305 Mass. 210 | Mass. | 1940
This is an action for breach of a written contract, brought by a salesman who sold liquor for the defendant upon a del credere commission. The case came before the judge upon the report of an auditor whose findings of fact were to be final. In a case so presented, it is elementary that requests for rulings, which abound in one of the bills of exceptions, have no technical standing but merely encumber the record. Howland v. Stowe, 290 Mass. 142, 146. Kamberg v. Springfield National Bank, 293 Mass. 24, 25. Pittsley v. Allen, 297 Mass. 83, 85. Antoun v. Commonwealth, 303 Mass. 80. Nutter v. Mroczka, 303 Mass. 343, 347. D’Olimpio v. Jancaterino, 304 Mass. 200, 202.
The contract was made on August 10, 1934, and was to run until August 10, 1936. The plaintiff claims damages only to that date. In fact, the parties acted under the contract only about eight weeks, until October 5, 1934, when, as the auditor finds, the defendant broke the contract, forbade the plaintiff to buy goods in the defendant’s name as the contract provided, and gave the plaintiff to understand that their relations were ended. That finding does not purport to be a mere inference from subsidiary facts fully stated. Nothing inconsistent with it appears in the report. That finding must stand. See Keefe v. Johnson, 304 Mass. 572, and cases cited.
If it be material to determine whether the relation between the parties was that of principal and agent, or seller and buyer, we think that the auditor was correct in finding it the former. The contract was broken, and the plaintiff became entitled to such damages as he could prove. The auditor found that the period from August 10, 1934, to October 5, 1934, was no better than the average of the year in the liquor business, and that the results of the plaintiff’s efforts during that period constitute a proper criterion of what he could have earned during the remainder of the life of the contract. On that basis, he found that if the contract had not been broken the plaintiff would have earned $10,824.96 in addition to his earnings during the period from August 10, 1934, to October 5, 1934. The evidence showed that after the contract was broken, the plain
We have examined the twenty-six written objections to • the auditor’s report, brought in by the defendant (Rules 89, 90 of the Superior Court [1932] ), but we find nothing requiring special discussion. The burden of the defendant’s argument is that the brevity of the plaintiff’s experience under the contract, and the possibility that the plaintiff would fail to sell enough to satisfy the contract or that he would be unable to finance it, were not sufficiently considered by the auditor in assessing the damages; that the damages were assessed upon the most optimistic basis, without sufficient allowance for adverse elements in the situation. We cannot say, however, that the auditor was wrong, or that the judge was wrong in accepting his result. In assessing damages in a case like this, much must be left to judgment, for exact computation is impossible. Hawkins v. Jamrog, 277 Mass. 540. Parker v. Levin, 285 Mass. 125, 129. Potier
Plaintiff’s exceptions overruled.
Defendant’s exceptions overruled.
