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the parties and their conversation, such retainer received by the partner was partnership property, and that the amount received by the partners should be charged to him in his account. Held, that such findings were not necessarily inconsistent, the meaning being that while the matter was not considered when the two firms were consolidated, the parties took up the matter thereafter and concluded that the retainer should be partnership property.

2. REFERENCE-FINDINGS OF LAW AND FACT.

A finding by a master that after the consolidation of the business of partners, a retainer of one of them was agreed to be partnership property, and that the partner receiving it should be charged therefor in his account, was a finding of fact and not a conclusion of law.

3. APPEAL-FINDINGS OF MASTER-REVIEW. Where, on appeal from a decree entered on a master's report, the evidence is not reportea, a finding of the master cannot be reviewed unless on the face of the report it is inconsistent with other findings, and is plainly wrong. 4. PARTNERSHIP-ACCOUNTING EVIDENCE.

Where in a partnership accounting it appeared that one of the partners had accepted a retainer of $2,500 a year from the G. company, which was agreed should be partnership property, but there was no claim concerning any services rendered for others, evidence as to whether he had rendered services to any other company for which he had made no charge was irrelevant.

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TEREST.

Where a suit for a partnership accounting was referred to a master, who made up his report without computing interest, it was within the power of the presiding judge to allow interest on the balance due one of the partners from the date of the writ, notwithstanding Rev. Laws, c. 177, § 8, authorizing an allowance of interest to the entry of judgment in certain cases where interest has already been allowed.

Appeal from Superior Court, Essex County. Bill by W. J. Young against E. E. Winkley and by Winkley against Young for the dissolution of a partnership and for an accounting From a decree dissolving the firm, and directing judgment in favor of Young, Winkley appeals. Affirmed.

Benj. Phillips and Alfred H. Hildreth, for appellant. Starr Parsons and H. Ashley Bowen, for appellee.

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appointment of a receiver, and a settlement of the matters in controversy. The superior court ordered the cases to be consolidated, and appointed the same person receiver and master. The decree appointing the master did not order the evidence to be reported. The master heard the parties and made a report to which both parties filed exceptions. The superior court overruled all the exceptions, and entered a final decree ordering Winkley to pay over to Young the sum of $2,418.09, with interest from the date of the filing of the bill in the first case; and that Young have execution for the sum so computed. From this decree Winkley appealed to this court.

The following facts appear in the master's report.

In 1891 the parties formed a copartnership, by an oral agreement, under the firm name of E. E. Winkley & Co. To this copartnership Winkley was to devote all his time. Young furnished the money, and was not required to devote any time to the business of the firm of E. E. Winkley & Co. The firm of E. E. Winkley & Co. continued from 1891 to 1897. During that time Young was engaged in the business of manufacturing machinery, in his own name of W. J. Young. Up to 1897 Winkley had nothing to do with the business run under the name of W. J. Young.

In 1897 the business of E. E. Winkley & Co. and that of W. J. Young were consolidated by an oral partnership agreement, but the business was continued for commercial reasons under the separate names of E. E. Winkley & Co. and W. J. Young. The master found the oral partnership agreement of February, 1897, to have been as follows: Winkley was to contribute to the consolidated firm his net share of the capital of E. E. Winkley & Co. Young was to contribute to the consolidated firm his net share of the capital of E. E. Winkley & Co. Each party was to give all his time and attention to the business of the new firm. Young was to contribute as a special capital the net assets of the W. J. Young business. For this excess capital Young was to receive interest at the rate of 6 per cent. No express agreement as to what salary each partner should draw appears to have been made, but from the conduct of the partners there appeared to be a tacit understanding that each partner was to receive fifty dollars ($50) per week as a salary, which was to be charged to the expense account.

The principal question in controversy between the parties relates to what is called by the parties a "retainer." This is explained by the master to be an arrangement made about January 1, 1896, by Winkley on the one side and the general manager of the Goodyear Company on the other side, by the terms of which the Goodyear Company was to pay Winkley $2,500 a

year, in consideration of Winkley's giving the Goodyear Company an option on all his boot and shoe working machinery inventions. It is stated in the report that Winkley began to draw that amount, about January 1, 1896, and continued to draw the same to the filing of the bills.

