Volume 177 — Massachusetts Reports

<p>Two actions OE contract, the first being upon the acceptance of an assignment, and the second being upon a quantum meruit. At the trial of the cases together in the Superior Court, before Aiken, J., the jury returned a verdict for the . plaintiff in each case; and "the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, for breach of a written agreement. The declaration alleged that the plaintiff and the defendant entered into a written agreement under seal, a copy of which was annexed. “ That thereafter the plaintiff entered upon and occupied the farm mentioned in said agreement, made repairs upon the buildings thereon, and greatly improved said farm, increased its capacity for producing crops, and increased and improved the stock and tools thereon, and paid out large sums of money for the purposes aforesaid; that the plaintiff, further, well and truly performed all of his obligations to the defendant under said agreement, except the obligation to pay to the-defendant a portion of the sum of five hundred dollars which said agreement provided should be paid on or before April 1st 1896, and that the plaintiff on the 30th day of March A. D. 1896 was ready and desirous to pay to the defendant the balance required to complete said payment of five hundred dollars before April 1st, and offered and tendered payment thereof to the defendant, and requested and demanded of the defendant a deed of said farm, including the stock and tools belonging thereto, as provided in said agreement, and tendered to the defendant and offered to deliver to him a note and mortgage upon said farm as required by said agreement; that the defendant refused to accept the money so offered and tendered to him by the plaintiff, and the note and mortgage offered and tendered to him by the plaintiff, and refused to convey to the plaintiff said farm with the stock ánd tools thereto belonging, and refused to make a fair and equitable adjustment of the affairs between the plaintiff and defendant; that the plaintiff left said farm after an ejectment execution was issued against him; that the defendant has received and accepted the benefit of the plaintiff’s occupation of said farm, and his labor and money expended in the improvement of said farm, buildings, stock and tools; and, though often requested, has refused and still refuses to pay the plaintiff therefor, and to convey said farm, stock and tools to the plaintiff as provided by said agreement, all to the great damage of the plaintiff.”</p> <p>At the trial in the Superior Court, before Hardy, J., the jury returned a verdict for the plaintiff in the sum of $562 ; and the defendant alleged exceptions, which appear in the opinion and in a note by the reporter.</p>

Two actions OF contract, upon policies of insurance against loss by fire, issued by the defendants respectively in the sum of $1,400 each, on the plaintiff’s “ frame building . ¡ . situate at Woodlawn Grove, Lake Quinsigamond, Worcester.” The answer set up, among other things, that the property was vacated by the owner or occupant, and so remained vacant more than thirty days without the assent of the company being procured in writing, as required by the terms of the policy.

<p>Tort, against two physicians for negligently making a certificate alleged to be false, to the effect that the plaintiff was a dipsomaniac or inebriate, in consequence of which he was con•fined in the Massachusetts Hospital for Dipsomaniacs for a long time and suffered great damage. The defendants demurred to the declaration, assigning various grounds therefor. The Superior Court sustained the demurrer and ordered judgment for the defendants; and the plaintiff appealed to this court. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1900, and afterwards was submitted on briefs to all the justices.</p>

<p>Personal Injuries — Explosion of Gas in Subway — Evidence — Negligence — Law and Fact — Exceptions.</p> <p>In an action against a gas company for personal injuries caused by an explosion oí gas which had accumulated in the chamber beneath the plank bridging over the surface of the street, under which a subway was being constructed, evidence of persons, most of whom were occupants of buildings near the place of the explosion into which extended pipes of various kinds with earth left more or less loosely around them, that they had noticed a strong sihell of gas outside on the street and in some of the buildings on the morning of the explosion, and also similar smells, only not so strong, at different times before, the testimony of a few of the witnesses covering a period of about three months, is rightly admitted ; as also is the testimony of a witness that a strong smell of gas which he noticed in the basement of his store on the morning of the accident was the same as the smell from a leak in his store which occurred several months before from gas furnished by the defendant.</p> <p>A letter written by the chief engineer of the commission charged with constructing a subway, in which an explosion of gas occurred, to the chief engineer of a gas company having pipes in the excavation, showing that these two officials, who represented respectively the commission and the company, and were authorized to do all that they attempted to do in their dealings with each other in regard to the subway, were then considering the safety of the gas pipes where the work of constructing the subway was going on, although such work was not in the same section where the accident happened, isproperly admitted, as bearing upon the defendant’s conduct, in an action against the company for an injury caused by the explosion.</p> <p>The engineer and treasurer of the corporation employed to construct a section of a subway in which an explosion of gas occurred is rightly permitted to testify, in an action against a gas company having pipes in the excavation, for injuries caused by the explosion, to conversations between himself and the chief engineer of the defendant, referring to the section in question, recommending the defendant to have an inspector on the line of the work, to be present at all times in case of an emergency, and thus to furnish an added element of safety, and informing him that other companies maintaining pipes and conduits on the line of the work were providing such inspectors.</p> <p>Expert testimony, to the effect that the pipes in an excavation for a subway under a street on the surface of which electric cars passed were affected by electrolysis, although there was nothing in the appearance of the pipes which certainly showed it, is rightly admitted in an action for personal injuries caused by an explosion of gas in the excavation; and a refusal to rule that there was no evidence that the pipes had been affected by electrolysis is correct.</p> <p>In a case, the trial of which occupied six weeks, the verdict will not be set aside because of the admission of immaterial evidence having no relation to the issue, where it does not clearly appear from the bill of exceptions, and does not seem to this court probable, that the excepting party was injured by its admission.</p> <p>At the trial of an action for personal injuries caused by an explosion of gas in an excavation for a subway, against a gas company having pipes therein, a clerk of ' the defendant was called in its behalf with its books of entries of leaks in its pipes reported to it, and he gave testimony tending to show that all such leaks in the vicinity of the explosion reported within three months before the explosion were promptly repaired. It appeared that he had made from the company’s books a compilation showing all the leaks along the line of the subway reported within five months prior to the explosion. This compilation, which it was agreed might be treated as original evidence, was read to the jury against the defendant’s objection, and the jury were permitted to consider the fact that the defendant had information of these leaks along the line of the subway, in connection with the question whether the defendant was negligent in failing to provide an adequate system for the protection of the public from the unusual danger of escaping gas incident to the uncovering and relocation of its pipes in the construction of the subway. Held, that these facts, in connection with the other evidence, were properofor the consideration of the jury.</p> <p>Although the judge presiding at a trial in his discretion might properly have permitted certain questions to be asked, his refusal is not an error which will justify this court in setting aside the verdict, unless there is something to show that valuable testimony was thereby probably lost by the excepting party.</p> <p>The admission of one defendant is not evidence against a plaintiff pursuing another defendant on independent grounds.</p> <p>If a gas company having pipes in an excavation for a subway negligently suffers its gas to accumulate and remain in the chamber beneath the plank bridging over the surface of the street on which electric cars passed, it is liable for the natural and probable consequences of its negligence; and if the ignition of the gas by a natural cause, or by a person, ought to have been foreseen as a probability, the company is liable for injuries caused by an explosion of the gas, even if such person might also be chargeable with negligence.</p> <p>It is a question of fact for the jury, in view of all the circumstances of the case, in an action against a gas company for injuries caused by an explosion of gas in an excavation for a subway,.to determine whether reasonable care for the safety of the public required the defendant to provide an inspector for its pipes within the line of the subway work; and a request for a ruling that it was not its duty so to do is rightly refused.</p> <p>In an action for personal injuries caused by an explosion of gas in an excavation for a subway, against a gas company having pipes therein, there being also pipes of other corporations there, a request for a ruling that in order to charge the. defendant the jury must find that the gas which caused the explosion was its gas, is properly modified by a ruling that the defendant would be liable if such gas was in whole or in part its gas.</p> <p>Where several defendants are sued jointly for independent acts of negligence, if the rulings are correct upon the issue between the plaintiff and one defendant, the latter has no ground of exception because a too favorable instruction given upon a different claim against another defendant is not also given in his favor.</p>

Petition for a writ of mandamus. The case was reserved by Lathrop, J. for the determination of the full court upon the questions of law raised in the petition and return, the material and competent facts set up in the return, and certain agreed facts, the nature of which appears in the opinion. If the petitioner was not entitled to maintain his petition, it was to be dismissed with costs; otherwise it was to be sent to an assessor for the .assessment of damages.

<p>Bill in equity, filed September 25, 1899, in the Superior-Court, to restrain interference with an alleged right of way to a well on the defendant’s land in Great Barrington, and also the maintenance of a gate on another part of his land over which the plaintiffs have a right of way. Hearing before Hopkins, J., who reported the case for the determination of this court. The facts appear in the opinion.</p>

<p> Resignation of Office and Acceptance thereof shown by Oral Testimony. </p> <p>The resignation of a person appointed by the county commissioners under Sts. 1889, c. 454, § 5, and 1894, c. 309, § 1, to investigate cases of damages done by dogs, and prosecute actions-therefor, and its acceptance by the county commissioners, may be shown by his and their oral testimony. It is not required that they be shown only by the records of the commissioners.</p>

<p>Breach of Bond — Count for Money had and received — Motion to amend Pleadings so as to save Verdict.</p> <p>Damages for breach of a bond cannot be recovered under a count for money had and received; and a motion made in this court for leave to apply to the judge who tried the case for an amendment of the bill of exceptions for the purpose of making it clear that there was no surprise, that the case was fully tried, and that the plaintiff ought to be allowed to save his verdict, comes too late; all that could be hoped for sufficiently appearing on the bill of exceptions as it stands.</p>

Bill in equity, filed in the Superior Court, to restrain the defendants from disconnecting the plaintiff’s drain in Isabella Street from the public sewer in Hawley Street in Northampton. Hearing before Stevens, J., who reported the case for the determination of this court. The facts appear in the opinion.

<p>Contract, for breach of an agreement. The case was referred to an auditor, who reported as follows: The defendant was engaged in the erection of a building in Northampton, and the plaintiffs agreed to furnish the marble work for the building for $3,000. On November 9, 1896, after this contract had been partially performed by the plaintiffs, a controversy having arisen between the owner of the building and the defendant, the defendant, without any fault of the plaintiffs, ordered them to discontinue work and do nothing further under the contract, and on November 11, 1896, the plaintiffs brought this action. On the same day the plaintiffs entered into a written contract with the owner of the building, as follows: “We hereby agree to furnish and set up complete all marble work to complete contract in dormitory building as per plans and specifications and to the satisfaction of the architects for the sum of $1,177.50. Also one wood mantel in matron’s room same design as in parlor with tile facing and frame and summer piece, same cost as in bed-rooms for the sum of $125. The above amounts to be paid within ten days of date of completion of work.”</p> <p>This contract included a marble architrave, marble step and riser, and labor of setting same, — in all $125, — not included in the contract between the plaintiffs and the defendant. The plaintiffs having received from the owner $1,052.50 “ for doing what was necessary to complete their contract with the defendant, I find that, for work done and materials furnished under this contract with the defendant, the plaintiffs are entitled to recover the difference between the original contract price ($3,000) and the amount received from Mr. Smith, [the owner,] to wit, the sum of $1,947.50.” The plaintiffs also furnished for the building mantels, facings, and summer pieces at an agreed price of $1,225, and they are entitled to recover therefor that sum. It appeared that there was a large amount of cutting and fitting of marble necessary, partly on account of discrepancies between the measurements of the plans and of the rooms of the building as actually constructed, and partly on account of some changes in the building. “ I find that the fair value of this work was $350, and the plaintiffs are entitled to recover that sum therefor in this action.”</p> <p>“ The plaintiffs contended that under the first contract above mentioned (that for the marble work) they were entitled to recover the full contract price, $3,000, less the actual cost of completion, and that their right to recover in this action was not in any way affected by their contract with the owner for the completion of the original contract. If the court should be of the opinion that this contention is correct, I find that the actual cost of completing said original work was $717.27, and that the plaintiffs would be entitled to recover for work done and materials furnished under this contract $2,282.73, instead of $1,947.50 as above stated, the difference being $335.23, and that in that event the total amount which the plaintiffs are entitled to recover from the defendant is $3,857.73, with interest from the date of the writ less payments of $446.20.”</p> <p>As to the $3,000 contract, the plaintiffs asked Stevens, J., to rule as follows: The measure of damages is the difference between the contract price and the actual cost to the plaintiffs in finishing the work, after breach, according to the contract; and in that case the defendant cannot take any advantage of or derive any benefit from the contract between the plaintiffs and the owner. The judge refused so to rule; and ruled that the plaintiffs were entitled to recover $1,947.50 with interest and no more, as damages on the first or $3,000 contract. The plaintiffs alleged exceptions.</p>

<p>Complaint, for flowing lands under the mill act, Pub. Sts. c. 190. At the trial in the Superior Court, before Dewey, J., it appeared that the land of the plaintiff, including that damaged by percolation, consisted of from three to five acres (the evidence varying as to the precise amount), which was part of a tract of land lying between a highway on the south, from which the land was reached, and the bank of the river upon which the dam supporting the flashboards was erected on the north, containing some ten acres in addition to the amount flowed; and the entire tract was described in the complaint, and was a part of the plaintiff’s farm. It was used exclusively for farming purposes and had upon it no buildings or other structures.</p> <p>The plaintiff testified in his own behalf as follows: UQ. Now, going back to your own lot, you told us what the number of acres and tons of hay you were deprived of, what, in your opinion, was the damage done to the lot by the taking of that land ? In other words, how much less was the lot (referring to the entire tract) worth by reason of the five acres of hay that was being damaged by flashboards ? A. About $300.”</p> <p>One Chalk, a witness for the plaintiff, testified as follows:</p> <p>“ Q. How much less is that lot (referring to the lot described in the complaint) of John F. Rourke’s worth in the market with the six acres being taken away from it, being constantly flooded with water? A. The damage to the lot is whatever the value of the crop will pay the interest on. — Q. We want that in round numbers. How much is the damage to that lot by reason of the six acres that had been taken from it ? A. Well, with that taken away, of course the land has got that crop taken away, it reduces the value of the other, for the reason that it does not have the other crop to feed out and manure to put on the upper land.”</p> <p>These questions and answers were admitted against the defendant’s objections, and to the admission of each of them, except the last question to the witness Chalk and his answer thereto, the defendant duly excepted.</p> <p>The jury returned a verdict for the plaintiff in the sum of - $50 damages to the date of the verdict and $100 in gross; and the defendant alleged exceptions, which, Dewey, J. having deceased, were allowed by Maynard, J.</p>

<p>Contract, on a bond for SI,000- The ease was submitted to the Superior Court, and, after judgment for the defendants by Maynard, J., to this court, on appeal, upon agreed facts, the nature of which appears in the opinion. If the plaintiff was entitled to recover, judgment was to be entered for him for such amount as should be proper; otherwise judgment was to be entered for the defendants.</p>

<p>Appeal from a decision of the Court of Insolvency disallowing a claim of $869.69 for services as treasurer of the Warwick Cycle Manufacturing Company, presented by Alpha O. Very for the benefit of his assignee in insolvency. Hearing in the Superior Court on an agreed statement of facts, before Maynard, J., who allowed the claim and disallowed a certain larger claim which the assignees offered in set-off; and they appealed. If the appellees were entitled to set off against the appellant’s claim the amount due from Very and Osborn to the corpora- - tian, the appellant’s claim was to be disallowed ; if entitled to set off any portion of the amount, such portion was to be deducted, and the appellant’s claim allowed for the balance; otherwise the appellant’s claim was to be allowed in full. The facts "appear in the opinion.</p>

<p>Contract of Hiring — Construction — Length of Term of Service — „ Question of Fact.</p> <p>In this case, which was an action for breach of a contract of hiring, the letter from the plaintiff to the defendant agreeing to work for the defendant at a specified compensation “per year as per our conversation . . . to-day,” and the defendant’s letter of acceptance being silent in regard to the length of the term of service, it was a question of fact on all the evidence, applying the letters to the subject matter and to the circumstances under which they were written, what was the reasonable understanding of the parties as to the length of the term to which the contract applied.</p>

<p>Tort, for personal injuries occasioned to the plaintiff by jumping from a window in the defendant’s factory while she was in their employ. Trial in the Superior Court, before Maynard, J., who, at the close of the plaintiff’s case and at the request of the defendants, directed the jury to return a verdict for the defendants ; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Personal Injuries — Licensee — Liability of Owner of Premises on Private Way for Unsafe Condition not amounting to Trap.</p> <p>The owner of a way opened by him for his own convenience and the convenience of his tenants and those to whom he gives rights, the signs at the ends thereof informing all persons that they have not the rights enjoyed by the public in passing over public ways, and that they must pass at their own risk, is under no liability for the unsafe condition of the way caused by a mere failure to use ordinary care for the safety of licensees, while he is using the way for his own ' proper purposes and is not intending needlessly to expose others to danger.</p>

<p>Bill in .equity, to restrain the defendant from raising the water of the Chicopee River higher than it would be raised by the defendant’s permanent dam. Hearing before Knowlton, J., who entered a decree dismissing the bill; and both parties appealed to the full court. The facts appear in the opinion.</p>

<p>Tort, for trespass quare clausum fregit. The trespasses were alleged to have been committed on the premises of the plaintiff at its station in Wes thorough, between November 11, 1898, and April 21, 1899. Trial in the Superior Court, before Gaskill, J., who ordered judgment for the plaintiff for nominal damages; and the defendants alleged exceptions, which appear in the opinion.</p>

<p>Complaint, to the Central District Court of Worcester, alleging that on January 9,1900, the defendant “ did have in his possession with intent to sell within this Commonwealth a certain quantity, to wit, one pound of a certain product commonly called oleomargarine made partly out of an oleaginous substance, not produced from unadulterated milk or cream from the same, and that said product, in his possession as aforesaid, was then and there in imitation of yellow butter produced from pure unadulterated milk or cream of the same.”</p> <p>At the trial in the Superior Court, before Gaskill, J., the government introduced evidence tending to prove that on or about January 9, 1900, the defendant had in his possession with intent to sell a. certain article or compound; that said article or compound was delivered to the State’s chemist for the purpose of analysis, and that said chemist made an analysis of the same, and found it to be an article or compound made wholly or in part of fat oil or oleaginous substance not produced from unadulterated milk or cream; and that it was in imitation of yellow butter produced from pure unadulterated milk or cream.</p> <p>The defendant objected to the introduction of this testimony on the ground that the chemist did not before analysis reserve and seal a portion of the same as required by St. 1884, c. 310, § 4, which relates to the inspection and sale of milk and butter ; and the District Attorney admitted that after the trial in the District Court due application had been made by the defendant’s counsel for a portion of the sample, and that he had refused to deliver the same, because none had been preserved.</p> <p>The judge admitted the testimony, and ruled that St. 1884, c. 310, § 4, had no application to this complaint, which was brought under St. 1891, c. 58, as amended by St. 1896, c. 377, which relate to the manufacture and sale of imitation butter. The defendant duly excepted.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Tort, for personal injuries occasioned to the plaintiff, while 'in the defendant’s employ, by stepping'into a depression in the floor of the defendant’s mill. Trial in the Superior Court, before Lawton, J., who, at the close of the evidence of the plaintiff, refused to rule, as requested by the defendant, that the plaintiff could not recover, and submitted the case to the jury, who returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Breach of Written Contract— Consideration — Public Policy — Liquidated Damages.</p> <p>At the trial of an action of contract to recover a certain sum as liquidated damages for breach of an agreement not to sell below a stipulated price a proprietary medicine, purchased by the defendant of the plaintiff, it appeared that at the time of the sale, and as a part of it, a written statement of terms containing this agreement was read to the defendant and delivered to him; that one stipulation in it was that the acceptance of the goods with the .notice of the conditions of the sale should be an assent to the terms; that the defendant accepted the goods and expressed no dissent, the sale being made with a deduction from the full retail price, and that the defendant sold the goods so purchased below the stipulated price and broke his contract. Held, that the contract was made in the terms of the writing and upon sufficient consideration, that it was not contrary to public policy, and that the damages were liquidated.</p>

Three actions oe tort, for personal injuries occasioned to the plaintiffs by the alleged negligence of the defendant company in operating one of its cars on Shrewsbury Street in Worcester. Trial in the Superior Court, before Lawtogi, J., who allowed a bill of exceptions, in substance as follows. At the place of the accident there were double tracks. Cars passed frequently.

