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the parties and their conversation, such re appointment of a receiver, and a settlement tainer received by the partner was partner of the matters in controversy. The suship property, and that the amount received perior court ordered the cases to be consoliby the partners should be charged to him in his account. Held, that such findings were dated, and appointed the same person renot necessarily inconsistent, the meaning being ceiver and master. The decree appointing that while the matter was not considered when the master did not order the evidence to the two firms were consolidated, the parties took up the matter thereafter and concluded

be reported. The master heard the parties that the retainer should be partnership proper and made a report to which both parties ty.

filed exceptions. The superior court over2. REFERENCE-FINDINGS OF LAW AND FACT.

ruled all the exceptions, and entered a final A finding by a master that after the con decree ordering Winkley to pay over to solidation of the business of partners, a Young the sum of $2,418.09, with interest tainer of one of them was agreed to be partnership property, and that the partner receiving

from the date of the filing of the bill in the it should be charged therefor in his account, first case; and that Young have execution was a finding of fact and not a conclusion of for the sum so computed. From this delaw.

cree Winkley appealed to this court. 3. APPEAL-FINDINGS OF MASTER-REVIEW. Where, on appeal from a decree entered on

The following facts appear in the master's a master's report, the evidence is not reportea, report. a finding of the master cannot be reviewed un In 1891 the parties formed a copartnerless on the face of the report it is inconsistent with other findings, and is plainly wrong.

ship, by an oral agreement, under the firm 4. PARTNERSHIP-ACCOUNTING-EVIDENCE.

name of E. E. Winkley & Co. To this coWhere in a partnership accounting it ap

partnership Winkley was to devote all his peared that one of the partners had accepted time. Young furnished the money, and was a retainer of $2,500 a year from the G. com

not required to devote any time to the busipany, which was agreed should be partnership

ness of the firm of E. E. Winkley & Co. property, but there was no claim concerning any services rendered for others, evidence as to The firm of E. E. Winkley & Co. continued whether he had rendered services to any other from 1891 to 1897. During that time Young company for which he had made no charge was

was engaged in the business of manufacirrelevant. 5. APPEAL - EXCEPTIONS – REPORT OF

turing machinery, in his own name of w.

EVIDENCE.

J. Young. Up to 1897 Winkley had nothing Where, in a suit for a partnership ac to do with the business run under the name counting, appellant excepted to the refusal of

of W. J. Young. the master to admit the evidence offered by

In 1897 the business of E. E. Winkley appellant as follows, setting out questions and answers which did not appear in the master's & Co. and that of W. J. Young were consolreport, the admissibility of such testimony was idated by an oral partnership agreement, not reviewable on appeal.

but the business was continued for commer6. REFERENCE REPORT OF MASTER — DUTY

cial reasons under the separate names of SCOPE. Where, in a suit for partnership account

E. E. Winkley & Co. and W. J. Young The ing, there was an issue as to whether a re master found the oral partnership agreetainer collected by one of the partners was firm

ment of February, 1897, to have been as property, the master was not bound to grant

follows: Winkley was to contribute to the a request to report the entire evidence relative to the retainer, but was only bound on request consolidated firm his net share of the capto report so much thereof as bore on the ques ital of E. E. Winkley & Co. Young was to tion of law involved.

contribute to the consolidated firm his net 7. PARTNERSHIP-ACCOUNTING — DECREE-IN

share of the capital of E. E. Winkley & Co. TEREST.

Where a suit for a partnership accounting Each party was to give all his time and was referred to a master, who made up his attention to the business of the new firm. report without computing interest, it was with

Young was to contribute as a special capin the power of the presiding judge to allow interest on the balance due one of the partners

ital the net assets of the W. J. Young busifrom the date of the writ, notwithstanding Rev. ness. For this excess capital Young was Laws, C. 177, § 8, authorizing an allowance of to receive interest at the rate of 6 per cent. interest to the entry of judgment in certain cases where interest has already been allowed.

