Narragansett Amusement Co. v. Riverside Park Amusement Co.

157 N.E. 532, 260 Mass. 265, 1927 Mass. LEXIS 1421

• Court: Massachusetts Supreme Judicial Court
• Decided: June 29, 1927
• Status: Published

Opinion

Crosby, J.

This is a bill in equity to restrain the defendant from maintaining electric wires and a pole upon or near certain premises in such manner as will interfere with the plaintiff’s use of said premises, and for other relief. The case was referred to a master. All the evidence is not reported.

The plaintiff, a New York corporation, was engaged in the “Show business” so called and maintained in various amusement parks • exhibitions of wax figures, generally under the name of the Eden Muse. The defendant, a Massachusetts corporation, maintained an amusement park in Agawam, in this Commonwealth, where were conducted many entertainments common to such enterprises. By the terms of a written contract dated October 20, 1916, the defendant agreed to rent to the plaintiff “a parcel of land measuring fifty (50) by one hundred fifty (150) feet and situated between the Greyhound Coaster and the Skating Bink DeLuxe ... at Biverside Park,” upon which the plaintiff was "to erect a building suitable for the exhibition of wax figures, said building to be in harmony with other buildings now located at the park and satisfactory ” to the defendant. The exact location of the building was not defined.

The master made the following findings: In the fall of 1916 and after the contract had been executed, the plaintiff’s president, one Knapp, started to put in place the foundations for the building. Because of the location of a pole to sustain electric wires of high tension, he proposed to erect the building between the pole and the "Greyhound Coaster,” which would have resulted in the building being close to the coaster. The defendant’s president, one Perkins, objected to this and informed Knapp that it would have to be erected nearer the skating rink; and he was also so notified by the defendant’s superintendent. In accordance with this request the location of the building was moved about five feet away from the coaster. It was found that by so locating. the building the sill under the west wall would run directly through the pole. This was brought to the attention of Perkins, and, after a conference, Knapp agreed to make a jog in the building around the pole, Perkins saying that "the pole would be moved in the spring anyway.” The master further found that the building so located was in the position designated by the officers of the defendant; that if it had been erected in the position where first located by the plaintiff it would not have interfered with the pole carrying the high tension current, although the westerly wall would have been within a few feet of the pole. The building was substantially completed in the fall of 1916. Its side and roof were covered with sheet iron and it was found that the relative position of the building and the pole constituted a source of danger. On March 20, 1917, the defendant’s president, by letter to the plaintiff’s president, stated that the electric light company which furnished light for the park had “condemned the proposition” for the reason that the building was so near the wires as to be unsafe. In reply Knapp wrote Perkins that the building was erected just where he had placed it after the plaintiff had staked out a location farther away from the pole. On May 19, 1917, the metal covering of the building near the pole was torn off and scattered about on the ground. The master found that this was done by the servants or agents of the defendant under the direction of its superintendent, or by their concurrence and acquiescence. The park was to be opened on May 30, but the plaintiff, because of the proximity of the pole and wires, was unable to occupy the building.

The bill was filed May 22, 1917, and was brought primarily to enjoin the defendant from maintaining electric wires and pole so near the leased premises as to interfere with the plaintiff’s occupancy and from interfering with the use of the premises by the plaintiff, but as hearings could not be held in time to accomplish this, the bill was retained for the assessment of damages. The master’s report was filed December 3, 1918; both parties excepted to the report.

On May 13, 1921, the defendant filed in the Superior Court a motion, supported by affidavits and opposed by a counter affidavit, to discharge the master’s report on the ground that he was not impartial and that the findings made by him were as matter of law erroneous. The motion was denied and the defendant appealed. This appeal has not been argued by the defendant and is treated as waived.

The case was heard by a judge of the Superior Court upon the exceptions to the master’s report, and before he had entered any order thereon the plaintiff filed a motion to amend the bill. The motion was allowed on June 2, 1926, as of May 22, 1917, the date of the filing of the bill, subject to the defendant’s exception. The judge stated that he allowed the motion “in order that the pleadings might conform to the proofs.” He denied the defendant’s requests that the report be recommitted and that certain portions of the evidence be reported. The references in his order to the “auditor’s” report, we assume are to the report of the master. He overruled the plaintiff’s exceptions. The defendant’s exceptions to the admission of certain testimony as set forth in the report were overruled on the ground that the evidence was competent or was not prejudicial to the defendant. An examination of such testimony plainly shows that it was rightly admitted. The defendant also excepted to certain findings of the master and to his refusal to make other findings.

