John Hetherington & Sons v. William Firth Co.

• Decision Date: 06 September 1911
• Citation: 210 Mass. 8,95 N.E. 961
• Parties: JOHN HETHERINGTON & SONS, Limited v. WILLIAM FIRTH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 8

95 N.E. 961

JOHN HETHERINGTON & SONS, Limited v. WILLIAM FIRTH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

September 6, 1911

COUNSEL

Warner Warner & Stackpole, for plaintiff.

Samuel J. Elder and Frank E. Bradbury, for defendant.

OPINION

RUGG J.

1. A question of practice as to trials at law before a judge sitting without a jury lies at the threshold. The defendant seasonably presented requests for rulings. It is said in the exceptions that 'these requests though not expressly passed on by the court are to be treated as refused, the defendant having duly reserved its exceptions, it being understood, however, that the facts assumed or hypothetically stated in these requests are to be taken as true only in so far as sustained by the evidence herein contained and referred to.' We interpret this as meaning that the requests were refused. If the court ignored them the defendant's rights can be no higher than if the court refused them. It means further that if, on any view of the evidence reported, the facts assumed in the requests can be found, then the facts are to be treated as so found. We are led to this construction of the exceptions because it is the only one which is fair to the excepting party. Otherwise it could not be determined what the view of the superior court was as to the matters covered by the prayers. The superior court judge filed no memorandum and made only a general finding for the plaintiff. One branch of the plaintiff's argument has been that the exceptions must be overruled on the ground that it must be assumed that the judge did not find the facts recited in the prayers and that so far as bald requests for correct rulings of law have been refused it must be assumed that facts have been found by the judge which made inapplicable such principles. While a case may be imagined where such an argument may prevail, it cannot ordinarily, nor in this case. When controverted issues of fact are tried without a jury, to a court which makes only a general finding, it would be manifestly unjust if the defeated party could not be assured in some way that correct rules of law have been followed. Where the facts are not agreed and no memorandum of findings is filed, commonly it cannot be certain precisely what facts are found or which witnesses are believed by the trial court in reaching his conclusions. If it were necessary for an excepting party not only to maintain the soundness of the law as stated in his requests, but also to show that the facts supposed as the groundwork of his request must have been found on the evidence, and that no other facts could have been found which would make inapplicable the ruling of law asked for, parties in jury-waived cases could not know, save in comparatively rare instances, that a grievous error of law had not been committed by the trial court. When a case is tried without a jury, the court occupies a dual position; he is the magistrate required to lay down correctly the guilding principle of law; he is also the tribunal compelled to determine what the facts are. When these duties are nicely analyzed, he ought as judge to formulate the governing rules of law, and then, acting in place of the jury, he ought to follow these rules in deciding where the truth lies on conflicting evidence. in one essential particular only does he stand differently as to requests for rulings from a judge presiding over a jury trial: He may refuse to grant a request for the avowed reason that it is immaterial or inapplicable in view of the facts found by him. When a prayer is presented such as in a jury trial ought to have been given, an exception to a refusal to grant it by a judge sitting without a jury must be sustained, unless the ground of refusal is distinctly stated or plainly appears in some way on the record and is such as to show that no harm has been done by the refusal, or unless it is obvious on the whole that no rights of parties have been endangered. Mere silent refusal to grant requests under these circumstances does not raise the presumption in favor of a trial court, which exists as to findings of fact made by it. This is no new principle of practice.

