Madden v. Shaw, 277 Mass. 71

Madden v. Shaw

277 Mass. 71 | Mass. | 1931

Wait, J.

This proceeding is, in substance, a bill for dissolution of a partnership and for an accounting to determine the proper distribution of the firm assets between the partners. The case was referred to a master. A motion to recommit the report has been denied. Exceptions of the plaintiff have been overruled. The report has been confirmed. A final decree has ordered distribution of the balance remaining in the hands of a receiver after confirmation of the receiver’s account. The plaintiff appeals and contends that there is error in the refusal to recommit; in the overruling of his exceptions; and in the amounts decreed to be paid to the plaintiff and the defendant.

There is no report of the testimony. The findings of fact by the master must stand unless clearly wrong. We find no error in the refusal to recommit. The motion sought recommittal so that further findings of fact with regard to certain matters dealt with in the report might be made. Nothing appears to show any abuse of the discretionary power of the judge. It rested in his discretion to grant or deny what, in substance, was further hearing. Chamberlain v. Henry, 263 Mass. 63.

Such of the exceptions as merely challenged the master’s findings of facts were properly overruled. First National Bank of Haverhill v. Harrison, 271 Mass. 258. The finding with regard to the amount overdrawn as salary was none the less a finding of fact that the master submitted it for revision by the court. Any finding is subject to revision if enough is reported to show that, as matter of law, it is not justified by the other findings or the evidence reported. The facts reported would support a finding that $40 per week of the amount withdrawn by the plaintiff as salary was withdrawn wrongfully.

The method of computation of each partner’s capital was proper in view of the findings. We know of no rule of law which forbids the use of any method of computing capital or profits of a partnership which is agreed upon by the partners without fraud, deceit or concealment. If it is not embodied in a written agreement, and here there were no written articles of copartnership, it may be shown by *75evidence. A practice followed uniformly during the continuance of the firm without objection may be inferred to rest upon agreement. It is not unreasonable to agree that profits which a partner allows to remain undrawn shall be treated at the end of each year as added to his capital and thus affect his share of profit in the ensuing twelve months. A different situation would be presented if objection were made at the time. The finding that each year a new figuring of capital should be made is justified. The finding that the deduction of depreciation after and not before the figuring of the yearly profit was the result of mutual mistake also is justified upon the evidence stated in the report. The decree was right in following the computation of the master based upon a different method. The exceptions to the report were overruled rightly. '

Upon confirmation of the report, the only question left was the decree appropriate upon the facts reported. We find no error in that decree. It gives to each partner the share of the balance in the receiver’s hands to which his contribution to the capital entitles him, after he has made good to its assets his .indebtedness to the firm.

Decree affirmed.