Plumer v. Houghton & Dutton Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtRUGG
Citation178 N.E. 716,277 Mass. 209
Decision Date30 November 1931


Appeal from Superior Court, Suffolk County; Lummus, Judge.

Suit by William H. Plumer and others against the Houghton & Dutton Company, in which receivers were appointed for defendant. From the decree, the Franklin Shoe Company, a creditor of defendant, appeals.


M. C. Taylor, of Boston, for appellant.

R. C. Evarts and S. L. Kaplan, both of Boston, for receivers of Houghton & Dutton Co.

R. Homans, C. L. Newton, and J. Rintels, all of Boston, fur trustees of Houghton & Dutton Building Trust and others.


1. This is an appeal by a creditor of the defendant from a decree entered on August 28, 1931, whereby the receivers of the defendant were authorized and directed to sell its entire business and assets to named purchasers upon specified terms. The business and assets consisted of a large and longestablished department store conducted at the corners of Tremont, Beacon and Somerset streets in Boston. Upon petition of the plaintiffs as creditors of the defendant, receivers were appointed in December, 1930, to take possession of all the property and business of the defendant and to conduct its business. In May, 1931, petition was filed by one of the creditors of the defendant setting out that the business of the defendant had been conducted by the receivers at a loss, and praying that the receivers be directed to sell all the assets of the defendant. After divers intermediate proceedings, said decree of sale was entered. In these circumstances the decree of sale may be treated as a final decree for the purposes of appeal. Hutchins v. Nickerson, 212 Mass. 118, 120, 98 N. E. 791;Barringer v. Northridge, 266 Mass. 315, 318, 165 N. E. 400;Sage v. Railroad Co., 96 U. S. 712, 24 L. Ed. 641;Rector v. United States (C. C. A.) 20 F.(2d) 845, 862-872, and cases reviewed. It is the rule of equity practice that cases can come before this court as of right only on appeal from a final decree. Siciliano v. Barbuto, 265 Mass. 390, 394, 164 N. E. 467;Knox v. Springfield, 273 Mass. 109, 173 N. E. 439.

2. The receivers were directed to advertise for bids for the purchase of the business and assets of the defendant as a going concern. Three sealed bids were received and were opened by the judge on August 17, 1931. In order to enable all parties interested to study the bids, adjournment was made for three days and hearings were held on August 20, 21 and 25, 1931. The acceptance of one bid was not urged. The acceptance of the Greenberg bid, so called, was urged by some, and of the Bird bid, so called, by others. The receivers opposed the acceptance of any of the bids upon the ground that they believed all the bids were inadequate and that, if allowed to conduct the business for a few years, they could ultimately provide for the payment of creditors in full. Before deciding which bid, if any, should be accepted, the trial judge heard all parties who desired to be heard, including the receivers, parties favoring the acceptance of one or the other bid, certain creditors opposed to the acceptance of either bid, and the chairman of a creditors' committee who stated that its members were divided in opinion as to the bid to be accepted. At the suggestion of the judge, both bids were amended or modified in writing and were presented at the hearing on August 25. On that date the preparation of a decree for the acceptance of the Bird bid as modified was directed by the judge. Further hearings as to the form of the decree were held on August 27 and August 28, and on the latter date the final decree of sale was entered. The Greenberg bid having expired by its own limitation on August 27, Greenberg asked for and procured the return of his deposit. The judge filed a report of the material facts found by him pursuant to request by the appealing creditor made under G. L. c. 214, § 23. The facts heretofore stated are gleaned from that report, which also contains this paragraph: ‘At the hearings before me no evidence was introduced and none was offered. I based my decision on an analysis of the bids themselves, and on the statements of counsel, and the receivers and of all other parties who desired to be heard. None of the basic facts and figures herein stated was disputed, although some of the conclusions therefrom were disputed.’