The master made two findings in regard to this: "I find that there was no agreement between the partners with reference to this money, which has been referred to throughout as a retainer." Later on he says: "There was a conference between the parties about the time after consolidation in February, 1897, with reference to the retainer, so called, received by Winkley. I find that from the conduct of the parties and their conversation, this retainer, namely, $2,500 per year, received by Winkley from the Goodyear Company, was partnership property, and the amount of the same received by Winkley should be charged to his account."

Winkley contends that these findings are inconsistent; but we are of opinion that they are not necessarily so, and that their fair meaning is that while this matter was not taken up and considered when the two firms were consolidated the parties soon after took up the matter and reached the conclusion that the retainer should be considered partnership property.

We cannot accede to the contention of Winkley that the latter finding of the master is a conclusion of law and not a finding of fact. There is no report of the evidence, and we cannot revise the finding, "unless, upon the face of the report, it is inconsistent with other findings and is plainly wrong." Crane v. Brooks, 189 Mass. 228, 75 N. E. 710. We cannot say that the two findings are necessarily inconsistent, and that the latter finding is plainly wrong. The exceptions relating to the matter of the retainer were properly overruled.

The next contention is that there was error in the accounting, and this is the subject of three exceptions. The master however has not given the items of the account, except the grand totals. Winkley relies upon the following statement in the master's report: "The special capital, so-called, contributed by Young, consisted of stock, machinery, fixtures, bills receivable. About one-third of the machinery was purchased in 1900. Large purchases of machinery were made in 1895 and 1896. The prices for such machinery were put in at the original cost in making up the special capital. The bills receivable were mostly collected. The price of the stock put in was fixed by Young." The complaint of Winkley is that the master allowed nothing for depreciation, but this fact does not appear in the master's report, nor does it appear that the master based his result upon these figures. He is merely stating how the parties made up their special capital.

The next exception relates to the exclusion of evidence. It appears from the report that on the direct examination of Winkley, he was asked this question: "Have you ever rendered service to any other company (other than the Goodyear Company) for which you have made no charge?" The master ruled that such a line of inquiry was immaterial, but allowed Winkley to go into his relations with, and the amount and nature of his services rendered to, the Goodyear Company, both before and after the date when he began to receive his retainer from the Goodyear Company. We find nothing in the report of the master to show that the question asked was material to any issue in the case.

The next contention is as to the refusal of the master to report the evidence relative to the retainer of $2,500 per year paid by the Goodyear Company to Winkley or enough of the same to enable the court properly to consider the exception taken by the counsel for Winkley at the hearing as set forth in the exception numbered 12. Exception 12 reads: "The party Winkley excepts to the refusal of the master to admit the evidence offered by Winkley as follows:" Then follow some questions and answers which do not appear in the master's report; but it is too plain for argument that this testimony is not properly before us. As to the broader ground, Winkley relies upon the rule stated in Parker v. Nickerson, 137 Mass. 487, 493, as follows: "Although the order of reference did not direct the master to report any of the testimony to the court, it was his duty, at the request of a party, to report the evidence so far as was necessary to bring intelligently before the court any question of law raised before him at the hearing." See, also, 'East Tennessee Land Co. v. Leeson, 183 Mass. 37, 66 N. E. 427. The difficulty with Winkley's case in this respect is that he did not ask the master that so much of the evidence as bore upon the question of law in regard to the retainer be reported, but that the entire evidence relative to the retainer be reported. This the master was not bound to do. See Nichols v. Ela, 124 Mass. 333.

The last objection raised by Winkley is in regard to interest allowed in the final decree. This decree ordered Kinkley to pay to Young the sum of $2,418.09, "with interest from the. date of the filing of the bill of William J. Young vs. Erastus E. Winkley." No question seems to have arisen in the court below as to interest. The master in his report did not mention it; and the appeal is from the decree "confirming the master's report." Assuming, however, that the question is open to Winkley, we see no error in the decree. Interest is allowed as damages. The master made up his report without computing interest. It was within the power of the presiding judge to allow interest from the date of the writ. Johnson v. Boudry, 116 Mass. 196. Speirs v. Union Drop Forge Co., 180

