Ballou v. Willey

180 Mass. 562 | Mass. | 1902

Barker, J.

1. The demurrer to the declaration was rightly overruled. The counts which cite the statute and that on an account annexed each sound in contract and therefore may be joined. Pub. Sts. c. 167, § 2, cl. 5. The first and second counts follow the statute and state the substantive facts necessary to a recovery under St. 1890, c. 437, § 2. To set out the circumstances from which those facts might be deduced was unnecessary and would have been bad pleading. Woodbury v. Jones, 3 Gray, 261. Willard v. Williams, 7 Gray, 184. See Taunton v. Caswell, 4 Pick. 275; Coolidge v. Learned, 8 Pick. 504, 511. The other grounds taken in the demurrer have not been argued.

2. The justice was not obliged to find or to rule that the plaintiff and the defendant were partners. The auditor’s report does not purport to state in detail all the evidence introduced at the hearing before him. Although the circumstances that the plain-; tiff was to receive a proportion of certain commissions and that she supposed that they were allowed to her by the defendant tended to show a partnership, there was evidence in the other direction, .stated in the auditor’s report, and he in effect found that there was no partnership. The finding of the auditor, for the plaintiff, and the evidence stated in it justified the justice in refusing to give the ruling that the plaintiff could not recover on this ground. See Holmes v. Hunt, 122 Mass. 505, 515, 516, and cases cited.

3. The general finding for the plaintiff by the auditor necessarily involved a finding on his part that the defendant had reasonable cause to believe that the plaintiff did not intend to carry out and complete her contracts, and this was in no way weakened in considering the weight of the report as evidence by the auditor’s specific finding that the defendant had ample cause for that belief. Many of the special circumstances stated by the auditor tend strongly if unexplained in the same direction. Maintaining an “exchange” on a shopping street for the purpose of enabling women to watch the stock market and to speculate thereon; telephonic communication between “living” rooms in which was a “ticker” and the defendant’s office; the general course and extent of the dealing between the parties and the receipt of February 15,1901, were some of these circumstances. Such “exchanges” and “living-rooms” and receipts anxiously certifying to the intention of one party to a stock contract may be considered fairly, if unexplained, as trade tools or appliances justifying in such a case as the present such inferences as are drawn in another class of cases from the use of beer-pumps or the possession of liquor glasses containing heel-taps. When the case came,to its final trial.with such an auditor’s report on file and the defendant limited his defence to requests for rulings of law, the fact that there was no evidence from him or on his part might be taken into consideration, and with the auditor’s report justified the rulings and findings and the refusals to rule to which the defendant excepted. In our opinion the case was not like those in the long list of decisions cited upon the defendant’s brief, like Denny v. Williams, 5 Allen, 1, 5, in which there was no sufficient evidence to justify a finding for the plaintiff, nor was it like Smith v. First National Bank in Westfield, 99 Mass. 605, one where all the evidence tended as much to support the proposition which the plaintiff must show to be wrong as that which she must maintain in order to recover.

Exceptions overruled.