In re Moneyweight Scale Co.

• Decision Date: 06 January 1917
• Citation: 225 Mass. 473,114 N.E. 741
• Parties: In re MONEYWEIGHT SCALE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 473

114 N.E. 741

In re MONEYWEIGHT SCALE CO.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 6, 1917.

Exceptions from Supreme Judicial Court, Essex County.

Petition by the Moneyweight Scale Company in Supreme Judicial Court to establish exceptions disallowed by the superior court. Petition dismissed.

Fowler, Bauer & Kenney, of Boston, for petitioner.

S. Howard Donnell, of Peabody, for respondent.

RUGG, C. J.

This is a petition to establish the truth of exceptions disallowed by a superior court judge. The matter was referred to a commissioner. His report is somewhat irregular. The duty of the commissioner under the usual order of appointment is to examine the bill of exceptions actually filed, and to determine upon all the evidence whether the exceptions there alleged were in fact saved, whether enough facts are stated to present the exceptions saved, in their right perspective with reference to the issues tried and decided, whether the statement of the exceptions is uncolored and of sufficient brevity, and whether otherwise it is true and fair. The bill actually filed must be the basis of the investigation, although offers by the excepting party to make modifications in order that it may conform to the truth may be considered in some aspects of the inquiry. His report ought to show all the material facts in order that this court may be able to decide the ultimate inquiry whether the judge was right or wrong in disallowing the exceptions. This court does not delegate to the commissioner the duty vested in it by the law of deciding that crucial question. Cullen v. Sears, 112 Mass. 299, 306. The commissioner is charged with a delicate and important duty in reviewing the action of the trial judge. The judge is presumed not to be present at the hearings and the commissioner must in his absence ascertain the facts in part through the evidence of other persons. But he has a right and ought to consider the statements contained in the certificate of the judge. Com. v. Joslin, 158 Mass. 482, 484, 33 N. E. 653,21 L. R. A. 449. These statements are to be treated as true in the first instance and, unless rebutted, explained or overcome by other evidence, will stand.

The commissioner's report in the case at bar simply states that, after a hearing of the parties and their evidence, he ‘settled the exceptions of the said petitioner, as here follows, to be true.’ There follows a complete draft of a bill of exceptions, without statement of the points in controversy before him and without particular reference to the bill as filed. But by comparison of the draft made by the commissioner, with the bill as filed, and disallowed by the judge, it is apparent that the form of the exceptions as filed was followed by the commissioner, except that certain important additions were made to it and one alleged exception was omitted. The case was recommitted to the commissioner for the purpose of annexing copy of the ‘certificate of the trial judge disallowing the exceptions and reporting the material facts as to the conduct of the petitioner from the time of filing until the disallowance of the exceptions.’ Report was made accordingly. No direct finding as to the truth of the facts stated in the judge's certificate is made. Considering these two reports together the facts may be gathered. The first report must be interpreted to mean that the commissioner has established what would be a fair and complete statement of the exceptions actually taken, together with enough of the evidence to make them intelligible. It states such a bill as the excepting party ought to have filed and the judge ought to have allowed. Whether the bill actually filed differs in such material respects from this draft that it ought not to have been allowed is to be ascertained by a comparison of the two. In connection with the circumstances that no finding is made in either report as to the facts set out in the judge's certificate and cognate matters, and that the judge's certificate is annexed to the second report without comment, the record must be construed as a whole to mean that all the pertinent facts are to be found in the two reports and in the judge's certificate so far as that is not controlled by facts set forth in the two reports. Upon these facts the question whether the exceptions are established must be decided by the full bench of this court, in which that jurisdiction is vested. Ela v. Cockshott, 119 Mass. 416;Cullen v. Sears, 112 Mass. 299. The case will be treated on the facts revealed by both reports and the inferences therefrom, and on the certificate of the judge.

The petition avers that an amended bill of exceptions was agreed to by the adverse party, save as to a single exception, and presented to the judge before the bill was disallowed. The commissioner does not pass upon this allegation and does not find this to be a fact. The case must be considered on the footing that it was not so presented. But perhaps this factor is not of much consequence, for in any event ‘we have nothing to do with anything except the bill of exceptions' which was ‘actually and seasonably tendered to the judge’ and which by the ‘petition he now seeks to establish.’ Morse v. Woodworth, 155 Mass. 233, 241, 27 N. E. 1010,29 N. E. 525;Freedman, Petr., 222 Mass. 179, 110 N. E. 161.

The bill as originally filed set forth four exceptions. An inspection of the report of the commissioner shows as to these alleged exceptions that one, as to the denial of a request for an instruction to the jury, was not saved; that another, as to evidence of an alleged alteration of the written order for purchase of the scale or fraudulent insertion therein of a wrong price, although saved, was or might be rendered immaterial by the circumstance, not referred to in the bill, that a question submitted to the jury, whether the petitioner in the performance of its contract delivered to the defendant a scale of the kind described in their negotiations for purchase,was answered in the negative (Arvilla v. Spaulding, 121 Mass. 505-507;Bigelow v. Sprague, 140 Mass. 425, 428, 5 N. E. 144); that a third exception, as to the admission in evidence of a telephone conversation, was not truly presented because material circumstances in the evidence leading up to it were omitted (Glidden v. Child, 122 Mass. 433-437); and that a fourth exception as to leaving to the jury the question of the reasonableness of the time within which the defendant notified the petitioner of her dissatisfaction with the scale delivered to her under the contract of sale, instead of ruling as matter of law, that such notice was not given within a reasonable time, was fairly set forth. Briefly stated, of the four exceptions alleged in the bill, one was not saved, two were not set forth in such form as to be conformable to the truth, and only one was set forth fairly. The commissioner did not make these categorical findings, but an inspection of the exceptions originally filed and a comparison of these with the draft reported by the commissioner renders these conclusions inevitable.

The judge states in his certificate in substance that in July, 1915, he informed counsel for the petitioner that unless the alleged exception,...