Mass. 87, 93, 61 N. E. 825. We find nothing in Rev. Laws, c. 177, § 8, to lead us to a different result. That statute was passed merely to allow interest up to the time of entering judgment in various cases where interest had already been allowed, as in awards, the report of an auditor or master in chancery, or the verdict of a jury. It was not intended to cut down the right of a party to interest from the date of his writ or other process, where by inadvertence no interest had been allowed in a verdict. This is covered by the decision in Jackson v. Brockton, 182 Mass. 26, 64 N. E. 418, 94 Am. St. Rep. 635. In that case, as appears by the papers in the case, an action was brought on an account annexed. The case was referred to an auditor, who found that the plaintiff was entitled to damages on all the items of the account from the date of the several demands to the date of the writ. Judgment was entered for this amount, and a writ of error was brought by the original plaintiff to have interest from the date of the writ added to the amount of the judgment. The court so held. There is a remark in the case, on which Winkley relies, as follows: "In some cases where the amount to be paid is unliquidated until the report is filed, it would be unjust to treat the defendant as in default before that time. Under such circumstances the usual practice, under Pub. St. 1882, c. 171, § 8, is to compute interest from the date of the report."

The case at bar is not one of unliquidated damages, but of an account between partners; and we see no injustice in allowing interest from the date of the bill.

The case of Fuller v. Dupont, 183 Mass. 596, 67 N. E. 662, on which Winkley relies, was a suit upon an administrator's bond, and interest was allowed only from the date of the allowance of the account by the probate court, and not from the date of the writ. This was decided upon its peculiar circumstances, and we do not understand the court as laying down a general rule that in an action on a probate bond interest is to be allowed only from the allowance of the account in the probate court. See McKim v. Blake, 139 Mass. 593, 2 N. E. 157; McKim v. Hibbard, 142 Mass. 422, 8 N. E. 152; Forbes v. Ware, 172 Mass. 306, 52 N. E. 447. However this may be as to actions on probate bonds, we find no error in the course adopted in the case before us.

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such part thereof as he could obtain control of at the same price. The second clause declared, "in case this option is taken up as hereinafter provided," plaintiff agreed to sell at a certain price stock of the company that issued the bonds. The third clause contained an agreement of plaintiff to sell certain other bonds of the same kind at the same price "in case this option is accepted" by defendant, and the seventh clause declared that it was expressly understood that defendant was to purchase, "on accepting this option," $20,000 of said bonds, the proceeds to be applied to a particular purpose. Held, that the words, "on accepting this option," in the seventh clause, did not mean that defendant was bound to purchase such bonds on the delivery and acceptance of the paper containing the option, but only on his election to purchase the bonds specified in the first clause.

Report from Superior Court, Suffolk County; Jas. B. Richardson, Judge.

Suit by one Martyn against one Hitchings for specific performance of an agreement contained in an option to purchase bonds. In the superior court the case was reported to the Supreme Judicial Court. Bill dismissed.

Hollis R. Bailey, for plaintiff. Hitchins & Wheeler, Henry N. Berry and Harry Le Baron Sampson, for defendant.

KNOWLTON, C. J. The rights of the parties in this case depend upon the meaning of the contract contained in the two papers signed by the plaintiff and delivered to the defendant, bearing date January 1, 1903. The second of these papers relates to coupons annexed to bonds referred to in the first paper, and it was to have effect only upon condition that the defendant exercised the option to buy bonds given him in the first paper. It is therefore of but little consequence as an aid in the construction of the first contract.

The contract contained in the first paper is the giving of an option by the plaintiff to the defendant, to remain open through February 10, 1903, which option was "the right to purchase," from the plaintiff as trustee, certain bonds to the amount of $700,000 face value, at the price of 70 per cent. of their par value, with accrued interest after the date of the contract. In the first clause of the contract the plaintiff also agrees "that, in case this option is accepted by said Hitchings as hereinafter provided," he will endeavor to procure the sale and delivery of $50,000 more of the same kind of bonds, or such part thereof as he can obtain control of, at the same price. In the second clause, "in case this option is taken up as hereinafter provided," he makes an agreement to sell at a certain price stock of the company that issued the bonds. In the third clause there is an agreement of the plaintiff to sell certain other bonds of the same kind, at the same price, "in case this option is accepted by said Hitchings as hereinafter provided." Plainly. the option referred to in each of these clauses is the right to buy the bonds to the amount of $700,000 face value, referred to in the first

clause, and "accepted as hereinafter provided" means accepted within the time that the option is to remain open under the ninth clause, which is through February 10th.

