253 Mass. 368 | Mass. | 1925
' This is an action for breach of a contract to sell and deliver naphthaline flakes. The declaration was in three counts. The first count may be dismissed without discussion,- as the trial judge ruled that there could be ho recovery upon it. The second and third counts alléged that on or about. February 24, 1920, the defendant agreed to sell
The judge who heard the case without a jury found for the plaintiff. The case is before us upon the defendant’s exceptions to the admission of certain evidence, and to the refusal to give seventeen of the twenty-two “requests for rulings” presented by the defendant.
There is nothing in the exception to the admission of evidence; and no mention is made of it in the defendant’s brief. We treat it as waived.
" The plaintiff corporation was in bankruptcy; but, after the argument and before the finding, the trustee in bankruptcy was admitted as plaintiff by amendment. This disposes of any question raised by requests 4 and 5.
Many of the requests, though in form requests for rulings of law, were really requests for findings of particular facts and rulings upon the particular facts so found. At law no exception lies to the refusal to find a fact as requested. Title Guaranty & Surety Co. v. Fred T. Ley & Co., Inc. 238 Mass. 113, 120, and cases cited. Puffer Manuf. Co. v. Yeager, 230 Mass. 557. A trial judge cannot be compelled to give a ruling upon the effect of a single disconnected fact. Moseley v. Washburn, 167 Mass; 345. Dolphin v. Plumley, 175 Mass. 304. Doherty v. Phoenix Ins. Co. 224 Mass. 310, 317. This well established rule is not'to be avoided by multiplying requests until they cover all the several material facts involved in a decision of the' cáse.
If Charles L. Huisking, Inc. (hereinafter called Huisking, Inc.) as agent for the defendant, had authority to make the contract of sale declared upon, and, pursuant to such authority, did make-it, requests 6,. 7, 9, 12, 13, 14, 15, 17, 18 and 19 are immaterial. It then made no difference on its liability whether or not th.e defendant, received a copy of the contract
Additional request 2 also was immaterial. The trial judge ruled as requested that there was no evidence that the letter of February 25, 1920, was received by the defendant. The assumption upon which the request is predicated was not made out.
The correct decision of the case depends upon the determination whether Huisking, Inc. had authority to bind the defendant to the contract sued upon and put in evidence.' Request 8 was intended to raise this question; but it is too narrow. The proof of such authority did not rest alone upon the construction of the letter of February 21, 1920. There were other letters and other facts to be considered. It is apparent that the judge in reaching the conclusion that the authority existed did not rest his decision upon that letter only; for he ruled that “There is no evidence of any contract other than one containing a provision that the naphthaline should be 79 degrees melting point” and that letter says nothing of the melting point.
Requests 2, 3, and, if interpreted as a request for a ruling of law, request 9, raised the question whether there was any evidence which will support a finding that Huisking, Inc. had authority to bind the defendant to the contract declared upon. There is evidence of oral and written communication between Huisking, Inc. and the defendant. What was said and done was matter of fact for the decision of the judge who tried the case. He must be sustained unless clearly wrong. The letters, Exhibits 1, 2, 4, 5, 6, and 7, taken together justify a finding of authority to sell, at least to the person referred to in Exhibit 2, and there was evidence that the plaintiff was intended to be referred to thereby.
Although the trial judge might have reached a different conclusion upon the evidence, we cannot say that there is no evidence to support his finding; and, as we find no error of law, we cannot disturb his findings of fact. Puffer Manuf. Co. v. Yeager, supra.
Exceptions overruled.