Picard v. Beers , 195 Mass. 419 ( 1907 )

Sheldon, J.

The court denied the defendant’s motion to recommit the auditor’s report, and the correctness of this action is not before us, as it was neither excepted to nor appealed from. Sullivan v. Arcand, 165 Mass. 364. Accordingly the judge at the trial properly allowed the report to be put in evidence and read to the jury. Any mistakes in ruling upon questions of law that may appear by the report to have been made by an auditor can be corrected by instructions to the jury. All-wright v. Skillings, 188 Mass. 538. Lever one v. Arando, 179 Mass. 439. Winihrop v. Soule, 175 Mass. 400. It was of course open to the defendant to ask the court to rule that any of the auditor’s findings were erroneous as matter of law, and not to allow the jury to consider such findings, if the errors appeared upon the face of the report. Briggs v. Gilman, 127 Mass. 530. Jones v. Stevens, 5 Met. 373, 377.

The defendant’s main contention is that the papers or tickets which were given by his agents to the plaintiff as evidence of her several transactions with him, copies of which are set out in the bill of exceptions, were written agreements, the effect of which could not be varied by extrinsic evidence, and that these papers showed contracts of sale or purchase made directly between the plaintiff and the defendant; and accordingly that the auditor’s finding that the defendant acted merely as broker, and undertook to buy and sell for her, was wrong as matter of law, and that the judge at the trial erred in submitting this question to the jury. Marks v. Metropolitan Stock Exchange, 181 Mass. 251. Anderson v. Metropolitan Stock Exchange, 191 Mass. 117, 119, 120. But it cannot be said as matter of law that these papers were written agreements within the meaning of the rule upon which the defendant relies. They were not signed by either of the parties; so far as appears by the printed exhibits, they contained no place for signatures. We do not understand either party to claim that they contain the real agreements which were made. According to the auditor’s report, the contract in each case was made verbally between the customer and the defendant’s agents, and the papers in question were filled out and given to the customer only later, after a real or pretended purchase or sale of the stock in question had been made by the defendant, and after the rights of the parties had been fixed by the verbal agreement ; and the bill of exceptions does not show that this finding was controverted at the trial. But if so, the contract was made when the parties made their oral agreement; and the paper afterwards given did not as matter of law show a rescission of that agreement and the substitution of the paper as a written contract. Edgar v. Breck Sons Corp. 172 Mass. 581, 583, and cases there cited.

In the cases relied on by the defendant, the written papers were treated by both parties as the agreements made between them. If the original contract was verbal and entire, the fact that part of it was afterwards reduced to writing does not make parol evidence inadmissible to show the whole agreement; and that question, if in dispute, must be passed upon by the jury. Ayer v. Bell Manuf. Co. 147 Mass. 46. Beshon v. Merchants’ Ins. Co. 11 Met. 199. Accordingly the requests of the defendant numbered from 10 to 15 inclusive could not have been given.

For the same reasons, it would have been improper to give the defendant’s ninth request. If the defendant was émployed as a broker to buy stocks for the plaintiff, the provisions of R. L. c. 74, § 7, had no application. Barrett v. Hyde, 7 Gray, 160. Colt v. Clapp, 127 Mass. 476, 480.

We are of opinion also that it necessarily follows from what has been said and from an examination of the auditor’s report that the judge rightly refused to instruct the jury to disregard the findings of the auditor mentioned in the first eight requests of the defendant. These were all findings of fact which the auditor was warranted in making.

The defendant’s sixteenth and seventeenth requests seem to us to contain correct statements of the law. R. L. c. 99, § 6. Marks v. Metropolitan Stock Exchange, 181 Mass. 251, 255. Thompson v. Brady, 182 Mass. 321. They were appropriate to the issue raised upon his declaration in set-off, and apparently might properly have been given. But it affirmatively appears by the bill of exceptions that the defendant has not been aggrieved by their refusal. Under the instructions given to the jury, they could not find for the plaintiff, either upon her declaration or upon the declaration in set-off, unless they found that in the matters at issue he was acting for her as her broker. Their verdicts for the plaintiff have accordingly settled that question. But this is fatal to the defendant’s right of recovery upon his declaration in set-off. Lyons v. Coe, 177 Mass. 382. Accordingly, the question raised by these requests has now become immaterial. Wing v. Chesterfield, 116 Mass. 353. Kingman v. Tirrell, 11 Allen, 97.

No question was saved by the exceptions or has been made before us as to the releases alleged to have been given by the plaintiff to the defendant.

Exceptions overruled.