The fourth clause contains an agreement of the plaintiff to use all reasonable effort to help the defendant get $187,000 more of the same bonds then outstanding in the hands of various parties, and this agrement is only "in case this optioin is accepted by said Hitchings." The option referred to here is the same.

The fifth and sixth clauses give the defendant the right to buy certain treasury bonds of the same kind, with certain treasury stock, at prices stated.

The seventh clause, upon which the plaintiff founds his suit, is as follows: "It is also expressly understood that said Hitchings is to purchase, upon accepting this option, $20,000 of said bonds out of said above-mentioned lot of $59,000, the purchase price to be 70 per cent. of the face value thereof, proceeds of said sale to be applied to the payment of certain debts of said Rio Grande Company." The lot of $59,000 is the one referred to in the third clause of the contract.

The contention of the plaintiff is that the words "upon accepting this option," in the seventh clause, mean upon the delivery and acceptance of the writing, which purports to give an option to be exercised on or before February 10th. He contends that the obligation of the defendant to purchase bonds to the amount of $20,000 became absolute immediately on the delivery and acceptance of the paper. He thus gives the words "this option," in this clause, a meaning different from their obvious meaning in every other part of the contract. The bill as originally drawn was plainly founded on this construction of the contract, and the two amendments do not change it in this particular.

The defendant, on the other hand, contends that accepting this option, in the seventh clause, means the same thing as the similar language in the first, second, third and fourth clauses of the contract, namely, the election to purchase $700,000 of bonds, upon which everything else is made to depend. The third clause, in which the words are plainly used in that sense, refers to the sale of the same lot of bonds which are to be purchased under the seventh clause if the option is accepted. In the ninth clause the word "option" has the same meaning. Looking for a moment at the second writing, the plaintiff's agreement in reference to the coupons upon this lot of $59,000 is made conditional upon the purchase of the bonds by the defendant. This is inconsistent with the existence of a contract of purchase which was absolute the moment that the writing was delivered and accepted.

While the case is not free from difficulty, we are of opinion that the construction contended for by the plaintiff is not correct. It

seems a strained and unnatural view to hold that the words "this option," in the seventh clause, mean a paper writing, while in every other part of the instrument they mean the right to purchase certain specified property within a stated time at a stated price.

The averments in the amendments to the bill have little bearing upon this point. They are intended to relieve from the defense of the statute of frauds, and to show how the parties interpreted the contract. In the view that we take of the case the statute of frauds becomes immaterial. A payment of $100 by the defendant to the plaintiff, or at his request, as a part of the purchase price of the bonds referred to in the seventh clause, made at some time after January 1, 1903, and before February 10, 1903, does not bind the defendant to purchase these bonds, if he elected not to accept the option. This is conceded by the plaintiff upon the interpretation which we give to the word "option." The plaintiff relies upon the averment as showing the defendant's construction of the contract; but if the contract means, what the plaintiff contends that it means, the defendant should have taken and paid for bonds to the amount of $20,000 on the delivery of the paper. The conduct of the parties, taken as a whole, tends to support the defendant's rather than the plaintiff's construction of the contract. Bill dismissed.

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directed a verdict for defendant, and plaintiff brings exceptions. Sustained.

John R. Thayer, Arthur P. Rugg, Henry H. Thayer, and Michl. T. Carrigan, for plaintiff. F. H. Dewey, Chas. C. Milton, and Chandler Bullock, for defendant.

LATHROP, J. This is an action of tort for personal injuries sustained by the plaintiff in consequence of the wagon on which he was riding being struck by an electric car of the defendant. At the close of the evidence for both sides, the judge of the superior court who heard the case directed a verdict for the defendant, and the case is before us on the plaintiff's exceptions.

