Brown v. Grow
| Decision Date | 14 June 1924 |
| Citation | 249 Mass. 495,144 N.E. 403 |
| Parties | BROWN v. GROW. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Norfolk County; George A. Flynn, Judge.
Action of contract by R. Gascoigne Brown against Louis Grow, doing business under the name and style of United Motors of New England, for damages growing out of refusal of defendant to purchase automobile. On report. Judgment for plaintiff.
J. N. Welch, of Boston (F. J. De Veau, of Boston, of counsel), for plaintiff.
J. C. Johnston, of Boston (Edward S. Farmer, of Boston, of counsel), for defendant.
The defendant attacks the jurisdiction of this court to consider the case. The facts pertinent to the decision of that question are that at the conclusion of the opening statement by plaintiff's counsel a verdict was directed in favor of the defendant. Thereupon the docket entry, ‘To be reported,’ was made. That was on December 19, 1922. No draft report was presented to the judge or filed in court until April 28, 1923, when the defendant objected to a report of the case. The judge overruled the objection and in the exercise of his discretion and ‘in order to see that justice may be done, and in accordance with the stipulation of the parties made in open court at the time of the trial, and before final judgment had been entered on the docket,’ reported the case by report filed on December 18, 1923. Rule 54 of the Superior Court 1923 Rules provides:
‘Where a case is reserved for report, the counsel for the plaintiff or of the party at whose request it is reserved or reported shall file a draft report within 20 days thereafter, or within such further time as the court may by special order allow.’
[1] The action of the court cannot be construed as a special order allowing further time for filing the report. Such order must be entered before the expiration of time previously limited. Hack v. Nason, 190 Mass. 346, 76 N. E. 906;Whitney v. Hunt-Spiller Manuf. Corp., 218 Mass. 318, 105 N. E. 1054.
[2][3] The establishment of this rule was within the power of the superior court. G. L. c. 213, § 3. A similar rule first was promulgated as rule 55 of the Superior Court 1915 Rules. Its purpose doubtless was to prevent the determination or consent of the trial judge to exercise the power to report from becoming an instrument for unjust and unwarrantable delay. Frank, petitioner, 213 Mass. 194, 99 N. E. 968. It is not to be construed as a vain gesture in that direction. It is given substantial effect in appropriate cases. Porter v. Boston Storage Warehouse Co., 238 Mass. 298, 130 N. E. 502. This rule, however, does not tie the hands of the court so as to prevent the doing of justice. There is power under G. L. c. 231, § 111, apart from the rule to report cases without limit as to time, provided within reason. The meaning of the rule is to put a definite duty upon the parties. Where there has been failure to comply with the terms of the rule, the judge may refuse to report a case. But where justice requires the judge has power to make a report within a reasonable time, even though there has been no compliance with the rule. In view of the broad language of G. L. c. 231, § 111, it cannot be assumed that it was intended by the rule to fix an inflexible time limit to the exclusion of a review by this court justly required. All this was settled by Leland v. Order of United Commercial Travelers of America, 233 Mass. 558, 560, 561, 124 N. E. 517. It has been followed without discussion in numerous cases. Barnard Manuf. Co. v. Eugen C. Andres Co., 234 Mass. 148, 152, 125 N. E. 170;Sasserno v. Sasserno, 240 Mass. 583, 134 N. E. 239;Jordan Marsh Co. v. Cohen, 242 Mass. 245, 250, 136 N. E. 350;Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 463, 139 N. E. 170. There is nothing inconsistent with this in Porter v. Boston Storage Warehouse Co., 238 Mass. 298, 130 N. E. 502, where there had been unconscionable delay, or in Walsh v. Adams, 245 Mass. 1, 4, 139 N. E. 379, where no question was raised touching the rule and no reference made to it. It does not appear that there has been unreasonable delay. The judge has expressly stated in his report that the ends of justice require a report, not withstanding the rule, The record confirms that finding. The case at bar is properly before us.
[4] This is an action to recover damages for breach of an alleged contract to repurchase an automobile bought by the plaintiff of the defendant. On April 15, 1920, the parties executed a contract of sale, the plaintiff executed a conditional bill of sale and both parties executed an agreement for the repurchase of the automobile, all three instruments being part of the same transaction and executed simultaneously. In the contract of sale was the clause:
‘It being agreed by both parties hereto that this contract embodies all the terms and conditions of sale.’
The conditional bill of sale contained this paragraph:
‘Said car is leased as is and no reference, representation, contract, agreement, promise, undertaking or understanding whatsoever not contained herein shall be binding upon the lessor, or in any way affect the validity of this contract or form any part thereof, but all statements made have been merged and set forth herein.’
The defendant contends that by reason of these clauses the contract of repurchase is of no force or effect. He relies on the principle that when in a written contract is a stipulation that the contract recites all the inducements to its execution, that no representation not embodied therein shall be binding and no agent has power to modify or waive any of its terms, evidence extraneous and contradictory to its terms is not admissible. Colonial Development Corp. v. Bragdon, 219 Mass. 170, 106 N. E. 633;O'Meara v. Smyth, 243 Mass. 188, 137 N. E. 294;Cannon v. Burrell, 193 Mass. 534, 79 N. E. 780;Eastern Advertizing Co. v. E. L. Patch Co., 235 Mass. 580, 127 N. E. 516.International Text Book Co. v. Martin, 221 Mass. 1, 7, 108 N. E. 469.
That principle rests upon the policy of the law that contracts in writing freely made by intelligent and competent persons ought to stand and be enforced. That principle has no relevancy to the facts here disclosed. The agreement for repurchase of the automobile was as binding on the...
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