Randall v. Peerless Motor Car Co.

• Decision Date: 19 June 1912
• Citation: 99 N.E. 221,212 Mass. 352
• Parties: RANDALL v. PEERLESS MOTOR CAR CO
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 352

99 N.E. 221

RANDALL v. PEERLESS MOTOR CAR CO

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1912

COUNSEL

W. G Thompson, R. Dow, G. E. Kimball, and G. E. Mears, for plaintiff.

G. W Anderson and R. L. Ryder, for defendant.

RUGG C.J.

This is an action at law pending in the Supreme Judicial Court for Suffolk county. The plaintiff's intestate, who for convenience will be hereafter referred to as the plaintiff or Randall, entered into a contract in writing with the defendant, by which he agreed to become its New England agent for the term of one year from January 1, 1903, and to order 25 automobiles of it, furnishing specifications and advance partial payments on or before February 1, 1903, to be delivered between February 1st and July 1st. The prices were specified by reference to the list of the defendant. The times of payment were fixed. He further agreed to maintain suitable salesroom and repair shop in Boston, to carry in stock for exhibition and demonstration one or more 'new motor cars manufactured by' the defendant and reasonable supplies, to devote his 'best energies' to the sale of the defendant's product, and to canvass his territory, and to receive promptly cars ordered, and to do local advertising. The order for 25 automobiles was given contemporaneously with the making of the contract.

The defendant agreed to make Randall its 'exclusive agent' for New England for the term of one year from January 1, 1903, to furnish him its advertising matter, and to give him certain discounts from list prices on supplies and cars. It was further agreed that if Randall failed to secure 'sales of the product of [the defendant] commensurate with the sales of other cars within' New England the defendant might terminate the contract on 30 days' notice in writing to the plaintiff, and that the contract might be terminated by the defendant on 30 days' written notice to the plaintiff. Three bills of exceptions are here, and a fourth bill of exceptions, disallowed by the superior court judge, is before us on report of a commissioner.

1. The case was referred to an auditor. Upon the coming in of his report each party filed a motion to recommit the report. The first bill of exceptions relates to these proceedings. The plaintiff's motion was granted, and the defendant's denied, but the case was recommitted to the auditor, with direction to consider four defined matters and 'any other matters which he thinks ought to be further considered.' This was a compliance in substance with the chief thing which each party requested, viz., a recommittal of the report. It is doubtful whether the main part of the order, to which the defendant excepted, was anything more than a memorandum (as it is described in the record), and hence not a subject for exception in an action at law. Atty. Gen. v. Oliver, 175 Mass. 163, 56 N.E. 969; Abbott v. Walker, 204 Mass. 71, 90 N.E. 405, 26 L. R. A. (N. S.) 814; Regal v. Lyon, 98 N.E. 698, ante. Moreover, the statements contained in it do not appear to be rulings, but indications of the reasons which moved the single justice in the exercise of his discretion, to which no exception would lie. But treating it as subject to exception, no error is shown. A motion to recommit an auditor's report ordinarily is addressed to the discretion of the court, the exercise of which is not reviewable. The discussion in the report of the ability of the plaintiff to perform his part of the contract on February 1st was wrong in view of the auditor's refusals, which appeared upon the face of the affidavit accompanying the plaintiff's motion, to admit evidence touching his financial standing. This appeared to be in the nature of a finding after refusal to hear evidence. If, as the auditor found, 'on January 21st the Peerless Company without right terminated Randall's agency,' it followed that Randall's finances were of no consequence on the issue of breach of contract. The entire subject of damages was left open by the express statement of the single justice that the time had not yet come for the court to lay down the rule of damages. The auditor was at liberty to adopt such rule of damages in view of all the evidence as seemed to him wise upon further consideration. This involved the question whether Randall would have been able to carry out his part of the contract when the time arrived for him to act, if he thought it material. The record is not fairly susceptible of the meaning that the single justice then laid down as the law of the case that the plaintiff was entitled to recover as full damages as if he had been permitted to complete the contract, no matter whether he would have been able to perform but for the breach by the defendant. That would have been laying down, in part at least, the rule of damages. But the single justice unmistakably said that the time has not come for that, and the case was sent back to the auditor with the fullest authority to reconsider the whole of it in all aspects. The law is plainly as was pointed out in Beach & Clarridge Co. v. Am. Steam Gauge & Valve Co. 208 Mass. 121, 129, 132, 94 N.E. 457, that the plaintiff could recover full damages only when the evidence showed his ability to perform his part of the contract. No anticipatory breach of the contract appears to be involved in this bill of exceptions. If the defendant refused on any date to permit Randall longer to act as its agent in soliciting orders, that was a present breach. Plainly the rulings to the effect that the time had not arrived for the court to lay down a rule of damages and that the auditor was not required to make findings of subsidiary facts or a detailed statement of all the contentions of parties were not incorrect as matter of law.