An interlocutory decree was entered overruling all the exceptions to the report and confirming the same; and on August 16, 1926, a final decree was entered in which it was adjudged that the defendant owed the plaintiff $4,480.68 as found by the master, with interest thereon from January 1, 1918, to the date of the decree, amounting altogether to $6,799.41 and that the same be paid to the plaintiff together with the taxable costs. Both the plaintiff and defendant appealed from the interlocutory and final decrees.

The amendment to the bill added a paragraph in which in substance it was alleged that “the defendant contracted and agreed with the plaintiff that it would have the said wires carried under ground during their entire course within the said park and that said pole would be removed in the spring; that later in constructing the westerly wall of the building . . . the plaintiff found that the sill would have to be run directly through the said pole; that the matter was called to the defendant’s attention and after a conference the plaintiff agreed for the present to make a jog in the building around the pole, the defendant again agreeing that it would be moved in the spring; that by virtue of the words and conduct of the parties a collateral contract was raised . . . wherein the defendant agreed and it became its duty to remove the pole the coming spring.”

The judge states in his order that “in passing upon this motion I took occasion to ascertain that testimony in considerable detail with respect to the alleged collateral contract . . . was given at the hearing before the auditor [master] by witnesses on behalf of both of the parties hereto and that no objection was made or exception taken by the defendant to the admission of such testimony.” It does not appear that the judge went outside the record to ascertain whether the amendment proposed presented an issue which had been fully and fairly tried before the master. He expressly states that he was satisfied the matters embraced in the amendment had been fully heard by the master.and allowed the amendment in order that the pleadings might conform to the proofs. There was no error in this respect. Whether the amendment was to “enable the plaintiff to sustain the action for the cause for which it was intended to be brought” was a question of fact for the presiding judge. King v. Howes, 181 Mass. 445, 446. Strout v. United Shoe Machinery Co. 215 Mass. 116, 119.

It is the contention of the defendant that the issue raised by the amendment was not properly before the master; that it presented a new issue, not alleged in the bill, respecting which the defendant was entitled to introduce evidence. But the report of the master shows, and he found, that “The principal controversy seems to center about the responsibility for an electric light pole carrying high tension wires which was situated so near the building that the public authorities would not allow the building to be opened as a place of public amusement.” He states in substance that the plaintiff maintained that it was the duty of the defendant to move the pole, and the defendant contended that the plaintiff was familiar with the situation and should have constructed its building so as to avoid the proximity of the pole; that “The above is the principal contention. . . . the real difficulty is that in the spring of 1917 an electric light pole carrying high tension wires was situated so near this building that the building could not be used as long as both remained in their then existing positions.”

The report deals at length with the respective contentions of the parties concerning this pole and the promise of the defendant to remove it in the spring. So far as appears all evidence pertaining to this matter was offered without objection. It is now too late to object to its admission. Blanchard v. Cooke, 147 Mass. 215. The subject of the amendment was also referred to in the correspondence between the parties; and therefrom, and from the recitals in the report, the finding was warranted that the position of the pole was the principal subject of controversy between the parties.

The 'court has power to allow amendments at any time before final judgment. R. L. c. 173, § 48, now G. L. c. 231, § 51. “Many cases have arisen where an amendment to a declaration has been allowed after verdict in order to make the statement of the cause of action conform to the evidence and thus to avoid a variance between the allegations and the proof without any new trial.” Pizer v. Hunt, 253 Mass. 321, 331. The statute permitting amendments applies as well to suits in equity as to actions at law. Day v. Mills, 213 Mass. 585, 587. Strout v. United Shoe Machinery Co., supra. See now G. L. c. 231, §§ 51, 144.