<p>Hyatt Light Bulkhead — Defect in Sidewalk— Due Care — Questions for Jury.</p> <p>At the trial of an action for personal injuries occasioned by an alleged defect in the sidewalk of the defendant city, it appeared that the plaintiff, in the forenoon of a bright day, without anything to distract his attention caught his foot near the corner of the main part of a Hyatt light bulkhead and hinge and fell and was injured; that the bulkhead consisted of two flat doors shutting together in the centre and opening upward and outward, being together about four and one half feet square; that there were to these doors four hinges, which projected from one and one half inches to one and eleven sixteenths inches above the level of the sidewalk; that the doors were even and level on top, and were from one and one eighth to one and one quarter inches above the other level of the sidewalk and were smooth and rounded at the edges, “ except that there was a right angle made between the hinge and the main part of the bulkhead extending upward from the level of the sidewalk, the height at the point where the plaintiff caught his foot being one and one half inches”; and that the rest of the sidewalk, “ except as affected by the bulkhead, was smooth and safe and convenient for travel.” Held, that whether the bulkhead constituted a defect in the sidewalk which the defendant city, in the exercise of reasonable care, should have remedied, was a question of fact for the jury, as was also the question of the plaintiff’s due care.</p>

<p> Devise on Condition subsequent. </p> <p>If, after a devise for an old ladies’ home, a testator provides that “ if any of this real estate is sold or used for any other purpose than said old ladies’ home it shall revert back to my nearest heirs,” but he does not endow the home, a delay of three years in opening and establishing it, and the letting of the property in the mean time to procure funds to pay taxes, insurance, and repairs, do not, under the circumstances, constitute a breach of the condition.</p>

<p>Personal Injuries — Defective Way — Action — Evidence.</p> <p>Under the corner of a sidewalk where two streets in a city met was a hole in the side of the curbstone for an opening into a catch basin, and in front of this, on the surface of the street, was an iron plate extending toward the centre of the street and sloping from its outer edge to the hole. An accumulation of snow and water had stood for two days in the street up to the level of the sidewalk. After dark a person mistook the water for a continuation of the concrete of the sidewalk, which it resembled, stepped off the corner, slipped on the iron plate, his foot going into the hole, and was injured. Held, that he coiild not maintain an action against the city for his injury.</p> <p>Where the configuration of a place at the time of an accident there is shown, in .an action for the injury received, by expert testimony, photographs, and a view, coupled with the defendant's admission and the evidence of witnesses that there has been no change, the exclusion of the testimony of a witness offered to show that the construction “ was not proper street construction ” appears to have been-, right.</p>

<p>Tort, for personal injuries, occasioned to the plaintiff while in the - employ of the defendant. Trial in the Superior Court, before Gaskill, J., who, at the close of the evidence for the plaintiff and at the defendant’s request, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion and in a note by the reporter.</p>

Tort, for personal injuries. Trial in the Superior Court, before Maynard, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Contract, to recover $50 as the balance due from the defendant on a conveyance of real estate by the plaintiff to him. At the trial in the Superior Court, before Lawton, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Bill in equity, filed March 15,1895, to compel the defendant Bemis to execute and deliver to the plaintiff a “withdrawal entry ” and such other papers as may be required under the laws of the United States to enable the plaintiff to pay the duties upon certain tobacco stored in bond and to withdraw the same from bond.</p> <p>The case was heard in this court before Holmes, J., who reported it for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Tort, for personal injuries. At the trial in the Superior Court, before Lilley, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which, Lilley, J. having resigned, were allowed by Bond, J. The facts appear in the opinion.</p> <p>The case was argued at the bar in March, 1900, and after-wards was submitted’ on briefs to all the justices,</p>

<p>Evidence — Question to Witness — Exception.</p> <p>A bill of exceptions which fails to show what reply was expected to a question put to a witness and excluded by the judge, or what the excepting party offered or expected to prove by it, does not disclose a good ground of exception.</p>

<p>Tort, for personal injuries sustained by the plaintiff while attempting to get on an open electric car. At the trial in the Superior Court, before Mason, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged, exceptions. The facts appear in the opinion.</p>

<p>Lease — Rent — Set-off for Storage — Chattel Mortgage — Statute — Attachment.</p> <p>At the time premises were leased there were in the shop a boiler and other articles, the property of a former lessee, which had been attached by the second lessee, he having obtained a license from the first lessee to use the same, while under attachment. The second lessee did so use them until a certain date, when the lessor, who had a mortgage upon the property from the first lessee, served upon the second lessee the notice provided by Pub. Sts. c. 161, § 75, informing him that the lessor held a chattel mortgage upon the property, stating the amount due thereon, and demanding payment thereof. On the day the notice was served, the second lessee notified the lessor in writing that he had dissolved his attachment, and also notified him to remove immediately the property from the premises; and the notice stated that he should charge the lessor from that day for storage, so long as the property remained on the premises, at a certain rate a day. The lessor did not remove the property, and it remained until after the expiration of the second lessee’s term. Before and while the second lessee was in possession, the lessor did not take advantage of any breach of the mortgage conditions, and had not instituted foreclosure proceedings. Held, in an action for rent under the lease against the second lessee, that he could not set ofi the claim for storage.</p>

<p>Tort, for personal injuries. At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Broker’s Commission for Sale of Real Estate — Failure to communicate Identity of Real Purchaser — Breach of Good Faith—Law and Fact.</p> <p>Under the circumstances of this case, which was an action of contract to recover a commission for the sale of real estate, it cannot be said, as matter of law, that the identity of the real purchaser was a fact so material that the failure of the plaintiff to communicate it to the defendant was such a breach of good faith as to preclude a recovery by the plaintiff.</p>

<p>Tort, for the unlawful killing of the plaintiff’s dog. The answer contained a general denial, and justified the killing on the ground that at the time of the killing the defendant was the duly appointed agent of the county commissioners for the county of Hampden under the St. of 1889, c. 454, and that what he did was done under the provisions of his appointment. The answer further averred that at the time the dog was killed it was not duly licensed, “ collared, and described according to law.” At the trial in the Superior Court, before Dewey, J., the jury found specially that the plaintiff was the owner of the dog; and returned a verdict in his favor. The defendant alleged exceptions, which, Dewey, J. having deceased, were allowed by Maynard, J. The nature of them appears in the opinion.</p>

<p>Fire communicated by Locomotive — Evidence — Finding.</p> <p>In view of the close proximity of a building to a railroad, alleged to have been burned by fire communicated by locomotive engines running on the railroad, of the uphill grade of the track westerly from that point and the consequent necessity for greater exertion by the engines, the usual and frequent passage of the trains by day and by night, and the evidence as to the passage of a train on the night of the fire and some time before it was discovered, the dryness of the weather, the absence of any other apparent cause for the fire (the house being unoccupied and having no stove or other article of furniture in it and the door being locked); and also in view of the evidence as to where the fire started, which would justify a finding that it started upon the shingled roof; and of the fact that engines had frequently emitted sparks in that vicinity which had caused fires, it cannot be said that the finding that the fire was communicated by the engines was not warranted.</p> <p>At the trial of an action for the loss of a house by fire communicated by locomotive engines, evidence concerning the emission of sparks at other times and of other fires thereby caused is admissible as tending to show the possibility, and, in the absence of any other apparent cause, the consequent probability, that some engine caused the fire.</p>

<p>Tout, for personal injuries. Trial in the Superior Court, before Bell, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Fire—Protective Department created by Statute — Liability for Negligence of Officers and. Agents acting honestly and in Good Faith.</p> <p>After having assumed to interfere for the protection of property from damage at a fire in the performance of their duties under St. 1875, c. 234, entitled “An Act to incorporate the Worcester Protective Department,” officers and agents may subject the corporation to a liability for their negligence in preventing the owner from saving his goods, or in failing to use reasonable care to protect them while keeping them in custody, even though they act honestly and in good faith.</p>

<p>Oral Contract after a Written One — Oral Evidence to vary Terms of Written Contract.</p> <p>While parties may make a new contract orally, immediately after signing one in writing, yet if, after the signing and at the same interview, they talk it over and attempt to explain and construe it, without any intent to modify it or to make a change, no new contract is made.</p> <p>To show by oral evidence that at some time before the contract in suit the parties had agreed to a limitation of the amount of the merchandise stipulated therein to be furnished would be to vary the terms of a written contract, and therefore inadmissible.</p>

<p>Writ on entry, to recover a tract of land situated in Leicester. Plea, general issue. Trial in the Superior Court, before Gaskill, J., who allowed a bill of exceptions, in substance as follows.</p> <p>The demandant claimed title through a deed to him on the premises by one Lanphear, dated March 11, 1899. Lanphear’s title came from a deed dated January 5, 1899, also delivered on the land, to him, by Kate Hanlon and her children, being the children and heirs of her deceased husband, John Hanlon. The tenant claimed title through a lease from the heirs of one Olney, deceased, dated December 9,1898. The paper title was shown to be in the heirs of Olney by a series of conveyances beginning with the deed of one Burr to Buchanan, June 4,1863. The demandant claimed that John Hanlon or his widow, Kate Hanlon, or his heirs who signed the deed to Lanphear, had acquired a title to the premises by possession for twenty years.</p> <p>There was evidence tending to show that John Hanlon entered upon the premises about the year 1864, cut the wood and timber, and thereafter occupied the same for a garden and for pasturing his cow and for other purposes, the evidence tending to show that this occupation was exclusive and continuous. There was evidence tending to show that John Hanlon entered upon the premises either in pursuance of a verbal gift of the land to him by Samuel L. Hodges, c$ by a permission to occupy the same granted to him by Hodges, who became owner of the premises by a deed from Patrick Hanover, dated October 30, 1865, and Hodges conveyed the same to one Gilbert and others on October 19,1866. John Hanlon died in 1873, and thereupon his widow continued to occupy the premises in the way in which her husband had done, and in the way in which she occupied the adjoining farm, the title to which was in John Hanlon at the time of his death. Some of her children, ‘the heirs of John Hanlon, lived with her and worked on the premises in question. The evidence tended to show that this occupation of John Hanlon during his life and that of Kate Hanlon was open and continuous and exclusive, and the principal question in controversy was whether the occupation was under a claim of right or under a license or permission from Hodges. Kate Hanlon testified, and some of her children testified, and there was evidence tending to show that the occupation was under the claim that Samuel L. Hodges had given the land to John Hanlon, and that Kate claimed to occupy it as her own because Hodges had given it to her husband.</p> <p>This evidence was controverted by the tenant, who put in evidence that said Kate Hanlon had stated that Hodges had given to her husband and herself the right to occupy the premises and the right to cut the grass, etc. The deeds from Burr to Buchanan, from Buchanan to Hanover, and from Hanover to Hodges, reserved a right to the Leicester Reservoir Company, whose pond bordered on the premises, to take 'material for its dam from the premises; and there was evidence that an employee of the Leicester Reservoir Company had crossed the premises and had torn down a fence within twenty years, which had been put up by Kate Hanlon, and that thereupon Kate Hanlon had restored the fence. After the employee had torn it down the second time she left an opening where he could go through, and thereafter the fence was left undisturbed.</p> <p>There was no evidence, except such as may be inferred from the evidence herein stated, that any of the owners of the paper-title of the laud, except Hodges, had ever given any license or permission, or had any knowledge of any license or permission, to John Hanlon or Kate Hanlon, or the heirs of John Hanlon, to occupy the premises.</p> <p>The demandant asked the judge to instruct the jury as follows : 1. If the owner of the land verbally gave the land to John Hanlon, and thereupon Hanlon entered on the premises and occupied them continuously till his death, claiming to own them, and was not interfered with in said occupation, and immediately upon his death his widow continued to occupy the same continuously in the same way, and the whole period of such continuous occupation amounted to twenty years, the jury would be authorized to find that the title was in Mrs. Hanlon, or in her and the heirs at law of said John Hanlon, and that the title passed to the demandant by virtue of deeds which were annexed as exhibits A and B. 2. If the occupation of Mrs. Hanlon has been sufficient to give a title, under the rules of law given you, but for some license or permission which might qualify such occupation, then the said license or permission must appear to be a license or permission granted by the owner before or at the time the occupation is going on, or in force during the. time of such occupation. 3. Any license or permission given by Hodges during his ownership is, in itself, of no legal importance, as affecting occupancy by Mrs. Hanlon subsequent to the date when he parted with his title, and it could have no force in this case, unless there is evidence that the grantees of Hodges, while owners, renewed or adopted, or in some way intentionally continued or revived, such license or permission. 4. If the occupation of Mrs. Hanlon of the premises in question for twenty years was such that the real owner of the premises could have sued her for trespass for such occupation, then said occupation was adverse within the meaning of the law. 5. On the evidence in the present case the occupation by Mrs. Hanlon of the premises in question, cultivating the same, cutting the hay and grass on the same, and pasturing her cow thereon, was such occupation as would support an action of trespass on the part of the owner of the estate, in the absence of any license or permission given by the person who owned the premises at the time of said occupation.</p> <p>The judge refused to give the instructions in the form requested, but after general instructions as to adverse possession instructed the jury, in substance, that if Hanlon’s occupancy was not by gift, but by permission only, he did not acquire any right against the owner of the land; that the right of Hodges to continue that permission ceased, as matter of law, with the deed given by him on October 19, 1866; that if Hanlon, wife or children, continued to occupy on the belief that the permission continued, no right could be acquired, but that if the occupancy was on the belief that the land was theirs, and continued twenty years uninterruptedly, being adverse and open, a title would be acquired. He further instructed them that, if the first occupation by the father was adverse and the children continued their occupation, they could add the time of their occupation, if they claimed title, to that of their father, but, if not, then, if the mother’s belief was that Hodges had given the land to her husband, her uninterrupted occupation for twenty years, if adverse and open, would give a good title; and that if the occupation by Mrs. Hanlon or the heirs was exclusive, except as to the right reserved to the Leicester Reservoir Company, it was sufficient, because that right was reserved by the deed and exercised thereunder.</p> <p>The demandant excepted to the refusal to give the instructions prayed for, and to the actual instructions given so far as they differed from the instructions prayed for.</p> <p>The jury returned a verdict for the tenant; and the demand-ant alleged exceptions.</p>

<p>Tort, under the employers’ liability act, St. 1887, c. 270, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Lawton, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Bill in equity, filed in the Superior Court, to restrain the defendant from obstructing a right of way claimed by the plaintiffs in and over certain premises in Boston known as “ Goldsmith Place.” The following is a copy of the plan. Lots 6, 7, 8, 9,10, which do not appear on the plan, are continuations in a straight line of lots 4 and 5.</p> <p>A decree was entered “ that the plaintiffs have a right of way over and across Goldsmith Place to and from Centre Street and lots numbered thirty, a strip of land twelve feet wide across the rear of lots four and five, lots six, seven, eight, nine and ten, on a plan of land known as Robinwood, Jamaica Plain, dated</p> <p> </p> <p>December first, 1893, which plan is duly recorded in the Registry of Deeds for said county, being the land set out and described in the plaintiffs’ bill, and said defendant is to forthwith take up and remove from across said way any and all obstructions which he may have placed therein, and an injunction is to issue perpetually restraining and enjoining said defendant, his agents and servants, from in any way obstructing such use by the plaintiffs of said way, known as Goldsmith Place, and plaintiffs are to recover their costs of suit to be taxed by the clerk, and execution is to issue therefor in common form.”</p> <p>The defendant appealed to this court. The facts appear in the opinion.</p>

Tort, for personal injuries occasioned to the plaintiff by a chip of iron striking his eye while he was engaged in the defendant’s employ in driving a bolt into the hub of a fly-wheel. The accident occurred between four and five o’clock in the morning in the power-house of the West End Street Railway Company. At the trial in the Superior Court, before Bond, J., the jury returned a verdict for the plaintiff ; and the defendant alleged exceptions, which appear in the opinion.

<p>Personal Injuries — Examination of Plaintiff by Physician, on Application of Defendant.</p> <p>At the trial of an action for personal injuries, the defendant, who denied the injuries, was permitted, two days before a second trial, to send two doctors who made a thorough examination of the plaintiff in company with the doctors employed by the plaintiff. After the plaintiif had closed his case, and the defendant had called his two doctors as witnesses, he asked the judge to order the plaintiff to submit to an examination by another doctor named by him. The plaintiff objected on the ground that his relations with that doctor were unfriendly, but offered to allow an examination by any other physician whom the defendant might select. The defendant declined the offer, and thereupon the judge refused to make the order, ruling that he had no power to make it " under these circumstances.” The defendant then attempted to make evidence for himself by sending the doctor objected to by the plaintiff to the house of the latter to ask leave to examine him. The plaintiff refused. Evidence of the request and refusal, coupled with evidence that the doctor was a competent man, was excluded'. Held, that the defendant had no ground of exception.</p>

<p>Contract, upon the following agreement: “ $2,500. We, the undersigned, hereby agree to refund to John G. Williams the twenty-five hundred dollars which he has this day invested for a one fourth interest in the Surety Rupture Company of Kittery, Maine, and Boston, Mass., if he so elects or desires, and assigns said stock to the undersigned, one year from the date of this paper, April 8th, 1898. (Signed) J. E. Patrick, S. S. Carpenter.”</p> <p>At the trial in the Superior Court, before Pierce, J., the plaintiff requested a ruling that, if the stock was valueless one year from the date of the contract, a tender of the stock on that date was not necessary to entitle the plaintiff to recover; that, if any tender of such stock was necessary, it was sufficient if tendered within a reasonable time from one year from the date of the contract, unless it appeared that the defendant was put to loss by failure of the tender, and that no tender was necessary if at the expiration of the contract it could be shown that the stock was valueless; and that on the evidence the jury would be authorized to find that the defendant had waived his right to a tender of the stock, and that the plaintiff was excused from making a further tender. The judge refused so to rule, but did rule that a tender by the plaintiff of the stock purchased by him should have been made on April 8, 1899, as a condition precedent to his right to recover; that there was no evidence sufficient to warrant a jury in finding that the defendant had waived his right to a tender, or that the plaintiff was excused from making such tender, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

Tort, under Pub. Sts. c. 102, § 93. At the trial in the Superior Court, before Hophins, J., the defendant requested the following rulings: 1. Upon the evidence the plaintiff cannot maintain her action. 2. If the plaintiff was injured while trespassing upon the defendant’s premises, and her trespass contributed to her injuries, she cannot recover. 3.

Petition, by the surviving trustee, for instructions as to the construction of the will of David S. Godfrey.

<p>Personal Injuries — Duty to instruct which cannot he delegated.</p> <p>While it may be said that the plaintiff in this case, which was an action for personal injuries caused by the bounding back o£ a block which he had pushed against a circular saw, knew that there was some danger in working on the saw, yet he had no knowledge that there was danger of the piece of wood bounding back; and this danger the jury might well have found was known to the defendant, who was bound to see, before the plaintiff was set to work up,on the machine, that he was duly instructed on this point; and this was a duty which could not be delegated.</p>

<p>Location by a Street Railway Company in a Public Highway — Petition for Damages — Action against City.</p> <p>If, on the granting to a street railway company of a location in a public highway, it appears that all the work was done by the company and in accordance with the decree granting the location, that in granting the location and in imposing reasonable restrictions and seeing that they were complied with the board of aldermen acted not as the agents of the city but as public officers, that in so far as the superintendent of streets had anything to do with the work he acted under the decree and not as the agent of the city or as the surveyor of highways, and that there was no change made which was not required expressly or impliedly by the decree, the work was done for the purpose of constructing, maintaining, and using the railway and not for the repair of the highway, and it was not done by the surveyor or other person intrusted with making specific repairs within the meaning of Pub. Sts. c. 52, § 15; and the abutting landowner cannot recover damages against the city, in the absence of a statute remedy, by a change of grade in an existing highway.</p>

<p>Tort, for personal injuries, under the employers’ liability act, St. 1887, c. 270, occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Q-ashill, J., who, at the close of the plaintiff’s case, directed the jury, at the request of the defendant, to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p> Whether Evidence justified a Finding that Personal Injuries were caused by Fright. </p> <p>At the trial of an action for personal injuries, it appeared that the plaintiff was driving in the early morning in a “ low down ” wagon across a grade crossing on a public street, when the horse was struck by a rapidly moving railroad train and killed, and the wagon demolished, and that he jumped from the wagon to save his life, and, landing on his feet, was not hit by the train. He testified that at the time the “ breeze was so hard ” that it “ kind of twisted ” him half way around or more; that he felt dizzy and nervous; that in the afternoon of the same day he went to bed and sent for a doctor, and was confined to the house about three weeks; and that during all that time he felt sick all through his body, — “ kind of pains in [his] side and heart,” and that he “ was troubled with [his] water a few days after that.” There was evidence that he was a well man before the accident, but that since that time his heart had been affected and he had been unable to attend to his business. His physician testified that in his judgment the cause of the trouble was a “ shock to the nervous system ”; that the heart was weak, the trouble being functional and not organic; that he could not find in the books any explanation of the cause of the weakness, and that he should judge the plaintiff to be about forty-five or fifty years of age. It did not' appear that there were any external signs of injury upon the plaintiff’s body. Held, that the evidence would warrant a finding that physical injury other than that caused by fright was suffered by the plaintiff.</p>

<p>Replevin — Delivery — Title — Bailee — Sale — Action.</p> <p>While there was evidence in this case, which was an action of replevin, to show a sufficient delivery of the property to P., a third person, to pass the title, the defendant, a bailee of the plaintiff, having been notified of the sale, there was also evidence from which the jury might have found that, when the defendant refused to deliver up the property after the plaintiff tendered him all that was due under the bailment, the plaintiff and P. rescinded the sale, and that the title to the property was in the plaintiff when this action was brought; or the jury might have found, on the evidence, that the absolute sale was by agreement of parties changed into a conditional sale, the condition being that the plaintiff should recover possession of the property. In either case the plaintiff would be entitled to maintain the action, the fact that the money paid for the property was not returned making no difference, as the evidence showed that the plaintiff offered to return the money to P., and that the latter told him if he could get the property for him he [the plaintiff] might keep the money.</p>

Two libels foe DIVORCE upon the ground of desertion. Trial in the Superior Court, before Lawton, J., who granted a divorce upon the libel of Dana L. Fuller, and dismissed that of Josephine E. M. Fuller; and she alleged exceptions, in substance as follows. The parties were married on November 28, 1894. At that time Fuller, who was a widower, lived with his three daughters and his sister at his home in Fitchburg.