The present judgment is simply an amplification of a rule inherent in the trial of jury-waived cases, which has been more succinctly announced in earlier cases. Miller v Robinson, 2 Allen, 610; Kettell v. Foote, 3 Allen, 212; Lowe v. Boston Five Cents Sav. Bank, 118 Mass. 260; Turner v. Wentworth, 119 Mass. 459, 464. It was stated by Chief Justice Holmes, in Clarke v. Second Nat. Bank, 177 Mass. 257, 266, 59 N.E. 121, by Mr. Justice Loring in Jaquith v. Davenport, 191 Mass. 415, at 418, 78 N.E. 93, and by Mr. Justice Hammond in Chandler v. Baker, 191 Mass. 579, 585, 78 N.E. 387. To the same point see, also, Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 5, 85 N.E. 877; Bangs v. Farr, 209 Mass. 339, 95 N.E. 841. There is nothing inconsistent with this view in Carnes v. Howard, 180 Mass. 569, 63 N.E. 122. The statute upon which the court acted in Insurance Co. v. Folsom, 18 Wall. 237, 21 L.Ed. 827, required a procedure unlike our own. This rule does not impair the efficiency of the superior court, nor restrict its power to administer justice promptly and completely. It is not a recurrence to technicality of practice. It does not invite or justify an unreasonable number of prayers calculated rather to entrap the unwary than to elucidate the principles involved. It does not require that exceptions be sustained when it is not apparent upon the whole that some substantial error injuriously affecting the rights of parties has been committed. It does not compel the judge to deal in detail with fragmentary or indecisive evidence, to be troubled by trivial requests, or to make a special finding, although, as was pointed out in 177 Mass. at page 264, 59 N.E. 121, often it may prove helpful if the grounds of his action are explained. But it does require him, when denying a request, founded upon evidence, to state expressly or by fair inference, either that the legal proposition presented is unsound or inapplicable, or that the facts upon which it is predicated are not found to be true. Failure in this regard affords reasonable apprehension that there has been a miscarriage of justice.

2. The defendant's requests to the effect that the plaintiff could not recover upon the contract of March 7, 1900, were refused rightly. It does not appear to have been conceded that this contract when executed was not binding upon the parties. There was ample evidence that both parties supposed that the contract continued in force until August, and treated it as if in force. The only dispute about it was that the defendant claimed that there was a mistake in it as to the term of credit to be extended to it. It might have been found that the contention of the defendant in this regard, which was expressed by it in writing to the plaintiff, was accepted orally by the latter, and as thus corrected became binding upon the defendant, and available to the plaintiff, although not signed by both parties. The statute of frauds would be no defense under these circumstances. Beach & Clarridge Co. v. Am. Steam Gauge & Valve Mfg. Co., 202 Mass. 177, and cases cited at 181, 88 N.E. 924.

3. It was open for the court to find that the contract was not annulled by mutual consent. The vote of cancellation by the board of directors of the plaintiff was not decisive, and may have been found in the light of all the testimony and the attendant circumstances to have been conditional upon the execution of a new one in substitution, a condition which was never fulfilled.

4. The mutilation of a copy of the contract by the plaintiff was only one factor, not necessarily conclusive by itself, and to be considered with all the others in ascertaining the intent with which the act was done. Atty. Gen. v. Supreme Council Am. Legion of Honor, 206 Mass. 183, 92 N.E. 147. The general finding for the plaintiff involved the conclusions as matter of fact that the contract of March 7, 1900, as modified was binding upon the parties and had not been annulled or cancelled. In this no error appears.

5. There were no circumstances which required a finding of such inability on the part of the plaintiff to carry on its business or intention on its part to sell out as to justify the defendant in abandoning its contract. The action of the plaintiff at most amounted to a determination to ascertain at what price its business could be sold for. It did not fairly warrant the inference of inability to go on with the contract. National Contracting Co. v. Vulcanite Portland Cement Co., 192 Mass. 247, and cases cited at page 256, 78 N.E. 414.

6. The plaintiff is a manufacturer of textile machinery in England. William Firth, for some years prior to 1900, had the exclusive sale of plaintiff's machinery in America, and early in 1900 organized in the United States a corporation of which he was the principal stockholder, president and manager, to take over his business. Under date of March 7, 1900, a written contract was made between the plaintiff and the defendant, by which the plaintiff gave the defendant 'the sole right to sell their machinery in the United States of America and the Dominion of Canada,' and the defendant undertook 'to sell efficiently and to appoint representatives to travel regularly in those countries, visiting the existing mills and the districts in which mills may be erected for the purpose of procuring orders for all the various machines made by' the plaintiff. The defendant further agreed not to engage in the sale of other similar machinery in the designated territory during the term of the contract, and the plaintiff agreed to do all its business in the same...