The accident occurred soon after 1 o'clock in the afternoon of December 17, 1903, at the junction of Piedmont street and Chandler street in Worcester. The former street is on a level grade and runs north and south. The latter street has a sharp descending grade towards Piedmont street, and runs east and west. On Chandler street is a line of the defendant's tracks. Shortly before the accident the plaintiff had been invited by the driver of the wagon to get upon it. It appeared in evidence that upon the corner of Piedmont street and Chandler street, on the side from which the defendant's car approached, there was a large brick factory, and that it was impossible for one proceeding in the direction in which the plaintiff was going, to obtain a view of Chandler street and the car tracks of the defendant. The distance from the building to the nearest rail was about 14 feet.

There was evidence that the car struck the left front wheel of the wagon. Both the plaintiff and the driver testified that while on Piedmont street they were going about four miles an hour; that before crossing Chandler street the driver slowed up; that both looked and saw no car approaching, and listened but heard nothing. The driver further testified that as the seat of the wagon passed the cross-walk on Chandler street over Piedmont he first saw the car approaching, and at that time his horse's feet were between the rails of the track; that he turned his horse to the left, and the car struck the wheel.

There was a conflict of evidence as to the speed of the car, and as to whether the gong was sounded.

We are of opinion on the evidence in the case that the questions of due care on the part of the plaintiff and the driver of the wagon, and of negligence on the part of the motorman of the car were for the jury.

In Scannell v. Boston Elevated Ry., 176 Mass. 170, 173, 57 N. E. 341, it is said: "With some exceptions pointed out in Driscoll v. West End St. Ry. Co., 159 Mass. 142, 145, 34 N. E. 171, and which are not material to this case, the defendant stands in respect to the use of the street on exactly the same footing as the driver of any other vehicle. Each is

bound to use due care to avoid coming in contact with the other, and neither is entitled to assume that the other will keep out of his way."

The general rule where a collision occurs between an electric car and a wagon at intersecting streets is to leave the question of due care on the part of the plaintiff and of negligence on the part of the defendant to the determination of the jury. Lahti v. Fitchburg & Leominster St. Ry., 172 Mass. 147, 51 N. E. 524; Kelly v. Wakefield & Stoneham St. Ry., 179 Mass. 542, 61 N. E. 139; Evensen v. Lexington & Boston St. Ry., 187 Mass. 77, 72 N. E. 355; McCarthy v. Boston Elevated Ry., 187 Mass. 493, 73 N. E. 559; Orth v. Boston Elevated Ry., 188 Mass. 427, 74 N. E. 673.

Of course the burden of proof is on the plaintiff in these cases to show due care on his part and negligence on the part of the defendant; and if there is no evidence of such care on his part or of negligence on the part of the defendant, the plaintiff is not entitled to recover, and this may be ruled as matter of law. The defendant relies upon four cases; Kelly v. Wakefield & Stoneham St. Ry., 179 Mass. 542, 61 N. E. 139; Hurley v. West End St. Ry., 180 Mass. 370, 62 N. E. 263; Dunn v. Old Colony St. Ry., 186 Mass. 316, 71 N. E. 557, and Donovan v. Lynn & Boston R. R., 185 Mass. 533, 70 N. E. 1029. In the first of these cases the question of the plaintiff's due care was held to be for the jury. In the second and third cases, the evidence showed that the plaintiff exercised no care whatever, and it was held that the plaintiff could not recover. In the last case a woman attempted to cross the street railway tracks 10 feet in front of an electric car, and it was held that she could not recover. The case at bar is clearly distinguishable.

Exceptions sustained.

(192 Mass. 37)

SULLIVAN v. BOSTON ELEVATED RY. CO. (two cases).

(Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1906.)

1. STREET RAILROADS-PERSONAL INJURIESCONTRIBUTORY NEGLIGENCE-QUESTION FOR

JURY.

In an action against a street railroad for injuries to a child struck by a car, evidence examined, and held, that whether the child was guilty of contributory negligence was a question for the jury.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 255-257.] 2. SAME.

Whether the child's parents were guilty of contributory negligence was also a question for the jury.

Exceptions from Superior Court, Suffolk County; Francis A. Gaskill, Judge.

Actions by Joseph Sullivan against the Boston Elevated Railway Company. Find

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