Contract, to recover for five hundred and thirty loads of sand. At the trial in the Superior Court, before Richardson, J., the jury found for the plaintiff at the price of fifteen cents a load ; and the defendant alleged exceptions, which appear in the opinion.

Tort, for personal injuries received in Brockton on September 13, 1897, as the result of a collision between a car of the defendant company and the carriage in which the plaintiff was sitting.

<p>Death — Due Care of Mother and of Boy — Law and Fact.</p> <p>At the trial of an action to recover for the death of a hoy four years and seven months old, it appeared that he was killed on a grade crossing by one of the rear cars of a freight train which had broken apart before reaching the crossing, and that the forward part of the train had gone by, leaving an interval of from thirty-two feet to two hundred yards; that his mother was a poor woman and alone in the house; that five minutes before the accident she left the boy eating on her front doorstep, with her two other children aged nine and seven, told them to sit down and stay there, and went in to her washing; that the house was about two hundred feet from the track, which was straight, and the earth . was banked upon the side so that cars could not be seen until one was very near; that the children, or the boy and his sister, went toward the track, and according to her the boy went on the track and took off his hat and said goodby to the part of the train that had passed, and that she called to him to come back, saying the cars were coming, and he replied, “ Why, the car has gone by, ... it is passed now, and so there is no more.” Held, that it could not be said, as matter of law, that the boy was not exercising the care of a prudent boy of his years, or that the mother was negligent.</p>

Tort, for personal injuries occasioned to the plaintiff while in the defendant’s employ. Trial in the Superior Court, before Fessenden, J., who, at the request of the defendant, directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.

<p>Contract, for money had and received. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion. If the ruling was wrong, judgment was to be entered for the plaintiff in the sum of $1,000 with interest from the date of the writ; otherwise, judgment was to be entered on the verdict.</p>

<p>Tort, for the alleged unlawful killing of the plaintiff’s dog while engaged in killing the defendant’s hens on the defendant’s premises. At the trial in the Superior Court, without a jury, the judge found for the defendant; and the plaintiff alleged exceptions, which, not having been signed by the judge who tried the case, because of his resignation, were allowed by Bond, J. The facts appear in the opinion.</p>

<p>Mechanic’s Lien — Contract of Contractor and Owner — Provision qs to postponing Payment until all Claims are discharged.</p> <p>The contention in this case, which was a petition to establish a mechanic’s lien brought by the contractor against the owner of the premises, that a provision in the contract postponing the final payment until thirty-two days after the work is entirely completed, and requiring payment only on sufficient evidence that all claims upon the building for work or materials are discharged, is inconsistent with the existence of the right on the part of the contractor to secure the payment of his dues by claiming a lien, cannot avail, as the purpose of the provision is to protect the owner from a liability under liens, after making full payment for the work and materials to the contractor, there being no reason for such a provision in reference to the claim of the contractor to he paid under the contract, and, there being no other liens than his, payment to him oí the amount due under the contract would leave the property free from all liens or claims, and accomplish the purpose of this provision.</p>

<p> Correction by Jury of Mistake in Verdict. </p> <p>The foreman of the jury having signed the wrong paper, but not having filled in the blanks, it read as a verdict for the plaintiff, without any statement of the amount of damages. On inquiry by the judge, it was ascertained that before separating the jury found for the defendant, and that the foreman had signed the wrong paper. The jury were then told that if they wished they might retire and correct any mistake. They did so, and brought in a verdict for the defendant. Held, that the proceedings were within the authority of the court.</p>

<p>Contract, on a poor debtor’s recognizance under Pub. Sts. c. 162, § 28, entered into after an arrest on execution, by Frank A. Pierce as principal, and Benjamin C. Davis as surety. Trial in the Superior Court, before Hardy, J., who, having found for the plaintiff and assessed damages in the sum of $235.86, reported the case, at the request of the defendants; for the determination of this court. If the plaintiff was entitled to recover, judgment was to be entered upon the finding; otherwise, for the defendant. The facts appear in the opinion.</p>

<p>Wagering Contract — Statute — “Agent or Employee ” — “ Ollier Party to the Contract ’ ’ — Intention not to perform.</p> <p>The finding, in an action under St. 1890, c. 437, to recover for payments made by the plaintiff upon certain alleged wagering contracts, that the defendant acted wholly as the agent or employee of another and not as agent or employee of the plaintiff, disposes, in respect to the transactions, of any right of recovery which the plaintiff might have had under the statute against the defendant as the person employed by him; and the defendant is not to be regarded as “ the other party to the contract ” within the meaning and intent of the statute.</p> <p>If A. requests B. to contract for shares of stock in B.’s name, the same to be carried on margin for the use and benefit of A., and B. consents, and contracts with M. & Co., a firm of brokers, for the stock in his, xB.’s, name, the same to be carried on margin, and A. gives B. money from time to time to pay on and carry the shares, and B, gives him receipts therefor signed by himself, stating that the money was received as margins on the shares “ being carried on margin with M. & Co.,” and it is found that B. was not the agent or employee of M. & Co., and that the understanding between A. and B. was that the service rendered was a friendly act without compensation, for the accommodation of A., who did not wish to buy in his own name, and it is also found that, at the time of the several payments, A. and B. had no intention to perform the contract by the actual receipt of the shares and the payment of the price, there was no employment of B. by A. within the meaning of St. 1890, c. 437, entitled “An Act relative to wagering contracts in securities and commodities.”</p>

<p>Contract, to recover damages for breach of an alleged agreement to repurchase certain bonds sold by the defendant to the plaintiff. Writ dated April 28, 1897.</p> <p>The declaration was as follows : “ And the plaintiff says that on or about the ninth day of August, 1888, the defendant wrote a letter to the plaintiff, a copy whereof is hereto annexed, whereby the defendant offered to sell to the plaintiff certain bonds of the St. Louis, Kansas, and Southwestern Railroad Company, at the price of one thousand and five dollars per bond, and accrued interest, and further offered that if the plaintiff should purchase said bonds of the defendant, the defendant would agree to repurchase the same of the plaintiff at the same price at any time, and the plaintiff accepted said offer and purchased said bonds of the defendant, and paid the' defendant the said price therefor; and the defendant thereupon became bound to the plaintiff to repurchase said bonds at said price at any time in accordance with said offer, and thereafter the plaintiff finding a more favorable investment, requested the defendant to repurchase said bonds at said price, and the defendant has repurchased a portion of said bonds at said price, but refuses to repurchase ten of said bonds of the plaintiff in accordance with said agreement, and said bonds are of no value, and the defendant owes the plaintiff the sum of ten thousand five hundred dollars ($10,500); with interest thereon from July 1, 1894, when the defendant refused to repurchase the same.”</p> <p>The following is the material portion of the letter: ‘ ‘ The St. Louis and Southwestern bonds, of which I also enclose copy, I took the entire issue, $735,000, and have disposed of all save $65,000 ; they have been selling at 106 and Int. I will let you have $25,000 at 105 and Tnt. and if at any time you should care to sell them, in case a more favorable investment can be found, I will take them of you at the same price, this will insure you at all events perfect safety and income, and if the bonds are held you can realize 110 to 112 for them.”</p> <p>The answer contained a general denial and set up the statute of limitations.</p> <p>Trial in the Superior Court, without a jury, before Bond, J., who found for the plaintiff in the sum of $13,961.43 ; and the defendant alleged exceptions, in substance as follows.</p> <p>The defendant was a stockbroker who sold to the plaintiff $20,000 of St. Louis, Kansas, and Southwestern Railroad bonds in 1888 and 1889, agreeing to take them back at any time at the same price in case a more favorable investment could be found: The defendant subsequently took back $10,000 of the bonds when requested, but later refused to take back the balance, and this action was brought to recover damages for breach of the agreement.</p> <p>On August 9, 1888, the defendant wrote the letter annexed to the declaration, and in September the plaintiff told the defendant that he had received the letter. The defendant said they were the best bonds he knew of, and the plaintiff bought ten of them, and stated that he could not take as many as $25,000 at that time, as he did not have money enough to take all the defendant offered; that he would have more money coming in later and then would take some more of them ; that he was not quite certain when he would get it, but knew he could get it within eight or nine months, and the defendant agreed to it, and at this time repeated his promise to take back the bonds at any time.</p> <p>During the following winter the plaintiff told the defendant he was going to make a voluntary trust for his mother; that he was going to put some of these securities into the trust, and therefore wanted the best, and the defendant advised these bonds and reiterated his promise to take them back at any time, and on May 10 the plaintiff bought ten more of the bonds.</p> <p>The plaintiff made the trust for his mother because she was dependent upon him for support, and put in the ten bonds bought in May. Under the trust one Weeks was trustee for his mother for her life, and the trust terminated on her death. The plaintiff had absolute control over the bonds, and they have always been in his possession, so he could tender them back to the defendant.</p> <p>In the summer of 1889 the plaintiff went to Europe, and remained there until 1892. On October 21, 1889, he wrote the defendant, asking him to take back ten of the bonds; and in November, 1889, the defendant took back these ten bonds at the same price that the plaintiff paid for them, stating on the 2d of that month, in a letter to Weeks, “I buy of him [Lydig] 10,000 of the . . . bonds . . . @ 105 & interest.” In 1890, in Europe, the plaintiff saw the defendant, inquired about the bonds, and suggested that if he could find a better investment he would like to have the defendant take them back. The defendant said that they were an excellent security, nothing could be better in the world than they were, and that he had a great many of them himself, and repeated his promise to take them back at any time.</p> <p>On August 20 and on August 27, 1890, the plaintiff wrote to the defendant asking him to take back the bonds, and in reply the defendant wrote to the plaintiff on September 8,1890, the following letter:</p> <p>“ Yours of the 20th reed, yesterday. With regard to your bonds they are the best security I can commend to you as since the Atchison bought the road the bonds are doubly secure as they have the Atchison now behind them and this is placed now on a solid basis being one of the most powerful corporations of the West, these bonds are assumed by the Atchison and come in ahead of $80,000,000 of income bonds on which they are earning 5 % and 1,000,000 shares of stock which sells at 43, so unless the Atchison goes to pieces, which is impossible, these bonds are perfectly good. In fact they are on a parity with the Atchison 4’s which sell at 85 and pay 5 % and which have been largely bought by London and the Continent by the best houses in Europe for their largest and most conservative clients. Still if you like instruct Weeks to send us the bonds and we will give you cheque for them any time. Still I know of nothing so good as instead of getting 6 % really you can only get but five on bond and mortgage.”</p> <p>After the receipt of this letter the plaintiff wrote to Weeks, cancelling instructions which he had given him to deliver the bonds to the defendant. The plaintiff returned to this country in 1892 and saw the defendant several times about the bonds, and the defendant advised the plaintiff to keep them. The interest on the bonds was defaulted in the autumn of 1894, and thereupon the plaintiff again asked the defendant to take back the bonds ; and the defendant told the plaintiff he was bringing lawsuits to protect the bonds, and there was no doubt he would win the suits and the bonds would be just as valuable as they were before, and thereupon the plaintiff let the matter rest until December 19, 1895, when he made written demand upon the defendant, receiving in reply a refusal to comply with the demand.</p> <p>At the close of the evidence the defendant requested the following rulings: 1. The offer contained in the defendant’s letter of August 9,1888, remained open only for a reasonable length of time. 2. In view of the whereabouts of the parties and the amount and nature of the securities offered for sale, the offer of August 9, 1888, did not remain open until October 1, 1888. 3. The offer of August 9,1888, did not remain open until May 10, 1889. 4. The offer of August 9, 1888, could be accepted only in its terms. 5. A purchase of $10,000 worth of bonds, or of $20,000 worth of bonds, was not an acceptance of the offer of August 9,1888, to sell $25,000. 6. If the plaintiff bought the bonds merely as agent for another, he has suffered no damage, and cannot recover any in this action. 7. If the plaintiff, after buying the bonds, disposed of them-while at the same price at which he bought them, he has suffered uo damages. 8. If the plaintiff in August or September, 1890, made a demand upon the defendant to repurchase the bonds at their purchase price, and this demand was not complied with, his cause of action, if any, accrued at that time. 9. A cause of action accruing in 1890 was barred by the statute of limitations before the date of the writ in this case. 10. There is no evidence to warrant a finding for the plaintiff.. 11. Upon the undisputed facts, the plaintiff cannot recover. 12. If the plaintiff did not own the bonds at the time he requested the defendant to buy them back, he cannot recover in this action. 13. An offer to take back bonds “ at any time,” means only within a reasonable time. 14. The request to have the bonds taken back was not, under all the circumstances, made within a reasonable time.</p> <p>The judge found as a fact that, at the time of the sale of the bonds, September 28, 1888, and May 10, 1889, it was understood by both parties that the sale was under the terms and conditions of' the offer of August 9, 1888.</p> <p>The judge ruled that the agreement of the defendant to take back the bonds contemplated, that the bonds were to be held by the plaintiff as an investment until such time as he could make a more favorable investment of the money paid for them, and until such time the agreement to take them back was binding on the defendant.</p> <p>The judge also found as a fact that the defendant, by his statements to the plaintiff as to the value of said bonds, persuaded the plaintiff to retain them as the best investment he could make, until December 19, 1895, when he made a formal demand on the defendant to take them back under the defendant’s agreement, and the defendant refused.</p> <p>The judge gave the fifth, sixth, seventh, ninth, and thirteenth rulings requested by the defendant, and declined to give the first, second, third, eighth, tenth, eleventh, twelfth, and fourteenth, and modified the fourth ruling requested by adding at the end thereof the words “ except by agreement of parties.”</p>

<p>Sale of Liquor by Innholder to Guests after Eleven at Night — Statute — Punctuation as an Aid in Construction.</p> <p>Under the statutes of this Commonwealth an innholder cannot legally sell spirituous or intoxicating liquor to his guests between the hours of eleven at night and six in the morning.</p> <p>Although it has been held that punctuation may be disregarded, it may be resorted to as an aid in construction when it tends to throw light on the meaning.</p>

<p>Contract, in writing, for the building of a house. The case was. submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the nature of which appears in the opinion.</p>

<p>Equity — Demurrer — A negations — Copyright.</p> <p>A bill in equity alleged that for many years the plaintiff had been engaged in the business of selling ready made clothing and other articles, under the name of the “ Manufacturers’ Outlet Company,” and liad widely advertised this business in Rhode Island and especially in southeastern Massachusetts, and by such advertising and by his methods of carrying on business had established a large and .. well known trade and earned a wide reputation; that he had caused this name to be copyrighted under the laws of the United States as a trade-mark, to be used on goods to be sold by him; and that the defendant, fraudulently seeking to deceive and mislead the public to his own advantage, had established in T., in southeastern Massachusetts, in a neighborhood from which a considerable part of the plaintiff’s trade was drawn, a shop for the sale of goods similar to those sold by the plaintiff, and had advertised his business under the name “ T. Outlet Company,” and was thereby deceiving the public and-diverting trade from the plaintiff. Held, that, if all that was stated in the bill was true, the defendant was wilfully and wrongfully trying to avail himself of that which did not belong to him, but which belonged to the plaintiff and was valuable.</p>

<p>Personal Injuries occasioned to Person visiting Freight-house of Defendant Railroad on Holiday — Negligence.</p> <p>At the trial of an action against a' railroad corporation for personal injuries, it appeared that a comrade of the plaintiff had occasion to go to the defendant’s freight-house from his father’s store to carry some eggs for shipment by the defendant’s road; that the plaintiff went with him as a volunteer to assist him; that the freight-house door was locked and no freight was being received on that day, though the plaintiff did not know this; that the plaintiff took hold of the chain with which the door was locked and shook and rattled it to see if he could not get in; and that, as he turned away, a piece of iron weighing about seven hundred pounds, which stood on the platform nearly upright leaning against the side of the house, fell on him, causing the injuries complained of. The accident happened on February 22,1899, and the piece of iron had stood there since November 11 preceding. Held, that there was no evidence that the fall was caused by negligence on the part of the defendant.</p>

Bill in equity, to enjoin the defendants from going upon the station premises of the plaintiff company to solicit incoming passengers and their baggage; from interfering with the carrying ont of a contract between the plaintiff and one Williams ; and requiring them to pay damages incurred by their trespassing, and costs.

Bill in equity, filed March 30,1900, to restrain the defendants, John C. Stewart, Elmer E. Hill, Joseph P. Burlinghame, and Supreme Commandery, United Order of the Golden Cross of the World, from proceeding with the consideration of certain charges made against the plaintiff corporation.

<p>Petition, by Frank F. Corliss, to the Probate Court to admit to probate by copy the will of Sarah E. T. Corliss, on the ground that the original will had been lost or destroyed since the death of the testatrix by some person other than the petitioner. The Probate Court allowed the will in accordance with the copy propounded, and appointed Warren E. Tarbell administrator with the will annexed; and the respondents appealed to this court, where the following issues were framed for a jury:</p> <p>“ First. Did Sarah E. F. Corliss, late of Brookfield, deceased, leave a last will duly executed, uncancelled, and unrevoked at the time of her death, of which the paper annexed hereto is a copy?</p> <p>“ Second. Was said will lost, cancelled, suppressed, or destroyed by some person other than Frank F. Corliss since the decease of Sarah E. F. Corliss ? ”</p> <p>The case was sent to the Superior Court for the trial of the issues. At the trial in that court, before Hopkins, J., the jury answered both questions in the affirmative. The respondents alleged exceptions, which appear in the opinion.</p>

