Craig v. Warner

216 Mass. 386 | Mass. | 1914

Braley, J.

If the docket entry on the exceptions to the master’s report of “Overruled” and nothing more is to be deemed an interlocutory decree, which we do not decide, the defendants did not appeal, but waited until entry of the final decree, which merely recites that the exceptions have been duly overruled, and the report confirmed. The final decree is not erroneously affected by the orders recited, and the only question before this court on appeal is, whether it is in accordance with the pleadings and the report. R. L. c. 159, § 26.

The master’s findings would be decisive, even if his general conclusion appeared to be inconsistent with any subordinate finding. Taber v. Breck, 192 Mass. 355. Crosier v. Kellogg, 210 Mass. 181, 184, 185. Hughes v. Northampton Street Railway, 210 Mass. 206, 210. But the report shows no inconsistency.

The parties were mutually engaged in the purchase and shipment of damaged cotton, which, after it had been renovated by the plaintiff, was put upon the market and sold under an agreement to divide the profits and share the losses equally. A partnership having been formed, either party could bind the other when acting in furtherance of the common enterprise and in the course of business outlined in the letter of the defendants to the plaintiff, which constitutes the contract. McMurtrie v. Guiler, 183 Mass. 451. Feigenspan v. McDonnell, 201 Mass. 341.

While the bill is inartificially drafted, it asks for an accounting in which the defendants join specifically in the answer. It is alleged, and the master has found, that by reason of losses in the ventures the defendants are indebted to the plaintiff by whom the joint liabilities have been met. The claims set forth in the second, third, and fifth paragraphs of the bill, the master states were not in dispute, while the plaintiff waved his claim under the sixth paragraph, leaving nothing for determination under the general claims contained in the first and seventh paragraphs.

It is only over the claim in the fifth paragraph for one half of the loss sustained by the plaintiff on a shipment of cotton, which the • master has allowed, that the parties are in dispute. The cotton was sold by a firm of brokers who had disposed of previous shipments, furnishing to each party a statement of the sales. If in selling the cotton in question they acted for the firm, the decree is wrong. The brokers would be the creditors of the firm as they had advanced money in anticipation of sales, holding the cotton as security for their reimbursement. But the report goes at large into the relations and transactions of the brokers not only with the firm but with the plaintiff individually. It was a question of fact, in view of the letter and the general course of dealing, whether the brokers made the advances to the plaintiff or to both parties as of the date entered on their books. The letter when speaking of the plaintiff refers to the brokers by name as "your brokers,” and the master finds that they “had long been” employed by him, using different forms of statement after the contract, to designate or distinguish transactions in which he alone was interested, from those appertaining to the firm. The finding that the money was advanced solely on the plaintiff’s account makes the brokers his . agents, and, as he has suffered the loss which was incurred in the joint business, the defendants are liable for one half the amount as stated in the report, and in the decree.

Decree affirmed with costs.