JOHN A. BOORAS vs. FRANK A. LOGAN.

RUGG, C.J. The plaintiff by this suit sought specific performance of a written agreement made by the defendant to sell to him a going business and certain fixtures and chattels. It was alleged that the plaintiff, in accordance with the contract, paid to the defendant on account of the purchase $1,000, and that the defendant refused to perform his part of the contract. The case was heard before a judge of the Superior Court, who found as facts that specific performance of the agreement could not be compelled and that the "defendant offered to return the deposit. This the plaintiff is entitled to." He made an order for a decree. Pursuant thereto, on January 2,1923, a decree was entered of this tenor: "This case came on to be heard upon merits, having been argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged and decreed upon return to the plaintiff

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of the sum of One Thousand Dollars ($1,000) paid as deposit the bill be dismissed."

This was not a final decree either in form or substance. It did not unequivocally order that the bill be dismissed, but made such dismissal conditional upon the return of a specified sum of money to the plaintiff. It did not order the payment of that sum to the plaintiff by anybody. It simply stated in effect that upon the return to the plaintiff of that sum the bill would be dismissed. The decree was anticipatory in every essential. The case remained subject to further action by the court. Loonie v. Wilson, 233 Mass. 420, 423. Cherry v. Cherry, 253 Mass. 172, 176. "No decree is a final one, which leaves anything open to be decided by the court, and does not determine the whole case." Forbes v. Tuckerman, 115 Mass. 115, 119. Johnson's Case, 242 Mass. 489, 494. Malcolm v. Malcolm, 257 Mass. 225, 228. It follows that the motion by the plaintiff for execution in his favor filed in June, 1924, was denied rightly.

On July 26, 1928, a decree was entered by another judge in which was a recital that "it appearing that no final decree has hitherto been entered," that the sum of one thousand dollars mentioned in the decree of January 2, 1923, had not been and was not likely to be returned to the plaintiff, and "that the right of the plaintiff to recover said sum was not put in issue in this suit and ought not to be adjudicated herein, but that upon the findings of fact made by" the judge who first heard the case, "no specific performance or other purely equitable relief can be given the plaintiff," thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the bill be and hereby is dismissed, without prejudice to any right or remedy of the plaintiff to recover said sum." From this decree the defendant appealed. No evidence is reported with respect to any of the hearings. No appeal was taken from the decree of January 2, 1923.

The questions thus presented are whether the final decree was within the scope of the bill and could lawfully have been entered on the findings of fact made. First Baptist Society in Brookfield v. Dexter, 193 Mass. 187, 189. Ledoux v. Lariviere, 261 Mass. 242, 244.

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The bill contained no special prayer for damages. But it set out the payment by the plaintiff of $1,000 to the defendant and contained a prayer for general relief. The issue as to the right of the plaintiff to recover the $1,000 of the defendant was presented and decided at the first trial because the judge made definite findings to the effect that the defendant offered to return the money and that the plaintiff was entitled to it. These findings would have been vain and impertinent if that issue was not before the court. It is settled equity practice that, where peculiar equitable relief is denied, it is discretionary with the court either to retain the case for the assessment of damages, or to dismiss the bill with reservation to the plaintiff of his right to recover damages in an action at law. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 47, and cases cited. Epstein v. Dunbar, 221 Mass. 579, 584. Grennan v. Murray-Miller Co. 244 Mass. 336, 339. Buckley v. Meer, 251 Mass. 23, 26. The findings of the judge who entered the decree of January 2, 1923, as already set forth, indicate that he exercised his discretion in favor of bringing the litigation to an end by determining the damages in the present suit. The prayer for general relief was sufficient in the circumstances here disclosed to justify the assessment of damages. Alden Bros. Co. v. Dunn, 264 Mass. 355, 363, 364.

In view of these findings and the circumstances under which they were made, the recital in the decree of July 26, 1928, to the effect that the right of the plaintiff to recover the $1,000 was not put in issue and ought not to be adjudicated, was wrong. That right had been put in issue and adjudicated. The findings on that point were not set aside but were permitted to stand. The final decree therefore did not conform to the facts found. It ought to have included an order for payment by the defendant to the plaintiff of the sum found due. It must be reversed. The question of interest on the money due the plaintiff, in view of the long time which has elapsed, will be a matter for consideration in the framing of a new final decree.

Although the final decree from which the defendant appealed appeared to be in his favor, he nevertheless was a

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"party aggrieved" and hence entitled to appeal, G. L. c. 214, § 19, because he had a right to insist that the damages found to be due from him be assessed in this proceeding and the litigation ended, rather than be made the subject of a new proceeding against him. Monroe v. Cooper, 235 Mass. 33, 34.

Decree reversed.