Gossman v. Rosenberg

• Decision Date: 07 January 1921
• Parties: GOSSMAN v. ROSENBERG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 122

129 N.E. 424

GOSSMAN

v.ROSENBERG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Exceptions from Superior Court, Suffolk County; Jabez Fox, Judge.

Action by Charles Gossman against Julius Rosenberg and others. Verdict for plaintiff, and defendants except. Exceptions sustained.Jacobs & Jacobs, of Boston, for plaintiff.

Lee M. Friedman and Friedman & Atherton, all of Boston, for defendants.

PIERCE, J.

The contradictory evidence warranted a finding by the jury that the defendants and the plaintiff agreed that the plaintiff should purchase on their joint account certain hosiery clips; that the defendants should pay one half of the purchase price and all expenses incurred in the handling of the merchandise; and that they should each equally share in the profits and in the loss, if any, in the transaction. The defendant denied that there was to be any sharing of losses, but claimed he was merely an agent to sell said clips, to be paid therefor one half of the profits realized thereby as a commission. The plaintiff affirmed and the defendant specifically denied that it was agreed:

‘That Rosenbergwas not to know from whom he [the plaintiff] bought the goods and Rosenberg was not to disclose the name of his customer to whom he sold the goods.’

The evidence further warranted a finding that the plaintiff in the execution of the agreement and within the terms of his authority in behalf of the joint account, bought and paid for merchandise of the description which the agreement contemplated he should buy. The evidence warranted the further finding that the defendant denied or repudiated the agreement; that the plaintiff then sold the merchandise he had bought and that thereby a loss resulted to, and an additional expense was incurred by, the plaintiff.

This action is brought in contract to recover one half of the losses as set forth in the account annexed to the declaration, which account included a payment of an item for a commission to some person not named. The general denial of the answer put in issue every material fact alleged in the several counts, and every item set forth in the account annexed.

At the trial the plaintiff upon his cross-examination was asked the questions, and thereon and thereupon the presiding judge ruled at the request of the plaintiff, and subject to the exception of the defendant, as follows:

‘Q. When did you buy this merchandise? A. Some time the latter part of August, 1918.

‘Q. Who did you buy it from?

‘Objection.

‘The Court: I think that is proper cross-examination. I admit that. * * *

‘Q. I asked you from whom did you buy that merchandise? A. I don't wish to disclose my purchaser, where I bought the goods.

‘Mr. Friedman: I submit, if your honor please, that question is a proper one, and that the witness be dirceted to answer.

‘The Court: If he says that he doesn't wish to disclose the name because he is disclosing a trade secret, I won't compel him to answer, but I shall leave it to the jury whether that is the reason or not. I suppose your question is a proper one.

‘The witness having refused to answer the question and the court refused to order an answer, the defendants excepted to the refusal of the court to order an answer.

‘Q. Who did you pay for the goods?

‘Objection.

‘The Court: I say it is a proper question and [addressing the witness] you may use your own judgment in answering the question.

‘The witness having refused to answer the question, the court refused to order an answer. The defendants took a similar exception.

‘Having admitted that he had in his possession and in court the receipted bill for the purchase of the goods and the check which paid the bill, the plaintiff declined to produce the same in evidence. The court thereupon made the same ruling as before and ...