John Hetherington & Sons v. William Firth Co.
| Decision Date | 05 June 1912 |
| Parties | JOHN HETHERINGTON & SONS, Limited v. WILLIAM FIRTH CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Warner, Warner & Stackpole, of Boston ( J. B. Warner, of Boston, of counsel), for plaintiff.
Samuel J. Elder and Frank E. Bradbury, both of Boston, for defendant.
After the decision in this case in 210 Mass. 8, 95 N.E. 961, the superior court entered an order to the effect that the This order was entered in consequence of a wide variance between the parties as to the extent and elements of damage open in the new trial. Being of opinion that the question of law involved in this interlocutory order ought to be determined by the full court before further proceedings, the judge reported the case for that purpose under R. L. c. 173, § 105, St. 1910, c. 555, § 5.
This case has been once tried before an auditor, and once before a judge of the superior court sitting without a jury, questions of law arising upon which have been once passed upon by this court. Each trial of the facts has been long, and necessarily must have been conducted at great expense to the parties. The scope of inquiry as to damages at the new trial, if in accordance with the order entered in the superior court, will be narrow and a trial necessarily brief, while if it is as broad as contended by the plaintiff extended investigation into complicated facts may be involved. Under these peculiar circumstances the report upon such an order is made properly under the statute. Considerable discretion is conferred upon judges of the superior court in reporting cases before they are ripe for final judgment. If this discretion should be too generously exercised, and if moot, speculative or subsidiary questions are reported, they would not be considered. The statute does not permit a return to the prolific power given to the superior court by St. 1869, c. 438, which was found by practice so extremely inconvenient that it was repealed by St. 1878, c. 231. Terry v. Brightman, 129 Mass. 535; Bearce v. Bowker, 115 Mass. 129; Noble v Boston, 111 Mass. 485. The question presented by this report is fundamental and vital in a new trial, and its decision now is in the interest of economy of time and expense.
The plaintiff contends that under the previous decision it is permitted to recover all damages suffered by reason of the defendant's breach of contract, save only that the subject of prospective profits is barred, while the defendant asserts that only the reasonable expenses incurred in re-establishing an American agency is open. This diversity of view requires an examination of the posture of the case when it was here before. The plaintiff then had prevailed in the superior court with a substantial finding in its favor. The defendants pressed various exceptions. The only ones now material were grouped under the single proposition, 'loss of profits on sales of machinery occasioned by the act of the defendant.' 210 Mass. 21, 95 N.E. 964. This was the only aspect of damages argued by counsel. Narrowly construing its duty, the court perhaps might have confined itself to that phase, and left the rest of the field of damages undisposed of. But this would not have conduced to a new trial based upon the judgment of this court as to the elements of damage which would be proper subjects of inquiry. It is the practice under such conditions to indicate as well as it may the general principles which should guide the conduct of the new trial, and thus afford all the aid in its power to end litigation promptly in accordance with law. So far as such principles are stated they become the law of the case. Boyd v. Taylor, 207 Mass 335, 93 N.E. 589. Where all the other factors have not been directly argued and where the court does not undertake...
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