Lavoisier Hill v. George Crompton &Amp; Another, Executors

• Decision Date: 10 January 1876
• Citation: 119 Mass. 376
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lavoisier Hill v. George Crompton & another, executors

119 Mass. 376

Lavoisier Hill v. George Crompton & another, executors

Supreme Court of Massachusetts

January 10, 1876

Argued October 8, 1875 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester. Contract, by the surviving partner of the firm of Hill & Chapman, on an account annexed, for money paid to E. C. Cleveland, the defendants' testator, and for services and expenses incurred in the prosecution of a suit brought by the plaintiff, as such surviving partner, against the Newburg Woollen Company, at the alleged request of Cleveland, to recover payment for certain machinery which Cleveland manufactured, as the agent of Hill & Chapman, for the Newburg Woollen Company, and delivered to said company. Writ dated October 27, 1873. The account annexed showed a debit of $ 4353.68, and a credit of $ 3700.10, leaving a balance due of $ 653.58. The first twenty-six items of the account related to the expenses and services in the suit against the Newburg Woollen Company, and amounted to $ 2093.79. The answer denied each and every allegation in the plaintiff's declaration, except as to the credit side of the account. The defendants also filed a declaration in set-off, showing a debit of $ 3797.57, and a credit of $ 2261.82, leaving a balance of $ 1535.75. The answer to the declaration in set-off admitted debits to the amount of $ 3026.09, and alleged that credit was given therefor in the plaintiff's account. It also admitted the credit side of the account and denied the other items.

The case was referred to an auditor, who found for the plaintiff for $ 653.58, and interest.

At the trial in the Superior Court, before Dewey, J., the only matter of fact in dispute was as to the liability of the defendants for the services and disbursements in the action against the Newburg Woollen Company. It appeared in evidence that said company refused to pay for the machinery on the ground that it was defective and not delivered on time.

The plaintiff put in evidence the auditor's report, and the deposition of Edwin S. Lawrence of New York, who testified that he was the salaried superintendent of the machinery department of Hill & Chapman, from May, 1870, to November, 1872; that in the latter part of 1870 Cleveland furnished machinery, as agent for Hill & Chapman, to the Newburg Woollen Company; that he, Lawrence, made the contract, as agent for Hill & Chapman, between them and Cleveland; that a greater part of the communications between Cleveland and Hill & Chapman were made by him; that he heard the alleged contract between Hill & Chapman and Cleveland, under which the plaintiff claims they sued the Newburg Woollen Company, and on which this suit was brought, and his testimony was in substance as follows: "I heard a conversation between Cleveland and Hill & Chapman, concerning the expenses of the suit in New York, in 1870, after the machinery had been shipped to the Newburg Woollen Company, and set up in their mill; the company had refused to pay the bill, claiming that the machinery was not according to contract and not delivered on time; just before this conversation, Hill, Cleveland and I had been to the office of Orrin Skinner, a lawyer, to consult with him about collecting the claim; after we left his office, Hill said to Cleveland, 'What shall we do about it?' referring to the claim against the company; Cleveland replied, 'If you can settle the matter by taking off $ 400 or $ 500 do so; if not, fight it, and I will pay the bill.'" He also testified that he went to Worcester, on July 26, 1871, to assist Mr. Skinner, who had been employed by Hill & Chapman, in taking the deposition of Cleveland, to be used in the Newburg suit; that he attended to the taking of said deposition as agent of Hill & Chapman; that he went to several other places, and at the request of Mr. Skinner, to assist in getting testimony for the plaintiffs in the suit; that he never had any conversations with Cleveland in relation to the suit against the Newburg Woollen Company, except the one before referred to in New York, and one at the time Cleveland's deposition, to be used in the suit against the Newburg Woollen Company, was taken, in Worcester, about July 26, 1871.

The plaintiff also put in evidence the deposition of one Jackson, whose testimony was substantially the same as that of Lawrence as to the agreement of Cleveland to pay for the suit against the company, and as to the direction given by Cleveland to sue the company upon its refusal to pay for the machinery delivered by Cleveland, except that Jackson did not refer to the matter of attempting a settlement as stated by Lawrence.

The defendants, against the plaintiff's objection, were allowed to introduce the testimony of W. W. Rice, one of the defendants, as to a conversation between Cleveland and Lawrence, about July 26, 1871, at the time the deposition of Cleveland was taken, to be used in the suit against the Newburg Woollen Company, and after the suit was brought against the company, which testimony was as follows: "I am one of the executors of Cleveland, and had charge of all his affairs; I had a conversation with Cleveland and Lawrence, at the time said deposition was taken, and before they began to take the same. Cleveland said to Lawrence that he had sent for me because I was to look after his matters; that he wanted me to understand that he had nothing to do with the Newburg Woollen Company or any suit that was to be or had been brought against the company; that the business was transacted with Hill & Chapman; that he never had any transactions with the Newburg Woollen Company; to which Lawrence made no reply; that Cleveland further said in that conversation to Lawrence and me, that he had not long to live, and he wanted us to know about it."

Neither Hill nor Chapman were present at this conversation; and there was no evidence except as hereinbefore stated that the agency of Lawrence extended to the subject matter of said conversation, or that he had any...