Speirs v. Union Drop-forge Co.
| Decision Date | 25 November 1901 |
| Citation | 61 N.E. 825,180 Mass. 87 |
| Parties | SPEIRS v. UNION DROP-FORGE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. B. Smith, T. H. Gage, Jr., W. S. B. Hopkins, and F. F. Dresser, for plaintiff.
J. C Howard, H. W. King, and C. M. Rice, for defendant.
This is an action of contract which already has been before the court. 174 Mass. 175, 54 N.E. 497. It having been decided that the instrument sued upon bound the defendant to keep the plaintiff and his shop employed during the year from June 1 1896, to June 1, 1897, and that the plaintiff had a cause of action, the case was sent to an assessor, as had been agreed by the parties.
The defendant seems to have confounded proceedings before an assessor with proceedings before a master, and to have supposed that the Superior Court and this court would reconsider the evidence and revise the assessor's findings of fact to the same extent as in an equity cause. To this end it took objections and afterwards filed exceptions to the report, after the equity practice. These objections and exceptions are most unnecessarily prolix and argumentative even had the defendant's view been right. But very plainly it was wrong.
The proceeding is at law. All that can be brought before this court is the question whether there was any evidence to support a finding objected to. That may be brought here in the usual way, as pointed out in Carew v. Stubbs, 161 Mass. 294, 295, 37 N.E. 171. Following the implications of St. 1883, c. 216; St. 1886, c. 51; Pub. St. c. 159, § 55, we assume with the defendant that in general an assessor is not a species of auditor. We do not understand anything to the contrary to have been decided in Fisk v. Gray, 100 Mass. 191, 193; Id., 11 Allen, 132, 134; Paddock v. Insurance Co., 104 Mass. 521, 531; or McKim v. Blake, 139 Mass. 593, 595, 2 N.E. 157. We assume in favor of the defendant that, when a case is sent to an assessor by agreement of parties in a case like this, there is no right to retry the facts, and that therefore it was not necessary for the defendant, in order to save his objections, to make a motion to recommit. See Fair v. Insurance Co., 112 Mass. 320, 331, 333. It follows from the same assumptions that the Superior Court had no greater power than this court, and was confined to the question whether there was any evidence to warrant the material findings of the assessor. It follows further that, although the practice of ruling pro forma has been condemned by this court ( Parker v. Parker, 118 Mass. 110), the defendant has suffered no wrong by the course adopted. The same questions are open here that were open below.
The defendant excepts generally that the assessor had no right to find more than nominal damages. So far as this exception is founded on the nature of the contract, whether because it leaves prices to be fixed or otherwise, it is answered by the previous decision that the case should be sent to an assessor under the agreement, a step which would be absurd if it were apparent that only nominal damages could be recovered. We do not discuss further what has been decided. So far as the exception is based upon the evidence we are of opinion that the assessor was warranted in finding substantial damages. Before considering what the evidence was it is worth remarking that when it is established that such a contract has been made and that under it the plaintiff has been idle for months in constant expectation of orders that never came, it reasonably may be presumed by the judge of facts that the plaintiff's loss has been substantial,--indeed maintaining the shop and waiting is an expenditure toward the performance of the contract to be recovered under the rule in U.S. v. Behan, 110 U.S. 338, 344, 345, 4 S.Ct. 81, 28 L.Ed. 168, cited by the defendant,--and it would be unjust to turn the plaintiff off with a dollar because he could not prove with prophetic certainty what the exact course of performance would have been.
The defendant objects that it had the right to call for any kind of drop-forgings, that even within the limits of drop-forgings for bicycles each of the different parts had many different forms, and that the orders might have been so various in kind and so small in their several amounts as to deprive the plaintiff of any chance of gain. This objection goes to the allowance of profits as distinguished from the cost of remaining idle. The general answer is that in estimating the worth of the contract of which the plaintiff has been deprived we are to consider not what legally might have happened but what would have happened had the defendant done as it agreed; or, to put it a little differently, we are to consider commercial, not legal, possibilities. It is absurd to imagine the defendant in performing the contract employing a lawyer's acumen to find out in what way it could deprive the plaintiff of profit instead of employing business intelligence to decide how it could best make profit for itself. Therefore before referring to the evidence we may say, or rather the assessor was warranted in inferring, that the defendant if it employed the plaintiff for a year would employ him mainly in the forging of objects of general demand having a large market, rather than mainly upon a long succession of small orders of peculiar kinds; and, to anticipate, there was testimony confirmatory of that general conclusion.