No express agreement as to what salary

each partner should draw appears to have Appeal from Superior Court, Essex County.

been made, but from the conduct of the Bill by W. J. Young against E. E. Winkley partners there appeared to be a tacit underand by Winkley against Young for the dis

standing that each partner was to receive solution of a partnership and for an account

fifty dollars ($50) per week as a salary, ing From a decree dissolving the firm, and

which was to be charged to the expense directing judgment in favor of Young, Wink

account. ley appeals. Affirmed.

The principal question in controversy Benj. Phillips and Alfred H. Hildreth, for between the parties relates to what is called appellant. Starr Parsons and H. Ashley | by the parties a "retainer.” This is exBowen, for appellee.

plained by the master to be an arrange

ment made about January 1, 1896, by WinkLATHROP, J. These are two bills in ley on the one side and the general manequity brought in the superior court, each ager of the Goodyear Company on the other seeking a dissolution of the partnership pre side, by the terms of which the Goodyear viously entered into by the parties, the 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 nou 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

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.

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, il 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.

Decree affirmed.

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

(192 Mass. 71)

MARTYN V. HITCHINGS. (Supreme Judicial Court of Massachusetts.

Suffolk. May 17, 1906.) SALES - OPTIONS CONTRACTS - CONSTRUCTION.

The first clause of an option contract for the sale of bonds provided that, in case "this option is accepted” by defendant, plaintiff would endeavor to procure the sale and delivery of $50,000 more of the same kind of bonds or

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.

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

(192 Mass. 104) HALLORAN Y. WORCESTER CONSOL, ST.

RY. CO. (Supreme Judicial Court of Massachusetts.

Worcester. May 17, 1906.) 1. STREET RAILROADS VEHICLES - RIGHTS IN STREET--CARE REQUIRED.

In general, a street railway company stands in respect to the use of the street on exactly the same footing as the driver of any vehicle ; each being bound to use due care to avoid collision, and neither being entitled to assume that the other will keep out of the way.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Railroads, 88 172, 190–194.] 2. SAME-ACTION FOR INJURIES—BURDEN OF PROOF.

In an action for injuries to plaintiff while riding in a wagon by collision wth a street car, the burden was on plaintiff to show due care on his part and negligence on the part of the street car company.

[Ed. Note.-For_cases in point, see vol 44, Cent. Dig. Street Railroads, § 228.] 3. SAME-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-QUESTION FOR THE JURY.

In an action for injuries to plaintiff by collision between the wagon in which he was riding and a street car, evidence held to require submission of defendant's negligence and plaintiff's contributory negligence to the jury.

[Ed. Note.For cases in point, see vol. 44, Cent. Dig. Street Railroads, $S 258, 268.]

Exceptions from Superior Court, Worcester County.

Action by John J. Halloran against Worcester Consolidated Street Railway Company. At the close of plaintiff's evidence the court

directed a verdict for defendant, and plain- bound to use due care to avoid coming in tiff brings exceptions. Sustained.

contact with the other, and neither is entitled John R. Thayer, Arthur P. Rugg, Henry

to assume that the other will keep out of his H. Thayer, and Michl. T. Carrigan, for plain way.” tiff. F. H. Dewey, Chas. C. Milton, and

The general rule where a collision occurs Chandler Bullock, for defendant.

between an electric car and a wagon at inter

secting streets is to leave the question of LATHROP, J. This is an action of tort

due care on the part of the plaintiff and of for personal injuries sustained by the plain- negligence on the part of the defendant to tiff in consequence of the wagon on which

the determination of the jury. Lahti v. he was riding being struck by an electric

Fitchburg & Leominster St. Ry., 172 Mass. car of the defendant. At the close of the evi. 147, 51 N. E. 524; Kelly v. Wakefield & dence for both sides, the judge of the superi

Stoneham St. Ry., 179 Mass. 542, 61 N. E. or court who heard the case directed a ver

139; Evensen v. Lexington & Boston St. Ry., dict for the defendant, and the case is before

