Seemann v. Eneix

• Decision Date: 02 July 1930
• Citation: 272 Mass. 189
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BARNHARDT R. SEEMANN v. DONALD A. ENEIX & another.

272 Mass. 189

BARNHARDT R. SEEMANN v. DONALD A. ENEIX & another.

Supreme Judicial Court of Massachusetts, Bristol.

July 2, 1930

October 29, 1929.

Present: RUGG, C.

J., PIERCE, WAIT SANDERSON, & FIELD, JJ.

Contract Construction. Partnership, What constitutes. Practice, Civil Foreign law. Evidence, Of foreign law, Presumptions and burden of proof. A contract in writing between the manager of an office in Pittsburgh in

Pennsylvania of a corporation engaging in manufacturing in Massachusetts and a salesman of the corporation's manufactured articles which contained provisions that the two should share the expenses of the Pittsburgh office; that they should receive a certain percentage of the amount allowed by the corporation as commissions on their own respective sales; and that a certain division should be made between them of the remainder of such commissions, where it appeared that the business managed by the plaintiff was his and not a joint business nor a common enterprise of the two, did not require a finding by a master hearing a suit in equity that it constituted the two men partners, but warranted a finding that it was merely an arrangement intended to give the salesman added incentive to sell more of the corporation's goods by offering him a greater share of the profits of the Pittsburgh office than he would ordinarily receive. While the controlling agreements above described were made in

Pennsylvania to be performed there, so that their meaning, force and effect were to be ascertained according to the law of that State, in the absence of any statute or decision of Pennsylvania being brought to the attention of, or considered by, the master or the trial judge and of any contention made before either of them or before this court that the law of Pennsylvania in respect to the creation of the partnership relation was different from the common law of this

Commonwealth, it was held not to be necessary to determine whether the law of Pennsylvania differed from our common law even if that question were open upon this record.

St. 1926, c.

168, did not change the rule of law that, where foreign law is material in a cause tried in the courts of this Commonwealth, it is a fact to be brought to the attention of the court; and that, if it is not so brought, it is presumed to be the same, in the circumstances of the case being tried, as is the common law of this Commonwealth.

BILL IN EQUITY, filed in the Superior Court on August 27, 1928, and afterwards amended, described in the opinion.

The suit was referred to a master. Material facts found by the master and exceptions to his report are described in the opinion.

From a final decree, entered by order of Dillon, J., and described in the opinion, the defendant appealed.

R.B. Heavans, for the defendant Eneix. E.F. Thayer, for the plaintiff.

FIELD, J. By this suit in equity the plaintiff seeks to recover from the defendant Eneix, hereinafter called the defendant, money alleged to be due from him to the plaintiff by reason of business dealings between them during the period from 1922 to 1928, in connection with the sale of goods manufactured by the defendant L.G. Balfour Company, hereinafter called the defendant corporation, and to reach and apply in satisfaction of a debt certain stock of the defendant corporation. The defendant filed an answer and a cross bill. The case was referred to a master who made a report. The evidence is not reported. The defendant filed objections to the master's report and a motion to recommit. A decree was entered overruling the objections to the master's report, denying the motion to recommit, confirming the report, denying the defendant's requests for rulings, ordering payment by the defendant to the plaintiff of the sum of $1,081.35 with interest and costs, and restraining the defendant corporation from redeeming the shares of its stock in the defendant's name without deducting from the amount otherwise payable to the defendant an amount sufficient to satisfy his obligation to the plaintiff, and directing the defendant corporation to pay such amount to the plaintiff. The defendant appealed.

The decree went upon the theory that the plaintiff and the defendant were not partners. It was based upon a finding by the master, to which the defendant objected, that "no partnership was ever entered into between . . . [the plaintiff and the defendant], but that the arrangement between them was one intended to give the . . . [defendant] added incentive to sell more of the . . . [defendant corporation's] goods by offering him a greater share of the profits of the Pittsburgh office than he would ordinarily receive." The questions argued before us were (a) whether, as the defendant contends, the plaintiff and the defendant were partners during the period in question and (b) whether evidence offered by the plaintiff and admitted by the master over the objection of the defendant should have been excluded.

1. The plaintiff and the defendant were not partners.

The finding of the master that "no partnership was ever entered into between . . . [them]" must stand. Whether there was a partnership was a question of "mixed law and fact well within the master's authority to have decided." Lindsay v. Swift, 230 Mass. 407 , 412. This finding is not inconsistent with the other findings or plainly wrong. See Glover v. Waltham Laundry Co. 235 Mass. 330 , 334; Jacobs v. Anderson, 244 Mass. 125 , 126.

The master found the following subsidiary facts: Prior to 1922, the defendant corporation, "a concern engaged in the manufacture of jewelry and novelties" in Massachusetts, was maintaining an office in Pittsburgh, Pennsylvania, "paying the rent and all operating charges." The plaintiff was in charge of this office "as district manager." He made an agreement with the defendant, as the result of which the defendant purchased merchandise from the defendant corporation which was sent to him direct from the manufacturer. "It was purchased at a net price, and ten per cent of said net price was paid to the . . . [plaintiff]. This merchandise, together with merchandise of other manufacturers, was sold by the . . . [defendant]."

In 1922 "a new policy in reference to maintaining the Pittsburgh office was adopted. This policy provided that the rent and operating charges should no longer be borne by the . . . [defendant corporation], and that the Pittsburgh office should be paid thirty per cent of the amount of the sales secured through that office to be apportioned as the office manager saw fit. The . . . [plaintiff], as office manager, acquainted the . [defendant] with the details of the new arrangement, and offered a proposition to the . . . [defendant] whereby . . . [they] were to share equally all the expenses of the Pittsburgh office, and . . . were to receive twenty per cent of the amount of their own respective sales . . ., and in addition thereto the remaining ten per cent of the thirty per cent paid the office was to be divided between them in the proportion of the first five per cent to the . . . [defendant] and the second five per cent to the . . . [plaintiff], and if other salesmen were hired through the office . . . the salesmen were to be paid twenty per cent of the amount of their respective sales and the remaining portion of the thirty per cent paid by the . . . [defendant corporation] to the Pittsburgh office . . . was to be divided between the . . . [defendant] and the . . . [plaintiff] . . . The expenses to be borne included the entire maintenance costs of that office, as well as the deficits sustained by the salesmen of that office, who failed to earn commissions in excess of the advances made them by the home office . . . plus charges made for losses in the samples assigned to the salesmen and charges for uncollectable accounts secured by them and also losses in samples provided by the . . . [defendant corporation] . . . This was known as the 20-5-5 agreement and was accepted by the . . . [plaintiff] and . . . [defendant], and was renewed yearly for two or three years. This agreement, as well as all subsequent agreements, was made and performed in Pittsburgh in the State of Pennsylvania. Although at the time of making this agreement there were no other salesmen, . . . the . . . [defendant], subject to the approval of the . . . [plaintiff], proceeded to secure salesmen . . . and from such salesmen . . . secured their signature on contracts with the . . . [defendant corporation]. As many as six or seven salesmen were selling at one time during this period, and a force of four or five was usually maintained, some being hired by the . . . [plaintiff] and some by the . . . [defendant]. All salesmen, however, being subject to the control and direction...