Lunn & Sweet Co. v. Wolfman

• Decision Date: 12 September 1929
• Citation: 167 N.E. 641,268 Mass. 345
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LUNN & SWEET CO. v. WOLFMAN et al. (two cases).

268 Mass. 345

167 N.E. 641

LUNN & SWEET CO.

v.WOLFMAN et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 12, 1929.

Exceptions from Superior Court, Suffolk County; Cox, Judge.

Two actions by the Lunn & Sweet Company against Nathan Wolfman and others, tried together. Judgments for plaintiff, and defendants bring exceptions. Exceptions overruled.P. N. Jones, of Boston, for plaintiffs.

J. J. Kaplan, of Boston, for defendants.

RUGG, C. J.

These two actions of contract are between the same parties, were tried together, and come before us on a single bill of exceptions. The plaintiff seeks recovery, in one action, for the purchase price of shoes under a written contract, and, in the other action, damages for failure by the defendants to take shoes under the same contract. The controversy arises out of the circumstance that a contract in writing in the name of the Lunn & Sweet Shoe Company, a Maine corporation, was executed with the defendants on November 20, 1919, whereby the latter agreed to purchase shoes made by the corporation, which the plaintiff contends was in truth made and performed by it (a corporation organized under the laws of Delaware, and succeeding by purchase on October 1, 1919, to all the assets of the Maine corporation), and that therefore it can maintain this action in its own name and behalf as the real selling party to that written contract.

The cases were first tried to a jury. The trial judge directed a verdict for the defendant in each action. Thereafter, upon motion of the plaintiff, new trials were had before the same judge sitting without a jury upon the evidence previously introduced at the jury trial. Upon consideration the judge made certain findings and rulings, and ‘at the request of the defendants, ruled that, as the contract on which the actions are based was not made by the plaintiff with the defendants, the plaintiff could not recover on any count in either action; and because of that ruling and for that reason alone he found and ordered judgment for the defendants. * * * The cases were reported upon an agreement of the parties, that, if the ruling and finding for the defendants were correct, judgment is to be entered for the defendants in each case, otherwise such orders and directions are to be made as justice may require.’ The cases came before us on that report in Lunn & Sweet Co. v. Wolfman, 256 Mass. 436, 437, 438, 152 N. E. 893, 895. It there was held that, upon the findings of fact made by the judge, a further finding would be warranted that there was a contract between plaintiff and defendants, that the judge had erred in ruling otherwise, and that, as an issue of fact was presented whether a contract had been entered into between the parties, the plaintiff's contention that as a matter of law judgment should be entered for the plaintiff on the findings could not be supported. The cases were remanded ‘to the superior court for the determination of the question, whether the contract was made by the plaintiff and defendant, as an issue of fact, and for the entry of such judgment as may be required by the finding.’ 256 Mass. at page 442,152 N. E. 895. The issue thus to be determined was referred to an auditor-by agreement of the parties, the judge who first heard the case and had since retired from the bench. The reference, by agreement of the parties approved by the court, provided that the findings of fact by the auditor should be final. The order further stated that ‘the auditor may consider all evidence pertinent to said issue or issues which was introduced at the trial in the Superior Court before Judge Lawton.’

The auditor says in his report that the case was tried before him on the official transcript of the evidence received at the former trial and upon the oral testimony of one Moran. His report briefly narrates the salient facts material under the reference and concludes with the specific finding ‘that the contract here in question was made by the plaintiff and the defendants.’ On the coming in of the report of the auditor the plaintiff in each action filed a motion for judgment. The defendants filed a motion to recommit the auditor's report supported by affidavits. At the hearing upon these motions, the judge (1) granted the requests for rulings presented by the plaintiff and ordered judgment for the plaintiff in each case in accordance with its motion and (2) denied the defendants' motion to recommit and ruled ‘that upon the motion to recommit evidence and affidavits as to the testimony and evidence at the trials before the court and auditor are not competent or admissible and cannot be considered by the court,’ and refused to give the rulings requested by the defendants. The exceptions of the defendants bring the cases here.

