Daniels v. Cohen

Carroll, J. The report states that the action is one of contract or tort for the “ alleged breach of an oral agreement to make repairs as a part of the consideration to enter into a written lease ”; it also states that “ At a former trial there was a finding for the plaintiff in contract and on appeal to the Appellate Division the case was remanded back for new trial solely on the question of damages.” There was a finding for the plaintiff. In the Appellate Division the report was dismissed. The case is here on the defendant’s appeal. The declaration alleges that the defendant agreed with the plaintiff, as a consideration for entering into a written lease, to make certain repairs, which agreement was not fulfilled. There was no appeal from the decision of the Appellate Division remanding the case for trial solely on the question of damages. This ruling became the law of the — 364 — case and the only question open was the amount of damages to which the plaintiff was entitled. See Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239, 241; Morel v. New York, New Haven & Hartford Railroad, 238 Mass. 392, 394. The evidence at the second trial showed that the defendant’s promise to make “ certain repairs ” was not carried out. To this evidence no exception was taken, and the defendant’s requests bearing on the question of the contradiction of “ the evidence thus introduced by the parties heretofore and reported in the trial justice’s ‘ Report ’ ” were refused properly. There were no facts to which the requests could be applied, and the record does not show that the defendant introduced any evidence of what had taken place at the former trial on this question. The written lease provided that the plaintiff was to pay $75 a month for the premises; and it was stipulated in the lease that “ said rental is a fair and reasonable rental for the apartment mentioned above, inasmuch as certain repairs in said apartment would not otherwise be made by the lessor.” The plaintiff was not required to make repairs; he could if he wished occupy the premises without doing this work, and the measure of his damages was the difference in value of the premises he received and those to which he was entitled. See in this connection Thomson-Houston Electric Co. v. Durant Land Improvement Co. 144 N. Y. 34, 47; Lewis & Co. v. Chisholm, 68 Ga. 40, 46; Biggs v.McCurley, 76 Md. 409, 415, 416; Kellogg v. Malick, 125 Wis. 239, 246. The requests that the plaintiff could recover only nominal damages were refused properly. Some of the defendant’s requests refer to evidence in the case, and were presented after the evidence had been introduced, without objection. There was no error in refusing these requests. Doon v. Felton, 203 Mass. 267, 272. See Putnam v. Harris, 193 Mass. 58; Everson v. Casualty Co. of America, 208 Mass. 214, 218. It also appeared that the defendant objected to proceeding to trial when there was pending a report based on the allowance of an amended declaration. The trial judge ruled that this report on the amended declaration was inter — 365 — locutory. There was no error in proceeding to trial. By G. L. c. 231, § 108, a report to the Appellate Division can be made only “ when the cause is otherwise ripe for judgment ” or by “ consent of the justice hearing the same”; see Hall Publishing Co. v. MacLaughlin, 230 Mass. 534. The amended declaration was filed October 21, 1922; and on March 29, 1923, was allowed as of the date of the filing. The decision of the trial judge in the report before us was filed on September 4, 1923, and the report was dismissed on November 16, 1923. It was within the power of the single judge to allow the amendment by an entry nunc pro tune. See Perkins v. Perkins, 225 Mass. 392; Churchill v. Churchill, 239 Mass. 443. Questions arising at the first hearing before the Appellate Division are not before us. No error is disclosed on this record. Order dismissing the report affirmed.