Roberts v. Spencer

• Decision Date: 26 November 1877
• Citation: 123 Mass. 397
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lewis A. Roberts v. Aaron W. Spencer & others

123 Mass. 397

Lewis A. Roberts v. Aaron W. Spencer & others

Supreme Court of Massachusetts

November 26, 1877

Suffolk. Contract against the defendants as members of the firm of Spencer, Vila & Company, on two checks, dated in June, 1872, signed by the firm name, and payable to the plaintiff or order, and on an account due the plaintiff from the firm for the purchase and sale of stocks. Spencer filed an answer containing a general denial, and alleging that he was not a member of the firm at the time of the transactions in question. The other defendants pleaded their discharge in bankruptcy, and the action was discontinued as to them. Trial in this court, before Soule, J., who allowed a bill of exceptions in substance as follows:

The plaintiff introduced evidence tending to prove that Spencer was a member of the firm from July 1, 1857, when it was formed, until after the time of the transactions in question. The plaintiff also testified that he did business with the firm prior to the summer of 1872, but did not state any instance except that on April 19, 1867, he bought a right, in writing of the firm, to buy one hundred shares of stock of the Boston Water Power Company, within a certain time, at a certain price, paying therefor $ 125; that he did this business with Spencer, paying by his check; and that he supposed that Spencer was a member of the firm, and relied on him in the matters in controversy.

The defendant put in evidence tending to show that he was a member of the firm when it was formed in 1857 by himself and Vila, for carrying on business as bankers and brokers; that one Farley was admitted to the firm in 1863; that this firm was dissolved on July 1, 1867, Spencer withdrawing; that Vila and Farley continued the business until 1869, when Farley withdrew and Wardwell went in, and these two continued the same business under the original firm name till they failed in the autumn of 1872; and that the plaintiff did no business with the firm prior to the alleged withdrawal of Spencer.

The defendant was permitted to put in evidence the advertisement of the dissolution of the firm and withdrawal of Spencer published by the members of the firm in the Boston Advertiser and the Boston Post, on July 1, 1867, and an editorial article on the withdrawal of Spencer from business, published in the Boston Post on July 2, 1867. To the admission of this evidence the plaintiff objected. The plaintiff had already testified that he...