Forino Co. v. Karnheim

Braley, J. The motions to recommit, and to set aside the master’s report, and that the evidence be reported, were addressed to the sound discretion of the judge, whose denial of each motion shows no abuse of his power. Smith v. Lloyd, 224 Mass. 173, 175, and cases there collected. Hannaberry v. Green, 225 Mass. 201. The defendant moreover at the hearing on his exceptions had the benefit of a review by the judge of all the evidence and arguments of counsel before the master, which by consent of parties had been transcribed for his use. The exceptions to the master’s refusal to make the findings requested are wholly untenable for reasons stated in Warfield v. Adams, 215 Mass. 506, 519, which were followed in Corey v. Independent Ice Co. 226 Mass. 391, 392, 393. The exceptions which were sustained did not affect the merits, and, the evidence not having been reported, the master’s findings of fact to which the remaining exceptions relate are conclusive. The interlocutory decree overruling these exceptions and confirming the report was properly entered. The question for decision on the appeal therefore is the usual one, whether under the pleadings and the master’s report, with such reasonable inferences of fact as may be drawn therefrom, the final decree awarding money damages to the plaintiff should be reversed. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 38. Kennedy v. Welch, 196 Mass. 592. Danforth v. Chandler, 237 Mass. 518. The original bill for an accounting, and the cross bill seeking damages for alleged breach of contract by the Forino Company, [581] Incorporated, a foreign corporation under which one Herman Weinberg and one Jacob Weinberg did business, were properly tried together, and may be treated as embracing every material aspect of the litigation. Braman v. Foss, 204 Mass. 404, 411. Martin v. Murphy, 216 Mass. 466, 467. Wilde v. Sawtelle, 232 Mass. 117, 123. See Tansey v. McDonnell, 142 Mass. 220. The parties were respectively engaged in buying and selling wool with separate places of business, when an arrangement, never reduced to writing, was agreed upon to buy and sell wool for their mutual advantage. The defendant in his answer while admitting the existence of a joint enterprise or series of enterprises with the Weinbergs but not with the plaintiff, avers, that if a joint enterprise existed it was an attempt to create a partnership which was voidable because it was in excess of the plaintiff’s corporate powers. Hoshor-Platt Co. v. Miller, 238 Mass. 518. It is further averred that the contract covered only caipet wool and the plaintiff was to receive only such proportion of the profits as might be fixed and determined by the defendant. The fourth paragraph of the bill however does not allege a partnership. It states, in so far as material, that by the terms of the agreement “each in consideration of the promise of the other promised to the other that each should have one half of the net profits of the business thereafter done by the other.” The question was one of mixed law and fact which the master properly could decide. Gunnison v. Langley, 3 Allen, 337. Bradley v. Borden, 223 Mass. 575. And his findings, that there was no agreement for an equal division of profits, but the parties “agreed generally to go in together on joint adventures,” and that each joint enterprise or series of enterprises was a unit by itself, and that the terms of the different joint ventures were not always the same, does away with the defence of a voidable contract. The general objection that the defendant is thus bound and held liable outside of the scope of the bill is not well founded. Drew v. Beard, 107 Mass. 64, 73. The findings are also decisive of the averment that the plaintiff’s share of the profits was to be fixed and determined by the defendant in his discretion. Curran v. O’Donnell, 236 Mass. 357. A further contention is, that there is a material variance between the contract alleged and the contract found by the master. But [582] the general allegation that “the plaintiff and the defendant entered into an agreement, by the terms of which each in consideration of the promise of the other promised to the other that each should have one half of the net profits of the business thereafter done by the other,” is broad enough to include transactions on their joint account as found and described in the report. The period of their joint action and business relations began July 1, 1916, and ended early in 1918, and it is found in favor of the plaintiff, and against the defendant’s contention, that until the fall of 1917 the adventures were substantially confined to “carpet wools.” The further allegation, that the business should be done after the manner “of the similar arrangement . . . which had subsisted for many years between the plaintiff and one George TTa.rrfngt.on, who was then about retiring” and was succeeded by the defendant, is also sufficient to sustain the bill. The master was satisfied that, after Harrington retired and the defendant came in, the joint undertakings were continued on the same general basis as before. The master, after recitals not necessary to be repeated, states, that in 1916 an agent, who by agreement with the plaintiff had been sent abroad by the defendant “to buy Spanish carpet wool,” made considerable purchases of wool which on the. whole was sold at a profit. The defendant was properly allowed the agent’s expenses, salary and bonus for services rendered on joint account. But, the parties not having been partners associated for the general purpose of buying and selling wool, the master correctly held that purchases by either party without the consent of the other were not to be considered in stating their joint account. The question of their contractual relations in each adventure depended upon evidence not before us. We discover no error of law in either of his rulings or findings, that the “thirty-eight bales” of Spanish wool purchased by the defendant without the assent of the plaintiff, and the transactions by the defendant covering the South American “wools,” and the cape “wools” in which the plaintiff did not participate were not joint adventures. The master rightly refused to include them in an accounting under the original bill or the cross bill. It is broadly urged that the report is not in accordance with, but goes beyond the frame of the original bill, and is so contradictory and repugnant that the plaintiff should be denied relief, or [583] the court should order a decree for the defendant on his cross bill. But the material conclusions of the master are in accordance with his subordinate findings, all of which, as we have said, rest on evidence not shown by the record. A full review in the trial court and in this court fails to disclose reversible error. The final decree should be affirmed with costs of the appeal-. Ordered accordingly.