WILLIAM A. FAY vs. JOHN J. WALSH & others.

LORING, J. This is an action brought to recover $225.33 for lumber, used in building an open air theatre at Nahant, which the plaintiff alleged was sold by him to the defendants Walsh, Howard and Fletcher, jointly, on July 1, 2 and 3, 1901. The defendant Walsh was defaulted, and the case was defended by Fletcher and Howard. At the conclusion of the evidence the defendants Fletcher and Howard requested the judge to rule that the defendants were entitled to a verdict and that there was no evidence of a partnership. These rulings were refused, and the case is here on exceptions "to the judge's refusal to rule as requested and to his rulings inconsistent therewith," and to certain rulings on evidence stated in the opinion.

1. We think that there was evidence that these two defendants were liable with Walsh as partners.

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The plaintiff testified that, before his first interview with the defendant Fletcher, Walsh had ordered lumber in Howard's presence, which had been paid for, and that on the day before this first interview Walsh and Howard had ordered some lumber which he refused to sell on credit, a balance being due him on a previous order; that Walsh thereupon said that he would have some one down to pay for the lumber ordered and the balance on the old account the next day. The next day he, the plaintiff, found Howard and Fletcher at his office when he came in about noon, and Howard introduced Fletcher "as the moneyed man of the concern." Howard then stepped out on being asked to do so by Fletcher, and after Howard had gone Fletcher asked how much the bill was, and he, Fletcher, paid it. The plaintiff testified that he told Fletcher before Fletcher paid the bill that he did not feel like sending any more lumber "down there," and Fletcher told him that he, Fletcher, was a man of means; that "he was in the concern," and "as to sending goods down there he said everything would be all right and the bills would be paid," and he wanted the bill made out to Walsh. The lumber here in question was subsequently supplied on the faith of this statement.

If Howard was bound by what was said by Fletcher after he stepped out of the room leaving Fletcher and the plaintiff by themselves, this was sufficient evidence against both Fletcher and Howard. No objection in behalf of Howard was made to the introduction of this evidence at the trial. The judge instructed the jury that "Howard is not bound by that conversation except you find this was a scheme to get this lumber, and that he was a party to it, and except you find he went up there and introduced him as the financial man of the concern, and that was done for the very purpose of getting credit. If you find that, then you may take the other evidence with that introduction in determining whether Howard was a partner to that scheme, as claimed by the plaintiff, and if he was, then you may find against him and all."

This exception must be overruled.

2. The fact that the bill was made out to Walsh was not fatal, there being evidence that this was done at Fletcher's request. James v. Spaulding, 4 Gray 451. Under the instructions of the

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judge the jury must have found that Fletcher was acting for Howard in making this request.

3. The plaintiff could be allowed to refresh his recollection by a memorandum made by another. [Note p377] Commonwealth v. Burton, 183 Mass. 461. Commonwealth v. Ford, 130 Mass. 64.

4. No exception was taken to the admission of the leading questions objected to by the defendants.

5. The plaintiff testified that "the bills were made out on the bill heads of James Fairfield on which was printed 'William A. Fay, Agent,'" and that "at the time of the sale of the lumber in question, he was selling lumber for James Fairfield; that he was acting as James Fairfield's agent in selling the lumber in question."

The defendants have contended that this action ought to have been brought in the name of Fairfield, and for that reason the first ruling requested by them, asking for a verdict for the defendants, should have been granted. It is plain that the action should have been brought in Fairfield's name, Borrowscale v. Bosworth, 99 Mass. 378, and this ruling should have been given.

So far as appears this objection is purely technical. It is one which could have been avoided by amendment had it been called to the attention of the judge. Had the defendants told the judge that the reason they asked for a verdict as matter of law was that the action was brought by the wrong person, the judge in his discretion could have allowed an amendment substituting Fairfield for Fay. Costelo v. Crowell, 134 Mass. 280. More than that, such an amendment can be allowed now after verdict. Campbell & Zell Co. v. Barr Pumping Engine Co. 182 Mass. 304. Eayward v. Leeson, 176 Mass. 310, at pp. 324, 326. See also Fenton v. Lord, 128 Mass. 466.

There are precedents in similar cases for making an entry in this court of "Exceptions overruled," upon the proper amendment being made in the Superior Court. Keller v. Webb, 126 Mass. 393. Fenton v. Lord, 128 Mass. 466. Denham v. Bryant, 139 Mass. 110. In the case of Peck v. Waters, 104 Mass. 345,

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this court, in a similar case, sustained the exceptions for the sole purpose of having such amendment made in the Superior Court. It is plain that the statement made in Whitney v. Houghton, 127 Mass. 527, that this court has power to allow such an amendment is erroneous. To the same effect see Stone v. White, 8 Gray 589.

It may be that the defendants rights would be affected by the substitution of Fairfield for Fay as plaintiff, and for that reason they should have an opportunity to be heard on the allowance of such an amendment. Unless such an amendment is allowed and made in the Superior Court the exceptions will be sustained. If such an amendment is allowed and made the exceptions will be overruled.

So ordered.

W. H. Brown, for the defendants Fletcher and Howard, submitted a brief.

R. L. Sisk, for the plaintiff.