But the shape which performance would have taken is not left merely to a consideration of commercial possibilities. The plaintiff was to be employed with his shop for a year. The material was to belong to the defendant throughout, so that is out of the case. Just after the contract was made there was a talk between the plaintiff and the defendant's agent, in which the latter said that they wanted to fix prices now; the plaintiff asked him what class of work and was answered all bicycle work; the agent exhibited samples of forgings, and the plaintiff figured out the prices and gave them to the defendant. In the agreed facts it appears that about April 1 the plaintiff and defendant agreed upon the prices to be paid for the manufacture of certain kinds of drop-forgings. The interview and prices just mentioned made the agreement referred to. Even if the fact had not been agreed, the evidence warrants the inference that the parties understood that to that extent they were at one. The plaintiff testified that the arrangement fixed the prices for the year. There was evidence that the articles enumerated in the price list were the essential parts of a bicycle, and that there were standard forms of these articles is general use. It is a fair inference that the prices were fixed on the understanding that the pieces were to be made in large quantities. That is the import of the interview, and is the inference drawn by one of the defendant's witnesses from a mere inspection of the list. The plaintiff says that he was told that the defendant had large orders for that class of work. The capacity of the plaintiff's shop was known.
There is expert testimony that on the foregoing facts it is possible to estimate what would have been the profit of the work. The plaintiff, who knew the form of the samples on which he made his prices, testified to what the profit would have been, and others testified on the footing that the forms were standard forms, as presumably they were. We cannot say as matter of law that the assessor was not warranted in believing the testimony and in making an allowance for profits in pursuance of it.
The defendant contends that damages cannot be recovered after the date of the writ, and also that the contract is severable because it provides for monthly payments. The assessor was warranted in finding and the plaintiff in supposing that a failure to send orders from June 1 to November amounted to a practical repudiation of the entire contract notwithstanding vague expressions of hope on the defendant's part. These were before the court when it made its former decision. If the breach of the contract was so considerable as to go to its essence, the plaintiff was not compelled to wait until the end of the time of its running in order to recover entire damages. Parker v. Russell, 133 Mass. 74; Paige v. Barrett, 151 Mass. 67, 23 N.E. 725; Cutter v. Gillette, 163 Mass. 95, 39 N.E. 1010,--cited in the former decision of this case (174 Mass. 175, 181, 54 N.E. 497, 499); Roehm v. Horst, 178 U.S. 1, 7, 20, 20 S.Ct. 780, 44 L.Ed. 953. The extraordinary suggestion that the plaintiff rescinded the contract by suing upon it does not need discussion ( Whiteside v. Brawley, 152 Mass. 133, 134, 24 N.E. 1088), and the further suggestion that the contract was rescinded by a letter from the plaintiff's counsel of November 4 needs but a word. In the first place, the suggestion is contrary to the agreement of parties by which the case was sent to the assessor. If the contract had been rescinded there could be no recovery upon it even of nominal damages. But apart from that, the letter is a letter claiming damages for breach of the contract, in other words insisting upon it. It is true that it gave notice that the plaintiff could not remain longer idle and would try to get other work, but that was simply in accordance with the plaintiff's duty to reduce the damages so far as he reasonably could when he was satisfied that the contract was thrown up. Finally, the letter was written as an effort to make a compromise.
It is argued that the assessor had no right to allow a salary pay-roll for June, taxes and insurance in addition to profits. But that depends on the sense in which the assessor used the word 'profits.' If he had meant by it the total difference to the plaintiff between keeping the...
To continue reading
Request your trial