Perkins v. Stern , 152 Mass. 518 ( 1890 )

Devens, J.

The defendant is the surviving partner of the firm of Perkins, Stern, and Company, and the plaintiff is the representative of her husband, a deceased partner. There were no other partners. As surviving partner, the defendant has recovered the amount of a certain claim belonging to the firm from the government of the United States, for war premiums, as they are called, for moneys paid for insurance during the late civil war. There was evidence that the plaintiff, who, as representing her husband’s estate, had advanced a certain amount of money for the prosecution of the claim, declined to advance any more before the claim was actually recovered, and said that the defendant might go on if he chose. The defendant contends that she abandoned her claim, and relinquished all right thereto in favor of the defendant, so that, having finally successfully prosecuted the claim, he is now entitled to retain the entire proceeds. He further contends, that the question whether she had thus relinquished her claim was one which should have been submitted to the jury, and that it was therefore erroneously ruled by the court that the evidence offered was insufficient to sustain this defence. But before the defendant could be entitled to have the jury, as a question of fact, determine whether there had been such a waiver and relinquishment to him, it was necessary for him to offer some evidence which would justify such a finding. If the facts proved are undisputed, and yet the fair inference to be drawn from them is fairly disputable, they should indeed be submitted to the jury. On the other hand, if the facts are undisputed, and yet no reasonable inference could be drawn from them which would support the contention of the party seeking to establish a proposition, he has no right to have them thus submitted.

Assuming all the evidence offered by the defendant, Or on his behalf, to have been true, and such as should have been believed, it wholly fails to establish facts from which any reasonable inference can be drawn that the plaintiff surrendered to the defendant her rights in this claim. She refused to expend any more money in prosecuting it, or to take any part in its prosecution, but this is perfectly consistent with an intent to hold her interest in the claim for whatever, if anything, it might thereafter prove to be worth, and affords no justification for the inference that she intended to relinquish her rights to the defendant. It was therefore properly ruled that the evidence offered was insufficient to sustain the defence set up by the defendant. As the plaintiff avails herself of the expenditures incurred by the defendant in obtaining the claim, it is but just that there should be a deduction of her fair proportion of these from the sum she recovers. This she concedes, and in the judgment rendered in her favor this deduction will be made.

Exceptions overruled.