Marschall v. Aiken , 170 Mass. 3 ( 1897 )

Barker, J.

The action was tried without a jury, and the exceptions are to refusals to rule in accordance with requests refused, either because the presiding justice found that they did not apply to the facts in the case, or because he did not find the facts to be as assumed in the requests. In strictness, this alone would require us to overrule the exceptions, as the question is not raised whether, as matter of law, upon the evidence, facts to which the rulings requested would be applicable, or the facts assumed in the requests should have been found. Upon such requests and exceptions to the refusals to give them, we cannot revise the findings of fact upon which the refusals were based. Pratt v. Amherst, 140 Mass. 167. Butrick v. Tilton, 155 Mass. 461.

But if in the present case we assume that all the evidence is stated, and that the question is raised whether the requests were applicable to the facts which, as matter of law, should have been found, we find no error.

With reference to the first request, to the effect that if the defendants’ intestate permitted his name and sign to remain on the store, he is responsible to all persons who gave credit to him on that account, in the usual course of business as carried on at that place', it is enough to say that there was no evidence which required a finding that the plaintiffs’ agent so gave credit to him.

As to the two next requests, the evidence did not require a finding that the intestate took out the license, which was assumed as a fact in the second request, nor that the person who applied for the license had authority to bind the intestate as a partner in the application for license.

As to the fourth request, it was based upon statements said to have been made by somebody or some one in the store, without further identification of- the persons, or in any way connecting them with the intestate, save by their mere presence in the store, and there was nothing to require a finding that the persons making the statements had authority to bind the intestate.

The evidence that the plaintiffs’ agent' received in the store at the time of making the sale a card purporting to indicate that the intestate was a partner, in connection with the evidence that he was himself away from Boston and blind, and that his agent first learned of the use of this card long afterward, and at once forbade its use and gave public notice that the name was not rightfully used, and in connection with the other evidence in the case, did not require a finding that there had been any neglect to give notice, or any holding out of the intestate as a partner by himself, or with his knowledge or assent. The whole evidence did not require a finding of such facts as to bind the intestate by reason of the acts of the one person who had some authority from him, or of others in the store, and justified the disallowance of the last request.

The presiding justice was justified in finding that the intestate was never a partner, that he had no interest in the business when the plaintiffs’ sale was made, and had not been held out as a partner or as interested by any one authorized to bind him. Whether in any event the leaving of his name and sign upon the store after he had sold out would have justified a finding that he was still interested in the business in any way, we need not inquire, as no such finding was made.

Exceptions overruled.