King v. Freedman

• Decision Date: 11 October 1921
• Citation: 239 Mass. 560,132 N.E. 367
• Parties: KING v. FREEDMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 560

132 N.E. 367

KING

v.FREEDMAN.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 11, 1921.

Exceptions from Superior Court, Hampden County; Henry A. King, Judge.

Action by William H. King against Allis Freedman. Judgment for defendant, and plaintiff brings exceptions. Exceptions overruled.

Frederic A. Ballou, of Springfield, for plaintiff.

George A. Bacon, of Springfield, for defendant.

JENNEY, J.

This action was tried by a judge sitting without jury. The plaintiff offered in evidence the report of an auditor which contained a finding in his favor for $1,766.33, and rested. Oral evidence was then offered by the defendant, and in rebuttal by the plaintiff. The judge found for the defendant.

The only questions presented for decision are:

Did the judge wrongfully refuse to instruct himself that upon the evidence the plaintiff was entitled to recover the exact amount of the auditor's findings with interest from the date of the writ?

Was ‘the auditor's report * * * the only evidence * * * based on * * * [an] examination of the whole account which states the true condition of the account between the parties?’

Was there ‘sufficient evidence * * * to control the findings of the auditor, or to show that * * * [his] findings * * * as to the terms of the accounts between the parties are wrong?’

The judge was justified in finding the following facts: The plaintiff, a broker who not only obtained loans for people but discounted and loaned money, had many transactions with the defendant in which it could have been found that the former borrowed money from the latter, and that they also exchanged notes. At times the defendant indorsed the plaintiff's notes and received from him security for so doing. In September, 1913, the parties were in controversy, and in that month their differences were submitted in writing to an arbitrator who was to ‘determine what sums, if any, * * * [were] due from * * * King to * * * Freedman or from * * * Freedman to King.’ By the terms of this instrument the parties also agreed to accept the findings of the arbitrator and abide by the same. A prompt hearing was had, and, upon announcement of the decision, the plaintiff and defendant signed an agreement reciting the submission and agreeing that upon an examination of the ‘checks, notes, books,’ etc., of the said King and the said Freedman it had been ‘determined and agreed that * * * King was indebted to Freedman’ as therein set forth for $1,872.75, and in addition was liable to him as indorser for $736.50. In November of that year, a compromise settlement was made of the amount so determined. At the hearing before the arbitrator the plaintiff was present in person and was represented by an attorney; both he and his bookkeeper were heard. The bookkeeper testified in the superior court that all matters in controversy were submitted to the arbitrator; that the plaintiff's cash books, notebooks, checks and check stubs were presented to and examined by him; that the plaintiff did not then claim that the defendant was indebted to him; and that prior to this examination the plaintiff had gone over his accounts with the bookkeeper and that when this was done Freedman was not a debtor to King. The plaintiff testified that, during the year 1914, he first discovered the alleged indebtedness of the defendant to him at the time of the arbitration, and also explained why he was not aware of the indebtedness before that time. October 4, 1915, he brought an action against the defendant, and in his declaration alleged that the defendant...