The earlier decision settled in favor of the plaintiff the fundamental question whether the evidence would support a finding as matter of fact that the plaintiff was a party to the written contract. Having thus settled that underlying contention, that decision confined the further trial of the cases to the single sharply defined issue whether as matter of fact the plaintiff was such party. Plainly the further trial of the cases might be so confined. Simmons v. Fish, 210 Mass. 563, 567, 568, 97 N. E. 102, Ann. Cas. 1912D, 588. The settlement of that issue would end the controversy. The questions of law decided when the cases were here before were no longer open to controversy, except as the parties might now ask that the decision then rendered ought to be overruled and hence reversed because wrong in law. We do not understand the defendants to argue that proposition. In any event, that contention could not be maintained. We remain content with that decision. It stands, so far as it goes, as adjudicating the rights of the parties. The doctrine of stare decisis applies to it. It was the law of the case binding absolutely upon every tribunal and magistrate dealing with the cases, except one clothed with power to overrule it and finally declare the law to be otherwise. Boyd v. Taylor, 207 Mass. 335, 93 N. E. 589;Parker v. American Woolen Co., 215 Mass. 176, 181, 102 N. E. 360;Taylor v. Pierce Bros., Ltd., 220 Mass. 254, 107 N. E. 947;Arnold v. Maxwell, 230 Mass. 441, 445, 119 N. E. 776;Mabardy v. McHugh, 202 Mass. 148, 152, 88 N. E. 894,23 L. R. A. (N. S.) 487, 132 Am. St. Rep. 484,16 Ann. Cas. 500.

The stipulation embodied in the rule to the auditor that his findings of fact shall be final means precisely that. His findings of fact are final and conclusive unless tainted in some material particular by error of law. They stand upon the same footing as the verdict of a jury. Marden v. Howard, 242 Mass. 350, 355, 136 N. E. 385. The rulings of an auditor as to the admission and exclusion of evidence in appropriate instances may be reviewed by the court. Questions of that nature may be raised by a motion to recommit in a case like the present. Tripp v. Macomber, 187 Mass. 109, 72 N. E. 361;Pettey v. Benoit, 193 Mass. 233, 236, 79 N. E. 245;W. R. Grace & Co. v. National Wholesale Grocery Co., Inc., 251 Mass. 251, 146 N. E. 908;Technical Economist Corp. v. Moors, 255 Mass. 591, 598, 152 N. E. 83. When inquiries of fact are thus involved, the motion must be supported by affidavit. Koch, Petitioner, 225 Mass. 148, 114 N. E. 79;superior court rule 23 (1922).

The judge, in view of the posture of the cases, ruled rightly to the effect that evidence and affidavits as to the testimony and evidence at the previous trials were not competent. The cases were heard by the auditor in part upon all the evidence previously heard. That evidence had been held to be sufficient to support a finding like that made by the auditor. It would have been futile to listen to evidence already held sufficient to support the conclusion reached after an agreement by the parties sanctioned by order of the court to the effect that the findings to be made by the auditor on that very evidence and such other evidence as parties might introduce should be final. Finality would constantly recede and never be reached if such procedure were permissible. The cases relied on by the defendants, such as Manning v. Boston Elevated Railway, 187 Mass. 496, 73 N. E. 645, where facts must be brought to the attention of the court to display alleged errors of law, have no relevancy to the record here presented. In its essence the complaint of the defendants is that the auditor has made wrong findings of facts, not that he has been guided by erroneous rulings of law. The principles of law to govern the cases at bar were settled by the earlier decision. All that remained for further litigation was the ascertainment of a strictly defined and narrowly bounded question of fact. That was to be settled once for all by the auditor.

With these general observations, the several grounds urged by the defendants are considered in order. It is to be noted that the motion of the defendants is prefaced by the request that the ‘court rule with respect to each of the following paragraphs' that the report be recommitted to the auditor with directions to him to do each of the things specified. On analysis of the six paragraphs of the motion, the first three concern pure matters of fact. Those matters depend upon testimony and evidence. It is not the province of the court in an action at law in the posture of the cases at bar to review or revise findings of fact. Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803. The evidence is not reported, was not required to be reported, and usually is not ordered to be reported in a rule to an auditor. The very purpose of a reference to an auditor commonly is to obtain a finding of facts, not a report of the evidence. The affidavit in support of the motion to recommit is confined by its title as well as by its substance to paragraph 4 of the motion. It contains nothing touching the other paragraphs.

1. The first ground...