| Mass. | May 20, 1898
The only question in this case is whether the judge below was bound to rule, as matter of law, that a surviving partner has no right to turn over merchandise of the late firm to a new firm of which he is a member, to be sold upon commission by the latter, and that the commission charged, or at least the surviving partner’s share, should not be allowed in the account between him and the executor of his deceased partner. In this case the auditor has found that the course adopted was prudent and reasonable, and. the charge reasonable. Whether we should have made the same findings we cannot tell, but, they having been made and we being bound by them, we are not disposed to go so far as to say that it is impossible that the charge should have been justified by the saving to the old firm and the trouble to the new from the arrangement. It is true, no doubt, that there is a disinclination to allow pay to a surviving partner for winding up; Dunlap v. Watson, 124 Mass. 305" date_filed="1878-03-25" court="Mass." case_name="Dunlap v. Watson">124 Mass. 305; but the tendency is to deal with such questions on their particular circumstances, rather than by absolute rules. Turnbull v. Pomeroy, 140 Mass. 117" date_filed="1885-09-18" court="Mass." case_name="Turnbull v. Pomeroy">140 Mass. 117, 118. Robinson v. Simmons, 146 Mass. 167" date_filed="1888-02-29" court="Mass." case_name="Robinson v. Simmons">146 Mass. 167, 176.
Finding to stand.