N. E. Redlon Co. v. Franklin Square Corp., 3269.

• Decision Date: 02 December 1941
• Docket Number: No. 3269.,3269.
• Parties: N. E. REDLON CO. v. FRANKLIN SQUARE CORPORATION.
• Court: New Hampshire Supreme Court

23 A.2d 370

N. E. REDLON CO.

v. FRANKLIN SQUARE CORPORATION.

No. 3269.

Supreme Court of New Hampshire. Strafford.

Dec. 2, 1941.

[Copyrighted material omitted.]

Transferred from Superior Court, Strafford County; Burque, Judge.

Action in assumpsit by the N. E. Redlon Company against the Franklin Square Corporation for the balance due on a building contract. Judgment for plaintiff. Case transferred on defendant's exceptions to the granting of plaintiff's motion to vacate an order for new trial on the issue of consent to a change made by plaintiff in the timbers used and denial of defendant's motion for jury trial.

Judgment affirmed.

Snow & Peyser, of Rochester, and Frank E. Blackburn, of Dover (Frank W. Peyser, of Rochester, orally), for plaintiff.

Robert W. Upton and Laurence I. Duncan, both of Concord, for defendant.

PAGE, Justice.

The last transfer to this Court resulted in the opinion that on two of the assigned grounds it was impossible for the trial court to find in favor of the defendant on its motion for a new trial, and the flat statement that on the third ground the trial court might have found the exact opposite of its finding implied, but not expressed. We nevertheless thought that we could not correct the exercise of discretion in this respect.

At a subsequent term of the Superior Court, the presiding justice sat properly to determine what, if any, issues should be withdrawn from consideration at the new trial. The plaintiff moved to vacate the order for a new trial made by another presiding justice (Connor, J.), who gave his consent for the currently presiding justice (Burque, C. J.) to pass upon the motion. The Chief Justice thereupon passed upon the motion to vacate, made full findings of fact, and granted the motion. He also denied a motion by the defendant that the new trial be by jury, and ordered judgment on the reports.

I. Concerning the vacating of the order for a new trial, the defendant takes three positions: (1) It is argued that, since we did not disturb the order for a new trial made by Connor, J., the defendant's right to a new trial is res adjudicata, and not subject to review by the Superior Court. (2) It is claimed that, assuming the power of the Superior Court to review its own exercise of discretion, no reason appears for a review. (3) It is urged that, assuming the power and the reasonable occasion to review, only the presiding justice who ordered the new trial can review and revise his exercise of discretion.

(1) Discretionary or interlocutory orders of the Superior Court do not result in an adjudication of the rights of the parties until the case goes to final judgment. Russell v. Dyer, 39 N.H. 528, 531. The Superior Court has the power to correct its own errors in the finding of facts, even as to the merits, where it has been imposed upon, at any time before judgment. Carpenter v. Carpenter, 78 N.H. 440, 442, 443, 101 A. 628, L.R.A.1917F, 974. There is no reason to doubt that the Court may before judgment review its exercise of discretion in connection with a motion for a new trial, and reverse itself in accordance with the demands of justice. The problem of a new trial depends upon the question whether justice has been done (P. L. c. 342, § 1), and that question while usually determined once for all in the first instance, cannot be wholly closed and adjudicated before final judgment.

Our former opinion (90 N.H. 519, 532, 11 A.2d 821), declining to reverse the exercise of discretion, was no more than a statement of fact that upon the record where evidence was largely lacking and the presiding justice made no expressed subsidiary findings (regarding diligence for example), we could not say that there was no evidence to sustain his implied findings. It determined nothing as a matter of law and did not adjudicate the rights of the parties to a new trial. If we may say that a party cannot have a new trial because the very ground he claims has already been decided here adversely to him (Cox v. Leviston, 66 N.H. 167, 20 A. 246; Wright v. Boynton, 40 N.H. 353), it cannot be said that we have held as a matter of law either that the defendant has or has not the clear right to a new trial because of the "new evidence" now relied on. The Superior Court has, therefore, not attempted to modify, alter, set aside, or depart from any judgment of this Court.

(2) The Superior Court will not lightly undertake to review its prior discretionary action. It is to be presumed, in this instance, that the entertaining of the motion to vacate the order for a new trial was based upon the finding that there was reasonable ground for a reexamination of the question whether a new trial was required. The fact that there was a conference between the judge who made the first order and the judge who vacated it may well indicate consideration of the question of reasonable ground for review. However that may be, the peculiar history of this case itself afforded ample ground for further consideration.

The precise ground alleged for a new trial was the discovery of evidence that there was no shortage of long leafed pine. The consent of the defendant was obtained, the architect had testified, after the former was told of this fact by the latter. The defendant's treasurer absolutely denied any such conversation or consent. The referee believed the architect and gave no credit to the defendant's treasurer. The "new evidence" was important only as it might shake the referee's belief in the credibility of the architect, thus leaving the plaintiff without any evidence of consent. No finding was made by the Superior Court as to the probability of such a result prior to the transfer of the exception to the granting of the new trial. We were then bound to assume that such a finding had been made by implication. The Superior Court was not bound by its own finding, whether expressed or implied.

The Superior Court has now expressly found that the newly discovered evidence of no shortage in fact would probably not have the effect of altering the referee's faith in the architect. No evidence, as is now found, has been offered to prove that the architect lied when he said that Redlon told him that the hard pine market was sold out, or that the architect knowingly misrepresented the situation to Rosen. As is now found: "The affidavits consequently disprove nothing the architect testified to. * * * No other evidence is submitted which, in view of the proposed new collateral evidence, would warrant a finding that the Referee would probably reverse himself, and that a different result might reasonably be reached, if a new hearing was had." We cannot say that these findings are clearly unreasonable. They therefore preclude the re-hearing of the merits of the issue of consent, if the Superior Court had jurisdiction to make the findings. McGinley v. Maine Cent. R. Company, 79 N.H. 320, 109 A. 715.

By the weight of common law authority and upon the better reasoning the Superior Court's discretionary powers are continuous. They may be exercised, and prior exercise may be corrected, as sound discretion may require, at any time prior to final judgment. Barry v. Mutual Life Ins. Company, 53 N.Y. 536; King v. Rockhill, 41 N.J.Eq. 273, 7 A. 437; Bracka v. Fish, 28 Wash. 410, 68 P. 872; Baltimore, etc., Company v. Ray, 36 Ind.App. 430, 73 N.E. 942; Louisville, etc., Company v. Scarbrough, 208 Ky. 79, 270 S.W. 494; In re Day's Estate, 129 Kan. 14, 281 P. 865; Barrett v. Smith, 183 Minn. 431, 237 N.W. 15; Hitchay v. Phillips, 316 Pa. 290, 175 A. 389.

The...