Mersick v. Bilafsky
| Decision Date | 17 May 1910 |
| Citation | 91 N.E. 889,205 Mass. 488 |
| Parties | MERSICK et al. v. BILAFSKY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. N. Nay and L. W. Peters, for plaintiffs.
J. C Ivy, M. H. Ivy, and C. S. Ensign, Jr., for defendants.
This is an action of contract to recover of the defendants for plumbing materials alleged to have been furnished to the defendants for use in the construction of certain houses which one Louis Habelow was building in Brookline. The answer was a general denial and the statute of frauds. The case was sent to an auditor, who found against the defendant Benjamin and in favor of the defendant Abraham. Afterwards there was a jury trial, and a verdict for the plaintiffs for the full amount claimed was returned against both defendants. The case is here on exceptions by both defendants to the refusal of the presiding judge to give certain rulings that were requested, and to the instructions that were given. There are also numerous exceptions in regard to the admission and exclusion of evidence.
The goods were furnished through the Rounds & Dennison Corporation, who acted as Boston agents for the plaintiffs and the principal question is whether there was any evidence warranting a finding that the defendants were partners either generally or as to the real estate for which the goods were furnished. We think it is plain that there was. A letter head was introduced in evidence bearing the imprint, When the defendant Benjamin was asked on cross-examination when that first began to be printed he answered, 'After 1 became 21 years of age,' meaning it might fairly be inferred, soon after he became 21 which, according to his statement of his age elicited in cross-examination, would fix the time as prior to the time when the plaintiffs began to furnish the goods sued for. There was also testimony tending to show that the defendant Abraham had testified in bankruptcy proceedings concerning Louis Habelow in January, 1902, that he and his son were partners. He attempted to qualify and explain this, but it was for the jury to give his testimony such weight as they thought it fairly entitled to. There was also testimony tending to show that the two occupied the same office at 30 Court street, that bills for the goods furnished were sent almost weekly to the defendant Abraham at 30 Court street, and that it was not until November 12th, after substantially all of the goods had been furnished and actually used in the construction of the buildings, that any notice was received from him that he was not liable; that the defendant Benjamin drew a check in his father's name by himself as attorney, to pay for the examination of the title to the property, though he claimed that he afterwards returned the amount to his father; that the defendant Abraham had what was intended ultimately to be a second mortgage on the property given by Habelow to a man of straw and assigned to him; that he was on the premises while the buildings were in the process of construction and complained in regard to some of the materials that were furnished; that he was introduced by one of the members of the Rounds & Dennison Corporation to the other as one of their customers while the goods were being furnished, and made no objection thereto; that the defendant Benjamin said in talking with Mr. Dennison, of the Rounds & Dennison Corporation, that 'they' wanted to buy a lot of plumbing material, and spoke of the interest which they had in the property, using the word 'we,' and, when Mr. Dennison refused to bill the goods to Habelow on the ground that he was in bankruptcy, assented to the offer made to furnish the goods to 'them' if 'they' would pay for them; that a letter addressed to the defendant Abraham requesting a written order for goods 'your plumber has ordered' came back with the words indorsed on it in pencil,...
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