303 Mass. 123 | Mass. | 1939
This is an action of contract upon an alleged agreement to employ the plaintiff. A judge in a district court found generally for the plaintiff, without resting his finding expressly on any one count, and assessed damages in the sum of $15,250. It is evident, however, that the damages were assessed upon the second count, for breach of a contract to give the plaintiff permanent employment, and not upon the first count for breach of a contract to employ the plaintiff for six months. On a report to the Appellate Division, claimed by the defendant, a new trial was ordered on February 2, 1937. Two days later the plaintiff claimed an appeal to this court.
A second trial was had. It resulted in a finding for the plaintiff on the first count only, with damages of $1,125. A report was taken by the plaintiff to the Appellate Divi
The contention of the plaintiff is, that there was no error at the first trial; that he is entitled to judgment upon the finding made at that trial; that the Appellate Division erred in ordering a new trial; and that all subsequent proceedings arise out of and are vitiated by that error.
The relevant statutes are these. In a district court “Any party . . . aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division when the cause is otherwise ripe for judgment, or sooner by consent of the justice hearing the same. ... If the appellate division shall decide that there has been prejudicial error in the ruling complained of, it may reverse, vacate or modify the same or order a new trial in whole or part; otherwise it shall dismiss the report . . . G. L. (Ter. Ed.) c. 231, § 108. “An appeal to the supreme judicial court shall lie from the final decision of the appellate division of any district court. . . . Claims of appeal shall be filed in the office of the clerk of the district court within five days after notice of the decision of the appellate division. The appeal shall not remove the cause, but only the question or questions to be determined. ...” § 109.
1. The action of the Appellate Division in ordering a new trial was not a “final decision” from which an appeal could have been claimed and entered at once in this court. So much is settled beyond dispute. Real Property Co. Inc.
Beyond that point we find conflicting statements in the reported cases. There are intimations that an appeal may be taken from the interlocutory decision of an appellate division ordering a new trial, although such an appeal cannot be entered in this court until the new trial has been had, a final decision of the Appellate Division obtained, and an appeal from that final decision taken. Beacon Tool & Machinery Co. v. National Products Manuf. Co. 252 Mass. 88, 91. Stafford v. Commonwealth Co. 263 Mass. 240. Apparently upon the same theory that an interlocutory decision by an appellate division is appealable, in Daniels v. Cohen, 249 Mass. 362, 363, 364, 365, where there was no appeal from a former decision of an appellate division remanding the case, after a finding for the plaintiff, for a new trial on the question of damages only, it was said that the ruling of the Appellate Division “became the law of the case,” and that “questions arising at the first hearing before the Appellate Division are not before us” on appeal from the final decision of the Appellate Division.
On the other hand, it has been said, in what we think is strict conformity to the statute, that it is a “final decision” from which “alone appeal lies to this court.” Real Property Co. Inc. v. Pitt, 230 Mass. 526, 529. Hall Publishing Co. v. MacLaughlin, 230 Mass. 534, 536. Patterson v. Ciborowski, 277 Mass. 260, 264. Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378, 380. Cunniff v. Cleaves, 288 Mass. 325. B. M. C. Durfee Trust Co. v. Turner, 299 Mass. 276, 279. Robinson v. Wm. Brown & Sons Co. 301 Mass. 316. Any intimations in reported cases to the contrary, countenancing a right of appeal from a decision other than a “final decision,” cannot be approved. In the present case the appeal claimed from the decision of
It was also unnecessary. An appeal from the final decision of the Appellate Division, made after the new trial, would bring here for review both the first and the second decisions of the Appellate Division, no matter what were the questions of law raised by the second report to the Appellate Division. It is provided that “the appeal shall not remove the cause, but only the question or questions to be determined” (G. L. [Ter. Ed.] c. 231, § 109), and held that the effect of the appeal is only to bring before this court “rulings of law made by the trial judge and reported by him and the action of the Appellate Division thereon.” Moskow v. Fine, 292 Mass. 233, 235. Hammond v. Boston Terminal Co. 295 Mass. 566, 567. Adamaitis v. Metropolitan Life Ins. Co. 295 Mass. 215, 221. Magrath v. Sheehan, 296 Mass. 263, 264, Coleman v. Wallace, 299 Mass. 475. Santosuosso v. DellaRusso, 300 Mass. 247, 250. Palma v. Racz, 302 Mass. 249. The purpose of limiting the right of appeal to final decisions, under the statute in question as well as under earlier Federal statutes, was to save the expense and delay of repeated appeals in the same case, not to render interlocutory or nonfinal decisions of the tribunal appealed from exempt from review. Forgay v. Conrad, 6 How. 201, 205. Smith v. Vulcan Iron Works, 165 U. S. 518, 524. Spalding v. Mason, 161 U. S. 375, 381. Panama Railroad v. Napier Shipping Co. 166 U. S. 280, 284. Schoenamsgruber v. Hamburg American Line, 294 U. S. 454, 458. Leonardi v. Chase National Bank, 81 Fed. (2d) 19, 20. A. & R. Realty Co. v. Northwestern Mutual Life Ins. Co. 95 Fed. (2d) 703, 707. The right of the Supreme Court of the United States to review the action of the highest court of a State upon Federal questions is still restricted likewise to the “final judgment or decree.” U. S. C. Title 28, § 344. “The rule which excludes the right to review questions arising in a cause depending in a state court until a final judgment is rendered by such court involves as a necessary correlative the power and the duty in this court when a
