Gould v. Converse

• Decision Date: 14 September 1923
• Citation: Gould v. Converse, 246 Mass. 185, 140 N.E. 785 (Mass. 1923)
• Parties: GOULD v. CONVERSE et al.
• Court: Supreme Judicial Court of Massachusetts

246 Mass. 185

140 N.E. 785

GOULD

v.CONVERSE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 14, 1923.

Report from Superior Court, Suffolk County; W. C. Wait, Judge.

Action by J. A. Gould against Marquis M. Converse and others, to recover for sale of good will attached to a milk business.Reported from the superior court after a verdict for plaintiff and after the setting aside of a judgment in favor of the plaintiff.Judgment for plaintiff on the verdict.

At the close of the evidence defendant moved for a directed verdict, which was denied.Defendant also requested rulings: (1) That, unless the jury found that the arrangement between defendant and Boyd was carried out to the satisfaction of both parties, plaintiff could not recover; (2) that there was no evidence that such arrangement was carried out to the satisfaction of both parties; (3) that, until defendant obtained a profit from the sale of certified milk to Boyd greater than the profit he was obtaining from milk supplied to H. P. Hood & Sone, Inc., there was no obligation to pay anything to plaintiff; (4) that there was no evidence that defendant obtained a profit greater than the profit he was getting from the sale of milk to H. P. Hood & Sons, Inc.; (5) that, in determining whether there was an increased profit, the jury must take into consideration the increased cost of certified milk over ordinary milk; (6) that, in determining whether there was an increased profit, the jury must take into consideration the expense incurred by defendant for alterations to his plant and equipment before he could produce certified milk.Defendant also excepted to a part of the charge as given.His bill of exceptions was dismissed, but thereafter the judgment was vacated, and the case reported by consent.

Warner, Stackpole & Bradlee, of Boston, for plaintiff.

Gaston, Snow, Saltonstall & Hunt and R. L. Mapplebeck, all of Boston, for defendlants.

RUGG, C. J.

A bill of exceptions was seasonably filed in this case.It never was allowed and was dismissed under rule 54 of the superior court1915 rules.Judgment was entered.A motion to vacate judgment was filed and allowed by consent and leave and the case was reported.It was agreed in open court that this motion was filed within three months after judgment.It is not contended that the execution was satisfied in whole or in part.No bond was filed.None appears to have been required by the court.G. L. c. 250, § 14;Shour v. Henin, 240 Mass. 240, 133 N. E. 561.Although there ought to have been petition to set aside judgment entered as a separate proceeding, no objection can now be made to the allowance of the motion, since it was consented to.Maker v. Bouthier, 242 Mass. 20, 136 N. E. 255.The case is rightly before us on report.Leland v. United Commercial Travelers of America, 233 Mass. 558, 124 N. E 517.

The action is in contract.There is evidence susceptible of different inferences as to the terms of the contract upon which the plaintiff relied.But he finally testified that the letter of the defendant of December 24, 1920, expressed the arrangement as he understood it.The plaintiff therefore is bound by the contract as there set forth.Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N. E. 1025.The defendant being bound by his own written statement, that letter must be taken to be the contract.

The subject-matter of the contract was the transfer to the defendant by the plaintiff of his right to sell Ledyard...