166 Mass. 435 | Mass. | 1896
The findings of the master are not to be set aside unless, upon the evidence as reported, they are clearly erroneous. Richards v. Todd, 127 Mass. 167.
We think also that the finding that the account between the two partners did not pass by the bill of sale to Felch was correct. It is the intention of the parties as expressed in the bill of sale which is to be carried into effect. But where a latent ambiguity arises, the surrounding circumstances may be looked into in order to discover if possible the real intention of the parties. In the present case, the note in suit, the bill of sale, the mortgage and mortgage note, and the payment of the five' thousand dollars in cash, all constituted parts of one and the same transaction. And though in a strict sense the overdraft of the plaintiff was a debt due to the firm, it is manifest, we think, that the language of the bill of sale referred to other debts and accounts than those between the two partners. Language almost if not quite as inclusive as that used here was construed in Abercrombie v. Spalding, 158 Mass. 32, not to include a debt due from the firm to one partner.
Decree affirmed.