Barnard Mfg. Co. v. Eugen C. Andres Co.

• Decision Date: 25 November 1919
• Citation: 234 Mass. 148,125 N.E. 170
• Parties: BARNARD MFG. CO. v. EUGEN C. ANDRES CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 148

125 N.E. 170

BARNARD MFG. CO.

v.EUGEN C. ANDRES CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 25, 1919.

Exceptions from Superior Court, Bristol County; Franklin T. Hammond, Judge.

Action of contract to recover damages for failure to deliver a portion of a lot of cotton sold by defendant to plaintiff, brought by the Barnard Manufacturing Company against the Eugen C. Andres Company, resulting in verdict for plaintiff, which excepted, and defendant excepts to raise the question whether plaintiff's bill of exceptions is properly before the Supreme Judicial Court. Defendant's exceptions sustained, and plaintiff's exceptions dismissed.

Arthur S. Phillips, of Fall, River, for plaintiff.

William H. Garland and Albert Garceau, both of Boston, for defendant.

RUGG, C. J.

The defendant's exceptions relate to the allowance of the plaintiff's exceptions. The pertinent facts in that connection are these: On October 11, 1918, the plaintiff filed a bill of exceptions. On January 27, 1919, notice was sent in accordance with the superior court (1915) common-law rule 54. ¹ Time for allowance of the exceptions was extended from time to time, the last extension expiring on August 1, 1919. In the meantime several hearings had been held respecting the allowance of these exceptions. At the last of these on June 7th, after ineffectual efforts to agree upon the exceptions, the judge stated that he should disallow the original bill of exceptions. On July 26th the judge transmitted to the clerk a certificate upon the original bill of exceptions to which was attached a draft of a bill of exceptions prepared by him and which concluded with an order that the original bill of exceptions should be disallowed unless the plaintiff on or before August 1, 1919, should file motion to amend its bill of exceptions so that the same should read as stated in the draft prepared by the judge in that event the amended bill should be allowed provided he had the power to do so. It is stated in the defendant's bill of exceptions that--

‘On July 31, 1919, the plaintiff filed its motion to amend its bill of exceptions so that the same should read as stated in the form accompanying the certificateof July 26, 1919; and on August 5, 1919, without further hearing the parties, the justice made an order upon said motion that the plaintiff's bill of exceptions originally filed might be amended so as to stand in the form attached to the certificate accompanying said original bill of exceptions. A memorandum was filed with this order. On the same day, August 5, 1919, the following certificate was made accompanying the plaintiff's bill of exceptions as thus amended: ‘The plaintiff's bill of exceptions as amended in accordance with the order of this date I allow provided and in so far as I have the power to do so.’'

An examination of the record on the plaintiff's bill of exceptions shows that the plaintiff although filing a motion to amend its bill of exceptions to conform to the draft prepared by the judge, attached to that motion a reservation of objection to the form of the exceptions. The so-called ‘memorandum’ filed by the judge respecting that motion contained the ruling touching the reservation of objection that it--

‘is informal and irrelevant and is so treated in acting upon the motion. The plaintiff may not ask leave to amend his bill into the form suggested and at the same time object to such form and reserve the right to change it.’

It would be enough to say that the plaintiff's motion to amend its exceptions was not unqualified because of the reservation attached thereto. Under the certificate of the judge permitting the plaintiff to amend its exceptions according to the form prepared by him, the plaintiff was obliged either to accept or reject that permission unqualifiedly. The attempted acceptance of it with reservations of the nature here stated was in effect a rejection of the permission.

But upon more fundamental grounds the plaintiff's exceptions were not allowed in accordance with law. The time for the allowance of the exceptions had been...