<p>Contract, with a count in tort, to recover the amount of a judgment recovered by one Lucas against the inhabitants of Rockport, for injuries received by him while travelling upon a highway in said town by reason of a defect in the highway, together with certain expenses incurred by the town in the defence of said action. Writ dated June 3, 1897. Trial in the Superior Court, before Bishop, J.</p> <p>It appeared at the trial that Lucas was injured February 26, 1895, while travelling on a street in the plaintiff town, by coming in contact with the guy of a derrick stretched across the way. He recovered judgment against the town on the ground that the guy constituted #a defect in the way. The town contended that the defendant was responsible for the guy rope, and gave the defendant notice to defend the suit of Lucas.</p> <p>The guy rope was suspended from a derrick in a ledge upon land which belonged to one Canney prior to October 26, 1894. On that day Canney, by a written agreement, agreed to convey the land and quarry to the defendant in fee, transferring immediate possession. Subsequently Canney conveyed the land and quarry to the defendant in fee by two deeds, one dated February 9, and the other February 11, 1895.</p> <p>It appeared that at the times of the agreement and conveyances mentioned one Littleback operated a “ motion ” upon the premises, originally held from Canney, and had erected there the derrick, which he hired from the defendant; that afterwards this “ motion ” was transferred to one Hill, who operated it at the time of the injury to Lucas, and the defendant contended, that by reason of Hill’s possession and control under the “ motion” the defendant had not such control of the derrick and guy rope as to render it liable.</p> <p>Hill was quarrying stone on the land, cutting it into paving blocks, for which the defendant paid him $33 a thousand, deducting $2 a thousand for “ stumpage,” so that he received $31 a thousand for the blocks. Hill paid the defendant $2.50 a month for the use of the derrick.</p> <p>The following extracts are from the testimony of one Rogers, the treasurer and general manager of the defendant, who testified as a witness for the plaintiff, and was the most important witness as to the nature of a “ motion ” at the Rockport granite quarries.</p> <p>Rogers testified that he was treasurer and general manager of the defendant, and had been since October, 1881.</p> <p>On cross-examination he testified that Canney was superintendent of the Canney division of the defendant’s property, that this division included the purchase made from Canney by the defendant. The purchase from Canney was of approximately ninety acres, and after the sale Canney was superintendent of approximately ninety acres. In those ninety acres there were some twenty to twenty-five motions.</p> <p>“ Q. Desci’ibe what is a motion? A. Well, a man wants to cut paving blocks and we set apart that territory for motions to be worked upon. He comes and applies for a chance to work a motion on the quarries, on that land, and we give him opportunity to locate the place anywhere he sees fit on that land, he furnishing his own tools and doing all the work, and we pay him a stipulated price, a price agreed upon for the blocks that he makes of the different kinds. We make several kinds of blocks, and the price is agreed upon that we will pay for each kind of blocks of the various kinds. I think the specifications give the length and thickness and depth, and he works that motion as he pleases, entirely without any dictation from us how he should work it, in what manner, what particular spot he shall clear off, where he shall cut his stone, where he shall put his holes, how much powder he shall use. He gets out his stone on his own motion, in his own way. We have no jurisdiction as to how he shall do that work. — Q. Who furnishes the derricks? A. Well, many of them own their own derricks, buy their derricks, and sometimes they rent derricks. They may rent a derrick of us or of some other person. — Q. Who puts the derrick up ? A. The man working the motion. — Q. Who decides how and where it shall be put up ? A. The man who puts it up, the man who works the motion. — Q. Did the company rent a derrick to John Littleback? A. I understand they did; yes, sir. . . .</p> <p>“ The defendant received rent for the derrick at $2.50 per month, from October 26, 1894, down to the time of the accident. The company did not erect the derrick. Neither the company nor any of its officers had any right to say how or where it should be put up. We never have taken that matter into our hands at all. . . .</p> <p>“ There is a good deal of work done by the motion man before he gets the blocks into such shape that they can be delivered to the company. The defendant had no right to say to Littleback or Hill anything about how fast he should do his work. He worked as he pleased. The defendant had no right whatever to say how he should quarry his stone. That was for him to decide, how he should work the stone. Had no right to say to him how he should place his derrick. The defendant was not bound to pay for the paving blocks until they received them; took them away and accepted them. If a man got a lot of stock out, but no paving blocks cut, the defendant would have no right to put him off the motion without paying him something for the work he had done. We would give him notice, we would not discharge him point blank after he had got a lot of stock ready.- I don’t understand that after the derrick was erected the company or any of its officers had any right to interfere with the derrick ; neither the company nor its officers had any control over it or its guys; I don’t so understand it. We pay a smaller price to a man quarrying on our land than if he were cutting on some one else’s land, because it takes the stone off the land and uses it up. This is for stumpage. That is, we pay a sum less equal to the stumpage. I do not understand that the company has control over the premises let out for a motion.”</p> <p>On re-direct examination the witness testified : “ If I owned a piece of quarry property and let some one occupy it for a motion, and all at once decided I would like to occupy it myself, I should go to the motion man and tell him I wanted to take the land into our own use, and if they had got some stones out ready to cut I would make an agreement with them as to what I should pay them for the work done. These motions are not let for any specified time. We do not claim the right to tell them to go or expect them to go whenever we want them to without paying them for the work they have done; I would n’t think that would be right. Whenever we have had occasion to do anything of that kind, a man that had any stone to work up, we have said to them we want to take possession here as soon as you have worked up the stone which you have ready. If I say to a man, 1 We want our premises to use ourselves,’ I expect him to go, unless I had an agreement with him to lease it for a year or a specified time. We do not give these motion men any lease of the premises used by-them. I am not in the habit of stating how long they shall stay, because they reserve the right to go whenever they want to, and that was about the way that Hill and Littleback were occupying this property of Canney’s. It is understood that when men cut blocks on our land we take the paving blocks. It is the custom all over Cape Ann, I think, that whoever owns the land has the prior right to the blocks. If a motion man takes our land and strips it, and a good quarry is discovered so that we would not. care to have him use the stone for paving blocks, we would tell him to leave, and agree with him about the price for work he had done there. There have been one or two instances where we paid the men and they have gone and taken another motion. Whenever we have wanted to take possession we have paid the men for the stock which they have worked up. When we bought the property from Mr. Canney, by dealing with them fairly I could compel them to leave, but I could n’t go to the men there who were working motions and tell them to get off the land. I do not consider that I had anything to do with the derrick or guy while the man was operating it.”</p> <p>Evidence was introduced by the defendant tending to show that Lucas at an earlier hour on the day of the accident had driven over the same road and under the same guy with the same team without injury, and that in doing so some portion of his load had knocked the guy rope out of the prop which held it above the highway, and that it remained in this condition until he received his injury by driving under the same guy on bis return in the evening. This testimony was contradicted by witnesses for the plaintiff.</p> <p>At the close of the evidence the defendant requested the judge to direct a verdict for the defendant. The judge refused to do so; and the defendant excepted. The defendant requested the judge to instruct the jury as follows:</p> <p>“ 1. That it is not open to the plaintiff under it§ declaration to claim, argue, or recover on the ground of the existence of, maintenance of, or failure of defendant to abate a nuisance.</p> <p>“ 2. The judgment does not settle, is not conclusive, is not even evidence, of the existence of a nuisance.</p> <p>“ 3. The judgment in the other case is not a judgment that there was a nuisance, but only that on the 26tli day of February, 1895, there was a defect in the way.</p> <p>“ 4. If the derrick was placed in position by servants of the operator of the motion, and the company had no right to interfere with its location or arrangement, then the company is not liable.</p> <p>“ 5. If Hill had complete control of the part of the quarry where the accident occurred, and the arrangement of the guy ropes, which he alone had the right to change, caused the accident, then the company is not liable.</p> <p>“ 6. If the defendant did not have control of the derrick, then it is not liable.</p> <p>“ 7. If Hill was an independent contractor, and not an employee of the company, then the company is not liable.</p> <p>“ 8. If Hill was a mere licensee, the company is not liable.</p> <p>“ 9. If Hill was a lessee of the company, the company is not liable.</p> <p>“ 10. If Littleback, who placed the derrick in position, sold out his motion to Hill, and there was no interval during which the company had control of the premises, then the company is not liable.</p> <p>“ 11. If Littleback erected the derrick, and Littleback was a contractor, and not an employee not subject to the orders of the defendant, and the defendant merely permitted the derrick to remain at the time of the change from Littleback to Hill, and then Hill took it as a contractor like Littleback, the defendant is not liable in this action.</p> <p>“ 12. If the motion and derrick were let before the defendant took possession of Canney’s property, and the letting was continuous to the time of the accident, the defendant is not liable.</p> <p>“ 13. If the motion and derrick were let after defendant took possession of Canney’s property, and the letting continued to the time of the accident, the defendant is not liable.</p> <p>“ 14. If the motion and derrick were let to Littleback, and Littleback put it up, and the motion and derrick were afterwards transferred by Littleback to Hill, and the defendant did not at any time have control of them, then the defendant is not liable.</p> <p>“ 15. It was the duty of the town to use reasonable care to have the guy removed.</p> <p>“ 16. If the prop or props were knocked down in the morning and the accident happened in the evening, the judgment is not conclusive, and if the knocking down of the prop caused the accident, and the accident would not have happened otherwise, then the defendant is not liable, as the defendant had no control after Hill took the motion and derrick.</p> <p>“ 17. If the prop was knocked down a little while before the accident, and accident would not have otherwise happened, and the defendant had no control at the time of knocking down till the time of the accident, the defendant is not liable.</p> <p>“ 18. If the guy was in position a long time, long enough to amount to a nuisance, and the town had as much notice or knowledge thereof as the defendant, then the town and defendant are in pari delicto, and the plaintiff cannot recover.</p> <p>“ 19. It is not one of those cases where a party is liable because he has given a contract to a contractor, which necessarily involves the creation of a nuisance or tort; but the defect, tort, or nuisance, if any, was caused by the manner of doing the work involved in the contract or letting, and over that manner of doing it the defendant had no control, and therefore the defendant is not liable.</p> <p>“ 20. If the defect in the way arose from the manner of doing work or erecting the derrick, and defendant had no control over that manner, the defendant is not liable.</p> <p>“ 21. If motion and the derrick were let out to Sill, and under his exclusive control, then the fact that the company had the right to enter and turn him out at any time would not render it liable, as it would be under no obligation to exercise that right in behalf of the public.”</p> <p>The judge in his charge, in dealing with the first three requests, said:</p> <p>“ During the argument of counsel for the plaintiff the word 1 nuisance ’ was used by him with reference to this condition of things. I did not understand the counsel for the plaintiff to use that word in any technical or strict sense. I understood him rather to use the word in the general sense in which we speak of a thing being a nuisance or as an obstruction, or that which creates danger, which is a menace in any way. I understood him, in other words, to use that word in its general sense and in its, perhaps, colloquial sense, and not in its strictly legal sense.”</p> <p>The judge then gave the first three requests, saying:</p> <p>“ I give you these instructions, but I want you to understand what I mean. I understand the requests to refer to a nuisance in the law. It is not necessary to the maintenance of the plaintiff’s case here, and it was not necessary to the maintenance of the .case of Lucas against the town of Rockport, that there should have been at this place a nuisance in the strict sense of the law, and, as I say, I did not understand the counsel for the plaintiff to use the word in that sense. It is'a matter of terms as I regard it.”</p> <p>The judge instructed the jury that the former verdict was conclusive as to three things, the existence of the defect, that by reason of the defect Lucas was injured under circumstances giving him a right to recover, and that the damages were in the amount fixed by the verdict. He further instructed the jury that the defendant would be liable over to the plaintiff for the amount the plaintiff had been obliged to pay, either if the defendant itself maintained the guy, or had leased the premises with the derrick and guy upon them to Littleback or Hill, or granted a license to Littleback or Hill to occupy the premises with the derrick and guy upon them, under such circumstances that the use of the derrick or guy was contemplated or might reasonably have been understood to be contemplated; in other words, in the case last supposed if one of the objects of the leasing or license was that the derrick and guy should be used by the lessee or licensee, this imposed a responsibility for their use upon the party allowing it, although the use itself was by a lessee or licensee, “ just as in the case of premises let with a nuisance upon them,” and the landlord cannot escape responsibility because by the terms of the letting he has retained no control over the premises.</p> <p>The judge instructed the jury that if Littleback or Hill were the lessees of the premises, assuming that it was not a leasing of property which had apparatus upon it which was contemplated by the defendant should be used in the manner in which it was used, but the relation existing between them and the defendant allowed the defendant no right to interfere with what should be done upon the premises, and the lessees having sole control themselves erected and maintained the derrick and guy, the defendant would not be liable. Littleback and Hill would then be independent parties, without obligation or responsibility on the part of the defendant for their conduct. The judge left it to the jury to determine from the evidence which state of facts existed, and what the contract and relation between the parties was.</p> <p>The judge also gave the defendant’s requests numbered 4, 5, and 14, and also left it for the jury to say whether the plaintiff was in pari delicto with the defendant in maintaining the guy.</p> <p>The defendant excepted to the instructions upon the subject of nuisance and to the refusal of the judge to give the rulings requested except as stated above.</p> <p>The jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>In an action by assignees in insolvency to recover money paid to the defendant as an unlawful preference, the condition and intent of the debtor may be proved by facts of which the creditor had no knowledge, if the creditor’s reasonable cause to believe that the debtor was insolvent or in contemplation of insolvency can be shown from any other source. On this ground much evidence excepted to in this case was held to be admissible.</p> <p>In a suit by assignees in insolvency to recover as an unlawful preference money paid to the defendant as part payment on a note not yet due, the fact that no rebate was allowed for the prepayment on a final settlement of the note after the preference, was held to be evidence that there was no intent to allow a rebate at the time of the preference. So a direction to a bookkeeper to enter on a certain day a transaction that occurred some time before, was held to be evidence to show that he was not directed to enter it at the usual time.</p> <p>Where, in a case tried by a judge without a jury, one of the parties pursues a general policy of obstruction by excepting to nearly every ruling of the presiding judge, the party so conducting his case may be required, in order to prevail on an exception, to show that he called the attention of the judge to the ground of 'his exception.</p> <p>The recipient of a written offer accepted by him cannot testify to what he understood to be its meaning, if the testimony is offered for no other purpose than to show the meaning of the contract.</p> <p>If the evidence as a whole on a certain subject so strengthens each part by the bearing of all the rest upon it that the effect of each part is bound up with the effect of the whole, the presiding judge cannot be required to take up the items separately and declare them inadequate as if they stood alone.</p> <p>A part payment upon notes indorsed by persons of undoubted credit may be an unlawful preference under the insolvent laws. The rule to the contrary implied by Stevens v. Blanchard, 3 Cush. 169, disapproved, on the ground that it fails to make distinction between the payment of a secured note which releases property of the debtor from a lien of equal amount, and the payment of an indorsed note which does not.</p> <p>Ex parte proof and allowance of a claim in insolvency does not bar the assignees from recovering as an unlawful preference the amount paid by the debtor on such claim.</p> <p>In an action by assignees of an insolvent corporation to recover from a bank as an unlawful preference a payment upon a note of the insolvent corporation indorsed by one R., who was its president and one of its active managers, and was also a director of the defendant bank, and who, with the treasurer of the insolvent corporation, conducted the transactions relied upon to constitute the preference, it was held, that there was no sufficient evidence that R. was acting in behalf of the bank in any of these transactions, and that the mere fact that R. was a director of the hank would not charge the bank with his knowledge of the condition of the insolvent corporation or with his intention in making the payment on the note. Held, also, that although the finding for the plaintiff by the judge who tried the case without a jury was justified by the evidence, if every correct ruling had been given, his refusal without explanation to rule that the hank could not be charged with notice through R. as a director, entitled the defendant to a new trial.</p>

<p>Indictment, under Pub. Sts. c. 210, § 8, for an attempt to set fire to property with the intention of injuring the insurers thereof, in violation of Pub. Sts. c. 203, § 7. Trial in the Superior Court, before Pierce, J.</p> <p>The judge overruled a motion to quash the indictment; and the defendant excepted.</p> <p>At the conclusion of the testimony the defendant requested the judge to instruct the jury that the whole evidence was not sufficient to support the indictment, and that the jury would not be warranted in convicting the defendant thereon. The judge declined to make these rulings; and the defendant excepted. The jury returned a verdict of guilty.</p> <p>The material portion of the evidence was, in substance, as follows. The building in which the alleged attempt to set fire was committed was situated at Beverly Farms. It was of three stories of wood upon a brick basement. The defendant was engaged in the business of carriage painting and repairing, and in such business occupied the basement and the first floor, and kept the other two floors for his family dwelling-house. The land and building were valued at about $3,200, and were owned by the defendant, but were mortgaged for $3,000, and the insurance on the building was payable to the mortgagee.</p> <p>At the time alleged there was insurance upon the personal property and household furniture in the building, in the companies named in the indictment, and the evidence tended to show that the actual value of the property on hand was much less than the insurance.</p> <p>On Monday morning, July 3, 1899, the defendant took his wife and only child to Gardiner, Maine.</p> <p>One Ferguson, city marshal of Beverly, testified that in consequence of information given to him during the afternoon of July 6, 1899, by one Clark, a young man iiu the employ of the defendant, he and other officers went to the above described premises at half past eleven o’clock that night. That there was at this time, in a corner of the varnish room, which was one of the rooms used by the defendant in carrying on his business, an ordinary stove, used for heating the room in cold weather. The fire pot contained paper and rubbish, which showed no indication of fire. On the floor, near the stove, was a dish pan containing turpentine; in the pan of turpentine was a block of wood, and upon the block were small pieces of iron which held the top of the block a little below the surface of the turpentine. Around and in close proximity to the pan was a quantity of excelsior and wooden boxes, and several unstopped tin cans, each containing four or five gallons of turpentine. The excelsior on the floor, under and around the pan and for some distance out from the stove, was more or less saturated with turpentine. Upon a shelf, five or six feet away from the pan, on the opposite side of a door, but in the same room, was a candle of the thick, slow burning kind, ordinarily known and used as a coach candle. This candle was fresh and showed no sign of use or of ignition.</p> <p>Clark testified that he had worked for the defendant for several years; that he was paid $10 on Saturday, July 1,1899, by the defendant, for his week’s work; that the defendant told him that he need not come to work again until Wednesday morning, July 5,1899; that at about half past six in the morning of Wednesday, July 5, 1899, he was sent for to come from his lodging in Beverly to a hotel in Beverly; that he went to the hotel; that he was shown to a room, where ,he found the defendant; that the defendant then told him, in substance, that his business was in a bad way; that he was in debt, and that he had either got to stop or that the place had got to go up; that he told him of the arrangement of the pan of turpentine, excelsior, boxes, and candle as found by the city marshal; that the defendant told him that the plan was to take the candle from the shelf, put it upon the block of wood in the pan of turpentine, ignite it, and leave it to burn down into the turpentine; that the candle would burn three or four hours before igniting the turpentine; that the defendant said the turpentine would eat the candle ; that the defendant offered him, first, $25, then $50, to go to the building to do this, and that he refused to do so; that at the defendant’s request he did go to Beverly Farms on the morning train of the same day, took the keys which the defendant gave him, entered the building, looked into the varnish room and saw the arrangement; that he did not notice the -candle, but did not pay particular attention; that he and the defendant went to Salem in the evening; that in the railway station in Salem the defendant asked him to get a team, meet the defendant and drive him to Beverly Farms; that they drove to a certain drinking-fountain, beyond which was the defendant’s shop, about a quarter of a mile; that neither got out; that the defendant there said that he had changed his mind and turned the horse round and drove immediately back to the station, where the defendant took a late train for Boston.</p> <p>Clark further testified that on Thursday, July 6, he went to the city marshal and reported what had been done and said by him and by the defendant during the previous day and evening ; that he accompanied the marshal on the Thursday night visit of the latter to the defendant’s premises; that he then entered the varnish room, and that the condition of tilings in the varnish room remained unchanged from the condition which he saw on Wednesday morning.</p> <p>The indictment contained three counts in which the material allegations were the same, alleging an attempt wilfully to burn certain property with the intent thereby to injure the insurer, and each concluding as follows: “ And in such attempt did collect, place, and put a certain quantity of spirits of turpentine, a certain quantity of excelsior, and a certain wax or tallow candle in said building, but did fail in the perpetration of said attempted offence, against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.” There was no allegation of solicitation of another to light the collected materials or otherwise to take part in the acts alleged.</p> <p>The case was argued at the bar in November, 1900, and after-wards was submitted on briefs to all the justices.</p>

<p>Where it becomes necessary to call in other justices under Rule 41 of the court, in order that a judgment may be concurred in by a majority of the whole court, counsel may, if they choose, secure a right to be heard orally before all the justices who participate in the judgment.</p> <p>Where justices other than those who heard the case argued were called in, under Rule 41 of the court, to participate in the decision of the case, a party to the suit who made no objection under said-rule either at the argument nor later when the necessity of calling in other justices was apparent, and who presented to the justices an application for a rehearing, which contained no mention of such objection and no suggestion that he had been deprived of a constitutional right, and who afterwards moved unsuccessfully to amend his bill, and was heard upon tlie motion for a final decree, without raising the objection, was held, if lie had a constitutional right to be heard orally before all the justices who participated in the decision, to have waived such right.</p> <p>Except for peculiar reasons, the court will not hear reargument on questions of law which have been heard and decided before the full court at an earlier stage of the same case.</p> <p>An application for a rehearing has no standing under our laws as a recognized part of the procedure of the court, but is received only as friendly information to the justices of an oversight or manifest error, which in the opinion of the justices should call for correction or reargument. Argument is not heard upon such an application, nor should the application itself contain any argument; but it should suggest the error relied on.</p> <p>By the decision of this case reported in 174 Mass. 340, the defendants’ demurrers to a bill in equity, brought by a member of a firm to recover damages for alleged participation by the defendants in a wrongful conversion of certain shares of stock by the plaintiff’s copartner, were sustained, on the ground that by the allegations in the bill it did not appear that the defendants had reason to believe that the partner, who committed the conversion in assigning the stock, was acting without the knowledge and approval of his copartners. This decision is now affirmed.</p>

<p>Contract, for money had and received, to recover $565 paid to the defendant for premiums upon a policy of insurance upon the life of Timothy Sullivan, less $10 received as a dividend. Writ dated January 2, 1899. At the trial in the Superior Court, before Maynard, J., it appeared that, through one Manning, an agent of the defendant, the plaintiff procured a policy of insurance for $500 upon the life of Timothy Sullivan, for the benefit of Mary Sullivan, daughter of said Timothy, the plaintiff agreeing to pay the premiums. Mary Sullivan was a cousin of the plaintiff’s wife, and the plaintiff testified that his only reason for procuring the insurance was to benefit his wife’s cousin. The plaintiff was informed by Manning that the insurance could be effected without the knowledge of Timothy Sullivan. The policy was issued to the plaintiff without the knowledge of either Timothy or Mary Sullivan. The plaintiff kept it for some time and then delivered it to Mary Sullivan. Timothy Sullivan did not learn of its existence until a few days before the trial.</p> <p>The rules of the company required that the person whose life was insured should fully understand and consent to the insurance, should be examined by a physician of the company if the amount was more than $200, or by an agent if less, and should personally sign the answers to the examination form on the back of the application, and provided, that any policy obtained in violation of these rules should be void.</p> <p>The plaintiff paid premiums on the policy amounting to $565, and then, discovering that the policy was void because issued without the knowledge of the insured, ceased to pay premiums, and the period within which a valid policy would have lapsed for non-payment of premiums expired.</p> <p>The plaintiff testified that when Manning handed the policy to the plaintiff he gave him with it a book, in which were printed the rules of the company, including those above stated. The book was produced and identified by the plaintiff. Afterwards, in his redirect examination the plaintiff testified that he did not read the rules in the book at the time he received it, nor until he brought the case to his counsel; The plaintiff’s counsel then offered in evidence the rules in the book. This evidence was objected to by the defendant. It was admitted by the presiding judge; and the defendant excepted.</p> <p>The judge, at the request of the defendant, ruled that the plaintiff could not maintain his action, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>The plaintiff shipped certain goods from Worcester by rail and took a bill of lading naming the consignee as “ Order of ” the plaintiff and the destination as Charlestown, Mass., care of the defendant and containing the further direction “ Notify A.” The railroad company left the goods in the defendant’s sheds upon his wharf, and delivered to the defendant a notice of the arrival of the goods, attached to which was a copy of the freight bill stating the consignee to be “ Order of ” the plaintiff and also containing the words “ Notify A.” The defendant, by a correspondence of which the plaintiff had no knowledge, had been led to believe that the goods were part of a consignment to A. to be shipped to England by one of the defendant’s steamships, and in good faith delivered the plaintiff’s goods to A. The plaintiff in the meantime drew upon A. for the price of the goods annexing to the draft the bill of lading received from the railroad company. The draft was not accepted nor paid by A. and was returned with the bill of lading to the plaintiff. The plaintiff, after demanding the goods from the defendant, brought an action of tort for their conversion. Held, that the defendant was notified by the copy of the freight bill that the consignment was to the order of the consignor, to his care, that the words “Notify A.” did not authorize the defendant to treat A. as the consignee, and that the defendant’s delivery of the goods to A. constituted a conversion, the fact that the defendant had acted in good faith being immaterial.</p>

