
    Edward K. Thayer vs. Erastus B. Badger, administrator.
    Suffolk.
    March 16, 1898.
    May 20, 1898.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Surviving Partner— Commission on Sale of Merchandise to New Firm — Law and Fact.
    
    It is not an absolute rule of law that a surviving partner has no right to turn over merchandise of the late firm to a new firm of which he is a member, to be sold under commission by the latter, and that the commission charged, or at least the surviving partner’s share, should not be allowed in the account between him and the executor of his deceased partner.
    Contract, by the surviving partner of the firm of Hayden and Thayer, to recover a balance alleged to be due from the defendant, as administrator of the estate of his deceased partner, on the settlement of the firm’s affairs.
    The case was submitted to an auditor, and the sole question was whether the plaintiff had a right to pay a commission to the new firm of Thayer, Owen, and Tyler, of which he was a member, for selling the property of the firm of Hayden and Thayer in liquidation. The auditor found “ as a fact, that the method adopted by the surviving partner in disposing of the merchandise of the old firm in the course of the settlement of the affairs of that firm was a prudent and reasonable one ; that the charge for selling merchandise made by the new firm was a reasonable one; and ruled, as matter of law, that there was no objection under the circumstances to the charge of $650 commission made by the firm of Thayer, Owen, and Tyler for selling the merchandise of the firm of Hayden and Thayer in liquidation.”
    At the trial in the Superior Court, on the auditor’s report alone, without a jury, before Hardy, J., the defendant asked a ruling that the surviving partner had no right to make any charge for winding up the affairs of the late firm, and therefore had no right to turn over the merchandise of the firm of Hayden and Thayer to be sold by the firm of which he was a member on commission, and that the sum. charged by such firm as a commission for making the sale, or at least that portion of such commission which the surviving partner was entitled to as a member of said new firm, ought not to have been charged in the account. The judge declined so to rule, adopted the findings of the auditor, and found for the plaintiff; and the defendant alleged exceptions.
    The judge reported the case for the determination of this court. If the ruling was right, the finding was to stand; if wrong, a new trial was to be granted.
    H. W. Ogden, for the defendant.
    
      H. N. Berry, for the plaintiff.
   Holmes, J.

The only question in this case is whether the judge below was bound to rule, as matter of law, that a surviving partner has no right to turn over merchandise of the late firm to a new firm of which he is a member, to be sold upon commission by the latter, and that the commission charged, or at least the surviving partner’s share, should not be allowed in the account between him and the executor of his deceased partner. In this case the auditor has found that the course adopted was prudent and reasonable, and. the charge reasonable. Whether we should have made the same findings we cannot tell, but, they having been made and we being bound by them, we are not disposed to go so far as to say that it is impossible that the charge should have been justified by the saving to the old firm and the trouble to the new from the arrangement. It is true, no doubt, that there is a disinclination to allow pay to a surviving partner for winding up; Dunlap v. Watson, 124 Mass. 305; but the tendency is to deal with such questions on their particular circumstances, rather than by absolute rules. Turnbull v. Pomeroy, 140 Mass. 117, 118. Robinson v. Simmons, 146 Mass. 167, 176.

Finding to stand.  