165 Mass. 364 | Mass. | 1896
The guaranty sued on is undoubtedly ambiguous. It is as follows: “ Fall River, March 17th, 1890. I hereby agree to hold myself responsible for all goods bought by A. P. Gagné of Mark A. Sullivan. George E. Arcand.”
For the purpose of showing what this guaranty means, it was competent to show the facts known to the parties with reference to which the guaranty was given. It appears from the auditor’s report that the plaintiff was a wholesale and retail dealer in painters’ supplies in Fall River; that A. P. Gagné, in March, 1890, went into business as a painter; that a few days before March 17, the defendant, Gagné, and the plaintiff had an interview relating to the plaintiff’s furnishing Gagné with goods; that the plaintiff agreed to furnish them if the defendant would guarantee payment; that in pursuance of such an arrangement the defendant signed the guaranty declared on; and that after the guaranty was signed, the plaintiff, on March 17, 1890, and from time to time up to July 18, 1890, furnished Gagné with goods. On March 17, 1890, Gagné ordered goods to the amount of $210, and afterwards gave other orders, all of which were filled. Gagné paid something on account, but there was a balance remaining unpaid. The defendant “ was notified by plaintiff’s clerk of the condition of Gagné’s account while the bill was being run up.”
Upon the question whether the guaranty should be construed as a continuing guaranty, or as confined to the single purchase of goods by Gagné on March 17, the fact that Gagné as a painter desired to purchase goods to be used in his business, which was known to the defendant, seems to us competent evidence ; and it is fairly to be inferred from the auditor’s report that it was understood that the purchases were to be made from time to time, as Gagné might need the goods in his business. The guaranty is a contract collateral to the contract or contracts made between the plaintiff and Gagné; and what the contemplated contract or contracts between them were, if known to the parties to this suit, is, as between such parties,
We infer from the exceptions that before the trial the defendant filed a motion to recommit the auditor’s report for the alleged reason, among others, that the auditor had misinterpreted the guaranty and had wrongly admitted oral evidence to control or modify its meaning, and that this motion was denied. At the trial, the plaintiff offered the auditor’s report in evidence, to which the defendant objected for the same reason, and the court admitted it, and the defendant excepted. The auditor’s report was the only evidence in the case. The practice, when it appears that an auditor has found material facts upon incompetent evidence, is shown in Collins v. Wickwire, 162 Mass. 143, and in cases there cited. If it be assumed that on a motion seasonably made before the trial to recommit an auditor’s report upon the ground that certain material facts have been found by the auditor upon incompetent evidence, the moving party, if it so appears, has the right to have the report recommitted, or discharged, or the facts so found stricken from the report, we think that, if the motion is denied, an exception to this action of the court should be taken at the time if the party desires ultimately to bring before this court any questions of law which may arise upon the denial of the motion. That was not done in this case. If the ground of objection to the report appears on the face of the report, the party may request suitable rulings at the trial. The auditor’s report recites that, “ against defendant’s objection, plaintiff was allowed to produce evidence tending to prove that it was the understanding of the parties that this [the guaranty] should apply to future advances.” But we do not know what this evidence was. If it was only evi
Exceptions overruled.
