144 Mass. 181 | Mass. | 1887
The plaintiffs, who were formerly copartners with one Francis Brigham, deceased, bring this bill in equity against the executor of the will of Francis Brigham, to recover the value of certain bonds, issued by the Mexican government, the property of the copartnership, which, after the dissolution of the copartnership, were placed, with the consent of the plaintiffs, in the hands of Francis Brigham, and which were in his possession when he died, and were sold by the executor as part of the estate of Francis Brigham, and the proceeds of the sale entered among the assets of the estate.
Two questions are raised by the pleadings and the report of the master to whom the case was referred: 1. Whether the
1. The firm of F. Brigham and Company and that of Kim-ball, Robinson, and Company entered into an agreement in writing to do business together on joint account under the name of the “Feltonville Factory,” the same to continue from November 1, 1858, to November 1, 1860. Each firm was to have an equal share in the business. The master found and reported “ that there was no evidence that the arrangement continued beyond its writte.n limitation.” It is conceded that the master erred in coming to this conclusion, as in fact the arrangement did continue many years after November 1, 1860. This becomes material, as the bonds were received by the Feltonville Factory for a debt due to that company. When that debt was contracted, whether before or after November 1,1860, was in dispute between the parties. The master found and reported as follows : “ I am also of the opinion, in the absence of any evidence showing the continuance of the Feltonville Factory partnership later than November 1, 1860, .... that said debt .... was contracted prior to said last-named date.” The presumption which generally arises from the finding of the master upon a matter of fact does not exist in the present case, because of the conceded mistake made by the master. It becomes our duty, therefore, to determine, upon all the evidence before us, whether the indebtedness for which the bonds were given in settlement was created before or after November 1, 1860. Upon carefully reading all the evidence, we are unable to say that the master was wrong in the conclusion at which he arrived. We think that the evidence warrants the conclusion that the indebtedness to the Feltonville Factory was contracted prior to November 1,1860. The finding of the master that the Mexican bonds were assets of the copartnership existing prior to November 1,1860, and at the death of the defendant’s testator were owned one third by him, and one third by each of the plaintiffs, was therefore correct.
The plaintiffs are each entitled to one third of $2487.50, the sum for which the bonds were sold, and which went into the hands of the executor as assets of the estate, with interest from the date of the filing of this bill.
Decree accordingly.
J. Gr. Abbott J. T. Joslin, for the defendant.
S. H. Tyng, (£. W. Trowbridge with him,) for the plaintiffs.