<p>If one conveys land under an oral contract which cannot be enforced by reason of the statute of frauds, and the grantee refuses to carry out such contract and sells the land to another, the grantor may maintain an action on the implied promise of the grantee, to pay to the grantor the value of the land which the grantee has put it out of his power to reconvey.</p>

<p>Bill in equity, to establish a trust, filed August 17, 1899. The bill was brought by the nephews and nieces of Charles Littlefield, deceased, against the defendant, the widow and executrix under the will of said Littlefield. By the will, a copy of which was annexed to the bill, the testator, after providing for his wife and making certain legacies, left all the residue of his estate to his wife Mary Harriet Littlefield, the defendant.</p> <p>The bill alleged that before the testator executed his said will the defendant promised and agreed that, if the will was drawn according to the copy thereto annexed, she would hold said residue and remainder in trust for the benefit of all the nephews and nieces of the testator, to pay to and distribute the same to them equally upon the settlement of the estate, and that in consequence of said promise and agreement, and relying upon the same, the testator executed said will.</p> <p>The bill further alleged that the testator died on November 26, 1898, and in the eleventh allegation, referred to in the opinion of the court, set forth that after presenting the will for probate, and in order to induce the plaintiffs not to oppose its allowance, the defendant declared to said nephews and nieces “ that the testator made such residuary clause, though absolute in form, and that she received and holds it, in trust, nevertheless, to pay and distribute it to all the nephews and nieces of said testator equally.” That the plaintiffs then withdrew their opposition, and the will was proved on December 20, 1898. The bill concluded with a prayer for the declaration and enforcement of the trust.</p> <p>The case was heard in the Superior Court by Hardy, J. It appeared that the estate consisted wholly of personal property. The only evidence on the subject of an oral trust imposed by the testator was the testimony of the defendant, who was called as a witness by the plaintiffs. Her testimony on this point is given in full in the opinion of the court. No person other than the defendant and her husband was present during the conversation testified to. The defendant objected to the admission of the evidence on the ground that it was a private conversation between husband and wife. The judge heard the evidence subject to the defendant’s objection, and ruled that it should be excluded from his consideration.</p> <p>Upon the question of the creation of a voluntary trust by the defendant, by her declaration to the plaintiffs, there was evidence that, after the death of the testator but before his estate was settled, there were certain conversations between the defendant and some of the plaintiffs. The evidence as to what the defendant said was contradictory, and its character sufficiently appears in the findings of the judge below.</p> <p>The following are the findings of the judge:</p> <p>“ 1. I do not find that the defendant, in her.communications with the plaintiffs or any of them, agreed to hold any part of the residuary estate in trust for the plaintiffs, or any of them; so far as she did make any statements to them, I find that it was simply a declaration of an intention to give something to them in the future, and that, at the time she made such statements, she gave them, or some of them, the impression that she was intending to make a gift on behalf of the testator.</p> <p>“ 2. I find that, at the time she made such statements, the estate was then in process of settlement, and that she had no definite knowledge of what the amount of the residuary estate would be.</p> <p>“ 3. I find that the testator made, during his lifetime, three different wills; that the defendant in this case was his second wife; that the first will was made when his first wife was living, the second will was made at the time of his marriage to the defendant, and the third will was made and executed on the thirtieth of September, 1898; that the residuary clauses in the three wills were the same in form and in the disposition of the estate; that, in the execution of this will now in controversy, and previous thereto, there was no agreement between the testator and the defendant as to any disposition of the estate or of such residuary estate; that the only communication between the testator and the defendant with reference to such estate or such provision of the will took place subsequent to the execution of the will and three days previous to his death, which occurred about the first of December, 1898; that such 0 conversation with reference to such estate was a private conver.sation, and evidence thereon was heard by me subject to the objection of the defendant, and, in my consideration of this case, I ruled that such private conversation between husband and wife, or the admissions by the defendant of the substance of such private conversations, was not competent and proper evidence for me to consider in deciding this case ; but, even though such private conversations should be considered compefcenfc evidence, I find that there was no direction given by the husband to her, no declaration of trust by him with reference to the disposition of such residuary estate, and she made no agreement with him in such private conversation with reference to the disposition of the estate under the will in behalf of the plaintiffs; that, so far as she did make any statement to him, it was merely a declaration of an intention as to some future gift of the property she expected to receive under the will, and was in no wise a declaration of trust.</p> <p>“ 4. I further find on the evidence that whatever statements she made to the plaintiffs, or any of them, subsequently to the death of the testator, were made subsequently to the probate of the will, and that those statements were merely declarations of an intention of what she might do in the nature of a gift in favor of the plaintiffs, or some of them; and that there was no consideration supporting any such declaration on her part.</p> <p>“ 5. I find, therefore, that there was no declaration of trust made by this defendant as the result of any direction on the part of the testator, and that there was no trust established by any voluntary declaration of a trust by the defendant subsequent to the death of the testator.”</p> <p>The judge dismissed the bill with costs, and reported the case for the consideration of this court. If, upon the testimony, the rulings of the Superior Court were right, the judgment of that court was to stand; but if the evidence showed that there was a valid declaration of trust for the benefit of the nieces and nephews of the testator equally, the case was to be remanded to the Superior Court.</p>

<p>In an action on a promissory note a judge of the Superior Court has power to order judgment for the plaintiff to be entered and execution to issue without the filing of the note declared on and without a bond of indemnity, when such requirements are not necessary for the protection of the defendant; and where the facts do not appear by the record, the appropriate circumstances are presumed to have existed.</p> <p>Rule 56 of the Superior Court, requiring the prevailing party in every suit to file with the clerk all papers and documents necessary to enable him to make up and enter the judgment, has no application to a judgment on a lost promissory note.</p>

<p>In an action against a street railway company under St. 1886, c. 140, to recover for the death of the plaintiffs intestate by reason of the gross negligence or carelessness of its servants or agents, with a count at common law to recover for the injury and conscious suffering of the intestate, it appeared that the plaintiff’s intestate was standing on the rear platform of a short car of the defendant, that there were no gates on the car, that, as the ear was passing from a turnout to return to the main track at a rate of speed of from three and one half to four miles an hour, there was a swaying or jar, and the plaintiff’s intestate fell or was thrown from the ear, was found unconscious beside the track and died within twenty-four hours. Held, that the evidence would not justify a finding that the accident was due to negligence of the defendant or of its servants.</p>

<p>Bill in equity, called a supplemental bill, filed November 25, 1899, for further relief. The original or former bill, filed October 28, 1897, was brought to enforce specific performance of an oral contract to convey land, and the decision of this court upon it was reported in 173 Mass. 580. The decree in the original or former suit, affirmed by this court June 30, 1899, ordered “ That said defendants make, execute and deliver to said Brainard Low a good and sufficient deed conveying a good title to said land, free from all encumbrances made or suffered by them, except certain mortgages, to wit: A mortgage to the Cape Ann Savings Bank, dated October 26, 1897, and to David B. Smith [and others], dated October 26, 1897, and that the plaintiff recover his costs of suit to be taxed by the clerk, and execution to issue therefor in common form, with leave to the parties to apply to the court for such further order or decrees as may be necessary.”</p> <p>The Cape Ann Savings Bank and David B. Smith and others, named as mortgagees in this decree, were not parties to the suit.</p> <p>The so called supplemental bill, brought against both the original defendants and the mortgagees, alleged that the mortgagees, at the time that the mortgages were made, had knowledge and notice of the plaintiff’s title and of the facts upon which relief was granted to the plaintiff in the original suit.</p> <p>It further appeared that a certain portion of the land, ordered by the former decree of this court to be conveyed to the plaintiff by the original defendants, was on June 22,1897, taken by the city of Gloucester for a highway.</p> <p>The bill prayed, that the mortgagees might be ordered to execute and deliver to the plaintiff good and sufficient deeds discharging the land ordered to be conveyed to the plaintiff from all liability under the two mortgage deeds, and that the original defendants might be ordered to pay to the plaintiff the sum awarded as damages against the city of Gloucester for taking the portion of the land referred to for a highway. The case was heard in the Superior Court, by Bell, J., who entered a decree for the plaintiff on both points, and reported the case for the consideration of this court. The defendants appealed.</p> <p>The following extracts are from the judge’s report:</p> <p>“ The several defendants asked me to dismiss the plaintiff’s supplemental bill for the reason that it appeared: (1) that said supplemental bill was filed without leave of court; (2) that the matters and things set forth in said supplemental bill arose and were well known to the plaintiff before and at the time he filed his original bill in this case; (3) that said bill was filed after the final decree in the original suit.</p> <p>“ I ruled that the plaintiff’s said bill was maintainable; that if leave was necessary to its filing as a supplemental bill, it may now be granted, but that the bill stood well as an original bill; that the relief it asks is not inconsistent with the decree in the former bill; that the decree in the former suit that a conveyance should be made subject to certain mortgages was not a determination that those mortgages were a valid claim as against the plaintiff; that in the original bill the mortgagees not being made parties, no decree could be entered affecting their rights, and it could not be determined whether their mortgages were a valid lien upon this land described in the bill; that not being directly interested in the matter it was proper for the plaintiff to leave them out; that the questions raised by the two bills are successive in their nature and no harm was done to either party by maintaining them successively; that the decree in the suit to which they were not parties is not an adjudication which is final in this suit or an estoppel against the plaintiff.</p> <p>“It was agreed as a fact that on the twenty-sixth day of October, 1897, the defendants, Mary J. Low, Cecil H. Low and Helen R. McKenney, executed and delivered to the defendant, the Cape Ann Savings Bank, as security for the payment of fifteen thousand dollars, a power of sale mortgage in the usual form of a certain parcel of land which included the premises which this court has ordered to be conveyed to the plaintiff by the decree in the original suit, together with five other parcels of land about which there is no controversy in this suit.</p> <p>“ It was also agreed that the same defendants on the twenty-sixth day of October, 1897, executed and delivered to David B. Smith, Benjamin A. Smith and John J. Flaherty, as security for the payment of forty-five thousand dollars, a power of sale mortgage in the usual form of the real estate described in said mortgage to the Cape Ann Savings Bank for fifteen thousand' dollars subject to said mortgage to the Cape Ann Savings Bank and to other mortgages described therein.</p> <p>“ I find that the attorney for the demandants at the trial of the writ of entry was one of the mortgagees in the second mortgage, and was also counsel for the other mortgagees, and was counsel for the bank, which was the first mortgagee, and one of its trustees, and I find that the said attorney had knowledge- and notice of the matters therein claimed by the plaintiff. I find and rule that the mortgagees in both of said mortgages are chargeable with notice of the plaintiff’s equity.</p> <p>“ As to the matters alleged in the seventh paragraph of said supplemental bill, I find that the land which was taken by the city for a highway was a part of that for which the said writ of entry was brought and which was included in the decree in the original suit. The remedy given by the former decree does not cover it, as it could not be included in the quitclaim deed, because the land was taken for a highway on June 22, 1897, before the bill in the original suit was filed.</p> <p>“ It appearing by agreement of the parties that since said supplemental bill was filed, the said defendants; Mary J. Low, Cecil H. Low and Helen R. McKenney, have recovered and received from the; city of Gloucester the amount awarded them as compensation for their damages by reason of the taking of said land for a highway, I ruled that the plaintiff in this action was entitled to recover from them thé said amount less a reasonable sum which I allowed them for counsel fees and other expenses in the suit brought to recover the award made to them for said land damages. A decree having been entered in this suit in accordance with said findings and rulings, all the defendants appealed therefrom, and I was requested by them to report the facts found by me in said case.”</p>

<p>Contract, to recover a balance of $138.20 claimed to be due under a contract in writing to complete brick work, lathing, and plastering on the house of John J. Cummings in Lawrence. Writ dated November 17,1898.</p> <p>The defendant contended that the plaintiffs had failed to complete their contract and that the defendant had been obliged to procure materials and labor to complete the work at an expense to him of the amount claimed by the plaintiffs.</p> <p>In the Superior Court the jury found a verdict for the plaintiffs. The case was tried before Bishop, J., who at the request of the parties reported it for the determination of this court.</p> <p>The report was as follows.</p> <p>The defendant was the contractor to build the house of John J. Cummings under certain written specifications, and the plaintiff was a sub-contractor to do part of the work.</p> <p>At the trial the plaintiffs introduced the following agreement, which was signed by one of the plaintiffs, and both parties relied upon it as constituting the agreement between them:</p> <p>“ Lawrence, Mass. August 19, ’98. I, the undersigned, do hereby agree to complete brick work, lathing and plastering, as prescribed in plans and- specifications, on house of John J. Cummings at Lawrence St. Cor. Chestnut, for $900. Maurice Daly.”</p> <p>The specifications referred to in the foregoing agreement were entitled “ Specifications of the labor and materials required to build a building for Mr. John J. Cummings, Corner of Lawrence and Chestnut Streets Lawrence, Mass.,” and contained the following provisions:</p> <p>“BRICK WORK. — Build the chimneys as shown by the plan of good hard burned bricks laid in lime mortar; the outside to be smoothly plastered the entire length. Furnish thimbles 4" long to be set in brick work of chimneys in all rooms accessible to chimney, and the partition to be panelled from floor up and the plastering put directly on brick work as shown by plan. Furnish and set iron ash doors in each chimney in the cellar.</p> <p>“ The top and two feet below the roof to be laid up with a good even cull of hard burned brick, laid in pure cement mortar, made to one part of cement to three parts of sand.</p> <p>“ FIREPLACE. — Provide proper foundation for and furnish and set in' position as shown on plan a No. 12 Phila. & Boston Face Brick Co.’s Red Pressed brick fireplace. To be provided with Murdock Cast Iron thwat and ash dump.</p> <p>“ The bricks to be laid in dark red mortar 1-2 cement, laid to very close straight joints and in a thoroughly workmanlike manner.</p> <p>“ Start chimneys on stone levellers which Stone mason will leave in cellar.</p> <p>“ The chimneys and piers connected with them to be laid up in pure cement mortar from cellar bottom to level of first floor.</p> <p>“ All partitions enclosing stairways leading to upper floors must be filled in between studs with bricks and mortar and plastered on both sides on metal lathing according to Article 7 of Form No. 60 State Inspector’s Spec. Blank.</p> <p>“ Where floor timbers rest on-partition caps the spaces between them from cap to top of timbers must be filled in solid with good light bricks laid in lime mortar, and all joints flushed full.”</p> <p>The specifications were typewritten, and the foregoing extracts were printed in the record so as to represent the original, as nearly as possible. The words “ brick work ” and “ fireplace ” were in capital letters as above.</p> <p>A catalogue was produced at the trial entitled “ Sketch Book of the Philadelphia & Boston Face Brick Co.,” and the design or representation of a fireplace therein, entitled “ Sketch No. 12,” together with the drawings of ornamental brick for the same, and description, were introduced in evidence, and it was agreed that this was the fireplace intended in the specifications.</p> <p>Both parties agreed, and it was in evidence, that the method of obtaining the fireplace in question was to order it by its number from the Philadelphia and Boston Face Brick Company, and that that company would send all the parts complete, the pieces in special shapes, and ornamental pieces numbered to fit in their proper places, and a sufficient quantity of face brick to be laid with them to complete the fireplace; and that said Philadelphia and Boston Face Brick Company had on hand the parts so going to make up the fireplace, ready for shipment when ordered by its number.</p> <p>It appeared in evidence that the plaintiffs built the core of this fireplace including the flues, that is, the rough brick work for the interior, around and upon which the fireplace as designed was to be put. When afterwards the fireplace -was put up, the core had to be trimmed somewhat to make it fit.</p> <p>At the trial, the plaintiffs contended that the contract entered into between the parties did not require the plaintiffs to furnish and set the No. 12 Philadelphia and Boston fireplace, but the defendant contended that this was included under the term “ brick work ” in the agreement and specifications.</p> <p>The plaintiffs, to support their contention, offered evidence of conversations between one of the plaintiffs and the defendant, before and at the time the plaintiffs made their bid, tending to show that the words “brick work” as used in the specifications and agreement were not intended to include the fireplace subsequently mentioned in the specifications; and also evidence that according to custom and usage, among those in the trade and business of brick masons, builders, and contractors in Lawrence, the words “ brick work ” do not include a No. 12 Philadelphia and Boston Face Brick Company’s fireplace such as named in the specifications.</p> <p>The defendant objected to this evidence and asked the judge to rule and instruct the jury, that the term “brick work” as used in the specifications and agreement included the fireplace in question, and that upon the proper construction of the instruments the defendant was as matter of law entitled to a verdict.</p> <p>The judge ruled that the specifications were ambiguous, and did not clearly show whether the words “brick work” included the term “ fireplace,” and the No. 12 fireplace therein subsequently mentioned, or not; that evidence was admissible to apply the contract to the subject matter, and to show and ascertain the thing meant by the language used.</p> <p>The defendant excepted to this ruling.</p> <p>Maurice Daly testified, that he applied to the defendant to bid upon the brick work, that the defendant gave him the specifications and told him to do so, leaving out the fireplace, saying that the defendant had ordered that, that the next day he went to the defendant and told him that they would do the brick work without the fireplace for $950, and that after some conversation the price was reduced to $900, and the defendant told him to write the paper above printed dated August 19,1898, which he did, and that he brought the paper back to the defendant, and said as he handed it to him that that did not include the fireplace..</p> <p>The plaintiff further introduced the evidence of masons, contractors, and builders, who testified that there was a custom and usage in the business that such a fireplace as the one in question, when specified in building specifications in the manner adopted in this case, is not included under the term “ brick work,” and that an agreement to do the brick work under such specifications does not according to such usage include such a fireplace.</p> <p>The defendant introduced evidence tending to contradict the plaintiffs’ evidence as to what took place at the time of the agreement, and also to contradict the evidence introduced by the plaintiffs as to custom.</p> <p>The judge left it to the jury upon this evidence, to say whether the fireplace was brick work within the meaning and contemplation of the agreement, which the plaintiffs made, to put in and construct the brick work of the house.</p> <p>The jury found for the plaintiffs for the amount in controversy, and, at the request of the parties, the judge reported the case for the determination of this court. If the ruling given was erroneous, and the ruling requested by the defendant should have been given, and the evidence rejected, the verdict was to be set aside, and judgment entered for the defendant; otherwise judgment was to be entered upon the verdict.</p>

<p>In a suit in equity to compel the defendant to pay off a mortgage upon his own and the plaintiff’s adjoining land, it appeared that the mortgagor, owning both lots, conveyed one to the defendant, the deed stating that it was subject to a certain mortgage of both lots which the grantee was to assume as part of the consideration. Later the mortgagor conveyed the other lot to the plaintiff’s grantors, by a deed which stated that it was subject to the same mortgage, but not that the grantee was to assume the mortgage. Held, that the plaintiff could not take advantage of the promise to assume the mortgage which the defendant made to the mortgagor by accepting his deed. Semble, otherwise, if the mortgagor had conveyed the plaintiff's lot free from the mortgage.</p>

