Boylston Hous. Corp. v. O'Toole

• Decision Date: 03 July 1947
• Parties: BOYLSTON HOUSING CORPORATION v. O'TOOLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 538

74 N.E.2d 288

BOYLSTON HOUSING CORPORATION

v.O'TOOLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1947.

Suit in equity by Boylston Housing Corporation, against Frank O'Toole and others, individually, and as president, secretary-treasurer and general agent of the Building and Construction Trades Council of the Metropolitan District, a voluntary unincorporated association, and all other officers and members thereof, Edward Lamphier and another, individually and as financial secretary and business representative of local No. 4 of the Elevator Constructors' Union, a voluntary unincorporated association, and all the other officers and members thereof, the Otis Elevator Company, and W. S. Tyler Company, wherein the defendant, W. S. Tyler Company filed a counterclaim. Upon death of the defendant Edwin E. Graves the administratrix of his estate was substituted as defendant From final decree dismissing the bill against all the defendants but ordering judgment for defendant, W. S. Tyler Company on its counterclaim against the plaintiff, the plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Greenhalge, Judge.

Before FIELD, C. J., and LUMMUS, QUA, ROMAN, WILKINS, and SPALDING, Jj.

T. H. Mahony, of Boston (A. Moskow, of Boston, on the brief), for plaintiff.

H. L. Barrett, of Boston, for O'Toole and others.

K. C. Parker, of Boston (W. G. Reed, of Boston, on the brief), for W. S. Tyler Co. and Otis Elevator Co.

FIELD, Chief Justice.

This suit in equity was brought in the Superior Court. The plaintiff is the Boylston Housing Corporation. The suit, as alleged in the bill, was brought against ‘Frank O'Toole, Ernest A. Johnson and Edwin E. Graves, * * * individually and as they are respectively the president, the secretary-treasurer, and the general agent of the Building & Construction Trades Council of Boston & Vicinity, a voluntary unincorporated association and all the other officers and members thereof who are numerous and most of whom are to your plaintiff unknown and who are fairly represented by said officers and have a common interest with them in the suit; Edward Lamphier and Edward I. Kelley, * * * individually and as they are respectively the financial secretary and the business representative of Local No. 4 of the Elevator Constructors' Union, a voluntary unincorporated association and all the other officers and members thereof who are numerous and most of whom are to your plaintiff unknown and who are fairly represented by said officers and have a common interest with them in the suit’-herein referred to as the labor defendants-and Otis Elevator Company, a corporation, and W. S. Tyler Company, a corporation, defendants. By amendment the words ‘Building and Construction Trades Council of the Metropolitan District’ were substituted for the words ‘Building & Construction Trades Council of Boston & Vicinity,’ and the words ‘Local No. 4 of the International Union of Elevator Constructors' were substituted for the words ‘Local No. 4 of the Elevator Constructors' Union.’ After the entry of the final decree hereinafter referred to, the death of the defendant Edwin E. Graves was suggested, and his administratrix was substituted for him as a party defendant.

From undisputed evidence it appeared-and it is not controverted-that the members of the Building and Construction Trades Council of the Metropolitan District-herein referred to as the council-were delegates from various trade unions, of which there were fifty-nine, the members of which were engaged in the building crafts in and around Boston, that one of the unions was composed of members of the craft dealing with or working on the installation and construction of electric elevators and was named Local No. 4 of the International Union of Elevator Contractors -herein referred to as Local No. 4, that the ‘adjustmentboard’ was one of the committees of the council, that the defendants O'Toole, Johnson and Graves were respectively the president, the secretary-treasurer, and the general agent of the council, and that the defendants Lamphier and Kelley were respectively the financial secretary and the business representative of said Local No. 4.

