183 Mass. 355 | Mass. | 1903
This case comes up on an appeal by the plaintiff from a final decree overruling all exceptions taken by her to the report of a master.
The material facts set forth in the master’s report are that prior to the death of the plaintiff’s intestate he had been for over thirty-six years in partnership with the defendant, in the teaming business in Boston. The business done by the partnership was principally as teamsters for wholesale dealers in shoes and leather, and was carried on at two stands, one on Pearl Street in charge of the defendant, the other on Federal Street in charge of the intestate. Neither drove a wagon, and it was necessary that each should remain at his stand nearly all the time, to receive orders for carting for customers, and to direct the work of the drivers of the carts. The custom depended to a very great extent upon the personal relations between the partners and their customers. Hutchinson, the intestate, died on January 31, 1901. A few days after his death the defendant told the plaintiff, who was Hutchinson’s daughter, and her mother, Hutchinson’s widow, that he intended to continue in the teaming business, and that he wished to buy their interest in the late firm, but - he made no express reference to good will, and it is expressly found by the master “ that he never assumed nor purchased, nor agreed to assume nor to purchase, such good will, unless that result follows as a matter of law from the other facts herein found.”
Since Hutchinson’s death, Nay has carried on the teaming business on his own behalf, in the same places and with the property of the late firm and for its customers, using the old
After stating these facts, the master’s report, so far as material, is as follows: “ There was no evidence of any request or demand of the plaintiff to the defendant that the defendant should offer the chattels or good will for sale, but from a few days after Hutchinson’s death down to June 22, 1901, the date of the plaintiff’s bill of sale, the parties were negotiating for a settlement, and the only dispute (aside from accounting) was as to the amount which the defendant should pay for the Hutchinson interest. If Nay had not continued the business after the death of Hutchinson, the business would have been dissipated at once, and would have had no value beyond the value of the chattels used therein. Nay has acted honestly in his dealings with the plaintiff.”
This bill was filed on June 25, 1901, by the plaintiff as administratrix of the estate of Hutchinson, for an accounting as to the outstanding accounts on which the parties had not been able to agree, and for the purpose of charging the defendant with the value of Hutchinson’s interest in the good will of-the business.
The defendant submitted to the decree made by the Superior Court on the master’s report, and the case is here on an appeal by the plaintiff from the decree overruling all her exceptions to it.
Her main contention is that the defendant must account to her for her intestate’s share of the value of the good will of the partnership. There was nothing in the copartnership articles as to the good will of the business on the death of either partner, nor was there any article in the copartnership agreement restraining the survivor from conducting the same business with the customers of the old firm.
The master has found that the defendant did not agree to buy the good will. That is decisive of the question before us.
If the plaintiff is entitled to anything in the matter of the" good will of the late firm, it was to have the good will put up
In the case at bar the plaintiff is not seeking to have the good will sold. What she is seeking is to have the defendant account for the value of it. The master has found that the defendant did not in fact agree to buy the good will. But the plaintiff contends that as matter of law the defendant must be taken to have agreed." to buy it on the facts found. She bases this contention on the fact that he has enjoyed the benefit of the good will since Hutchinson’s death. In the first place that is not so. Nay struck off the words “ & Co.” from his bill heads
Exceptions 4, 5, 8 and 19 are to the refusal of the master to report the evidence on particular points, and exceptions 16 and 27 are to his refusal to report all the evidence before him. By the terms of the order appointing the master, he had no authority to report evidence.
Exceptions 1, 9,10, 11,12,13, 14, 21 and 23 are immaterial under the view of the case which we have taken.
Exceptions 2, 3, 6, 7, 15, 17, 18, 19, 25 and 27 are to findings on the ground that they are not warranted or required by the evidence. The evidence is not before us, and these exceptions must be overruled.
Exception 20 is to the exclusion of a letter of the plaintiff’s attorney offering a compromise. It was properly excluded as a self serving statement and as an offer of compromise.
On the facts found by the master, the following exceptions are as matter of law wrong, namely, exceptions 22, 24 and 26.
Decree affirmed.