Nelson Theatre Co. v. Nelson , 216 Mass. 30 ( 1913 )

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 order of “demurrer overruled” is the final judgment of the court duly entered upon the docket. If an appeal does not lie upon the record, the defendants, upon whom rested no duty to prepare a 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. 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. Stock-bridge Iron Co. v. Hudson Iron Co. 102 Mass. 45. Ross v. New England Mutual Ins. Co. 120 Mass. 113, 117. Ginn v. Almy, 212 Mass. 486, 494. In Ross v. New England Mutual 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 Co. 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. In Burnett v. Commonwealth, 169 Mass. 417, and in Cawley v. Jean, 189 Mass. 220, 227, where these sections are construed no distinction is made as to the right of appeal between an interlocutory order and an interlocutory decree, while in Harrell v. Sonnabend, 191 Mass. 310, 311, 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, 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, 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. International Trust Co. v. Schumann, 158 Mass. 287, 291. Roth v. Adams, 185 Mass. 341, 344. The remedy by an action at law in damages for these persistent trespasses alleged to have been participated in by the co-defendant 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 re-entry where upon the averments of the bill such a right does not exist, the plaintiff is. subjected to vexatious litigation and must resort to a 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. Von Arnim v. American Tube Works, 188 Mass. 515. Ginn v. Almy, 212 Mass. 486.

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 then was 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 theatre 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, 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 Lumber Co. 145 Mass. 261. Weston v. Boston & Maine Railroad, 190 Mass. 298. Hanson & Parker v. Wittenberg, 205 Mass. 319, 327, 328. The plaintiff does not claim compensation for impairment of the good will which is distinct from profits. Its damages even if measured by the real commercial value of the leasehold could not be fixed exactly, but depended largely on estimated receipts and expenditures during the period of eviction, and profits reasonably to be anticipated are when ascertained to be considered in the assessment. Neal v. Jefferson, 212 Mass. 517, and cases cited. Randall v. Peerless Motor Car Co. 212 Mass. 352, 381. The defendants do not appear to question this, but contend generally, that opinion evidence of the value of the leasehold during the weeks in question “over and above the rent and operating expenses” founded upon previous gross receipts and net earnings was inadmissible. The objectionable features of such evidence were pointed out in Cochrane v. Commonwealth, 175 Mass. 299. But, where the witness shows the necessary knowledge and experience, ordinarily the admission or rejection of the testimony is within the discretion of the judge presiding at the trial. Howland v. Westport, 172 Mass. 373. Conness v. Commonwealth, 184 Mass. 541, 544. Lakeside Manuf. Co. v. Worcester, 186 Mass. 552, 560. Sargent v. Merrimac, 196 Mass. 171. Fourth National Bank v. Commonwealth, 212 Mass. 66. The master reports, and their testimony shows, that from large experience each of the experts was familiar with the management and supervision of theatres presenting the same class of entertainment in various localities, as well as with the size, seating capacity and location of the plaintiff’s property. The defendants had excepted to the admission in evidence of the gross receipts and net profits of the plaintiff company to show the nature and magnitude of the business during the previous year, although this exception to the report has not been argued. It clearly was competent. Neal v. Jefferson, 212 Mass. 517, 523. Allison v. Chandler, 11 Mich. 542, 562. The master doubtless was of opinion that from their qualifications the testimony possibly might guide and aid him in the just ascertainment and sound estimation of the actual damages the plaintiff had suffered. The question is close, and not free from difficulty. While the master would have ruled more judiciously if he had rejected the evidence, it cannot be said positively there were no aspects of the entire testimony which tended to support his view, or that his discretion was so grossly exercised in the plaintiff’s favor as to render his decision plainly wrong. Conness v. Commonwealth, 184 Mass. 541, 544.

The order overruling the demurrer is affirmed. But the final decree must be modified by a clause overruling the exceptions to, and confirming the master’s report; and by providing in the third paragraph that the defendant Dunn as executor of the will of Nelson shall be charged severally and not jointly with the co-defendant in the payment of damages, and that if execution issues therefor, or for the amount named in the fifth paragraph, it is to run against the goods and estate of the deceased in his hands. B. L. c. 171, §§ 1, 5, 7; c. 172, § 7. Von Arnim v. American Tube Works, 188 Mass. 515, 520. Lovejoy v. Bailey, 214 Mass. 134.

The decree when thus modified is affirmed with costs of the appeal.

Ordered accordingly.