2. No question of law is presented upon the defendant's motion to recommit the substitute report, which is the subject of the second bill of exceptions. It was addreassed wholly to the discretion of the single justice. If any errors were referred to in the motion to recommit, they were of such nature that they could have been corrected at the trial. Tobin v. Kells, 207 Mass. 304, 93 N.E. 596; Greene v. Corey, 210 Mass. 536, 546, 97 N.E. 70; Hunneman v. Phelps, 199 Mass. 15, 85 N.E. 169; Chelmsford Foundry Co. v. Shepard, 206 Mass. 102, 92 N.E. 75.

3. The case was sent to the superior court for trial to a jury. The third or main bill of exceptions relates to this trial. Exceptions touching performance by the plaintiff of his part of the contract will be considered first. A general ruling in favor of the defendant or for the plaintiff for only nominal damages could not have been given. The auditor's report, admitted in evidence without objection, was a finding for the plaintiff for substantial damages. The plaintiff had a right to go to the jury upon the prima facie case which it presented. The auditor's report was an unequivocal finding of facts upon evidence, and in no sense a ruling of law upon facts stated. It was entitled to the probative force arising from its inherent value, whatever that may have been, in connection with all the other evidence. Fisher v. Doe, 204 Mass. 34, 39, 40, 90 N.E. 592.

4. The defendant contends that Randall failed to perform his contract, in that he did not give specifications and deposits for 3 cars before January 1, 1903. This contention arises not out of the original written contract, but out of a subsequent transaction. The plaintiff ordered and received a demonstrating car on terms of payment different from those stipulated in the original agreement, with the understanding that he should order 3 cars before January 1st. A special question was submitted to the jury, by which they found that these cars were in addition to the 25 ordered as a part of the main contract. It was found in answer to a further question that the demonstrating car furnished by the defendant was not such as was contemplated by the parties. These special findings make it plain that the arrangement respecting the 3 cars was collateral and subsidiary, failure to perform which would not go to the essence of the main contract or justify the defendant in repudiating it. It is unnecessary to consider the correctness of the charge upon the theory that they were a part of the 25 cars ordered earlier.

5. The contract required the plaintiff 'to devote his best energies to the sale of the product' of the defendant. The meaning of these words must be determined in the light of the other terms of the contract, of the circumstances of the parties when the contract was made, and of their conduct during the period when indisputably the contract remained in force. It is obvious that 'best energies' is not used in the sense of exclusive attention. The word 'exclusive' occurs in the contract in describing the kind of agent Randall became under the contract. The employment of a nonsynonymous word here tends to show a different purpose. Another clause of the contract required him to maintain an efficient repair shop for cars of the defendant's make, not alone for those sold by him, but for all cars, and this business was to be conducted as a venture wholly at his risk. This in itself might require a part of his energy for its success. Moreover, it was known to both parties that Randall was carrying on the business of selling and repairing bicycles and motor cycles before the execution of this contract, for which he maintained a store and repair shop. It is not contended that this business was not to be continued. It is plain, too, that the parties did not intend that sales should be made only through Randall personally, because there was correspondence as to his representatives in other cities of New England, through whom he might conduct in part the business contemplated...