Damages were assessed on the second count in the plaintiff’s declaration for $7,610.35, which was the difference between $8,500 and the $889.65 actually collected and assessed as damages under the third count of the plaintiff’s declaration, with interest from March 1, 1928, when demand was made for payment.
There was error in the computation of interest. It is manifest that the damages of the plaintiff for the failure of the defendant to discharge its undertaking to the plaintiff in collecting the accounts receivable were unliquidated. It was impossible for either party alone to calculate those damages from established facts. Damages were found by the trial judge only by the exercise of the judicial function in weighing evidence and making estimates. The determination of damages was much different from making a computation. Therefore, interest was allowable only from the date of the writ and not from the date of demand. Childs v. Krey, 199 Mass. 352, 358. McGrimley v. Hill, 232 Mass. 462, 464. Cochrane v. Forbes, 267 Mass. 417, 420. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446, 451. The case at bar is distinguishable from cases like Frazer v. Bigelow Carpet Co. 141 Mass. 126, and Young v. New York, New Haven & Hartford Railroad, 273 Mass. 567, 572.
' Although these errors require that the defendant's exceptions be sustained, they do not necessitate a new trial. The facts are all in the record. The errors of law committed by the trial judge have resulted only in errors of fact now capable of being rectified by mathematical reckoning. Those errors of fact in the light of all the findings can'be corrected without a new trial. G. L. (Ter. Ed.) c. 231, § 124.
So ordered.