Doon v. Felton

• Decision Date: 20 October 1909
• Citation: 89 N.E. 539,203 Mass. 267
• Parties: DOON v. FELTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 267

89 N.E. 539

DOON v. FELTON.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1909

COUNSEL

Sheehan & Cutting, for plaintiff.

John S Gould, for defendant.

OPINION

LORING J.

This action was tried by the court without a jury. There was a finding for the plaintiff and the case is here on exceptions.

The contention mainly insisted upon is that the finding was not warranted by the evidence.

The action was brought to collect the balance due for the board of two of the defendant's horses for the months of May, June, July and August, 1907.

It appeared that the plaintiff was the proprietor of a boarding stable. His son testified that he kept the books and looked after the business; that in December, 1906, he met the defendant, who said to him that he (Felton) was coming up to see him 'about boarding his horses'; that he was not satisfied with the way they were kept; and he wanted to know the best price at which he (the witness) would take them. The son answered $20 a month for each horse. The defendant said that he would look the matter up and if he decided to make a change he would send the horses to the plaintiff's stable. That 'at a later date' the horses, with some wagons and sleighs bearing the defendant's name, were brought there. They remained there until August 31 or September 1, 1907, when they were taken away without notice. The plaintiff's son also testified that he knew the bakery where the horses were used, and that there was a sign on it bearing the defendant's name; that monthly bills were all made out to the defendant and handed to the driver of the team; that the driver took them away, later brought the money in payment, and then took away the receipted bills. The son also testified that when the driver brought the first month's board he (the son) asked him who was running the bakery; that the driver said he did not know, and the son answered that he would give him (the driver) a receipt for the defendant, 'as he made the contract with me for the horses.' The son further testified that the price of board was advanced to $22 a month on March 1st, and a letter to that effect was written to the defendant by him, and 'mailed to F. L. Felton, Worcester, Mass.,' and that he (the witness) never received any answer. The plaintiff himself testified that 'he had written Mr. Felton a letter at the time of the second advance,' in which he told him in substance that on account of the further advance in the price of hay and grain the price of board would be $23 a month. He also testified that 'right after' the horses were taken away he went to the bakery 'and asked Felton to pay the bill and asked him why he took his horses away; that Felton said he had a private stable to keep them in; that he could not tell what he would do about that bill; that he would have to think it over and see later; 'that he would let me know in a few days about paying the bill;' that Felton said something about Sanford was to have paid the bill; * * * that three or four days after the first conversation Felton told him that he had counseled [consulted] with his attorney and had decided not to pay the bill; 'I told Felton that we knew nobody else in the case but him; we have never held any one else responsible; that he held the contract with us for the keeping of the horses; that we knew no one else; that all the bills were made to him and that the correspondence had been with him, and we should be obliged to collect the bill from him; I told him the horses were contracted in his name, sent there by his man, and the bills made out to him; the money was paid as a credit to him and that I never looked at Sanford as anything but a manager of the bakery. Mr. Felton told me that he had let the place to Sanford, and that Sanford was the man who should have paid all the bills for the board of the horses;' that this was the first time he ever knew that Sanford was to pay for the board of the horses.'

The defendant's case was that in August, 1906, one Stanford bought from him the stock in trade of the bakery; that he let the store, machinery, fixtures, horses and wagons to Sanford; that he asked the plaintiff's son the price of board for the horses in behalf of Sanford and told him so at the time. The defendant introduced the testimony of the driver and of one Hull, who was the foreman of the plaintiff's stable until July of the year in question, that the plaintiff knew that Sanford was running the bakery and the horses as part of it when they came to the stable.

The case was a case of conflict in the evidence. The difficulty with the defendant's argument is that he does not recognize the right of the judge to disbelieve all or any part of the defendant's testimony and to adopt one of two inconsistent statements testified to by the plaintiff's witnesses.

The defendant asked the judge to rule: '(2) That if Hull, as the agent of the...