Cali v. Caliri

254 Mass. 488 | Mass. | 1926

Rugg, C.J.

These are suits in equity for an accounting among its members of the affairs of a partnership, which has been terminated. The partnership bought grapes by the carload and sold them in smaller quantities. The members of the firm most actively engaged in its business were not able to read and write to any extent and could not and did not keep books of account. The cases were referred to a master who made a single report covering both suits. The cases also were consolidated and a single final decree entered. This was correct practice because both related to a single matter, namely, the true state of partnership accounts. Lumiansky v. Tessier, 213 Mass. 182, 189.

The master’s report shows that a son of one of .the partners testified that he worked for the firm on certain days in the absence of his father; that Vincenzo Caliri, one of the other partners, gave him a book in which to keep the partnership record of sales; that he kept "on the sly” in the back of this book, which was destroyed more than a year before the hearings, a record of the goods taken for or by Vincenzo Caliri and telephoned the record so kept to his sister, who wrote the information thus conveyed on a paper. This paper was offered as an account of the partnership, as a memorandum by the salesman, or for any other competent purpose. The salesman was allowed to use this paper to refresh his recollection, but it was not admitted in evidence. The contention that it was competent as a book account cannot be supported. It was not a system of book accounts. It was not kept in such way and under circumstances to require an inference of authenticity and accuracy. Its ex-, elusion rests upon the principle of several adjudications. Riley v. Boehm, 167 Mass. 183. Kaplan v. Gross, 223 Mass. 152. Rhoades v. New York Central & Hudson River Railroad, 227 Mass. 138. Dorr v. Massachusetts Title Ins. Co. 238 Mass. 490, 496. G. L. c. 233, § 78.

The other exceptions relate to findings of fact made by the master. There are no inconsistencies or inaccuracies on the face of the report. The evidence not being reported, these findings must stand. Smith v. Lloyd, 224 Mass. 173.

There was no interlocutory decree overruling the exceptions to and confirming the master’s report.. Preferable equity practice required such an interlocutory decree. There was no clause to this effect in the final decree. The final decree shows by its terms that it could not have been entered except after a determination overruling the exceptions to and confirming the master’s report. It follows from what has been said that all exceptions to the master’s report ought to be overruled and the report confirmed. The final decree is to be amended by the insertion of a clause to the effect that exceptions to the master’s report are overruled and the report confirmed. It is to be modified so as to include the costs of appeal: as thus amended and modified it is affirmed.

Ordered accordingly.