<p>Contract, to recover for services rendered by the plaintiff to John Stanton, the defendant’s intestate. Writ dated December 24, 1896. The declaration contained three counts.</p> <p>The first count was upon an account annexed. The first four items were for services rendered from April 23, 1870, to April 18, 1884, amounting to $4,592.80. The next three items were for services from 1890 to November 26, 1893, including one charge for board, and amounting to $114.75. The remaining items were credits for board and clothing furnished to the plaintiff from April 23, 1870, to April 18, 1884, amounting to $1,615.50, leaving the balance sued for $3,092.05.</p> <p>The second count alleged the making of a specific contract, on or about the first, day of July, 1892, by which the defendant’s intestate agreed, in consideration of future services to be rendered by the plaintiff, to pay her for past services as well as for services to be rendered, and that the plaintiff rendered future services in accordance therewith, and that the defendant owes her the sum of $3,092.05, according to said account annexed.</p> <p>The third count alleged that the defendant’s intestate, on or about the twentieth day of April, 1870, the plaintiff then being a child of eight years of age, agreed to adopt her in accordance with the laws of the Commonwealth, andythereupon and thereafter at various times assured her that he had so adopted her, and that the services set forth in the plaintiff’s declaration were rendered by her in the belief that said representations were true ; that the same were false, and that she was deceived thereby, and that in consequence thereof she was entitled to recover for said services, and that the defendant owes her the sum of $3,092.05, according to said account annexed.</p> <p>The defendant answered, making a general denial, and pleading payment and the statute of limitations.</p> <p>At the trial in the Superior Court, before Bishop, J., it appeared that John Stanton, the defendant’s intestate, was superintendent of a cemetery; that in 1870 he and his wife, being about fifty years of age, having no children and keeping no servants, took the plaintiff, then eight years old, from an orphan asylum to live with them; that the plaintiff was treated as an adopted daughter, went to school until 1875, and before and after that year performed work of various kinds in the household; that on July 8,1880, the plaintiff, being then eighteen years old, married, but until April 18,1884, continued to live with Stanton and his wife, performing the same work as before, her husband living there also and paying board to Stanton. On April 18, 1884, the plaintiff moved to her own house near by, built on land which Stanton had given her. In July, 1892, Stanton’s wife died. In November, 1893, Stanton married again, and on June 27, 1895, died intestate. Stanton never adopted the plaintiff. He treated her as his adopted daughter, and spoke of her and introduced her as such daughter, and at various times spoke of providing for her. The plaintiff testified:</p> <p>“ I found out I was not really adopted, second day after Mr. Stanton died, about June 29, 1895. In school was known as Mary Elizabeth Stanton. Mr. Stanton had me baptized by a clergyman. He always called me ‘ Liz,’ or ‘ Lizzie,’ and I called him uncle. I felt I was practically a child of the family, and from 1870 down to the time of my marriage Mr. and Mrs.</p> <p>Stanton acted towards me as they would towards a daughter, and I acted as a daughter would towards parents. There was no book account between us and no bills. I was married from Mr. Stanton’s house and he provided wedding garments for me. Mr. Stanton gave me the lot after my first child was born.”</p> <p>The plaintiff also testified as follows :</p> <p>“ When I was taking care of him [i. e. Stanton during an illness in 1892 or 1893] I know he said I should look after him and he would look after me. He would pay me for what I had done in the past and present. A day or two after the first Mrs. Stanton had died, he was over to the house, spoke of how I had taken care of her; that he had nobody else to depend upon to take care of him but me; that all the friends he had were not much good to him, and as to his relatives, all they wanted was to get what they could out of him. He had to depend upon me for the future as he had nobody else, and that he would pay me well for the good care I had given Mrs. Stanton, as’he had nothing to answer for, as well as he would in the future for taking care of him.”</p> <p>The plaintiff’s husband testified:</p> <p>“ In the early part of September, 1893, there was another conversation. He [Stanton] was about to go to Athol and from there intended to go to a hospital. He said,6 Look out for all that is in the house and take care of them, and there is nothing that you do but that I will pay you for, and Lizzie; I will pay you both for your past and future services for me and pay you well for it.’ ”</p> <p>Another witness for the plaintiff testified :</p> <p>“ I have always heard him say that he expected to pay her well for it, for all her kindness, etc. He said he expected to pay Lizzie well for what she had done all along as well as for what she had done before.”</p> <p>The plaintiff requested nine rulings, of which the second, sixth, and eighth were as follows, the other requests stating the same propositions in different forms or being immaterial.</p> <p>“ 2. If the defendant’s intestate procured the services disclosed in the evidence by falsely representing to the plaintiff that he had adopted her, and the plaintiff rendered the services relying upon such false representations, she' is entitled to recover the fair value of the services thus rendered.”</p> <p>“ 6. If the services for which the plaintiff seeks to recover were rendered because of the false representations of, or the fraudulent concealment of, facts by the defendant’s intestate as to the matter of adoption, the plaintiff is entitled to maintain an action within six years after she learns of such false representations or such false concealment.”</p> <p>“ 8. If the defendant’s intestate made an express contract with the plaintiff within six years of the date of her writ, whereby he promised, in consideration of future services to be rendered, to pay in lump for such services rendered in the past and to be rendered in future, and the plaintiff agreed thereto and rendered such services, she is entitled to recover for past and future services, notwithstanding’the statute of limitations.”</p> <p>The judge declined to give the rulings requested, but ruled that the first four items in the account annexed to each count in the declaration were barred by the statute of limitations, and that this ruling applied to the claim for services mentioned in these four items in whatever form presented, whether in the first count or in the two subsequent counts.</p> <p>The judge further ruled that there was no evidence relating to the matters contained in the plaintiff’s requests sufficient to entitle the plaintiff to recover upon the first four items, and that the promise stated in the eighth request, and alleged in the second count of the declaration, would not entitle the plaintiff to recover for the services mentioned’in the first four items, and submitted the case to the jury upon the last three items only, instructing them that if the services stated in these items were rendered under circumstances which called for payment, they should find for what they were reasonably worth, with interest from the date of the writ.</p> <p>The jury found for the plaintiff for the amount of the last three items in the account annexed, with interest.</p> <p>To the above directions and rulings the plaintiff alleged exceptions.</p>

<p>In an action on a policy of fire insurance, where the defence relied on was an attempt to defraud the defendant by means of a false sworn statement of loss, the plaintiff requested the presiding judge to instruct the jury that the burden of proof was on the defendant to prove fraud. The judge among other instructions gave the following : “ Now I instruct you that under those circumstances the burden of proof is upon the party defendant to establish the fact that there were false and fraudulent representations made, and that they were made in an attempt to defraud the company.” The charge closed with these words: “ and so you will take all the. evidence and say whether or not on the matter it is fairly proved that there was this fraudulent purpose on the part of the plaintiff, it being for the defendant to prove it.” Held, that the request was covered by the instructions given.</p>

<p>Contbact, to recover $200 and interest for services alleged to have been performed by the plaintiff for the defendant in the defendant’s store in Somerville. Writ dated March 8, 1899.</p> <p>At the trial in the Superior Court, before Aiken, J., the defendant contended that he never employed the plaintiff, but that the plaintiff was a partner with the defendant and one Miss York in the business in which the services were rendered, or that the services were rendered in contemplation of and for the benefit of such partnership. The evidence was conflicting.</p> <p>The business was that of a grocer and provision dealer.</p> <p>The plaintiff testified that the defendant employed her as bookkeeper and Miss York as manager, and agreed to pay each of them $50 a month. This was denied by the defendant. Both parties testified that a partnership consisting of the defendant, the plaintiff and Miss York was talked of, and that partnership papers were drawn. The plaintiff testified that these papers were never signed by any of the parties. On cross-examination she testified in answer to a question whether she was to keep the books under the partnership arrangement: “ Yes, and until the partnership papers were signed, of course I was an employee. For some reason or other he never would sign the papers, could not induce him to sign them. At several times they were brought out, all three interested parties together, and he still would never sign the papers. Possibly he did n’t care to have me as a partner at that time. I think that was it.” The- defendant testified that he signed the papers and that they were signed later by Miss York and the plaintiff. The defendant further testified that, after he had sold the store in which the business was carried on, he tore these papers up and threw them away when he was cleaning out his desk. The facts are stated more fully in the opinion of the court.</p> <p>After all the evidence was in, and before argument, the defendant' requested the judge to rule that the evidence was not sufficient to support a finding for the plaintiff, and to order a verdict for the defendant, which ruling and request were refused, and the defendant excepted.</p> <p>After the arguments of counsel to the jury, and before the charge ■ by the judge, the defendant requested the following rulings:</p> <p>First. “ On the whole evidence and law the jury should be instructed to find a partnership existed between -Mr. Guild, Miss Adamson and Miss York during the time declared on.”</p> <p>Second. “ That if a partnership existed during the time for which payment for services are declared for, the action cannot be maintained.”</p> <p>These requests and rulings were refused, and the defendant excepted.</p> <p>At the conclusion of the judge’s charge the defendant excepted to that portion which was as follows, “ Whether there was a partnership is a question of fact for you to determine,” and requested the judge to rule that “It was a question of law whether or not there was a partnership on the evidence, and for the court, not for the jury,” which ruling was refused, and the defendant excepted. The judge then further stated to the jury, “ Gentlemen of the jury, the question whether there was a partnership in this case is a question for you ; I will put the proposition in that form,”—to which instruction the defendant excepted.</p> <p>The charge contained instructions not excepted to as to what in law would constitute a partnership.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort, for trespass to real estate, with counts for assault and battery and for the conversion of a piano. Writ dated August 20, 1897.</p> <p>The action was brought for acts of the defendants’ servant in entering the plaintiff’s house, and taking therefrom one piano and one piano stool and cover.</p> <p>The defendants offered in justification of the alleged acts of their servant that such acts were properly committed in the foreclosure of a mortgage of personal property, including the property alleged to have been converted.</p> <p>At the trial in the Superior Court, before Sherman, J., it appeared that at the time of the entry there had been a breach in the conditions of the mortgage by failure on the part of the plaintiff to make all the payments required by its terms. The mortgage contained the following clause:</p> <p>“ But upon any default in the performance of either of the foregoing conditions the grantees or their executors, administrators, or assigns, or any person or persons in their behalf, shall have the right and privilege of entering, forcibly if necessary, any building or place in which said goods and chattels may be, and of removing the same therefrom, without being guilty of any trespass or tort or liable in. any way therefor.”</p> <p>There was evidence tending to prove that after the execution of the mortgage certain words were inserted therein by the defendants without the knowledge or consent of the plaintiff, describing articles of personal property other than the piano, piano stool, and cover.</p> <p>Two questions were submitted to the jury, as follows:</p> <p>1st. “ Have the defendants made a material alteration in the mortgage since its execution, without the knowledge and approval of the plaintiff?”</p> <p>2d. “ Was the plaintiff assaulted by the servant of the defendants at the time of the taking of the piano, stool, and cover ? ”</p> <p>The jury answered both questions in the affirmative.</p> <p>After these questions were answered by the jury, they were further instructed by the judge, that the servant of the defendants, acting for the defendants under a mortgage found to have been materially altered since its execution, and thereby being void, had no right to take the piano, stool, and cover, and if in doing so he had used force and violence upon the person of the plaintiff the defendants would be liable for his acts.</p> <p>The judge reserved to the defendants the right of exception to the foregoing instructions.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p> <p>At the time of the argument before the full court, the plaintiff filed a motion for double costs under St. 1883, c. 223, § 15, on the ground that the defendants’ exceptions were frivolous.</p>

<p>Indictment for murder, returned against Luigi Storti and Vincenzo Boeielli by the grand jury December 9,1899. The defendant Boeielli was not apprehended. The defendant Storti was tried in the Superior Court, before Bond and Lawton, JJ. The case came up on appeal and bill of exceptions.</p> <p>At the opening of the trial the defendant filed a motion to quash the indictment, which was overruled by the judges; and the defendant appealed from the order.</p> <p>The second count of the indictment was drawn under St. 1899, c. 409, and was as follows:</p> <p>“ And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present that Luigi Storti and Vincenzo Boeielli, otherwise called Vincenzo Buccilla, otherwise called Vincenzo Bucillo, did assault and beat Michele Calucci with intent to murder him, by striking him over the head with an axe, and by said assault and beating did kill and murder said Calucci.</p> <p>“And the jurors aforesaid do say, that both counts in this indictment are different descriptions of the same act.”</p> <p>The first count was in the form in use before the passage of the statute and was admitted to be good. The verdict was general. In behalf of the defendant, it was contended, that it could not be said that the jury did not find their verdict on the second count, and that the second count was bad as not complying with the requirement of Article XII. of the Declaration of Rights of the Constitution of the Commonwealth, that “ No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him.”</p> <p>By the bill of exceptions, it appeared that on the night of November 6, 1899, the two defendants, Luigi Storti and Vincenzo Bocielli, of whom Storti alone was on trial, occupied a room in a house on Charter Street in Boston with five others, one of whom was Michele Calucci, the deceased. At an early hour of the morning of November 7 it was discovered by some of the occupants of the room that Calucci had been murdered in his bed with an axe, and that Storti and Boceielli' had fled. Storti was arrested on the following day at Hudson, Massachusetts. He, there and on the way to Boston, made incriminating statements to the officers, and later, at police headquarters in Boston, made a confession through an interpreter.</p> <p>The exceptions were founded on the admission and exclusion of evidence by the judges at the trial. The "evidence thus admitted or excluded is fully described in the opinion of the court.</p> <p>The jury returned a verdict of guilty of murder in the first degree; and the defendant alleged exceptions.</p>

<p>Complaint, charging the defendant with setting up and promoting a lottery in a certain building in Boston. At the trial in the Superior Court, before Stevens, J., the defendant was found guilty, and, after verdict, filed a motion in arrest of judgment, “ on the ground that the complaint does not charge the defendant with any offence punishable by law.” This motion was overruled; and the defendant appealed.</p> <p>Pub. Sts. c. 209, § 1, provides that “ Whoever sets up or pro,motes a lottery for money, or by way of lottery disposes of any property of value, real or personal,” etc., shall be punished as therein provided.</p> <p>It was contended for the defendant that no offence was alleged, as it was not stated that the lottery was kept or promoted for money or other thing of value.</p> <p>The language of the complaint was as follows : “ That Lawrence J. Mackay of said Boston, on the ninth day of February, in the year of our Lord one thousand nine hundred, at said Boston, and within the judicial district of said Court, with force and arms, did keep, set up, and promote a certain lottery in a certain building situated and numbered eighty-two in Cabot Street in said city and district, against the peace of said Commonwealth, and the form of the statute in such case made and provided.”</p>

<p>A Merry-go-round maintained in an enclosure opening upon a public street, where music is furnished without charge but a charge is made for riding upon the “ flying horses,” is a public amusement requiring a license under Pub. Sts. c. 102, §§ 115,116.</p>

<p>In a trial for indecent assault a child six years old was allowed to testify as a witness. The examination on the voir dire disclosed no unusual mental condition. Held, that it was within the discretion of the presiding judge to determine . whether the child was competent to testify.</p>

<p>A. B. made an offer in writing to the managers of a fund held in trust by a city, to sell a lot of land containing 500,000 feet, or any number of feet thereof, at a certain price per foot, and enclosed a plan of the land. The managers on June 29, 1895, voted, that the chairman request the city engineer to make a plan showing five acres (217,800 square feet) of the lot in question on the northwest corner of the lot according to the plan. The chairman did not request the city engineer to make such a plan and the city engineer did not make one. A plan designating five acres of the land was made by another person at tlie request of A. B. and was shown to the chairman and to some of the managers who did not object to it. Subsequently the managers voted, that the chairman be authorized in behalf of the board to purchase on the terms stated in the bid of A. B. five acres of the land offered to the board by him, “ the site having been selected by this board at a meeting held June 29, 1895; and it is further ordered that the chairman is hereby authorized to make the necessary draft on the city treasurer for the purchase of said land, according to the terms of said bid.” Held, that the last named vote did not make a contract, but was merely an expression of a determination to buy the land and an authorization to an agent to make the purchase. Held, also, that the above named votes did not sufficiently designate the boundaries of the lot to satisfy the requirements of the statute of frauds.</p>

<p>In a suit to establish a trust in land, the plaintiff relied on a written agreement signed and sealed by the defendant. The presiding judge found as a fact that this written agreement “ was subsequently to the time of execution thereof and before the bringing of this suit destroyed with the knowledge of plaintiff and without objection by him for the sake of preserving peace in the family,” and entered a decree in accordance with the contention of the defendant. Held, that the finding must be taken to mean that the plaintiff consented to the cancellation of the instrument, and that an exception, taken by the plaintiff, to the admission of the defendant’s testimony that he did not read the instrument before he signed it, was immaterial.</p>

<p>A communication made by a client to his attorney, in the course of the attorney’s employment and for a purpose material to the proceedings for which he was employed, is not admissible in evidence, although the communication was not made for the purpose of obtaining advice.</p> <p>A firm consisting of A. and B., going into voluntary insolvency, employed an attorney at law to act for them in the insolvency proceedings. B. went to the office of the attorney and there signed and swore to schedules of liabilities. The Court of Insolvency ordered a claim on certain notes to be expunged, on the ground that the notes were renewals of prior individual notes of A. made in the firm name by A. without the knowledge of B. Upon a petition to revise this order and establish the claim, the petitioner offered to show by the testimony of the attorney, that B. said to the attorney, at the time of signing and swearing to the schedules, that the firm had assumed with other liabilities the notes in question, and that this communication was not made for the purpose of obtaining advice. The evidence was excluded. Held, that the evidence was properly excluded as a confidential communication between attorney and client.</p>

<p>A motorman in the employ of a street railway company going home to dinner after his morning's work, riding free on the front platform of a car of the company under a rule that permits employees of the company in uniform to do so, is a passenger and not a fellow servant of the motorman operating the car.</p>

<p>B. agreed to pay A. a certain sum for plumbing to be done on a house belonging to B. which after making this agreement B. conveyed to his wife. The payments were to be made in three instalments at different stages of the work. The first instalment being unpaid when due, A. stopped work, whereupon B. and B.’s wife signed and delivered to A. an instrument under seal containing tlie following provision: “ This assignment is given to secure A. for labor and material performed and furnished on account of house on Corey Street, Everett, now owned by the wife of B., and we jointly and severally agree to pay said A. all dues on account thereof.” A. then finished the plumbing in accordance with his original contract. Held, that the provision above quoted was a joint and several agreement of B. and his wife to pay for all the labor and materials performed and furnished by A. for the house in question, including the work done after the date of the agreement as well as that done before.</p>

<p>Tort, for injuries received by the plaintiff by reason of the defective condition of Dwight Street in the city of Springfield. Writ dated November 16,1898.</p> <p>At the trial in the Superior Court, before Stevens, J., the plaintiff introduced evidence tending to show that the defect was occasioned by the presence in the street of the rails of the Springfield Street Railway Company. The entire street was paved with brick both inside and outside the rails, and the plaintiff contended that the alleged defect existed by reason of the way the bricks were laid up to the inside of the rails, making a trough or “ too abrupt a slope,” in which the wheel of the plaintiff’s wagon was caught.</p> <p>Evidence was introduced by the plaintiff that the defect existed in so much of the length of Dwight Street as lay between East Court Street and the corner of Lyman Street alluded to in the notice and where the injury happened, a distance of about three hundred yards.</p> <p>The plaintiff testified that he drove his team out of a livery stable and turned to the north to go up Dwight Street, and drove over to the left or west side of the street and on to the west track of the street railway; that he met a team coming toward him and on the west side of the street, having the right of way, and endeavored to turn his team to the right to go by, and testified, “ I yanked my horse around, trying to get him out this way and that; I pulled him one way and then the other trying to get out of the tracks, I yanked him around, and then he kicked, it seemed to me as though something was broke at the back. I yanked the horse eight or ten times to get him out.”</p> <p>At this point, opposite East Court Street, the horse began to run, and ran until the plaintiff was thrown out at Lyman Street.</p> <p>The following written notice signed in behalf of the plaintiff was given by the plaintiff to the defendant in attempted compliance with Pub. Sts. c. 52, § 19:</p> <p>“ To the City of Springfield, Massachusetts.</p> <p>“ I hereby notify you that I claim damages of the City of Springfield for injuries received by me and damages to my horse, wagon and harness.</p> <p>“First: The time of said injury and damage was September 14, 1898.</p> <p>“ Second: The place of said injury and damage was on Dwight Street, in said Springfield, near the intersection of Lyman Street, and about twenty-five feet from said Lyman Street.</p> <p>“ Third: The cause of said injury and damage was the defective condition of Dwight Street, a public highway that said city is bound to keep in repair, said street being defective on account of faulty construction of the paving in and around the rails of the Springfield Street Railway Company making too abrupt a slope and which might have been remedied or which injury and damage might have been prevented by reasonable care and diligence on the part of said city.</p> <p>“ Springfield, Massachusetts, October 14, 1898.”</p> <p>It appeared in evidence that the defendant had no notice or knowledge that any other place of injury or of defect was claimed than that indicated in the above notice until the time of the first trial of the case, March 29, 1899, when notice that the entire street was claimed to be defective was given verbally to the city solicitor by the plaintiff’s counsel.</p> <p>The superintendent of streets and the city engineer of the defendant both testified that they looked for no other place of defect or of injury except at the point “ about twenty-five feet from said Lyman Street ” as indicated in the notice, and that they were both misled as to the place and character of the alleged defect by the notice.</p> <p>The defendant among other requests asked the judge to rule “ that if the defendant was led to believe by the notice, and did believe that the alleged defect which caused the accident was 6 about twenty-five feet from Lyman Street,’ then the plaintiff cannot recover, and that upon all the evidence the plaintiff cannot recover.”</p> <p>The judge declined to give the rulings, but left the question of the accuracy of the notice to the jury, in the manner stated in the opinion of the court.</p> <p>The jury gave a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Appeal from a decree of the Superior Court sustaining the defendant’s demurrer to the declaration. Writ dated July 6, 1899.</p> <p>The declaration alleged that the plaintiffs, as executors of the will of Frank N. Thayer, deceased, by virtue of the powers conferred upon them under said will, conveyed to Franklin T. Rose by deed dated November 9,1883, a certain parcel of land in Boston on the corner of Commonwealth Avenue and Hereford Street, bounded westerly on land conveyed by said executors to Richard C. Flower, through the middle of the brick party wall; “ that in said deed it was provided as follows : 1 Said grantee, by accepting this deed, agrees for himself, and his heirs, and assigns, to pay to said executors, or their successors in said trust from time to time, the value at the time of use of so much of said party wall standing on the described premises, including the piling and foundations under the same, as he or they may at any time use.’</p> <p>“ At the time of said conveyance there stood upon the premises described in said deed, one half of a party wall constructed by the said Thayer at his own expense, but said premises were not otherwise built upon, and so remained until the same were purchased by the defendant.</p> <p>“ Thereafter, on or about January 17, 1899, the defendant purchased the said lot of land, and also the adjoining lot conveyed by said executors to said Flower, as aforesaid, and the same were conveyed to her, subject to the agreement above recited.</p> <p>“ The defendant then proceeded to tear down the dwelling house erected on the said adjoining lot, and to construct a building covering both of the said lots, and to erect a wall upon the said foundations, and in place of the said party wall.</p> <p>“ That the defendant was bound by the terms of said agreement, and having torn down the said party wall for the purpose of erecting a building on said premises, and having used the piling and foundations under the same, for the purpose of erecting another wall thereon, became liable to the plaintiffs for the value of the whole [one half] of said party wall, piling and foundations, which, at the time of use thereof, were of the value of $1,500.”'</p> <p>The defendant demurred to the declaration.</p> <p>The case was heard in the Superior Court by Bell, J., who sustained the demurrer and ordered judgment for the defendant; and thp plaintiffs appealed to this court.</p>

