Kelley v. Kelley , 272 Mass. 515 ( 1930 )

Wait, J.

Two appeals are before us. The plaintiff’s appeal cannot be considered if the defendants’ appeal is well taken. The Superior Court on October 23, 1929, entered an interlocutory decree which overruled exceptions of both plaintiff and defendants to a master’s report and confirmed the report; and a final decree which directed payment to the plaintiff in a certain amount and established her right to a further payment.

The findings of the judge establish the following facts: On November 9, 1929, the plaintiff claimed appeals, and on the same day gave order to the clerk to prepare the papers for transmission to this court. Thereafter the clerk estimated the expense and notified the plaintiff. On November 29,1929, counsel for the plaintiff paid the estimated amount to the clerk. On December 3, 1929, counsel for the defendants learned of the appeal and communicated with one of opposing counsel by telephone and by letter agreeing that “if no further action is taken ... ip prosecution of your appeal between now and three or four days after . . . [one of the plaintiff’s counsel’s] return from Texas, we shall not assert that such a delay is ground for dismissal of the appeal.” The plaintiff’s counsel on the same day notified the clerk to defer the preparation and printing until further notice from him. Telephone inquiries on December 12 and 23 disclosed that absent counsel had not then returned; but on December 31, the defendants’ counsel were informed that he had returned on December 28. Conference was had on January 2, 1930, at which the defendants refused to increase the payment provided for in the decree as ordered; but offered, if the appeal were dropped, to anticipate payment of the further amount to which the plaintiff’s right was established. Counsel agreed to communicate this offer to their client. On January 4, 1930, counsel for the plaintiff wrote counsel for the defendants asking for figures, and concluding: “As soon as I receive this, ... I will have a final conference with Mrs. Kelley and will immediately let you know the result.”,, The figures were received on January 10, 1930, but before the receipt one of the plaintiff’s counsel again left Boston. He returned in the middle of January, but was unable to communicate with the plaintiff who was then ill in bed. Not until late in February were counsel successful in communicating with her. Then on February 27 or 28, order was given to go on with the printing for the appeal. At the conference of January 2 no definite agreement was made about proceeding with the printing. Counsel for the defendants understood honestly that, although opportunity to discuss with the plaintiff was to be had, an immediate answer was to be given. Counsel for the plaintiff understood that they should have time for conference with the client and examination of the matters discussed. On March 4, 1930, the defendants filed a motion to dismiss the appeals for failure to comply with the requirements of law, in neglecting to enter the appeals in this court and to proceed without delay in the preparation therefor. The judge found that counsel for the plaintiff acted in good faith, that the facts justified the delay; and denied the motion. We find no error. The delay, unexplained, would have required dismissal. See cases collected in Gordon v. Willits, 263 Mass. 516, 520. No complaint, however, is, or can be, made by the party promoting it for such delay as existed before January 2, 1930; and the facts found with regard to delay thereafter justify, if they do not require, the decision of the trial judge. Gordon v. Willits, supra. Griffin v. Griffin, 222 Mass. 218.

We turn to consideration of the plaintiff’s appeals. There is no merit in the contention that there was error in overruling the objections to the master’s report. Inasmuch as the conduct of the partners was material in determining the terms of the oral agreement of partnership under which the business was carried on between the death of Anthony Kelley, which put an end to the written agreement as a full statement of the terms of partnership relation, and the death of Chester B. Kelley, the plaintiff’s testator, the finding that their action was in accord with their understanding of the written agreement was proper. Sufficient is stated in the documents set out in the report to furnish evidence from which the court could make a finding, if necessary.

In view of the bill’s charges of fraud, the findings with regard to the plaintiff’s experience in business and investments were competent. Farrell v. Chandler, Gardner & Williams, Inc. 252 Mass. 341. For the same reason this is true also of the findings respecting the belief of the defendants that there were no assets other than as credited; and of the defendants and Chester B. Kelley, that good will, if any, was not an asset, and that the agreed payment to be made to widows stood in lieu of any right to distribution of assets including good will. The other portion of the report with regard to the evidence offered through the witnesses Storer and Joshua C. Kelley is essential to an understanding of the offer of proof. There was no error in its insertion in the report.

The plaintiff contends that the judge erred in his finding and ruling that a release executed by the plaintiff in October, 1921, barred a claim to a percentage of the difference between the actual and the book value of machinery and equipment valued as of a certain date; and that no recovery could be had, in this case, for good will. The master’s report shows that under date of October 1, 1921, the plaintiff accepted from the defendants a sum which they stated and believed to be the full amount coming to her as Chester B. Kelley’s capital account in the firm. By the agreement of partnership this amount was not absolutely payable until the expiration of five years from Chester’s death, that is, until April, 1925. She desired at the moment to purchase certain real estate, and proposed that an advance be then made of all that would come to her. The defendants agreed, made payment, and took from her a paper not under seal, called by all parties a “receipt,” which recited receipt from the defendants of $5,931.58, “the amount in full standing to the credit of my late husband’s .... capital account,” and set out “in consideration of said payment . . . I, in my individual capacity and as Executrix ... do hereby release and forever discharge the . . . [defendants] co-partners as aforesaid and the Union Paste Company [the firm] from any and all claims and demands of any name and nature

1 may have against them. But this release is not intended in any way to affect the distribution of profits as set forth in the original partnership papers . . . dated December 21st, A.D. 1912.” There was no discussion between them of any settlement, or release, or of any other consideration than the one mentioned in the paper. This paper speaks for itself, and, in terms, releases all claims except the claim for profit distribution. That exception demonstrates the intent of the parties to include all other claims within the scope of the release. The plaintiff retained a copy without examination until, dispute arising, apparently, in regard to the profits, she consulted a lawyer in November of 1925. There was no deceit in obtaining it. The defendants anticipated payment by nearly four years. Although they had a right to compel receipt of the amount due within five years from April, 1920, they could not be obliged to make payment within the period. Payment at the time it was made was consideration for a release. There was accord and satisfaction. There was no error in holding that it bound the plaintiff. Brooks v. White, 2 Met. 283.

We need not discuss the law applicable to the right of a deceased partner’s estate to share in the good will of the partnership in the absence of provision in the partnership agreement. See Hutchinson v. Nay, 187 Mass. 262, 263. There was here a definite provision. We are aided in interpreting it by the conduct of the partners upon the death of Anthony Kelley. The evidence discloses three written agreements of partnership between Anthony Kelley with first one, then two, and finally three, of his sons in the business created by him and continued with his children. Examination and comparison of these agreements demonstrate that the father and sons contemplated a business to be continued in the family, where the death of one should not put an end to the business with a sale of the good will, but should leave the others to go on subject to payment by the survivors to the deceased’s estate of such loans to capital uses as he had made up to the time of his death with interest during the period of five years within which payment was to be made, and to further payment to the widow of a percentage of future profits, in lieu of any share in a sale of good will. The last written agreement terminated when Anthony Kelley died. Thereafter the sons went on upon an oral agreement embodying the terms of the last written agreement as they understood them. No sale of good will was made, but after the father’s death the sons paid to his widow each year the agreed percentage of the profit.

We are satisfied that by the proper interpretation of the partnership agreement the plaintiff had no right to a sale of the good will and a share in the proceeds. She is not entitled to more than the decree awards to her.

The order for final decree was right. Entries should be made

Upon the defendants’ appeal, order denying motion to dismiss affirmed.

Upon the plaintiff’s appeals, decrees affirmed.