Locke v. Locke , 1896 Mass. LEXIS 157 ( 1896 )

Morton, J.

The findings of the master are not to be set aside unless, upon the evidence as reported, they are clearly erroneous. Richards v. Todd, 127 Mass. 167.

We think that the evidence well warranted the finding that the three thousand dollar note was given by the plaintiff and taken by the defendant in part settlement of a supposed balance of thirty-six hundred and sixty-nine dollars due from the •plaintiff to the defendant on an adjustment of the partnership accounts, and that it proceeded on the mistaken and innocent assumption on the part of both that the plaintiff was liable for the whole amount of the excess of his account over that of the defendant, instead of only for one half of it. That being so, the plaintiff is entitled to the relief which he seeks, notwithstanding that the sale by the defendant of his interest may have operated as a dissolution of the firm. Gould v. Emerson, 160 Mass. 438. This view of the case disposes of the defendant’s contention that the note was given as part of the consideration of the sale to Felch.

We think also that the finding that the account between the two partners did not pass by the bill of sale to Felch was correct. It is the intention of the parties as expressed in the bill of sale which is to be carried into effect. But where a latent ambiguity arises, the surrounding circumstances may be looked into in order to discover if possible the real intention of the parties. In the present case, the note in suit, the bill of sale, the mortgage and mortgage note, and the payment of the five' thousand dollars in cash, all constituted parts of one and the same transaction. And though in a strict sense the overdraft of the plaintiff was a debt due to the firm, it is manifest, we think, that the language of the bill of sale referred to other debts and accounts than those between the two partners. Language almost if not quite as inclusive as that used here was construed in Abercrombie v. Spalding, 158 Mass. 32, not to include a debt due from the firm to one partner.

Decree affirmed.