The appellant was dissatisfied with the report of material facts and filed a motion for modification of the report setting forth at considerable length facts which, as it alleged, ought to have been included in the report and other facts which ought to be deleted from the report. This motion was supported by affidavits as to facts, but was denied after hearings and the creditor appealed. The appeal from that denial presents no question of law. When a judge reports the material facts found by him, either voluntarily or in response to seasonable request under G. L. c. 214, § 23, he does not make a report of the evidence but recites certain facts which he considered as material and which in his opinion formed the basis of his decision. It is not a new or additional proceeding after the termination of the case by final decree, but is in the nature of an extension of the record in the form of a statement of facts in the mind of the judge when his decision was made, which, when included in the record, puts the case in proper form for hearing on the appeal. Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 300, 54 N. E. 833;Berman v. Coakley, 257 Mass. 159, 161, 153 N. E. 463;Moffatt v. Martell (Mass.) 177 N. E. 102. The judge knows best what facts were material to his decision and he cannot be compelled to include in such report facts which in his own mind were given no weight in reaching a determination as to the rights of the parties. There is nothing wrong in suggesting to the trial judge a change in such report in appropriate instances. But such suggestions are addressed to his sound judicial discretion and cannot form the foundation of review of his action by any other tribunal. Warfield v. Adams, 215 Mass. 506, 519, 520, 102 N. E. 706;Davis v. Boston Elevated R. Co., 235 Mass. 482, 494, 126 N. E. 841;Eaton v. Eaton, 233 Mass. 351, 369, 124 N. E. 37, 5 A. L. R. 1426;Berenson v. French, 262 Mass. 247, 254, 159 N. E. 909;Donnell v. Goss, 267 Mass. 444, 166 N. E. 725.

If the parties had desired to secure review in this court of the facts found or decision rendered by the trial judge because plainly wrong on the evidence before him, appropriate steps should have been taken in conformity to the rule, the statute and established practice to have had the evidence reported. This rule of practice applies equally to cases heard on oral or written evidence, or on statements made by counsel and received as basis for judicial action. Romanausky v. Skutulas, 258 Mass. 190, 154 N. E. 856;Columbian Insecticide Co. v. Driscoll, 271 Mass. 74, 77, 170 N. E. 804;Commonwealth v. Suffolk Trust Co., 161 Mass. 550, 551, 37 N. E. 757;Cook v. Mosher, 243 Mass. 149, 152, 137 N. E. 299;Dwyer v. Dwyer, 239 Mass. 188, 131 N. E. 328. Having failed to follow that clear course, the parties must accept the report of material facts as finally made by the trial judge. There is no short cut to avoid this, and no other way to deal with an equity suit on appeal. Sullivan v. Roche, 257 Mass. 166, 168, 169, 153 N. E. 549. It follows from these settled principles that challenge of the correctness of facts set forth in the report by the appellant is ineffectual at this stage except so far as they appear on the face of the report to be mutually inconsistent or plainly wrong or incompatible with the pleadings or other documents set forth in the record.

3. The first contention urged by the appellant is that on the face of the respective bids the Greenberg bid, rejected by the court, is far superior to the Bird bid, ordered and accepted by the decree of sale. The main difference between these two bids consists in these facts: The accepted bid would make available to the receivers approximately $378,000, and would give to the receivers releases from claims of the owners of the real estate occupied by the defendant for unpaid rent and for restoration of the buildings to their condition as separate pieces of property, amounting as estimated to about $410,000; and the receivers would also be discharged of a claim of about $100,000 by the Sperry & Hutchinson Company and the aggregate claims of creditors would be correspondingly reduced. The rejected bid would make available to the receivers about $500,000, but the receivers would not be released from the claims of the owners of the real estate nor from the Sperry & Hutchinson Company bill. The finding of the judge proceeds in these words: ‘The determination as to which of the two bids (the Bird bid and the Greenberg bid) was the better depended, therefore, upon a number of considerations among them the following: (1) whether the landlords' claims would be ultimately allowed, and if so, for what amount: (2) whether the Sperry & Hutchinson Company claim should be paid in full as a Receivers' obligation (as it was claimed to be because of various decrees of the Court and the equities of the situation) or otherwise; and (3) the expenses which would be involved in the litigation of these claims and the possible compromise of one or both of them. Therefore, before further analysis of these two bids, I shall report certain findings concerning these claims. The landlords' claims may be divided into two parts: (1) a claim for back rent amounting to $132,750, and (2) a claim for the cost of restoring party walls which the Houghton & Dutton Company was obligated to restore at the termination of its lease amounting to $277,740.’ The defendant occupied its store as tenant of two different landlords under long term leases, both expiring in 1944. One lease to it comprised...

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