Howe v. Dickinson

Holmes, J.

These are actions seeking to charge the defendants personally for goods which purported to be sold to the Worcester Felting Company, and upon notes signed with that name. The case was taken from the jury on the plaintiffs’ opening, which shortly stated, was as follows. Formerly “ the Worcester Felting Company ” was the name under which William Dickinson did a manufacturing business alone. He gave notes signed “Worcester Felting Company, S. F. Dickinson, Treasurer,” and indorsed by himself, William Dickinson. He is dead, and the contracts sued upon were made since his death. The defendants are his executors and residuary devisees and legatees. The business went on without a break, in the same way as before, and the notes were in the same form, except that now they were indorsed by Samuel F. Dickinson, one of the defendants, who was treasurer and manager both before and after his father’s death. The whole indebtedness of the business outstanding at William Dickinson’s death was paid out of the business. All these facts except the last were known to the plaintiffs.

Had the opening stopped here, it would have presented a case for the jury. The use of the trade name and good will, which were assets of the estate, and the payment of the old debts, for which the defendants were liable as executors, were sufficient to warrant the inference that the defendants were carrying on their testator’s business, and did actually contract with the plaintiffs under the name of the Felting Company, in which case, of course, they would be bound personally.

The plaintiffs’ counsel, however, went on to state that they were made aware that the defendants’ testimony would tend to prove that, by agreement of the four executors, Samuel F. Dickinson took the felting business, assuming the liabilities and taking the assets, and carrying it on as his own. This evidence, he said, they might not be able to control, but did not admit, and went on to say that they claimed the right to hold the defendants on the facts stated, unaffected by such private arrangement. The latter claim, on which no doubt the emphasis was laid, we do not perceive the justification for on the facts as we understand them. And we think it probable that this led the judge below to understand the plaintiffs as making a protesting admission that the business was in fact carried on by Samuel F. Dickinson alone. We cannot so interpret the spoken words, however. We must take them as reserving all rights, including the spes or possibility of their being able to upset the defendants’ story on cross-examination. If so, the plaintiffs had a right to go to the jury on the ground above stated.

Exceptions sustained.