Even though an appellant may voluntarily so restrict the scope of his appeal as not to reach an earlier interlocutory decision of an appellate division (Buchannan v. Meisner, 279 Mass. 457; Henry L. Sawyer Co. v. Boyajian, 296 Mass. 215), the present appellant did not do so. The first decision of the Appellate Division, finding error in the first trial and ordering a new trial, may have become the law of the case in the District Court to the extent that the Appellate Division, when the case came to it again, was not bound to reconsider the questions decided before. Nerbonne v. New England Steamship Co. 288 Mass. 508, 510, and cases cited. Taylor v. Pierce Brothers, Ltd. 220 Mass. 254. Luminous Unit Co. v. Freeman-Sweet Co. 3 Fed. (2d) 577. But that first decision did not become the law of the case binding on this court when the entire action of the Appellate Division on both occasions was brought here for review on appeal from the “final decision.” Grays Harbor Logging Co. v. Coats-Fordney Logging Co. 243 U. S. 251, 256, 257. Davis v. O’Hara, 266 U. S. 314, 321. So far as Daniels v. Cohen, 249 Mass. 362, may be inconsistent with what is said here, it is not followed.
Where, as in the present case, there was a finding for the plaintiff which was set aside by the Appellate Division with an order for a new trial, “if there was no error at the first trial, the . . . [plaintiff] is entitled to judgment in
2. We need not consider whether the defendant might have insisted that the report upon which the Appellate Division made its second and final decision be printed as part of the record. That report was immaterial to the only point taken by the plaintiff, namely, that there was no error at the first trial, and that he is entitled to judgment upon the finding made at that trial. The record before us is sufficient to enable us to decide that point. Wyness v. Crowley, 292 Mass. 459, 461. The defendant does not assert the contrary. If that point is well taken, what happened at the second trial has no importance.
We cannot agree that the only appeal entered in this court was a legally nonexistent appeal from the first decision of the Appellate Division. It may be true that the plaintiff and the clerk held the mistaken opinion, possibly induced by language used in earlier opinions of this court, that the plaintiff had two appeals instead of one. It is true, that the docket entries state that the plaintiff filed an “order for preparation of record for transmission of appeal first claimed to Supreme Judicial Court,” that he later filed a similar order relating to “first and second appeals,” and that after being notified by the clerk that $175 was the “estimated cost of preparing record for first appeal” and $375 the “cost of preparing record for both appeals,” the plaintiff deposited “$175 to perfect appeal to Supreme Judicial Court.” But if we look at the substance instead of the mistaken wording, it becomes clear that the purpose of the plaintiff was to attack only the first decision of the Appellate Division, that for that purpose he needed only the record of the first trial, that he was notified that that record would cost $175, and that he
3. We proceed, therefore, to inquire whether the first decision of the Appellate Division, ordering a new trial, was erroneous.
The evidence in favor of the plaintiff at the first trial, as it appears in the report of the trial judge, may be summarized as follows. A former sales manager had left the employ of the defendant and had formed a competing company, taking with him half the salesmen employed by the defendant in various parts of the country. This made it necessary for the defendant speedily to reorganize its selling force. The plaintiff had sold goods for the defendant years before, but at the time owned and operated a corporation in Boston called G. W. Thompson Co., Inc. which acted as manufacturers’ agent. Its business had been profitable but was so no longer. At the request of the defendant, the plaintiff went to the office of the defendant in New York on August 15, 1934, and talked with one Hunt, its vice-president. Enough appears in the report to warrant a finding that Hunt was authorized to enter into a contract
The contract, being made in New York without reference to the law of any other particular State, is to be interpreted according to the law of New York. Clark v. State Street Trust Co. 270 Mass. 140, 150. Am. Law Inst. Restatement : Conflict of Laws, §§ 332, 346. The courts of New York, like those of Massachusetts, are slow to turn a plaintiff out of court for the reason that the promise given and relied on was so vague that it can be given no effect. To have that result, “Indefiniteness must reach the point where construction becomes futile.” Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co. Inc. 232 N. Y. 112, 114. Silver v. Graves, 210 Mass. 26. Geo. W. Wilcox, Inc. v. Shell Eastern Petroleum Products, Inc. 283 Mass. 383, 388. Williston, Contracts (Rev, ed.) §§ 37-49. In the present
Contracts, even oral ones, for permanent employment” have not infrequently come before the courts. Arentz v. Morse Dry Dock & Repair Co. 249 N. Y. 439, 62 Am. L. R. 231, dealt with such a contract. The court said (pages 443, 444), "Wherever these words, 'permanent employment/ have been used in contracts which have been made between employer and employee, under circumstances as they appear in this case, they have been held to mean a steady employment, a steady job, a position of some permanence, as contrasted with a temporary job or a temporary employment. Standing alone and by themselves they do not mean life employment. . . . An agreement to give a person permanent employment means nothing more than that the employment is to continue indefinitely and until one or the other of the parties wishes for some good reason to sever the relation. ... It must follow, therefore, that the employment of this plaintiff by the defendant was in a steady position as assistant or general manager, to continue at the will of the parties. Plaintiff was not obliged to stay with the defendant for life, neither was the defendant obliged to employ him beyond the time when in good faith it had no further use for his services.” After four years, a discharge because of hard times was held no wrong to the plaintiff. The fact that in the present case the discharge of the plaintiff took place almost immediately, without cause, and could be found not to have been in good faith, distinguishes the present case from that case. But its definition of permanent employment must be taken as the law of New York.
