Donovan v. Draper

This is an action of contract brought against partners in a stock brokerage firm. The case was referred to an auditor. By agreement of parties his findings of fact were to be final, and the right to a jury trial was waived. The original declaration contained two counts; the first was for money had and received, and the second set forth a cause of action under G. L. c. 137, § 4. During the hearing before the auditor the plaintiff was required to elect on which of these counts he would rely, and there*557upon he elected to rely upon the first count. The case was afterwards heard by a judge of the…