Nelson Theatre Co. v. Nelson

• Decision Date: 22 October 1913
• Citation: 216 Mass. 30,102 N.E. 926
• Parties: NELSON THEATRE CO. v. NELSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 30

102 N.E. 926

NELSON THEATRE CO. v. NELSON et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 22, 1913

Oct 22, 1913.

COUNSEL

Chas G. Gardner and Ralph W. Stoddard, both of Springfield, for appellants.

J. B Carroll, W. H. McClintock, and J. F. Jennings, all of Springfield, for appellee.

OPINION

BRALEY J.

The denial of the defendants' anomalous motion to dismiss the amended or substitute bill because it did not state a case for equitable relief, and the overruling of their objections to the allowance of the amended bill, which was purely discretionary with the presiding judge, not having been argued require no further comment. But as the substantial grounds of the motion were embodied in the demurrer the disposition of which is shown only by the docket entry, 'Demurrer overruled,' the first question is whether the defendants' appeal which appears to have been seasonably taken is properly before us. The better and more satisfactory practice would have been to enter an interlocutory decree, but the decision of 'Demurrer overruled' is the final judgment of the presiding judge duly entered upon the docket. If an appeal does not lie upon the record, the defendants upon whom rested no duty to prepare decree are remediless, as the defenses raised by the demurrer are not set forth in the answer. Thompson v. Goulding, 5 Allen, 81, 84, 85; Saltman v. Nesson, 201 Mass. 534, 539, 540, 88 N.E. 3. Appeals from the denial by a single justice of motions to frame issues for a jury have been entertained where no interlocutory decree apparently had been entered. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Ross v. New England Ins. Co., 120 Mass. 113, 115; Ginn v. Almy, 212 Mass. 486, 494, 99 N.E. 276. In Ross v. New England Ins. Co., it is said, 'Under our * * * practice, an order in equity, granting or refusing a motion for issues to a jury, is subject to revision on appeal;' and in Stockbridge Iron Company v. Hudson Iron Co., the order overruling motions for issues is referred to in the opinion 'as an interlocutory decree.' It is stated in the headnote to Parker v. Flagg, 127 Mass. 28, that 'under the Gen. Sts. c. 113, §§ 6, 8, 10, 11, an order which merely sustains a demurrer to a bill in equity, without more, is an interlocutory and not a final decree.' The provisions of the General Statutes governing appeals from interlocutory orders or decrees are now found in R. L. c. 159, §§ 25, 26, 27, and in Burnett v. Com., 169 Mass. 417, 48 N.E. 758. In Cawley v. Jean, 189 Mass. 220, 227, 75 N.E. 614, where these sections are construed, no distinction as to the right of appeal is made between an interlocutory order and an interlocutory decree, and in Harrell v. Sonnabend, 191 Mass. 310, 311, 77 N.E. 764, Hammond, J., says, 'The order overruling the demurrer was an interlocutory decree.' We have not been unmindful of our decision in Merrill v. Beckwith, 168 Mass. 72, 46 N.E. 400, holding that under a rescript directing the bill to be dismissed the plaintiff until the decree had been entered could amend his bill into an action at law. But as explained in Lakin v. Lawrence, 195 Mass. 27, 28, 80 N.E. 578, the rescript of the full court of 'Bill dismissed,' was not a decree, but merely an order for a decree to be entered by a single justice.

But if the appeal is properly before us the demurrers cannot be sustained. By acceptance of the rent as it accrued the defendant Nelson, who knew of and assented to the mesne assignments from the original lessee under which the plaintiff claimed the leasehold waived the condition imposed by the covenant against assigning the lease or underletting, and his repeated entrance thereon, and forcible interference with the plaintiff's possession was unlawful. O'Keefe v. Kennedy, 3 Cush. 325; Milkman v. Ordway, 106 Mass. 232, 259; Skally v. Shute, 132 Mass. 367; King v. Bird, 148 Mass. 572, 20 N.E. 196; International Trust Co. v. Schumann, 158 Mass. 287, 291, 33 N.E. 509; Roth v. Adams, 185 Mass. 341, 344, 70 N.E. 445. The remedy by an action at law in damages for these persistent trespasses alleged to have been participated in by the codefendant to which Nelson subsequently had leased the premises is not complete. If injunctive relief cannot be obtained to restrain the continuous assertion of a right of reentry where upon the averments of the bill such right does not exist, the plaintiff is subjected to vexatious litigation and must resort to multiplicity of actions. The right to possession can be determined in equity as well as at law, and as the defendants acted with a common purpose to dispossess the plaintiff, damages can be assessed against them either jointly or severally by appropriate decrees. O'Brien v. Murphy, 189 Mass. 353, 357, 75 N.E. 700; Von Arnim v. American Tube Co., 188 Mass. 515, 74 N.E. 680; Ginn v. Almy, 212 Mass. 486, 99 N.E. 276.

Nor does error appear at the trial of the merits. The evidence is not reported and under the judge's findings all the material allegations were proved. The case was then referred to a master to assess damages, and the defendants' exceptions to the admission of certain opinion evidence offered by the plaintiff as to the value of the leasehold remain. The leased premises consisted of a theater adapted for the production of motion pictures and illustrated songs or pictorial vaudeville. The master reports, that through the defendants' tortious acts the plaintiff was dispossessed and deprived of a profitable business for a period slightly exceeding five weeks before possession was restored. To assess damages on the basis of the difference between the actual value of the leasehold as an estate for a term of years which should have been enjoyed, and the rent reserved, as in Riley v. Hale, 158 Mass. 240, 33 N.E. 491, would not afford full compensation. The existing business of the plaintiff which was connected and combined with the leasehold had been deliberately and persistently interfered with to the point of absolute suspension and temporary extinction by the defendants, who must be deemed to have contemplated the natural and direct results of their conduct. Hill v. Winsor, 118 Mass. 251; French v. Connecticut River Paper Co., 145 Mass. 261, 14 N.E. 113; Weston v. Boston & Maine R. R., 190 Mass. 298, 76 N.E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825; Hanson & Parker v. Wittenberg, 205 Mass. 319, 327, 328, 91 N.E. 383. The plaintiff does not claim compensation for impairment of the good will which is distinct from profits. Its damages even if...