This case must be decided in the light of the New York decision just cited. We cannot substitute for the authoritative interpretation in that case of the words "permanent employment” when used in a New York contract, any varying interpretation of those words found in our own decisions or in those of other jurisdictions. Carnig v. Carr, 167 Mass. 544. Daniell v. Boston & Maine Railroad, 184 Mass. 337. Kirkley v. F. H. Roberts Co. 268 Mass. 246, and cases cited.
There was evidence that the plaintiff had a reasonable expectation of earning $6,500 a year, above expenses, from his employment. It could have been found that, but for the wrongful conduct of the defendant, his “permanent” employment would have continued for a considerable time. No question relating specifically to the assessment of damages is argued. We think that there was no error at the first trial, and that the first decision of the Appellate Division was erroneous. A majority of the court think that therefore the first order of the Appellate Division ought to be reversed, that its second order after the new trial dismissing the second report consequently ought to be reversed, and that judgment ought to be entered for the plaintiff upon the finding made at the first trial.
So ordered.
The Chief Justice and Justices Donahue and Cox, while agreeing with much that is said in the opinion of the majority of the court, are unable to agree with the'conclusion therein reached. They are of opinion that the case should not be decided on its merits but that the entry should be “appeal dismissed” since no appeal is properly before this court.
For reasons stated in the opinion of the majority, an appeal would not lie from the decision of the Appellate Division ordering a new trial. Such an “appeal,” however, might in fact be entered upon the docket of this court — as this “appeal” was — and the usual and proper practice in such a case is to ordei the so called “appeal” dismissed. The appeal from, the later decision of the Appellate Divi
Nothing in the printed record transmitted to this court relates to the proceedings following a claim of appeal from the decision of the Appellate Division ordering a new trial. Unless the appellant is aided by other papers transmitted to this court under G. L. (Ter. Ed.) c. 231, § 135, governing the completion of an appeal, the conclusion must be that the only appeal entered here is the inflective “appeal” from the decision of the Appellate Division ordering a new trial. The appellant is not so aided. The docket entries — a copy of which was so transmitted — include entries relating to a second trial, a report to the Appellate Division, an order dismissing such report, and the filing within five days after such order of a claim of appeal. But it appears also from the docket entries that the appellant filed an order “for preparation of record for transmission of appeal first claimed,” that notice of the amount of an estimate of the cost of preparing such record was given to the appellant, that thereafter he filed an order “for preparation of record for first and second appeals,” and that thereafter notice of the amount of an estimate of the cost of preparation of such record was given to the appellant — an amount considerably greater than the amount of the estimate of the cost of preparing the “record for transmission of the appeal first claimed.” It appears that the appellant paid an amount which was the amount of the estimate of the cost of preparing the “record for transmission of the appeal first claimed,” and that the papers were prepared accordingly and entered in this court. Whether or not the clerk should have complied with the order of the appellant for the preparation of the record relating to the appeal first claimed, there is no ambiguity in the docket entries as to what actually took place. The appellant could not have been deceived into thinking that he was obtaining the preparation of a record for entry in this court of any appeal other than the appeal first claimed, that is, the appeal from the decision of the Appellate Division ordering a new trial, and the printed record shows that this was the record actually prepared
The conclusion above reached is not affected by the fact — if it be a fact — that the papers transmitted to this court are sufficient to enable the court to make a decision on the merits of the case. Irrespective of the sufficiency of the papers before the court for this purpose, a decision cannot rightly be made on a case that has not been entered in this court. Nor can it rightly be said that the case ought to be considered on its merits because the clerk included in his estimate of cost of preparing the record the cost of preparing unnecessary papers and so imposed unnecessary expense upon the appellant. If this was the situation, the appellant should have sought relief by action of the court, but without such action he was required, in order to perfect his appeal, to pay the cost as estimated by the clerk of the preparation of the record. Moreover, even if it might conceivably be proper to discuss the merits of the case, though it is not properly entered in this court, if the conclusion reached was in accord with the decision of the Appellate Division, it seems to be clearly wrong to reverse a decision of the Appellate Division on an appeal that is not before this court.
