Hoshor-Platt Co. v. Miller

• Decision Date: 31 May 1921
• Citation: 238 Mass. 518,131 N.E. 310
• Parties: HOSHOR-PLATT CO. v. MILLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 518

131 N.E. 310

HOSHOR-PLATT CO.

v.MILLER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 31, 1921.

Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge.

Suit by the Hoshor-Platt Company against William L. Miller and others, changed into an action at law by amendment. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

The contract between the plaintiff and its agent, Flinn, was as follows:

‘Articles of agreement made and entered into by and between the Hoshor-Platt Company, a corporation under the laws of the state of New Jersey, party of the first part, and George P. Flinn of Boston, Massachusetts, party of the second part, witnesseth:--

First. The Hoshor-Platt Company hereby agrees to employ George P. Flinn, party of the second part, as their accredited representative in the states known as the New England States, and all business resulting from his efforts and secured by him and accepted by the party of the first part within said territory, or all inquiries received by said party of the first part, is to be referred to said party of the second part.

And that the net profits or losses derived from such business as may result from the combined efforts of the first and second parties within the aforesaid territory, shall be divided as follows:-50 per cent. to the party of the first part and 50 per cent. to the party of the second part, and the amount of profits or losses on each contract shall be due to either when said contracts are closed and full settlements made by the purchasers.

Second. The party of the first part is to keep a comprehensive set of books of the cost of production of material, and the cost of conducting the business, and such accounts as the party of the second part may be interested in shall be open to inspection by him at any time. The cost as chargeable to all contracts is to be the cost of conducting the business, plus 5 per cent. for sinking fund account, which is to be added to the cost of material.

Third. The party of the second part is to maintain the selling expenses, and such other expenses incidental to the selling of the product within the aforesaid territory is to be assumed by said party of the second part, and chargeable to the said business resulting from said territory.

Fourth. Said party of the first part is to furnish the necessary drawings, estimates, stationery, press books, files, etc., and other legitimate incidental expenses to be approved by the President of said Hoshor-Platt Co. in the furtherance of their business. This expense to be assumed by said party of the first part in lieu of incidental expenses as incurred by said second party.

Fifth. The party of the first part is to refer received pertaining to business and contracts received by said first party within the territory of said second party, as above specified.

Sixth. This contract is to extend for a period of five years from this date and may be modified from time to time by the consent of both parties in writing.

It is also further understood that this agreement may be terminated by either party, giving ninety (90) days notice to the other party in interest, and that it may also be renewable at the expiration of five years by the consent of both parties.

Seventh. It is further agreed by both parties to this contract that no cause for damage on the part of either party, or for any cause during the life or at the expiration of this contract, shall be valid by the termination of this contract, by either party.

Made and entered into this 1st day of Jany. 1903. Hoshor-Platt Company, J. C. Hoshor, President. Geo. P. Flinn.

Witness: G. L. Young.

Witness: J. M. Clarke.Leo S. Hamburger and Herbert A. Baker, both of Boston, for plaintiff.

E. Irving Smith, of Boston, for defendant Miller.

BRALEY, J.

The plaintiff originally sued in equity but after the decision in Hoshor-Platt Co. v. Miller, 190 Mass. 285, 76 N. E. 650, that the bill could not be maintained an amendment was allowed under R. L. c. 173, § 52, as amended by St. 1911, c. 275, changing the suit into an action at law, and the case was referred to an auditor who had acted as special master in the former proceedings. The auditor subject to the objection of the defendant Miller to whom we shall refer as the defendant, admitted the master's report, and no further evidence being offered he found the facts substantially as set forth by the master, and upon the coming in of the report the defendant moved that it be discharged and recommitted. The motion having been denied, the plaintiff offered the report in evidence,to the admission of which the defendant excepted because the findings of the auditor did not appear to be based on any competent evidence, and that in so far ‘as the report relied on the authority of the order’ of the court ‘with respect to the taking of evidence and the use of the earlier report of the master, exceeding the ordinary powers of an auditor, in such matters it was inadmissible.’

It was settled before the enactment of St. 1914, c. 576, that rulings of law contained in the report of an auditor constituted no part of a report which is to be dealt with in the trial before the court only as a recital of facts. Zembler v. Fitzgerald, 234 Mass. 236, 125 N. E. 299. If a party deems himself aggrieved by the admission of incompetent evidence he must make his objection by a motion to recommit, and the rule having issued Nov. 13, 1909, the report was properly admitted. Collins v. Wickwire, 162 Mass. 143, 145, 38 N. E. 365;Jean v. Cawley, 218 Mass. 271, 105 N. E. 1009. See now St. 1914, c. 576, § 6. D'Urso v. Leone, 238 Mass. 58, 130 N. E. 223. The order of Sept. 24, 1589, that the auditor may in his discretion without further hearing of evidence make as his report the whole or any part of his report as master, ‘and he shall not be required to hear anew evidence offered before him when acting as master’ did not exceed the discretionary power of the court. The case having been amended from law into equity, the master's report could have been treated as having the effect of an auditor's report. Stockbridge v. Mixer, 227 Mass. 501, 510, 116 N. E. 877. It is said in the exceptions that the evidence as reported by the auditor is substantially a correct statement of the facts appearing at the trial insofar as it purported to state them, but further evidence was introduced by the defendant, and upon all the evidence he contends as matter of law that a settlement between him and the plaintiff of all matters in dispute had been effected, and the action cannot be maintained. It appeared that on March 4, 1904, one Flinn purporting to act for the plaintiff entered into an agreement under seal with the defendant whereby the plaintiff upon receipt of ‘fifteen hundred dollars' which was duly paid, discharged him from all further liability. If the plaintiff is bound by the agreement it is conceded that the defendant's request for a directed verdict should have been granted. The defendant's first contention is, that under his contract of employment by the plaintiff, Flinn had authority to make the compromise.

[5] The judge rightly ruled as matter of law that the contract did not create a partnership. It shows that he was employed as the plaintiff's accredited representative in the New England States, ‘and all business resulting from his efforts, and secured by him and accepted by the plaintiff within said territory,’ or all inquiries...