205 Mass. 488 | Mass. | 1910
This is an action of contract to recover from the defendants for plumbing materials alleged to have been furnished to the defendants for use in the construction of certain houses which one Louis Habelow was building in Brookline. The answer was a general denial and the statute of frauds. The case was sent, to an auditor who found against the defendant Benjamin and in favor of the defendant Abraham. Afterwards there was a jury trial, and a verdict for the plaintiffs for the full amount claimed was returned against both defendants. The case is here on exceptions by both defendants to the refusal of the presiding judge to give certain rulings that were requested, and to the instructions that were given. There are also numerous exceptions in regard to the admission and exclusion of evidence.
The goods were furnished through the Bounds and Dennison Corporation, who acted as Boston agents for the plaintiffs, and the principal question is whether there was any evidence warranting a finding that the defendants were partners, either generally or as to the real estate for which the goods were furnished. We think it is plain that there was. A letter head was introduced in evidence bearing the imprint “ A. Bilafsky & Son, Beal Estate and Insurance, 30 Court Street.” When the defendant Benjamin was asked on cross-examination when that first began to be printed he answered, “ After I became twenty-one years of age,” meaning, it might fairly be inferred, soon after he became twenty-one, which, according to the statement of his age elicited in his cross-examination, would fix the time as previous to the time when the plaintiffs began to furnish the goods sued for. There was also testimony tending to show that the defendant Abraham had testified in bankruptcy proceedings concerning Louis Habelow in -January, 1902, that he and his sons were partners. He attempted to qualify and explain this, but it was for the jury to give his testimony such weight as they thought it fairly entitled to. There was also testimony tending to show that the two occupied the same office at 30 Court
Both defendants strenuously denied that they were partners, and denied many of the things testified to as above and offered
It is no doubt true, as the defendants contend, that the declarations or acts of one partner, in the absence or without the knowledge of the other, are not evidence of the existence of a partnership as against such other. But they are admissible against the party making them, and a partnership may thus be established by the separate acts and admissions of those who it is contended constitute it. Currier v. Silloway, 1 Allen, 19. Rosseau v. Deschenes, 203 Mass. 261. Applying this rule we see no error in the admission of the evidence that was offered for the purpose of showing that the defendants were partners. The letter head on the letter dated October 14, 1902, written by Habelow, was plainly admissible as tending to show that the defendants were holding themselves out as partners, and derived additional significance from the facts that appeared in relation to Habelow’s connection with them. In regard to the scope and effect of evidence of acts and representations by one defendant as against the other defendant, the jury were instructed in accordance with the rule stated above. Neither do we see any error in the instructions or refusals to instruct in respect to what would have to be found to establish a partnership. The question was essentially one of fact, and the jury were so told and were also instructed in substance and effect that partnerships might be established in different ways, and that it was for them to consider the various matters that had been introduced in evidence and give them such weight as they thought they were entitled to; and if they found that the defendants “ were together in this enterprise and were responsible for this contract ” with the plaintiffs, then they would be justified in returning a verdict against both defendants; otherwise not. We do not think that the instructions thus given afford the defendants any just ground for complaint.
As we have said, numerous exceptions were taken to the admission and exclusion of evidence. It would seem as though many of them were taken with little regard to what the law really was and were utterly frivolous. We have considered them all and find nothing in any of them which requires the exceptions to be sustained.
Exceptions overruled.