MaLden & Melrose Gaslight Co. v. Chandler

• Citation: 97 N.E. 906,211 Mass. 226
• Parties: MALDEN & MELROSE GASLIGHT CO. v. CHANDLER (two cases).
• Decision Date: 01 March 1912
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 226

97 N.E. 906

MALDEN & MELROSE GASLIGHT CO. v. CHANDLER (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1912

COUNSEL

Robt. W. Nason, Thos.

W. Proctor, and S. R. Wrightington, for appellant.

Sherman L. Whipple and Johnson, Clapp & Underwood, for appellee.

OPINION

BRALEY J.

It was adjudicated, when these cases were first before us on the defendant's exceptions with a report of all of the material evidence, that the judge was warranted in finding that the defendant had intentionally defrauded the plaintiff of the amounts charged in the bills of complaint. Malden & Melrose Gaslight Co. v. Chandler, 209 Mass. 354, 95 N.E 791; Mason v. Pomeroy, 154 Mass. 481, 29 N.E. 51; Boyd v. Taylor, 207 Mass. 335, 93 N.E. 589; McManus v. Thing, 208 Mass. 55, 60, 94 N.E. 293. The exceptions having been overruled and final decrees entered in conformity with our decision, the defendant appealed to this court, where he contends that the decrees should be reversed and the bills severally dismissed. If under our practice a defeated party may prosecute questions of law by a bill of exceptions in suits in equity as well as in actions at law it would seem that when on exceptions the merits of the litigation are fully presented and decided, the additional remedy of an appeal after rescript ordinarily would not be invoked. Kennedy v. Welch, 196 Mass. 592, 594, 83 N.E. 11.

But if the appeal in the case at bar 'practically seeks to obtain a reconsideration of the former decision or at least to avoid its effect,' as was said by Holmes, J., in Mason v. Pomeroy, 154 Mass. 481, 482, 29 N.E. 51 the defendant nevertheless is entitled to a review of the evidence by us on the questions of fact. The review of course is subject to the familiar rule that unless chearly erroneous, the findings made on the evidence by the trial judge will not be reversed. Where the credibility of witnesses and their interest in the result is largely involved, this rule, while not absolutely controlling, should be given its full effect. The personality of the witness, his manner while giving evidence, the sincerity of the narrative as manifested by the oral expression, cannot be reproduced by the printed record. Revere Water Co. v. Winthrop, 192 Mass. 455, 459, 78 N.E. 497.

We have carefully read the voluminous report of the evidence, which was taken by a commissioner, and find no essential difference as to the issue of liability when the evidence presented by the appeal is compared with the evidence contained in the exceptions. The defendant was called by the plaintiff and apparently cross-examined under the provisions of Rev. Laws, c. 175, § 22, and his entire evidence covers 298 of the 812 pages of the oral testimony. It is impossible, even on his own statements of the negotiations for the purchase and transfer of the two parcels of land, not to entertain grave doubts as to the reliability of his evidence. If it was necessary from the defendant's point of view that one Stetson should first take the title to one of the parcels, no reasonable explanation is shown why Stetson should have conveyed the land to one Gaffey, who conveyed to the company and whom the defendant had employed as an intermediary to take title in many business transactions, or why Gaffey,...