New Bedford Cotton Waste Co. v. Eugen C. Andres Co. , 258 Mass. 13 ( 1926 )

Wait, J.

The first count of the declaration alleges breach of a written contract for purchase and sale of merchandise through failure of the buyer to give shipping instructions called for by the contract. It sets out facts showing the extent of the damage. The second count is upon an account annexed, the items of which are: (1) indebtedness on December 1, 1921, for the contract price of goods then deliverable under the contract; (2) interest on that amount to March 30, 1922; (3) money paid for storage charges until that date; and (4) credit for the amount received by the plaintiff from a sale of the goods made on March 30, 1922. The counts are different statements of the same claim.

The bill of exceptions discloses that the only request or motion presented by the defendant at the trial before a judge sitting without jury was that judgment be ordered for the defendant. No attention was called to the fact that, because the contract, by its terms, allowed the buyer a credit of thirty days which had not then expired, nothing was due on December 1, 1921. No prayers setting out the contentions of law made by the defendant were addressed to the judge during the hearing. In this state of affairs the only exception open to the defendant is, whether the judge was right in refusing, as he did, to order judgment for the defendant. Lyon v. Prouty, 154 Mass. 488. It cannot gain added grounds of exception after receiving notice of the decision, by claiming then, for the first time, exceptions to what it calls rulings “in substance,” implied from the “Findings of Fact and Rulings” which the judge filed with his order for judgment for the plaintiff. Richards v. Appley, 187 Mass. 521; Thwing v. Clifford, 136 Mass. 482; McCoy v. Jordan, 184 Mass. 575, 582; Jones v. Newton Street Railway, 186 Mass. 113; Quimby v. Jay, 196 Mass. 584.

In a trial before a court without a jury, a motion that a finding be entered for the defendant may involve the determination by the judge of questions both of fact and of law. A valid exception to a denial of the motion can exist only when, as matter of law, the plaintiff cannot prevail. Such a motion raises only the question whether the plaintiff can recover any judgment. It does not raise the question of the amount recoverable. Keohane, petitioner, 179 Mass. 69.

The effect of Common Law Rule 45 of the Superior Court (1923), allowing exceptions to an order, ruling or decision made in the absence of counsel, is to fix a time within which counsel, who are not present when the order in a case reserved for consideration by a judge is filed, can claim the exceptions which they could and should have claimed at the hearing had that been possible.

Parties do not acquire rights to additional exceptions under the rule. They .are merely secured against the loss which otherwise would result from the lack of opportunity to claim exceptions during the hearing. See McDonnell, petitioner, 197 Mass. 252; Boutelle v. Dean, 148 Mass. 89; Leyland v. Pingree, 134 Mass. 367.

There was evidence that the defendant failed to give shipping directions. The judge was right in treating this as a breach of the contract. Weill v. American Metal Co. 182 Ill. 128. Salmon v. Helena Box Co. 147 Fed. Rep. 408; 158 Fed. Rep. 300.

The defendant contends that this breach was waived; and argues that the words of the “Findings of Fact and Rulings”: “I find no evidence of a waiver of this condition of the contract or of the breach” show clear error. There was testimony from an official of the defendant that he spoke with one Lockwood of the plaintiff corporation and made a certain arrangement with him which would have waived the breach. Lockwood was dead when the case was tried. The judge refers to this alleged conversation and, thus, makes evident that, in the words quoted, he meant not that there was no evidence on the matter, but that from the testimony he obtained no evidence — i.e. satisfactory proof — of the fact. No other meaning is consistent with his finding for the plaintiff. If, as a fact, no such interview took place and there was no waiver of any breach, there is no support for a contention that the defendant was entitled to the ruling he asked. There was evidence for the court to pass upon. His finding is final. Vinal v. Nahant, 232 Mass. 412, 419.

Nothing further is open upon the bill of exceptions.

Exceptions overruled.