<p>St. 1890, c. 437, § 2, provides that “ Whoever contracts to buy or sell upon credit or upon margin any securities or commodities, having at the time of contract no intention to perform the same by the actual receipt or delivery of the securities or commodities, and payment of the price, or whoever employs another so to buy and sell on his behalf, may sue for and recover in an action of contract from the other party to the contract, or from the person so employed, any payment made or the value of anything delivered: provided, such other party or other person so employed had reasonable cause to believe that no intention to actually perform existed.” Held, that the portion of the above section, giving a remedy to one who employs another to buy or sell in his behalf, gives no remedy to the person employed, and that in an action to recover money paid to a broker as margins, representing the plaintiff’s losses on wagering contracts, the defendant cannot recover in set-off the sums of money paid by him to the plaintiff, representing the plaintiff’s profits in similar transactions.</p>

<p>Contract, to recover $1,000 and interest for two hundred barrels of cranberries sold at $5 a barrel. Writ dated January 9, 1899.</p> <p>At the trial in the Superior Court, before Braley, J., it appeared, that the plaintiff was a corporation engaged in raising cranberries, having its place of business at Wareham, Massachusetts. The defendants were fruit and provision dealers at -San Francisco, California. Much 'correspondence between the parties was put in evidence, of which the material parts are stated in the opinion of the court.</p> <p>The cranberries were shipped by the plaintiff and were received in California by the defendants, who refused to pay the contract price for them.</p> <p>By the correspondence “fancy” cranberries were ordered. There was evidence, in regard to the meaning of the word “ fancy ” in the cranberry trade and as to the kind of berries desirable for shipment to California, the substance of which is stated in the opinion of the court.</p> <p>The plaintiff asked the judge to rule that “ if the plaintiff shipped fancy cranberries, fruit that would carry for future trade, and such as defendant would want to have shipped to California,” it had fulfilled the terms of the contract. The judge refused so to rule, and in submitting the case to the jury, among other things, said: “ The learned counsel for the plaintiff orally has asked me to instruct you that the contract between the parties is not as I have instructed you, but is to read in this way / ‘ Telegram received. Have entered order for car fancy $5 f. o. b. such as would want to ship to California. Wire shipping instructions.’ I refuse so to rule, and I save his exception to the refusal.’’</p> <p>On the point raised the judge instructed the jury as follows :</p> <p>“What was the contract? I instruct you for the purposes of this case that when, on the 15th day of September, 1896, the. plaintiff in this case sent to Mr. Bray, the agent of the defendants, a telegram to this effect: 6 Telegram received. Have entered car fancy $5 f. o. b. Wire shipping instructions,’ the contract was made. What was it? It was for two hundred barrels of cranberries, and they were to be fancy cranberries, delivered on board the cars, as the parties agree, at Tremont in this State, free from all claims for cartage and all liens. This is what the phrase f. o. b., free-on-board, means. When those cranberries were placed upon the cars at Tremont, Mass., it was a delivery of them to the defendants. ...</p> <p>“ It makes no difference for the purposes of this case that these cranberries were to go to California. You cannot annex to that contract certain phraseology which the plaintiff claims should be annexed, and which I have refused to rule should be annexed, to wit: ‘such as you would want to ship to California’; but the fancy cranberry was the cranberry which was then to be put upon the market here, and within that description.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $561.74, being the amount received by the defendant from the sale of the cranberries, with interest; and the plaintiff alleged exceptions.</p>

<p>In an action on a promissory note brought by an indorsee against the maker, where tlie answer specially denied the genuineness of all the signatures, there was clear and uncontradicted.evidence that the indorsement had been made, and the presiding judge, apparently assuming that the fact of indorsement had been conceded, instructed the jury that if the defendant made the noté the plaintiff could recover. The defendant excepted to the instruction generally, without stating his objection. Held, that the defendant could not take the ground that the question, whether the note was indorsed to the plaintiff, was not left to the jury, as he did not call the attention of the presiding judge to this objection to his charge.</p> <p>Where in an action on a promissory note the declaration claims costs of protest without expressly alleging that there was a protest, a defendant who has not objected to the form of the declaration cannot object to an instruction of the presiding judge that costs of protest may be recovered.</p>

<p>A bank cashed and credited forged checks drawn on another bank payable “ to the order of cash,” presented to it by the known clerk of a depositor, without inquiring as to the genuineness of the signatures or requiring an indorsement, and indorsed the checks “Pay only through Clearing House” to itself, signed by its cashier. The checks were paid by the bank on which they were drawn through an employee, who would have discovered the forgeries if he had compared the checks with a genuine signature bn file with that bank. Six months later, the forgeries being discovered, the drawee demanded repayment. Held, that the drawee could not recover from the bank that first cashed the checks, there being nothing to take this case out of the rule that a bank paying a forged check to a bona fide purchaser cannot recover back the money paid.</p>

<p>Where a defendant, in an action brought in a Municipal Court, has been allowed to amend his answer by setting up matter which should have been declared on in set-off, and where on appeal to the Superior Court the defendant is allowed to file in that court a declaration in set-off, containing the same allegations that were contained in the amendment to his answer in the court below, this is merely a change of form; but even if there were a change of substance, by setting up new matter not included in the answer below, the Superior Court under Pub. Sts. c. 167, § 42 and Pub. Sts. c. 155, § 35, would have the same power to allow the amendment that it would have had if the case had been begun in that court.</p> <p>Pub. Sts. c. 168, § 16, requiring a declaration in set-off to be filed with the answer, does not prohibit the court from allowing a declaration in set-off to be filed as an amendment at a later time.</p>

<p>Contract, to recover compensation for work and materials alleged to have been done and furnished by the plaintiff for and at the request of the defendants. Writ dated April 10,1896.</p> <p>At the trial in the Superior Court, before Braley, J., the following facts appeared:</p> <p>The work for which the plaintiff sought to recover consisted of grading, stone work, and pipe laying upon the defendants’ estate in Dedham, and the materials were furnished in connection with that work. The plaintiff had done certain similar work, other than that for which compensation was sought in this suit, under a written contract with one Whitcomb, who was the principal contractor employed by the defendants, and for such other work Whitcomb had paid him, or had agreed to pay him. The fifteen items, upon which the case went to the jury, represented work and materials which the plaintiff contended were not required by his contract with Whitcomb, but were performed and furnished, not at the request of Whitcomb, but at that of one Smith and of one Longfellow, alleged to be agents of the defendants authorized to make such request in the defendants’ behalf.</p> <p>The defendants entered into a contract with Whitcomb to provide all the work and materials for a house, stable, and grounds on a hill at Dedham, Massachusetts, to be constructed according to plans and specifications, and under the direction of the defendants’ architects, Longfellow, Alden, and Harlow.</p> <p>Whitcomb sublet the blasting, excavating, roadbeds, drainage and mason work to the plaintiff. The plaintiff’s contract with Whitcomb was in the following language, signed by the plaintiff: “I agree to do all work called for as per these Specifications dated May 1, and May 13th 1895 for the sum of Thirty-Six hundred & Ninety, $3,690 Dolls.” This contract was written at the end of the specifications.</p> <p>The specifications annexed to the contract of the plaintiff were copies of the specifications annexed to the contract of the defendants with Whitcomb, so far as they related to the work sublet.</p> <p>Item 3 of the plaintiff’s claim was as follows: “ To building mortar wall below grade 106 yds. at $3.50, $371.”</p> <p>In the specifications for mason’s work, under the head “ Stonework,” occurred the following:</p> <p>-“Fill the walls solidly as laid with mortar, carefully pointed inside and outside above ground.</p> <p>“.Below ground, the outside of walls to be as smooth as possible, and plastered from footings to grade with \ cement mortar ; this is to be allowed to dry and the wall approved before the filling is commenced.</p> <p>“ Fill in at the foot of the wall a blind drain of broken stone, graded to point ‘ Z,’ and then fill in with gravel and loam around all mason work, after inspection by the architects, and ram hard.”</p> <p>The specifications for drainage contained the following:</p> <p>“ All stonework to be laid dry, except where otherwise specified, wall well built, not less' than 18" thick, well backed up, cemented around drain pipe for 2'-0" at every entry and exit.”</p> <p>The case had been referred to George Z. Adams, Esq., as auditor, and his report was read to the jury. He found that the plaintiff was entitled to recover on Items 5,10, and 11, and fixed the amount at $128. At the trial the defendants asked the judge to rule, that there was no evidence to warrant a verdict on the items on which the auditor did not find for the plaintiff, and specifically as to each item, but the judge declined so to rule, and submitted the whole case to the jury, to which the defendants excepted. The jury found a general verdict for the plaintiff of $3,045.10.</p> <p>When the jury returned their verdict certain questions, as to their findings on the several items, were asked by the presiding judge and answered by the foreman of the jury.</p> <p>To a question of the judge in regard to Item 12, the answer of the foreman disclosed the fact, that the jury had included in their computation of this item a claim of $44 which had been waived by the plaintiff at the trial. No action in regard to the correction of this error was taken by the defendants,’ and the verdict was recorded.</p> <p>The defendants alleged exceptions.</p> <p>The questions of fact raised by the exceptions appear in the opinion of the court.</p>

<p>Whether an appeal to the Superior Court from a judgment for the plaintiff in a Municipal Court opens the question of the allowance by the Municipal Court of an amendment to the plaintiff’s declaration, qucere.</p> <p>Under Pub. Sts. c. 167, § 42, a plaintiff may be allowed to amend a declaration on an account annexed, by the addition of a count declaring on a judgment obtained in another State on an account identical in its items and alleged to be for the same cause of action. The fact that the claim has been reduced to a judgment does not prevent its being the cause for which the action “was intended to be brought” within the meaning of the statute.</p> <p>Semble, that ordinarily the pendency of a suit for the same cause of action in another State is not a good plea in abatement.</p>

Contract, for breach of an implied covenant in a lease of certain premises in Boston. Writ dated December 31, 1892. Held: that upon all the evidence recited in the bill of exceptions then before the court, the presiding justice should have ruled, that the plaintiffs showed no right to use the elevator after their tenancy of rooms 29 and 30 had been terminated, and no right to use it at any time for the purpose of hoisting goods to the sidewalk from the…

Petition, to enforce a mechanic’s lien for carpenter’s work done on a building of the defendant under contracts between the petitioners and one Ribero, filed June 30, 1898. This case was before the court at a former stage, the decision being reported in 176 Mass. 83.

<p>No exception lies to the refusal of a presiding judge to give a ruling requested after the jury have retired.</p> <p>Questions of law open at a trial and not then raised cannot be raised on a motion for a new trial.</p> <p>An order of a presiding judge, overruling a motion for a new trial applied for on the ground that the verdict is against the law and the evidence and the weight of evidence, is not subject to revision by this court.</p>

<p>In an action against a street railway company to recover damages for the death of the plaintiff’s intestate, it appeared that the deceased was killed by an electric car while crossing a street. There was evidence that the car was in plain sight, when the deceased left the sidewalk to cross the street, and was approaching at the rate of from fifteen to eighteen miles an hour; that the deceased was seen upon the sidewalk and then either running or walking very fast across the street and was next seen when struck by the car. Held, that there was no affirmative evidence of due care on the part of the plaintiff’s intestate and that a verdict rightly was ordered for the defendant.</p>

Tort, to recover for injuries received by the plaintiff while in the employ of the defendant corporation by reason of the alleged negligence of the defendant’s superintendent. Writ dated April 7, 1898. At the trial in the Superior Court, before Maynard, J., it appeared that the defendant corporation had undertaken to deliver certain grain at the stables of Houghton’s Brewery in Boston, and that the work was in charge of one Henry O. Nute as superintendent.

<p>Tort, brought by contractors against the county commission-1 ers of Worcester County for rejection of the plaintiffs’ bid for supplying wooden furniture for the county court house. Writ dated June 26, 1899. The case came up on appeal from a judgment of the Superior Court, rendered by Braley, J., sustaining the defendants’ demurrer to the plaintiffs’ amended declaration. The plaintiffs’ amended declaration was as follows :</p> <p>“ And the plaintiffs say that in the month of April, 1899, they were general contractors; that by chapter 449 of the Acts of the year 1897 the county commissioners of the county of Worcester were authorized to build and equip a new court house for said county in the city of Worcester in said county, and that by said act it was provided that all contracts should be made by means of proposals for bids on the part of the county, which were to be advertised in certain newspapers, and that said contracts must be given to the lowest responsible bidder; that said act gave to ' the commissioners authority to reject any and all bids, but did not give them the right to reject any or all bids.</p> <p>“ That in the year 1899 the defendants were the county commissioners of the county of Worcester, and in said month of April, 1899, or about that time, the said county commissioners, acting under said statute and the subsequent acts in addition thereto, advertised for proposals for furnishing wooden furniture for said court house, the notices or propositions, on the part of the county commissioners, consisting of a 1 Notice to Contractors,’ a copy of which is hereto annexed and marked ‘ A,’ a form of 6 Proposal ’ to be signed by bidders, a copy of which is hereto annexed and marked ‘ B,’ and a blank form of contract containing in full all the requirements, conditions and specifications of said contract; that the plaintiffs duly signed and submitted to the said commissioners a bid for said contract, on one of said forms, wherein they offered to perform said contract for the sum of eleven thousand two hundred and thirty dollars, and the said bid was accompanied by a certified check, as required by the commissioners, and all the requirements of the commissioners’ ‘ Notice to Contractors ’ were duly observed by the plaintiffs, and the plaintiffs were the lowest responsible bidders for said contract, and they were always ready and willing to execute a formal contract and to perform said contract, and to comply with all just requirements of the said commissioners, and the plaintiffs were entitled to said contract, but the defendants, wrongfully, unlawfully, contrary to their duties as county commissioners, and to the provisions of chapter 449 of the Acts of 1897, rejected the plaintiffs’ bid and refused to allow them to perform said contract, and awarded the said contract to another of those persons who bid for said contract when the plaintiffs did.</p> <p>“ And the plaintiffs were damaged by the refusal of the defendants to award to them said contract, in the sum of seven thousand dollars.”</p> <p>The “ Notice to Contractors ” referred to in the declaration as marked “ A ” ended with the sentence “ The right is reserved to reject any or all proposals.” The language of exhibits A and B was not otherwise material.</p> <p>The defendants’ demurrer was as follows :</p> <p>“ Now come the defendants in the above-entitled action and demur to the plaintiffs’ amended declaration, and assign specifically as causes of demurrer the following :</p> <p>“ First. That the defendants, in whatever they did relating to the erection of a new court house in the city of Worcester, and in furnishing the same with wooden furniture, were engaged in the performance of a public duty imposed by law, and in consequence thereof are not answerable to this suit.</p> <p>“ Second. That the defendants, in furnishing said court house with wooden furniture, were not acting under the provisions of > chapter 449 of the Acts of the year 1897, as alleged in the plaintiffs’ declaration, but were acting under the provisions of chapter 137 of the Acts of the year 1897, and of chapter 214 of the Acts of the year 1899, and that said chapters 137 and 214 did not require the defendants to award contracts to the ‘ lowest responsible bidder,’ and that consequently the defendants were under no obligation to award any contract to the plaintiffs, s. “ Third. If the defendants, in furnishing said court house with wooden furniture, were acting under said chapter 449, as alleged in the plaintiffs’ declaration, then that under the terms of said act it was in the discretion of the county commissioners to reject any and all bids offered, and that consequently the plaintiffs, if their bid was rejected, have no cause of action therefor.</p> <p>“ Fourth. If the defendants, in furnishing wooden furniture for said court house, were acting under the provisions of said chapter 449, as alleged in the plaintiffs’ declaration, then that under the advertisements for proposals required by said act, the county commissioners reserved the right to reject any or all proposals, and consequently .that the plaintiffs, if their bid was rejected, have no cause of action therefor.”</p> <p>St. 1899, c. 214, § 1, is as follows: “ The county commissioners of the county of Worcester are hereby authorized to expend a sum not exceeding seventy thousand dollars for the purpose of completing, equipping and furnishing the court house now in process of erection at Worcester, under the authority of chapter four hundred and forty-nine of the acts of the year eighteen</p> <p>hundred and ninety-seven, and also for the improvement of the grounds and approaches connected with said court house. Of said sum an amount not exceeding five thousand dollars shall be expended in completing the construction of said court house.”</p> <p>St. 1897, c. 449, §§ 1 and 3, are as follows : “ Section 1. The county commissioners of the county of Worcester are hereby authorized to sell, tear down or remove the brick court house standing on land now owned by said county, and situated on Main Street in the city of Worcester, and to erect on said land, or on any part of the adjoining land, a building which shall provide additional accommodations for the several courts of said county sitting at Worcester, and for the county offices and purposes. The expense which may be incurred in connection with the disposal or removal of said brick court house, and in the erection of the building authorized by this act, shall not exceed the sum of three hundred and fifty thousand dollars, and shall be paid out of the treasury of said county.”</p> <p>“ Section 3. The commissioners, after said plans have been so approved by them, shall advertise for proposals for said work. Such advertisements shall be published in at least two daily newspapers in the city of Boston, and in at least two daily news-' papers in the city of Worcester, for at least two weeks successively prior., to the time specified therein for opening said proposals, and said proposals shall not specify any particular party or parties from whom the person receiving the contract shall purchase his materials. The contracts for said work shall be awarded to the lowest responsible bidder, said commissioners having the right to reject any and all bids.”</p>

<p>Petition, for registration and confirmation of title to land at the corner of-Catherine and Meyer Streets, in that part of Boston called West Roxbury, filed January 22, 1900. The respondents filed separate answers, the Abington Savings Bank claiming the land as mortgagee, and Hildebrand the other respondent claiming the land as owner.</p> <p>At the hearing in the Court of Registration, before Davis, J., the following facts were found by the judge:</p> <p>That on September 5, 1895, the record title of the land in question was in one Peter P. Veale; that on September 5,1895, Veale mortgaged the land to said bank for the sum of $2,500, and at the time of the tax sale and conveyance hereafter stated the bank was the mortgagee of record; that on October 8,1895, the premises were sold to Benjamin C. Lancy for taxes assessed to Benjamin Lancy May 1, 1894; that the purchaser at the tax sale afterwards, and before the bringing of this action for registration of title, conveyed the premises to the petitioner, and that the tax sale was valid; that on June 3, 1896, the bank made an open and peaceable entry upon the premises for the purpose of taking possession and foreclosing its mortgage, and the certificate of such entry and possession was duly recorded; that on June 5, 1896, the bank foreclosed its mortgage under the power of sale contained therein and conveyed the land to John W. Sproule for the consideration of §2,100, who, at the same time and as part of the same transaction, reconveyed the premises to the bank, and the bank remained in possession of the premises, until in February, 1897, it conveyed the premises to the respondent Hildebrand, who at the same time made a mortgage back to the bank for the sum of §2,885, as security for part of the purchase money, which mortgage the bank still owns and holds; that the bank had no actual notice of the tax sale until May, 1899, the sale having taken place, as above stated, on October 8, 1895. °</p> <p>Upon the foregoing facts the judge ruled that the tax title of the petitioner was valid, but was subject to redemption by the bank under the fourth clause of § 57 of St. 1888, c. 390, and also ruled that the petitioner’s title was subject to the provisions of § 76 of the same chapter, to which rulings the petitioner excepted. The court refused to register and confirm the petitioner’s title and dismissed the petition without prejudice, and the petitioner excepted.</p>

<p>Section 3 of St. 1899, c. 450, was a substitute for § 7 of St. 1897, c. 426, giving the street commissioners of Boston power to make sewer assessments in a certain manner, which had been held to be unconstitutional in Sears v. Street Commissioners, 173 Mass. 350. The substituted section contained the following provision : “ The board of street commissioners of said city at any time within two years after any new sewer or drain for the collection or disposal of sewage or of surface or ground water is completed, shall assess upon the several estates especially benefited by such sewer or drain, a proportional part of the cost thereof, not exceeding in amount the sum of four dollars per linear foot.” The act containing the original invalid provision was approved May 22, 1897; the substituted section was enacted and took effect June 1, 1899. Held, that a sewer begun July 23, 1897, and completed April 5, 1898, is a new sewer within the meaning of the provision of the substituted section above quoted, and that.the provision is constitutional. Held, also, that the word “proportional” in the provision above quoted means proportional to the special benefit received.</p>

Contract, to recover $566 and interest for payments due under a written lease of a gasoline engine placed by the plaintiff in a launch of the defendant, and also $41.82 for fittings furnished for the launch. Writ dated January 28, 1899.

