Teoli v. Nardolillo

• Decision Date: 08 June 1901
• Citation: 23 R.I. 87,49 A. 489
• Parties: TEOLI v. NARDOLILLO et al.
• Court: Rhode Island Supreme Court

49 A. 489

23 R.I. 87

TEOLI

v. NARDOLILLO et al.

Supreme Court of Rhode Island.

June 8, 1901.

Action by Paride Teoli against Henry Nardolillo and another. On exceptions to report of a master. Reversed.

John E. Conley, for complainant.

Page, Page & Cushing, for respondents.

TILLINGHAST, J. This is a bill in equity for a co-partnership accounting and for other relief. The bill sets out that the co-partnership was formed for the purpose of buying, bottling, and selling intoxicating liquors in this state, and that the profits of the business were to be shared equally by the three partners. By agreement of parties the case was referred to Herbert Almy, Esq., one of the standing masters in chancery of this court, to take an account of all partnership transactions, as prayed in the bill. This has been done, and the master has duly filed his report thereon, and the case is now before us on alleged exceptions to said report. No objections were taken before the master, however, although his report shows that a draft thereof was duly submitted to the attorneys of the respective parties, as provided in equity rule No. 38,¹—a copy of which may be found in a foot-note hereto,—and hence the question is raised whether the defendants can now insist on any of the errors alleged. They claim that, as they filed the exceptions in this court within 30 days after the opening of the master's report, as required by Gen. Laws, c. 240, § 21, the case is properly before us on the exceptions. We do not agree to this contention. Said section 21 provides, among other things, that: "The appellate division may, on motion of any party, hear any cause or proceeding in whole or in part on oral testimony, or it may send the pleadings and any issues therein (to be heard on oral testimony) to a master who, under the direction or rules, general or special, of the appellate division, shall hear and report to the appellate division the evidence and his rulings in such suit or proceeding and his findings on such evidence; and if such rulings or findings be not specifically excepted to within thirty days after the opening of said report (of which opening the clerk of said division shall at once notify in writing all parties or their attorneys of record) they shall be conclusive on all parties, excepting that for cause shown the time may be extended on motion filed within said thirty days." It is to be observed that under this statute the case goes to the master "under the direction or rules, general or special, of the appellate division." The statute, therefore, does not supplant the equity rule aforesaid, as supposed by defendants' counsel, but is to be taken in connection with said rule, which requires that all objections to the master's report shall be taken before him. The purpose of this rule is very evident. The master sits as a court in the hearing of the case. He then prepares a draft report of his findings, and submits the same to the respective counsel, in order that they may point out any error of law or fact into which he may have fallen, so that the same may be corrected; and also in order that disputed questions of law may be regularly presented by the record for the consideration of the court to which the report is made. If, after hearing and considering such objections as shall be made to the draft report, the master modifies his report in any way, he is, of course, required, by virtue of said rule, as properly interpreted, to notify the parties of such modification, so that they may know specifically what his final report is to be before it is filed in court, and may thus be able to preserve all of their rights relative to making objections thereto, as the basis of exceptions to be subsequently filed in court But it would be an idle ceremony to require the master to thus prepare and submit to the parties a draft report of his findings, in order that they might formally object thereto, if they could as well make their objections to the court, after his final report has been filed. Of course, we do not question the power of the court to permit exceptions to be taken thus irregularly. And in case of accident or surprise, it is sometimes done. But under the well-settled practice of this court, as well as the very uniform practice of equity courts generally, the rule is very strictly adhered to of not permitting exceptions to be filed when there have been no previous objections taken. 2 Daniell, Ch. Prac. & Pi. 1312. We therefore decide that the defendants' exceptions are not properly before us, and decline to consider them.

But the defendants urge that even if they cannot avail themselves of the exceptions now filed by reason of their failure to comply with the rule aforesaid, they are nevertheless entitled to object to and protest against the confirmation of the master's report on the ground that it appears by said report and the evidence submitted therewith, that said partnership was an illegal one, having been formed to carry on business, in part at any rate, in violation of law, and that the main part of the business actually carried on by said co-partnership was an illegal business, and hence that this court will not lend its aid in the settlement between parties thereto, of their illegitimate gains. The evidence shows that the place of business of the co-partnership in question was at No. 26 Miller avenue, formerly in the town of Johnston, but now in the recently annexed district of the city of Providence, for which place of business the company held a wholesale liquor license from said town of Johnston. The master finds that it was the custom of the partners for the complainant to take liquors on one team, and peddle them out to customers on the road, while the respondent Nardolillo took another team and route for the same purpose, and that the respondent Cipolla stayed in the store, and was supposed to keep the books of the firm. The uncontradicted evidence shows that the main purpose and business of the partnership was to peddle intoxicating liquors from door to door, and from house to house, very much in the same manner as ordinary fruit and vegetable peddlers dispose of their goods. It also shows that they had more or less regular customers upon whom they depended for sales, and that they were constantly obtaining new customers in different towns and localities in the state, thus rapidly building up and extending their business. The following brief abstract from the testimony of the plaintiff is pertinent in this connection. "Q. What was the purpose of the partnership? A. Lager, ale, and soda, to be sold out of team. Place of business was 26 Miller avenue, Johnston. I had a route with a team, and sell the liquor, and return money to partnership. I collected the money a little at a time. My book shows from whom I collected the money. I loaded the team with beer and any kind of stuff they needed. I went to Nayatt Point, Simmonsville, Thornton, and other places. I worked sometimes fifteen hours a day. Business grew the first month, and the second month business was larger than the first,...