284 Mass. 525 | Mass. | 1933
This action was brought by an assignee for the benefit of creditors and, by amendment, is now prose-
An auditor reported findings that the defendant had owed $6,047.05 and was entitled to credits of $3,934.92, leaving a balance of $2,112.13 which, with interest from October 1, 1930, was due the plaintiff. He reported also that at the time the Orth Chevrolet Company Inc. was formed the Arlington Automobile Company “transferred a substantial amount of auto parts to the Orth Chevrolet Company.” The report was very short. It did not discuss items of the pleadings, nor say anything of the note.
At the trial the plaintiff rested, after putting in the auditor’s report and testimony from the treasurer of the Arlington company that he recalled transactions between the companies in which some Chevrolet parts were sold and some sent by the Arlington to the Orth company. Controversy at the trial centered about item 242 of the declaration: “June 30 Chevrolet parts as per inventory $2,112.34.” The Orth company contended that these parts were security for a note for $2,500 which bore date April 16, 1930, given by the Arlington company to “R. J. Huntington, or order,” and that it paid for them by paying the price, $2,112.13, to Huntington, who credited it on the note in accord with an agreement made between the treasurer of the Arlington company and Orth of the Orth Chevrolet Company. This note for $2,500 was that declared upon in set-off. It bore
The plaintiff contends there was error in submitting the question with the instruction that the answer was decisive of all issues; and in directing the verdict for the defendant. Under our trial practice, a judge in his discretion may frame and require answer to special questions put to a jury. No valid exception lies to the exercise of this power. It rests in the discretion of the judge. Dorr v. Fenno, 12 Pick. 521. Spoor v. Spooner, 12 Met. 281, 286. Lawler v. Earle, 5 Allen, 22. Mair v. Bassett, 117 Mass. 356, 359. Spurr v. Shelburne, 131 Mass. 429. Florence Machine Co. v. Daggett, 135 Mass. 582. Boston Dairy Co. v. Mulliken, 175 Mass. 447. Hill v. Hayes, 199 Mass. 411, 417. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 520. Newell v. Rosenberg, 275 Mass. 455, 459, 461. See also Ashton v. Touhey, 131 Mass. 26. There is, however, reversible error if a verdict be ordered upon an answer to a question so put, unless the answer disposes of all issues material in the case. Fitzgerald v. Young, 225 Mass. 116.
So, in the case before us, there was no error in submitting the question to the jury; but it remains to be decided whether the question and answer cover all the material issues. We think the trial judge was right in asserting that, upon the evidence and the course of the trial, the question whether the plaintiff was entitled to a verdict depended upon the fact whether the defendant had paid for the parts declared by item 242 to have been sold to the defendant through the carrying out of the alleged agreement for payment to Huntington of the amount for which he held them as security for his note. This, of course, involved the determination of the validity of the agreement, if made. There was no contradiction that an agreement was made, and no evidence of lack of authority in the treasurer of the Arlington company to make it. Compare Fallon v. Clifton Manuf. Co. 207 Mass. 491, 495. No exception was claimed to the judge’s statement, as fact, that
Exceptions overruled.