When this suit was brought on July 29, 1940, the plaintiff ‘was engaged in remodelling a four-story building at 1089 Boylston Street [Boston], by converting it into a five-story building with forty-three suites with kitchenettes. This was to be accomplished by constructing a new entrance in to what had been the basement and a general internal rearrangement which did not affect the walls or solid structural parts of the original building.’ ‘The work was in charge of Harry Moskow, a brother of the president and treasurer of the plaintiff, and was begun about the last of December, 1939, or the first of January, 1940.’ The plaintiff sought by this suit to have the ‘defendants' temporarily and permanently enjoined from interfering with the work of remodelling this apartment house, particularly from interfering with the carrying out of a contract of the defendant Otis Elevator Company with the plaintiff to install in said building an electric elevator, and from interfering with the carrying out of a contract of the defendant W. S. Tyler Company with the plaintiff to install in said building five elevator fronts and entrances and an elevator car. The plaintiff sought also to have the ‘defendants' temporarily and permanently enjoined from interfering with the work of the plaintiff on any other building. An interlocutory decree was entered, after hearing, temporarily enjoining the labor defendants from ‘interfering with and preventing the fulfillment of the contract between the plaintiff and the defendant Otis Elevator Company and the contract between the plaintiff and the defendant W. T. [S] Tyler Company.’ There was no appeal from this interlocutory decree. The defendant W. S. Tyler Company, by amendment, inserted in its answer a counterclaim for breach by the plaintiff of its contract with this defendant. Thereafter the suit was heard on the merits. At the opening of the hearing on the merits, counsel for the plaintiff conceded that the work on the apartment house at 1089-1091 Boylston Street had been completed, but stated that ‘the corporation is engaged in the building business and intends to continue in the building business, and for that reason seek[s] to have the injunction made permanent against their [the defendants' or some of the defendants'] interference with the maintenance [by the plaintiff] of an open shop.’ After hearing, a final decree was entered dismissing the bill against all the defendants, but ordering ‘judgment’ for the defendant W. S. Tyler Company on its counterclaim against the plaintiff. From this final decree the plaintiff appealed. There is a ‘statement of findings, rulings and order for decree’ by the judge. The evidence at the hearing on the merits is reported.

First. We consider first whether the plaintiff is entitled to recover damages against the labor defendants or any of them.

1. Since the work on this apartment house was completed before the hearing on the merits, there was not at that time and is not now any occasion for injunctive relief against any of the labor defendants with respect to the work on this apartment house. However, it is elementary ‘that a plaintiff who had good ground for injunctive relief when the bill was filed, but who has lost his right thereto pending the suit, may have the bill retained for an award of damages.’ Simon v. Schwachman, 301 Mass. 573, 583, 584, 18 N.E.2d 1, 7, and cases cited. This principle is applicable even though the bill contains no prayer for damages. The bill in the present case contains a prayer for ‘such other and further relief as may be proper.’ Under such a prayer, damages may be awarded. See E. Kronman, Inc. v. Bunn Bros. Inc., 258 Mass. 562, 568, 155 N.E. 426. Indeed, a prayer for general relief is read into the bill. G.L.(Ter.Ed.) c. 214, § 12. Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 535, 9 N.E.2d 570.

2. The question for determination is whether the plaintiff is entitled to the relief of damages against the labor defendants, or any of them, springing ‘out of what * * * [the plaintiff] was entitled to when the bill was filed.’ See E. Kronman, Inc. v. Bunn Bros. Inc., 258 Mass. 562, 568, 155 N. E. 426. The case was heard upon this issue. The decision of this issue depends upon whether on allegations of the bill established by proof these defendants were guilty of conduct unlawful against the plaintiff causing damage to the plaintiff. Since the case is before this court upon a report of the evidence, this court must reach its own conclusion, but in reaching its own conclusion findings of fact by the judge not inconsistent with each other, so far as they depend upon oral evidence are to be taken as true unless plainly wrong.

3. The plaintiff seeks to recover damages from the labor defendants for loss of rents of the apartment house, caused by delay in the completion of the elevator therein from April 8, 1940, to October 31, 1940, and delay in the completion of the front entrance. There was evidence of loss of rents resulting from delay in the completion of the elevator, and we assume in favor of the plaintiff that it sustained some loss of rents by reason of such delay, and proceed to consider whether such delay was caused in whole or in part by the wrongful conduct of the labor defendants or any of them. Whether any loss of rents resulted from delay in the completion of the front entrance to the building, apart from delay in the completion of the elevator, is conjectural upon the evidence. For the purpose of determining damages, it is unnecessary to consider the lawfulness or unlawfulness of conduct of the labor defendants that did not contribute to delay in the completion of the elevator.

4. The plaintiff contends that the trial judge at the hearing of this suit of...