Hooker, Corser & Mitchell Co. v. Hooker

Citation95 A. 649
CourtUnited States State Supreme Court of Vermont
Decision Date26 October 1915
PartiesHOOKER, CORSER & MITCHELL CO. v. HOOKER et al.

Appeal in Chancery, Windham County; Fred M. Butler, Chancellor.

Suit by the Hooker, Corser & Mitchell Company against James F. Hooker and others. Heard on supplemental report of a special master to assess damages after remand of case found in 88 Vt. 335, 92 Atl. 443. Decree for orator, and defendants appeal. Affirmed, with alterations, and cause remanded, with mandate.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Barber & Barber, of Brattleboro, for appellants. Clarke C. Fitts, Robert C. Bacon, and Hermon E. Eddy, all of Brattleboro, for appellee.

WATSON, J. This case was before us as reported in 88 Vt. 335, 92 Atl. 443, on the question of defendants' liability, and it was remanded, with mandate directing the assessment of damages. The facts there stated need not be repeated in this connection. The case being thus back in the court of chancery, the defendants petitioned the court, under the provisions of section 1317 of the Public Statutes, for leave to amend their joint and several answer, and for a further hearing on the question of liability. On hearing the petition was denied by the chancellor as a matter of discretion. To this defendants excepted, on the ground that such denial was an abuse of discretion, and the question so raised has been strenuously argued on appeal. It appears from the affidavits filed in support of the petition that the subject-matter which the defendants sought to bring into their answer by the proposed amendment was known to them and to their solicitors before and at the time when the answer was put in, and consequently it was known to them throughout the progress of the case on the main question, both in the court of chancery and in this court. Yet, notwithstanding such knowledge, the defendants did not, by affidavit in connection with the petition, undertake to give any reason, or to explain, why they did not originally aver in the answer the matters and things which, if the amendment had been permitted, they now claim would, when proved, constitute a good and full defense to the bill. Without considering whether the evidence by which they propose to support such a defense would be in conflict with the rule that parol evidence is inadmissible to contradict or vary the terms of a written contract, we think, as the matter was presented to the chancellor at that stage of the proceedings, the denial of the petition was the exercise of discretion within the bounds of reason and justice, and in a manner making it judicial. Hubbard v. Hubbard, 77 Vt. 73, 58 Atl. 969, 67 L. R. A. 969, 107 Am. St. Rep. 749, 2 Ann. Cas. 315. Moreover, if the amendment had been allowed, it would have operated to open the case for the trial of one phase of the question of liability right over again. In Sheldon v. Clemmons, 82 Vt. 169, 72 Atl. 687, it was held that sections 1317 and 1318 of the Public Statutes were not intended to give, and do not give, the court of chancery, after mandate from this court in a cause heard and determined on the merits has been sent down and filed, power to permit the losing party to file new or amended pleadings presenting the same issues for the purpose of litigating the same questions over again; that in such circumstances the statute gives the court of chancery no greater power in this respect than it has without the statute; and that the motion to amend the bill was properly denied as a matter of law. See Blair v. Ritchie & Warden, 73 Vt. 109, 50 Atl. 807.

Defendants excepted to the order denying their aforementioned petition, and on the same day undertook to "except to the failure of the court to report defendants' complete exception No. 9 taken to the master's report on file in said cause, and found on page 97 of the printed [original] record, which said exception is as follows," then quoting "No. 9" found on the page named of the record. But neither the number there referred to, nor the one quoted, is an exception to the master's report, nor intended to be. It is No. 9 of the defendants' written requests to the master to report their objections and exceptions taken to his rulings in excluding certain evidence during the progress of the trial. This request was in accordance with the procedure required by section 1265 of the Public Statutes, and entitled defendants to a report of the master's decision made as to the rejection of the evidence to which reference was therein made. It is said that a full report was not made in compliance with this request. Granting this to be so, the course of defendants, if they cared to insist upon a further compliance with the request, was to move for a recommittal of the report under an order from the chancellor directing the master to make full report in that behalf if he had not already done so. Winship v. Waterman, 56 Vt. 181. The record does not show that any attempt to have the report recommitted for this purpose was made; nor does it show that any exception was taken, or attempted to be taken, to the report because of the rejection of the evidence mentioned in the request. By P. S. 1268:

"No questions in regard to the admission or rejection of evidence by the masters shall be heard in the Supreme Court, unless such objection is made by exception to the report, duly filed in the court of chancery."

The statute has been construed as explicit that such question shall be treated as waived in the Supreme Court, unless saved in the report, and insisted on in the court of chancery, by exceptions duly filed to the report. Winship v. Waterman, cited above; Scofield v. Stoddard, 58 Vt. 290, 5 Atl. 314; Bruce v. Continental Life Ins. Co., 58 Vt. 253, 2 Atl. 710; Baxter v. Blodgett, 63 Vt. 629, 22 Atl. 625; Bourne v. Bourne, 69 Vt. 251, 37 Atl. 1049; Dee v. King, 73 Vt. 375, 50 Atl. 1109; Sargent v. Burton, 74 Vt. 24, 52 Atl. 72; Allen's Adm'r v. Allen's Adm'r, 79 Vt. 173, 64 Atl. 1110; Randall v. Moody, 87 Vt. 68, 88 Atl. 321.

The chancellor granted the above-mentioned motion of defendants to amend their exceptions, within the limitations named in his order of April 13, 1915. To this the orator excepted, and to the extent that the motion was refused defendants excepted. Yet, as we hold that the exceptions taken to the exclusion of the evidence mentioned were waived by defendants' failure to have them shown by the master's report, and by the failure to except to the report, they were waived forever, and the chancellor had not the power, either under the provisions of P. S. 1317, or otherwise, to give defendants the benefit of them by granting their motion to amend the exceptions after the remand of the case from this court. If this were allowable, a party can perfect and take part of his exceptions to this court, and if the decision here be against him, and the cause remanded, he can perfect other of his exceptions saved during the trial, and bring the case up for review on them, repeating in the same manner as many times as the decision on appeal be against him and he can find other exceptions to bring forward and can obtain leave from the court below so to do. Such a course of procedure is too inconsistent with the general rules governing the proper administration of justice to be approved or sanctioned. In view of this holding, it is unnecessary to consider the question of the admissibility of the evidence to the exclusion of which the amendment related. Nor is there anything left for consideration upon the exception to the overruling of defendants' motion for a further hearing for the purpose of offering such evidence.

The master adopted as the rule of damages the profits which the orator company would have made from 1910 to 1913 had the defendants not done the unlawful acts established, and held that the basis for such an estimate was to be found by comparing the profits of those four years with a reasonable period next preceding the time when the injury was inflicted, making an allowance for any loss shown resulting from depression in trade or other causes not the result of the defendants' unlawful acts. In that connection the master states that there was no evidence showing any other cause for the loss in business and profits. This rule is supported by authorities, and we think it is the true rule of application in the circumstances of this case. Sedg. Dam. § 182; Chapman v. Kirby, 49 Ill. 211; Allison v. Chandler, 11 Mich. 542; Peltz v. Eichele, 62 Mo. 171; Gunter v. Astor, 4 Moore, 12.

Defendants excepted, however, to the finding that "there was no evidence showing any other cause for the loss in business and profits," on the ground that such finding is not in accord with the evidence. The transcript of the evidence is referred to in the decree for the purpose of presenting the questions raised by the exceptions to the report, and for the purpose of showing the exceptions taken to the admission and exclusion of testimony by the master. It appears that testimony was given by defendant Corser, in effect, that on January 1, 1909, the...

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