Home MALDEN DOOR AND WINDOW COMPANY vs. NORMAN M. GOSS.

354 Mass. 764

May 7, 1968

The report was rightly dismissed by the Appellate Division. Prior to December 3, 1962, the defendant Goss was associated in a partnership with Bernard P. Pearce, called Pearce and Goss Company. Early in December, 1962, the partnership was dissolved and a corporation was formed under the name Pearce and Goss Co., Inc., with Goss as president and treasurer and the same personnel. The plaintiff, not directly informed of the incorporation, continued an account on its books with "Pearce & Goss" in the belief that it was a partnership. The action was brought on invoices dated from October, 1963, through April, 1964. In this period the plaintiff extended nearly $5,000 in credit and a balance of $2,693.22 was outstanding when action was brought against Goss. It was not error for the judge to find that there was no intention on the part of Goss or Pearce to mislead the plaintiff and that it should have been aware of the fact that it was doing business with a corporation rather than a partnership. See Phipps v. Little, 213 Mass. 414 , 417. The evidence tended to show that trade business cards were seasonably distributed indicating the corporation; the telephone listing was changed; the corporation's truck, clearly inscribed with its name, was driven to the plaintiff's place of business on several occasions and was seen by the plaintiff's manager and chief shareholder. The plaintiff's ledger shows sales and payments in December, 1962, sales from time to time in 1963, and payments in January, June, July, August and September, 1963. Two of the corporation's checks were in evidence, making payments on account in February, 1964, totaling $2,000. The plaintiff's manager testified that he did not pay too much attention to names. The partnership business certificate (G. L. c. 110, Section 5) which was never withdrawn did not estop the defendant from showing the partnership had ended. Hanzes v. Flavio, 234 Mass. 320 , 328. Hall v. Rubin, 240 F. Supp. 470 (D. Mass.). It did not appear that the plaintiff actually relied on the certificate. The judge was not obliged to find that the signing by employees of invoices made out ambiguously to "Pearce & Goss" created contracts with the partnership. The requests are appropriately reviewed in the opinion of the Appellate Division.

Order dismissing report affirmed.

Home PATRICIA A. MURRAY vs. EDWARD H. HARWOOD.

354 Mass. 764

May 29, 1968

About four-thirty on the morning of September 7, 1963, the plaintiff was injured while riding as a guest in an automobile owned and operated by the defendant. The plaintiff's injuries occurred when the defendant's car collided with a car operated by Herman J. Christoforo on Rutherford Avenue, Charlestown. The case was referred to an auditor who found for the defendant because the

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plaintiff had failed to establish gross negligence on the part of the defendant. Thereafter the case was tried to a jury on the auditor's report and other evidence. The jury returned a verdict for the plaintiff, which was recorded under leave reserved. The judge entered a verdict for the defendant, subject to the plaintiff's exception. There was no error. No useful purpose would be served by a detailed summary of the evidence. Although there was evidence that the defendant had consumed several drinks of intoxicating liquor between 11 P.M. and 4 A.M., the evidence failed to show that the liquor contributed to the accident to any appreciable extent, at least not to the extent of amounting to grossly negligent conduct. The evidence did not establish that the defendant's conduct was of that "high degree of culpability and indifference to duty which is the essential characteristic of gross negligence." Lynch v. Springfield Safe Deposit & Trust Co. 294 Mass. 170 , 172.

Exceptions overruled.