Sousa v. Manta

267 Mass. 246 | Mass. | 1929

Wait, J.

The plaintiffs brought their bill in equity to obtain dissolution of an alleged partnership and an accounting •of its affairs. The master to whom the cause was referred found that no partnership between the plaintiffs and the defendants had ever existed.. .The full evidence is not reported. The plaintiffs’ motion to recommit the report was denied. Their exceptions to the report were heard and overruled, and it was confirmed. No appeal from the order or the decree was claimed. After hearing on the merits, the court entered a final decree dismissing the bill with costs. The case is here on appeal from the final decree.

The only question, therefore, for our determination is whether on the record and the master’s report the decree is proper. Fay v. Corbett, 233 Mass. 403, 410. Kronberg v. Bulle, 247 Mass. 325, 328. Morrill v. Spurr, 143 Mass. 257. The finding that no partnership existed must stand unless it is inconsistent with other facts reported. Glover v. Waltham Laundry Co. 235 Mass. 330. Kronick v. Correale, 257 Mass. 104. Weiss v. Newman, 255 Mass. 235. We find no such inconsistency. The plaintiffs’ claim that the master’s view of the law with regard to the status as partners of fishers or farmers on shares vitiated his consideration of the true bearing to be given the testimony of the plaintiffs, is not convincing. The facts reported justified him in thinking that the various captains solicited by John N. Sousa to take “shares” in the ship chandlers’ store which he and Philip P. Manta were carrying on, or proposing to carry on, as Manta, Sousa and Company had no intention of forming a true partnership to conduct that business. They did not know who were to associate in the business. Apparently any one who took a share could come in. The capital was not agreed upon. Any one could take as many shares as he pleased. There is nothing to show that any captain had any idea that the other associates, or himself, could adventure on behalf of the firm; or that he became liable for its debts to the full extent of his property. The essential intent to agree with known associates to conduct a business with an agreed capital contributed in fixed proportions for a definite share in the profits and with an unlimited liability for possible losses is not made out.

In the absence of these essential agreements, Manta’s belief that a partnership existed would not make the combination a partnership. The form of his income tax return, taken most strongly against him, does not go beyond a statement of his opinion. The master was justified on the evidence in deciding that it was not an admission binding Manta to an existing partnership with the plaintiffs. It could not bind the other defendants who knew nothing of it.

What the plaintiffs expected to show by the evidence offered before the master with regard to the customs and beliefs of Portuguese fishing captains was not stated. We could not decide that there was error in the master’s refusal to hear it, even if the question were open before us upon this appeal.

The case is well within the decisions in Morrill v. Spurr, Weiss v. Neuman, and Kronick v. Corréale, cited above.

Decree afirmed with costs.