Ogens v. Northern Indus. Chem. Co.

• Decision Date: 04 December 1939
• Citation: 304 Mass. 401,24 N.E.2d 1
• Parties: OGENS v. NORTHERN INDUSTRIAL CHEMICAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 401

24 N.E.2d 1

OGENS

v.NORTHERN INDUSTRIAL CHEMICAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 4, 1939.

Suit in equity for an accounting by Benjamin Ogens against the Northern Industrial Chemical Company. From a decree dismissing the bill without prejudice, defendant appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Hurley, Judge.

Edward M. Dangel, S. Andelman, and G. A. Goldstein, all of Boston, for plaintiff.

Lee M. Friedman and L. B. King, both of Boston, for defendant.

FIELD, Chief Justice.

This is a suit in equity for an accounting brought in the Superior Court. It was alleged in the bill of complaint that the plaintiff ‘designed and invented a certain contrivance known as a ‘dull blade disposer,” and entered into an agreement with the defendant, ‘whereby the defendant was to manufacture, improve, develop and sell said ‘dull blade disposer’ and to pay the plaintiff two per centum (2%) of the selling price of each disposer,' and that the ‘defendant is now manufacturing and selling a great many of said disposers, but refuses to account to the plaintiff for said sales and also refuses to pay the plaintiff any monies on said sales in accordance with such agreement.’ An allegation of the existence of a fiduciary relation between the defendant and the plaintiff was added by amendment. The specific prayers are that an accounting be had, and that the defendant be adjudged to be indebted to the plaintiff for any sums now due and ordered to pay any sums that may accrue in the future. The defendant, in its answer, admitted the making of an agreement, a copy of which was attached thereto, and the manufacture and sale of certain articles, but alleged that these articles were different from those described in the agreement, and that it has paid to the plaintiff moneys which would have accrued to the plaintiff under the agreement, had the articles manufactured and sold been those defined in the agreement, and is continuing to account and pay on the same basis as further payments on that basis accrue,' and denied that ‘with reference to any of such sales the plaintiff is entitled to anything.’

The case was referred to a master who made a report. By an interlocutory decree, from which neither party appealed, the exceptions of the plaintiff to the report were overruled and the report was confirmed. A final decree was entered dismissing the bill of complaint without prejudice. From this decree the defendant appealed.

Since the plaintiff has not appealed it is not open to him to ask for a decree more favorable to him (Kilkus v. Shakman, 254 Mass. 274, 280, 150 N.E. 186, and cases cited; Gross-Loge Des Deutschen Ordens der Harugari v. Cusson, Mass., 17 N.E.2d 316), and he seeks no such decree. Indeed the decree was entered upon his motion that the bill be dismissed without prejudice. See Hollingsworth & Vose Co. v. Foxborough Water-Supply District, 171 Mass. 450, 451, 452, 50 N.E. 1037;Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 9, 107 N.E. 426, Ann.Cas.1917A, 145. On the appeal of the defendant, however, the question is open whether the decree dismissing the bill should have been without qualification, as the defendant contends, or whether the bill was properly dismissed ‘without prejudice.’ This is the sole question argued.

There was no reversible error.

The effect of the words ‘without prejudice’ in a decree dismissing a bill of complaint is to prevent such decree from being a bar to further litigation (Lakin v. Lawrence, 195 Mass. 27, 29, 80 N.E. 578), not, however, by limiting the effect of an actual adjudication on the merits, but rather by showing that no such adjudication was made. Corey v. Tuttle, 249 Mass. 135, 139, 144 N.E. 230.Christiansen v. Dixon, 271 Mass. 475, 476, 171 N.E. 451;Buttrick v. Snow, 277 Mass. 401, 406, 178 N.E. 620.

Doubtless the case had progressed so far that the plaintiff had no absolute right to have the bill dismissed without prejudice. See Hollingsworth & Vose Co. v. Foxborough Water Supply District, 171 Mass. 450, 451-453, 50 N.E. 1037;Kyle v. Reynolds, 211 Mass. 110, 97 N.E. 614;Keown v. Keown, 231 Mass. 404, 121 N.E. 153. And ordinarily a judge hearing a case in equity on the merits should decide the case on the merits. But it is within his discretion, subject to appeal to this court (see Long v. George, Mass., 7 N.E.2d 149), to decline to make such a decision and to dismiss a bill ‘without prejudice’ where, as the case comes before him, a decision on the merits cannot be made with justice to the parties. The incidental annoyance of a second suit for the same cause is not such an injury to the parties as necessarily prevents dismissal of the pending suit ‘without prejudice.’ See Hollingsworth & Vose Co. v. Foxborough Water Supply District, 171 Mass. 450, 452-453, 50 N.E. 1037;Kyle v. Reynolds, 211 Mass. 110, 112, 97 N.E. 614. Certain governing principles were stated in Field v. Field, 264 Mass. 549, 163 N.E. 177. In that case a libel for divorce was dismissed ‘without prejudice’ after a full hearing. The case on appeal stood substantially like an appeal from a final decree in equity. The court said, 264 Mass. at pages 550, 551, 163 N.E. at page 177: ‘Courts of equity and divorce have power to enter a decree dismissing the cause without prejudice. The entry of a decree in equity dismissing the bill without prejudice occurs ‘where the dismissal is occasioned by slip or mistake in the pleadings or proof,’ as for example, ‘in consequence of facts not having been properly put in issue.’ 2 Daniell's Chancery Practice (6th Am.Ed.) *994. * * * The mere fact that there was a full hearing is not a decisive factor requiring a final decree without qualification, putting an end to further controversy as to the matters alleged in the bill. Generally the disposition of causes by the entry of a decree without prejudice follows a hearing more or less full.' In that case this court did not know...