187 Mass. 77, 72 N. E. 355; McCarthy y. us on the plaintiff's exceptions.

Boston Elevated Ry., 187 Mass. 493, 73 N. The accident occurred soon after 1 o'clock

E. 559; Orth V. Boston Elevated Ry., 188 in the afternoon of December 17, 1903, at the

Mass. 427, 74 N. E. 673. junction of Piedmont street and Chandler

Of course the burden of proof is on the street in Worcester. The former street is

plaintiff in these cases to show due care on on a level grade and runs north and south.

his part and negligence on the part of the The latter street has a sharp descending

defendant; and if there is no evidence of grade towards Piedmont street, and runs

such care on his part or of negligence on the east and west. Ón Chandler street is a line

part of the defendant, the plaintiff is not of the defendant's tracks. Shortly before

entitled to recover, and this may be ruled as the accident the plaintiff had been invited by

matter of law. The defendant relies upon the driver of the wagon to get upon it. It

four cases; Kelly v. Wakefield & Stoneham appeared in evidence that upon the corner

St. Ry., 179 Mass. 542, 61 N. E. 139; Hurley of Piedmont street and Chandler street, on

v. West End St. Ry., 180 Mass. 370, 62 N. E. the side from which the defendant's car ap

263; Dunn v. Old Colony St. Ry., 186 Mass. proached, there was a large brick factory,

316, 71 N. E. 557, and Donovan v. Lynn & and that it was impossible for one proceeding

Boston R. R., 185 Mass. 533, 70 N. E. 1029. in the direction in which the plaintiff was

In the first of these cases the question of the going, to obtain a view of Chandler street

plaintiff's due care was held to be for the and the car tracks of the defendant. The

jury. In the second and third cases, the evidistance from the building to the nearest

dence showed that the plaintiff exercised no rail was about 14 feet.

care whatever, and it was held that the There was evidence that the car struck

plaintiff could not recover. In the last case the left front wheel of the wagon. Both the

a woman attempted to cross the street railplaintiff and the driver testified that while on

way tracks 10 feet in front of an electric Piedmont street they were going about four

car, and it was held that she could not remiles an hour; that before crossing Chandler

cover. The case at bar is clearly distinguishstreet the driver slowed up; that both looked

able. and saw no car approaching, and listened but

Exceptions sustained. heard nothing. The driver further testified that as the seat of the wagon passed the

(192 Mass. 37) cross-walk on Chandler street over Piedmont he first saw the car approaching, and at that

SULLIVAN V. BOSTON ELEVATED RY. time his horse's feet were between the rails

CO. (two cases). of the track; that he turned his horse to the (Supreme Judicial Court of Massachusetts. left, and the car struck the wheel.

Suffolk. May 17, 1906.) There was a conflict of evidence as to the

1. STREET RAILROADS-PERSONAL INJURIES

CONTRIBUTORY NEGLIGENCE-QUESTION FOR speed of the car, and as to whether the gong

JURY. was sounded.

In an action against a street railroad for We are of opinion on the evidence in the injuries to a child struck by a car, evidence case that the questions of due care on the

examined, and held, that whether the child was

guilty of contributory negligence was a question part of the plaintiff and the driver of the

for the jury. wagon, and of negligence on the part of [Ed. Note.For cases in point, see vol. 44, the motorman of the car were for the jury. Cent. Dig. Street Railroads, $8 255-257.j

In Scannell v. Boston Elevated Ry., 176 2. SAME. Mass. 170, 173, 57 N. E. 341, it is said: "With

Whether the child's parents were guilty

of contributory negligence was also a question some exceptions pointed out in Driscoll v.

for the jury. West End St. Ry. Co., 159 Mass. 142, 145, 34 N. E. 171, and which are not material to this Exceptions from Superior Court, Suffolk case, the defendant stands in respect to the County; Francis A. Gaskill, Judge. use of the street on exactly the same footing Actions by Joseph Sullivan against the as the driver of any other vehicle. Each is Boston Elevated Railway Company. Find

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