Of course the defendant was entitled to have the issue raised by the amendment fully and fairly tried, but it is manifest from the master’s report that there has been such a trial. The defendant had its day in court as to the matters alleged in the amendment. Its legal rights were not violated by its allowance. Bannon v. Angier, 2 Allen, 128. Pizer v. Hunt, 250 Mass. 498; S. C. 253 Mass. 321, 331, 332, and cases there collected.

The agreement, alleged in the amendment, that the plaintiff was to build around the pole and the defendant promised to remove it in the spring was upon a valid consideration. Sermuks v. Automatic Aluminum Heel Co. 256 Mass. 478, 486. The finding of the master was warranted that “the conduct and conversation of the parties in locating this building are of importance and form a collateral understanding subsequent to the signing of the contract by which both parties are bound. . . . Whatever situation may. have arisen then previous to this time, it seems to me that the words and conduct of the parties at that time at any rate raised a new and subsequent contract. . . . Irrespective, therefore, of what the situations of the parties'are under the agreement, I find that this was a valid contract between the parties, and that it was the duty of the defendant to remove the pole long before the time of the beginning of the present proceedings, and that the defendant was in default at the time this action was brought for not having done so.” In substance and effect it was found that in addition to the original contract the parties subsequently entered into an independent collateral agreement by which the defendant agreed to remove the pole in the spring of 1917.

It was competent to modify or change the written agreement by a subsequent oral agreement. Thomas v. Barnes, 156 Mass. 581. King v. Faist, 161 Mass. 449, 456. Freedman v. Gordon, 220 Mass. 324, 326. Gouzoulas v. F. W. Stock & Sons, 223 Mass. 537, 539. See v. Downey, 256 Mass. 47. Sermuks v. Automatic Aluminum Heel Co., supra, pages 484, 486. The agreement between the parties is not to be construed as a lease, but as a contract, by the terms of which the parties entered into definite stipulations and they are thereby respectively bound. The rule that there is no implied warranty of the condition of premises leased or that they are suitable for the use for which they were hired, has no application to the contract in question, nor is the doctrine of caveat emptor pertinent.

Respecting damages the trial judge ruled upon the findings of the master that the plaintiff was entitled to recover the cost of the building) and that the services of the plaintiff’s president in supervising its construction, and the use by him of his automobile, were a part of such cost. The plaintiff was also allowed for freight charges incurred by it in shipping materials to be installed in the building. All of the foregoing items were properly allowed. The judge also ruled, upon the findings of the master, that the plaintiff was entitled to recover for the loss of prospective profits for the year 1917 in the sum of $2,000. The claim for loss of profits for the years 1918, 1919, 1920 and 1921, the master found had not been proved.

The plaintiff’s exceptions to the report are solely to the findings relating to damages. The claims for storage of its property in Springfield, for hotel bills in connection with the erection of the building, and for expenses incurred in travel-ling from Sandusky, Ohio, to Springfield, were rightly disallowed for the reasons stated by the master.

The master found that the plaintiff was entitled to recover prospective profits for the year 1917. It is not contended that an entertainment such as the plaintiff proposed had ever been given in the vicinity of Springfield or in any other place in this Commonwealth. Although we must take the findings of the master that such profits can be recovered, it is plain that he based his findings wholly on evidence respecting shows, similar to the one intended by the plaintiff, conducted at so called amusement parks in Providence, Rhode Island, and Sandusky, Ohio. Profits of this kind do not arise from the use of any necessity of fife or established business, but from a novelty in the show business. All the cases relied on by the plaintiff are distinguishable in their facts from the case at bar. In Weston v. Boston & Maine Railroad, 190 Mass. 298, scenery for use in a travelling theatrical show was so delayed that an advertised performance could not be given. The damage allowed was not prospective profits, although of course they formed the basis of the rental value. The damages in Gagnon v. Sperry & Hutchinson Co. 206 Mass. 547, 556, arose from loss of prospective profits in an established grocery business where profits had been increased by the use of trading stamps; this use was suddenly withdrawn, thereby causing a breach of contract. The profits permitted to be recovered in Neal v. Jefferson, 212 Mass. 517, relate to a hotel in Florida which the plaintiff had actually conducted for a year, so that there was a basis of actual experience. Nelson Theatre Co. v. Nelson, 216 Mass. 30, and Orbach v. Paramount Pictures Corp. 233 Mass. 281, were cases where damages were allowed for loss of prospective profits in connection with performances in theatres, but in each case there had been an actual occupation of the premises for that business, thus affording a basis of computation founded on past experience. Boston Box Co. Inc. v. Shapiro, 249 Mass. 373, involved a loss of profits arising from the breach of an ordinary commercial contract, and is distinguishable in its facts from the present case.

