Allen v. Wilbur, 199 Mass. 366

Allen v. Wilbur

199 Mass. 366

| Mass. | 1908

Loring, J.

It is conceded that the plaintiffs must fail if the notice given by Mr. Wilbur’s attorney was in fact received by the John W. Dickinson Company. The notice was addressed to “Mr. John W. Dickinson.”

In the body of his report the master states: “ The said John *368W. Dickinson testified that he did not receive said letter, and did not know of its existence until a copy thereof was shown to him while testifying before me. The defendant Wilbur offered the letter as a sufficient notice to the John W. Dickinson Company of the return to him of said bonds, if such notice was necessary under the agreement of December 4,1902. The said John W. Dickinson was on April 16, 1903, the treasurer of said John W. Dickinson Company and had full charge of its business ; his office was the office also of the John W. Dickinson Company at No. 87 Milk Street, Boston, Mass. I find that said letter was delivered by messenger -at his said office and that in the ordinary course of business he should have received the same.”

The master’s report however ends with special findings, and among them is this: “I find that the complainants made no demand, and furnished no proof, to said Wilbur as provided in the instrument of December 4, 1902, until a period or [of] more than sixty days had elapsed after the receipt of the said notices as aforesaid.”

The plaintiffs’ third objection to the master’s report is in these words : “ The complainants object to the finding that the complainants made no demand, and furnished no proof, to said Wilbur as provided in the instrument of December 4,1902, until a period of more than sixty days had elapsed after the receipt of the said notices as aforesaid. There is no evidence that the said notice of April 16, 1903, was ever received by the said John W. Dickinson or by the said John W. Dickinson Company.”

The plaintiffs’ fifth objection is in these words: “ The complainants object to the failure of the master to make the third of their requests for rulings. There was no evidence of the receipt of the notice.” The third request for ruling referred to is a ruling that the notice to be effective should have been actually received.

The master was at liberty to disbelieve Dickinson’s testimony. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314.

The fact that the letter ought to have been received by Dickinson warranted the inference that it was received.

Although in the body of the report the master does not state *369that he had drawn that inference, such an inference is included in the special finding stated above. As we have said, there is a special finding that no proof was furnished “ until a period of more than sixty days had elapsed after the receipt of said notices.” That finding includes the drawing of that inference..

Any doubt as to how the master viewed this is done away with by his letting both findings stand in spite of the third and fifth objections made to it by the plaintiffs.

Decree affirmed.