It is well settled that prospective profits may be recovered for breach of a contract where their loss “is the proximate result of the breach, and is such as in the common course of events reasonably might have been expected, at the time the contract was made, to ensue from a breach, and where it can be determined as a practical matter with a fair degree of certainty what the profits would have been.” John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 21. It was said in Lowrie v. Castle, 225 Mass. 37, at pages 51 and 52, that “Prospective profits may be recovered in an appropriate action when the loss of them appears to have been the direct result of the wrong complained of and when they are capable of proof to a reasonable degree of certainty. They need not be susceptible of calculation with mathematical exactness, provided there is a sufficient foundation for a rational conclusion. . . . But such damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty. The nature of the business or venture upon which the anticipated profits are claimed must be such as to support an inference of definite profits grounded upon a reasonably sure basis of facts.”

Tested by the foregoing statement of the law, we are of opinion that the profits claimed in the case at bar are too conjectural and uncertain to be recovered. Whether any profits would have resulted from the entertainments during the season of 1917 or in the four succeeding years was not proved with a reasonable degree of certainty. The case is governed in principle by the cases last above referred to and by Curtis v. Boston Ice Co. 237 Mass. 343, 350, Lalime & Partridge, Inc. v. Hobbs, 255 Mass. 189, 193, Busy Bee Confectionery Co. v. Broadway National Bank, 258 Mass. 360, 363.

The testimony of the plaintiff’s president as to the attendance at similar shows, the items of expense connected therewith, and the net profits derived therefrom, was competent, and the exceptions to its admission must be overruled. The five letters written by the defendant’s president were admissible to show his agency and the circumstances surrounding the making of the contract; they were admitted for no other purpose. The master states that they did not materially affect his findings.

The contract provided that the building to be erected by the plaintiff should be “in harmony with other buildings now located at the park and satisfactory” to the defendant. The master found in substance that the building erected was in harmony with the other buildings, and that it should have been satisfactory to the defendant acting reasonably. Handy v. Bliss, 204 Mass. 513, 519, 520. The evidence relating to these findings is reported. The authority of the master is governed by the terms of the rule. He should not have reported the evidence or parts of it, without direction to do so. Jameson v. Hayes, 250 Mass. 302, 306, 307. These findings cannot be said to be unwarranted and the exceptions to them must be overruled.

Eighty-eight exceptions .taken by the defendant were to the refusal of the master to make certain findings and to certain findings made by him. The fifty-seventh and fifty-eighth exceptions, in view of the findings, so far as they relate to prospective profits during the year 1917, must be sustained. In the absence of the evidence, it is plain that the others must be overruled. The eighty-ninth exception was to the refusal of the master to make certain rulings of law and to certain inferences drawn by him. His only duty Under the rule was to find the facts; he was not required to make rulings of law. New England Foundation Co. v. Reed, 209 Mass. 556, 562. Bradley v. Borden, 223 Mass. 575, 586. This exception must be overruled. We cannot say that the inferences drawn by the master and excepted to by the defendant were unwarranted, in the absence of the evidence.

The denials of the defendant’s motion to recommit the report and its request that certain portions of the testimony be reported were not erroneous.

The plaintiff’s exceptions to the master’s report are overruled.

It follows that the defendant’s fifty-seventh and fifty-eighth exceptions to the finding of the.master, so far as they relate to prospective profits for the year 1917, must be sustained. The final decree is to be modified by omitting therefrom the sum of $2,000 allowed for loss of prospective profits during the year 1917, together with interest thereon, and as so modified it is affirmed, with costs.

Ordered accordingly.