<p>A contractor widening and rebuilding a street for a city, who gives reasonable notice to the public, by barriers and appropriate signs at the entrances, that the street is in process of construction and not open to travel, is not bound to keep the surface of the street free from projections, or to light them at night if they exist, and it is not an invitation to use the street, for him to leave openings in such barriers through which a foot traveller can pass.</p> <p>If a new street is laid out by a city over and including an existing narrower street, and during its construction reasonable notice that the street is closed for travel has been given to the public, by placing barriers and appropriate signs across each end of the new street and across the ends of each street leading into it, and these obstructions are still in place but do not extend across the whole of the space at the ends of the new street or of the streets leading into it, so that persons on foot can pass into the enclosed space without removing or climbing over any obstructions, a contractor, employed by the city to construct the new street, is not bound to maintain lights at night to show an iron pipe protruding through a portion of the new street where a sidewalk is to be constructed, and is not liable to a person injured by falling over such pipe, who entered the enclosed space at night from a side street without knowledge that the street had been closed for travel.</p>

<p>In an action by an employee to recover for injuries received while operating a freight elevator of the defendant, it appeared, that the elevator was an open platform, that the plaintiff had operated the elevator for more than two months, and knew that it would shift and jolt when it was started, and also knew that there was a beam running across the wall on one side of the elevator shaft projecting about three inches, that the plaintiff in the course of his employment placed on the elevator eight large empty boxes, making a pile six feet high, that he then started the elevator, standing on the opposite side of the elevator from the wall on which the beam projected, with his back to the boxes, that the boxes caught on the beam and were pressed upon the plaintiff and struck him in the back so that he was pushed against the next floor and was injured. Held, that the plaintiff was either negligent in failing to appreciate the risk, or knowing the risk assumed it, and that a verdict should have been ordered for the defendant.</p>

<p>A writ of review properly may be granted on the ground that, by an oversight which was explained, a defendant’s attorney neglected to file an answer to certain counts, a demurrer to which had been overruled, and that the plaintiff took advantage of the neglect to get judgment by default against the defendant who had a defence and intended to try the case.</p> <p>A petition to the Superior Court for a writ of review is addressed to the discretion of that court, and the order made thereon cannot be revised upon writ of error.</p> <p>A joint judgment having been entered in the Superior Court against two defendants, each of them filed separately a petition for a writ of review. The Superior Court made an order, entitled as on both petitions, reading “In each of the above entitled actions it is ordered that a writ of review issue.” On a writ of error to revise tills order, it was held, that the words of the order meant that one writ of review or two might issue, whichever was proper, and that if it were otherwise, the defect could be cured by amendment of the form of the order, and would not be a ground for reversing the order on error.</p>

<p>Two ACTIONS OE contract against the maker and indorsers of two promissory notes, each for $5,000, made by the Hotel Reynolds Company to its own order, and both indorsed by it and the defendant John F. Reynolds. The first note, which was payable in one year, was delivered to the plaintiff by the maker in consideration of a loan of $5,000. The second, bearing the additional indorsement of the defendant, Edward Reynolds, was given as collateral security for the first at its maturity. Writ dated October 30, 1899.</p> <p>The Hotel Reynolds Company, by leave of court, amended its answer in each case by adding a count in recoupment, alleging that the loan was made in pursuance of an agreement by which the plaintiff agreed to lend it the $5,000 as long as the defendant purchased whiskeys of him, and further agreed to sell his goods to it at the lowest market price ; that thereafter it bought goods of the plaintiff, but the plaintiff, contrary to the agreement, charged “ excessive and fictitious prices,” and thus fraudulently obtained money from the defendant, which it sought to recoup in this action. The defendant, Edward Reynolds, also, by leave of court, amended his answer in the action on the second note, by adding a similar count in recoupment and alleging that the giving of the original note, the giving of the collateral note, and the agreement to buy goods of the plaintiff at the lowest market price were one and the same transaction.</p> <p>The plaintiff demurred to the amendments in both actions. At a hearing, before Morton, J., the demurrers were sustained and all the defendants submitted to judgment by default, alleging exceptions to the ruling of the single justice sustaining the demurrers.</p>

<p>Contract on three bills of exchange for ¿640, ¿£50, and ¿£85 respectively, all drawn upon the defendant and one Cushman0, two by one Terry, and the third by Williams and Strahan, and accepted by the defendant and Cushman. Writ dated January 6, 1899.</p> <p>The defendant in his answer, among other matters, alleged that there had been a payment at Worcester Massachusetts, of a sum less than the face of the bills of exchange, upon the express agreement that the sum paid should be accepted in full satisfaction and discharge of the obligation, and further, that there had been full accord and satisfaction of the bills of ex- / change by the payment by one G. Henry Whitcomb, the defendant’s father, of a sum less than the entire amount thereof.</p> <p>At the trial in the Superior Court, before Gaskill, J., it was admitted that the bills were open to all defences that existed between the original parties. It appeared that they were drawn and accepted in England; that in the summer of 1894 the defendant and Cushman arranged for a trip of the Amherst College Glee Club through England, and made a contract with Terry by which he agreed to “ engage transportation, lodging and other hotel accommodations, entertainment halls and secure printing of posters and all other necessary printing, and the pro-grammes, to arrange for bill-posting in each town and all newspapers advertisements.” Williams and Strahan, the drawers of the third bill of exchange for ¿£85, were employed by Terry to print programmes and advertising matter for the tour of the Amherst College Glee Club in England.</p> <p>A partner of the firm of Williams and Strahan testified, that at the close of the tour, and after the work was done, Terry, the defendant, and Cushman came to the office of Williams and Strahan, where the £85 bill of exchange was made out and accepted ; that one half of this bill of exchange had since been paid through Brown, Shipley, and Company, with whom as collection agents the drafts had been left; that when the drafts were returned from Brown, Shipley, and Company in November of 1894 Terry informed Williams and Strahan that one half of them had been paid, and that there was no agreement at any time by his firm that the defendant was liable for one half only of said account or one half of said bill of exchange. That his firm did not accept the payment of one half the bill in full discharge of the defendant’s liability thereon nor agree to so accept it, nor authorize any one to do so, whether the payment was made by the defendant or his father.</p> <p>Terry testified that he had received one half the payment of the bills of exchange drawn by him, but that he had not accepted such payment whether made by the defendant or his father in full satisfaction of the defendant’s liability, and had not released him from liability, nor authorized any one else to do so.</p> <p>The defendant testified, among other matters, that he understood that by the terms of the contract Cushman and he were each responsible for one half the amount of the bills, and that they accepted the bills with that understanding, and that this was assented to by Williams and Strahan; that thereafter the defendant came to Worcester, to the home of his father; that some time in October, 1894, he was informed through his father, that the bills of exchange had been sent to Worcester for collection ; that the defendant knew nothing about the payment of the bills of exchange; that he had no money to pay them or any part of them; that he did not furnish the money that was actually paid on the bills, and that it was furnished by his father on his own account and not by way of advancement to him.</p> <p>G. Henry Whitcomb, father of the defendant, testified that in October, 1894, he received notice from the president of the First National Bank of Worcester, that there were at bis bank for collection the three bills of exchange in suit; that he went to the bank and saw there the original bills of exchange; that he said that he would pay one half of the face of each of the bills without interest, provided such payment should entirely relieve the defendant from all further obligation and liability upon • the same; that the president of the bank replied that he had no authority to accept such an adjustment as that, but would write to Brown Brothers, the representatives in New York of Brown, Shipley, and Company, who had sent him the bills of exchange, stating the offer and asking for instructions ; that thereafter early in November he received notice from the president of the bank by telephone, that Brown Brothers had authorized the acceptance of one half the face of the notes, and that in consideration of such payment the obligation of the defendant, Henry E. Whitcomb, should be entirely liquidated; that he thereupon paid one half the face of each of the bills, amounting in all to $429.95, upon the understanding and condition that the liability of the defendant on all the bills of exchange should be extinguished; that the money was paid out of his own personal bank account; was his own money and not that of his son, and that throughout the entire transaction he acted on his own behalf, and not as agent for anybody else.</p> <p>The president of the bank gave a similar account of the transaction. He testified that, on receipt of the remittance, Brown Brothers wrote to the bank, “We think it best to accept that sum in liquidation of his proportion of the debt,” and signed and delivered the following receipt: “ Received from Mr. H. E. Whitcomb Four hundred and twenty-five & 94/100 dollars, being his proportion of one half the amount of drafts as noted below, and which amount we are to remit on a/c of said drafts to London.”</p> <p>At the close of the evidence, the defendant asked for four rulings, which are mentioned and explained in the opinion of the court. The judge refused to give the rulings requested, and instructed the jury in the manner stated in the opinion.</p> <p>The court submitted to the jury the following question: “Was there a consideration from the defendant for more than one half of the amount of the bill of exchange for 85 pounds ? ”</p> <p>To this the jury answered, “ Yes.”</p> <p>The jury returned a verdict for the defendant upon the first two counts of the declaration, upon the bills drawn by Terry, and for the plaintiff on the third count, which was upon the bill for £§5 drawn by Williams and Stralian. The defendant alleged exceptions.</p>

<p>Tort against six defendants for an alleged conspiracy to defraud the plaintiff. Writ dated June 22, 1897.</p> <p>The case came up on appeal from a judgment of the Superior Court rendered by Maynard, J., overruling demurrers of four of the defendants to the declaration. Three of the defendants also alleged exceptions, which were allowed by the same judge, after a trial at which the plaintiff obtained a verdict. There was also a petition of four defendants to prove further exceptions.</p> <p>The substance of the declaration is stated in the opinion of the court, and the material portions of the exceptions are also stated in the opinion.</p> <p>The jury found a verdict of $9,917.31 against all the defendants, and the defendants moved for a new trial. After a hearing on this motion, the following order was made by-the presiding judge on January 12, 1900: “ Verdict set aside and new trial granted as against defendants Simonds and Henderson. As against the other defendants' the motion to set aside the verdict is overruled provided plaintiff shall on or before the first Monday of February, 1900 file in said case a waiver of all damages awarded by the jury above the sum of five thousand dollars. Otherwise the motion is allowed and verdict set aside as to them.”</p> <p>On January 31. 1900, the plaintiff filed a discontinuance against the defendants Simonds and Henderson and a waiver of damages above $5,000.</p> <p>On February 19, 1900, the four defendants, to whom a new trial had been refused, filed exceptions to the order of January 12, 1900, above quoted. These exceptions were disallowed by the judge. The same defendants subsequently filed a petition to prove the last named, exceptions, alleging that the exceptions were filed “ within twenty days from the thirty-first day of January, 1900, when the order excepted to became effective through the filing of the plaintiff’s waiver of damages, viz.: upon the nineteenth day of February, 1900.”</p>

<p>In an action under Pub. Sts. c. 100, § 21, by the wife or children of a person alleged to have been run over by a railway train in consequence of his intoxication caused by liquor sold to him by the defendant, it is not necessary to show exactly how the accident happened or that it was seen by any person, if there is evidence justifying a finding that it was due to the intoxication of the injured person caused in the manner alleged.</p>

<p>An express company agreeing to transport a trunk over the line of another company is liable in contract for its loss.</p>

<p>Tort, at common law, to recover for personal injuries received by the plaintiff while employed as a tube boy or tuber in the mule room of the cotton mill of the defendant. Writ dated November 23, 1896.</p> <p>At the trial in the Superior Court, before Dewey, J., it appeared that the plaintiff was employed by the defendant as a tube boy or tuber. The tubes are small paper tubes, about an inch in height and a quarter of ’ an inch in diameter, that fit closely about the spindles. Boys called “ doffers ” remove the full bobbins from the spindles. Other boys called “ tubers,” who have been waiting until the bobbins are removed, then place the tubes on the spindles, taking them from a tube box or can which they wear strapped around the waist, after which the mule is started again by the spinner. The doffers and tubers go from mule to mule in the room as the mules require doffing. There were twenty-eight mules in the room where the accident occurred, arranged face to face in fourteen pairs, each mule extending across the width of the room.</p> <p>The plaintiff was injured November 11, 1896, by having his hand caught between the quadrant gear and the pinion gear of one of the mules.</p> <p>Continually, in the process of manufacture, the threads, of which there are about nine hundred and sixty to each mule, corresponding to the number of spindles and of bobbins, are breaking, and it is the duty of the operative to tie the ends together or “ piece them up.”</p> <p>The plaintiff testified, that beside tubing he had to sweep out and pick up the tubes from the floor and to piece up; that he was told by the second hand to piece up; that when he or the other boys did not piece up the second hand would kick and slap them; that just before the accident he saw a thread broken down and went to piece it up ; that at the time he had his tube can, crescent-shaped, six or seven inches wide and fourteen inches long, filled with tubes, fastened around his waist by a strap, and he had it on to tube the other mule as soon as it was ready for tubing; that he pieced up, and then “ I come to turn round to put the tubes in the other mule and the gear caught my hand. I come and pieced up this way (illustrating) near the mule head where I found the gear was, and I turned to go and put in the tubes and caught my hand in the gear.” He further testified, that he did not know that there was a gear there, and had never been told of it, and did not know there was any danger in the place when he turned round to go to tube.</p> <p>The other material evidence is described in the opinion of the court.</p> <p>At the conclusion of the evidence, with the consent of both parties, the judge submitted to the jury this special question: “Did the plaintiff at or before the time of the injury know of the existence and location of these gears ? ” to which question the jury returned the answer, “ No.” Thereupon the judge directed the jury to return a verdict for the defendant.</p> <p>Judge Dewey having died.after the trial and before the report was signed, at the request of both parties, Bond, J. reported the case for the consideration of this court, upon the terms, that, if the direction of a verdict for the defendant was right, judgment was to be entered on that verdict; if that direction was wrong, and the plaintiff was entitled to go to the jury, the verdict was to be set aside and judgment entered for the plaintiff in the sum of $5,583, as of October 5, 1898.</p>

Contract to recover damages for breach of an agreement to furnish a system of heating • in the plaintiff’s apartment house, No. 176 Washington Street, Dorchester, which should be capable of heating two suites on the first and second floors containing seven rooms each. Writ dated December 22, 1898. The declaration contained two counts; the first alleging generally a breach of contract, and the second alleging a breach of warranty.

<p>In an action for maliciously by means of slanderous charges inducing a third person to discharge the plaintiff from his employ, the declaration must set out the substance of the false statements.</p> <p>To maliciously induce an employer to discharge an employee is an actionable tort, whether accomplished by malevolent advice or by falsehood or putting in fear.</p>

<p>Two actions OF tort to recover damages sustained by reason of an alleged defect in a highway in Gohasset, in the first case for injuries to a horse and carriage owned by the plaintiff, and in the second case for personal injuries sustained by the plaintiff Lillias, a minor child of the plaintiff in the first case. Writs dated March 28, 1899.</p> <p>At the trial in the Superior Court, before Mason, C. J., without a jury, it appeared that the accident happened between seven and eight o’clock P. M. on November 7, 1898, about a mile from Gohasset village, on a highway known as Beechwood Street, The material portions of the evidence are described in the opinion of the court.</p> <p>At the close of the evidence the defendant, among other requests, asked the Chief Justice to rule, that it could not be found on the evidence that the horse was driven with due care; that, if the way at the time of the accident was defective, there was no evidence that the town had such notice that it could with reasonable diligence have remedied the defect; and that upon all the evidence the plaintiff was not entitled to recover. These requests were refused by the Chief Justice.</p> <p>The defendant also asked for a ruling that, upon the evidence, the repairs were made properly upon the highway, and the placing of loose gravel thereon did not constitute a defect therein. As to this request the Chief Justice said: “ This would be correct, assuming that reasonable lights or barriers were provided for the protection of travellers.”</p> <p>The Chief Justice found for the plaintiff in each case, in the sums of $10 in the first and $1,200 in the second case. The defendant alleged exceptions.</p>

<p>The holder of an indorsed promissory note is not obliged to prove the note against the estate of the maker in bankruptcy in order to hold the indorser.</p> <p>Whether, if the indorser of a promissory note requests the holder of the note to prove it against the estate of the’ maker in bankruptcy, tendering the expenses of such proof with proper indemnity, or requests him to allow the filing of the note in order that the indorser may prove bis own claim, a refusal of the holder to comply with such request releases the indorser, qumre.</p>

<p>An instrument which contains a power of attorney inter vivas may also be a codicil to a will.</p> <p>A large part of a testator’s property consisted of deposits in savings banks and his will gave five legacies of $3,000 each. The following instrument, which was shown to have been executed by him anima testandi, and duly attested, was held to be a valid codicil appointing his son executor: “ To all whom it may concern, That I, A., being nearly blind, and enfeebled, cannot attend to my business transactions, and that I, hereby, give my son B. the full Power of Attorney to attend to my business affairs, such as collecting money from the banks, such as drawing Interest, of closing accounts by surrendering the books, and paying out same according to directions in my Will.” Held, also, that evidence, that the testator expressly contemplated the settlement of his estate by his son, in conversations before and after executing this instrument, was competent.</p>

<p>Tort to recover for injuries caused by the plaintiff falling on a ridge of ice on the sidewalk of Central Street in Lowell formed by. water running from conductors or spouts attached to the defendants’ building and emptying upon the said sidewalk. Writ dated September 9, 1899.</p> <p>At the trial in the Superior Court, before Stevens, J., there was evidence that there were ridges of ice on the sidewalk in question formed in the manner alleged and that the plaintiff was injured by falling on one of them.</p> <p>The following extracts from the bill of exceptions give the plaintiff’s description of the manner in which the accident occurred :</p> <p>“ The plaintiff testified on direct examination, that she was a woman fifty-eight years old; that on the eighth day of March she left her home on Cady Street in Lowell, Mass., and walked to Central Street; that she walked down Central Street on the right-hand side, which was the opposite side to where she was injured, to the Post Office building on Appleton Street; that after spending a few moments at the post office she started to return to her home, using the sidewalk on the opposite side of the street to walk upon ; that as she approached the sidewalk in front of the defendants’ premises, she was walking slowly and cautiously until she got about in front of the unoccupied store in the defendants’ building. About the middle of the sidewalk her foot slipped very suddenly on a ridge of ice, and she fell very heavily on her right side.</p> <p>“ On cross-examination the plaintiff testified, that as she approached the sidewalk in front of the defendant’s premises she saw a sheet of ice on the sidewalk; that she stepped upon said ice and commenced to walk along and over the same; that about the time she commenced to walk upon said ice she looked into the window of an unoccupied store; that she continued to walk along while so doing; that she then turned her gaze from the store window and looked straight ahead of her up the street and did not look down at the sidewalk to see the ice or to pay any more attention to it; that a few minutes after she glanced at the unoccupied store she fell, as she testified, upon a ridge of ice, in front of that part of the defendants’ premises where, as the evidence tended to show, the tin conductors as above described discharged water upon the sidewalk which became frozen and formed ice, and as a consequence she fractured her hip bone. The plaintiff in answer to a question asking her to describe the ice or portion of the sidewalk in front of the defendants’ premises that was covered with ice said, that she could not for the reason that she ‘ was not giving it sufficient attention,’ that she was not ‘ particularly noticing it ’; that she knew that that portion of the sidewalk upon which she was going to walk was generally icy, and that she walked right along on the same looking forward and did not look down on to the sidewalk; and further testified, that the condition of the sidewalks on both sides of the street was not clear from ice and snow, that there were spots of ice and snow at little distances from each other, and that the short distance she went the sidewalks were not very bad.”</p> <p>At the close of the evidence, the defendants asked the judge to rule that there was no evidence of due care on the part of the plaintiff, and to order a verdict for the defendants. The defendants also among other requests asked the judge to rule, upon the question of the existence of a nuisance, that “a highway shall not be deemed unsafe or inconvenient for travellers using due care solely by reason of ice and snow thereon, if it would be reasonably safe and convenient for travellers but for the presence of ice and snow thereon.” See St. 1896, c. 540. The judge refused to make these rulings.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>A petition under St. 1893, c. 340, to quiet title to real estate, alleging that the petitioner is seised in fee simple of and in possession of certain land described and that tlie record title thereof is clouded by an adverse claim of the respondent, is good without a further allegation that the petitioner has a record title to the land in question, although the petitioner must show that he has a record title in order to maintain his petition.</p> <p>A, conveyed to B. a parcel of land, and B. conveyed part of it back to A. Later, B. said that he had lost his deed, and A. gave him a quitclaim deed of the whole original parcel of land, including the part that had been reconveyed to him, with a recital that it was given to take the place of the first deed which was lost. Subsequently B. conveyed to C. the same part of the land which he had conveyed to A. and which had remained in A.’s uninterrupted exclusive possession. On a petition brought by A. against C. under St. 1893, c. 340, to compel C. to bring an action to try his claim to the land, it was held, that A. had a record title and, having also possession, might maintain his petition, and that, C. having also a record title, the question, whether A. or C. had the better title, was not to be determined in these proceedings but in the action which O. was ordered to bring.</p> <p>In a case where it is necessary to show possession of certain land, the fact that taxes were paid by a person, shown by other evidence to be in possession, is admissible to show the character of his possession.</p> <p>Uncultivated land largely covered with busltes, and afterwards cleared, is not wild land, and enclosing it on three sides by a wire fence, the remaining side being bounded by a stone wall, is evidence of possession.</p>

<p>Petition, filed April 25, 1898, to establish a mechanic’s lien on certain land of the respondents and houses thereon, for materials furnished by the petitioner under a written contract with the respondents and used in the erection of said houses.</p> <p>In the Superior Court the case was referred to George W. Anderson, Esquire, as referee, with an agreement of parties that his report as to matters of fact should be final. The report of the referee was accepted by Sheldon, J„ and a decree of sale entered, from which the respondents appealed. The following facts appeared by the referee’s report:</p> <p>The contract under which the materials were furnished was dated May 12, 1897. The respondents Thomas J. Hyndman and George H. Strongman thereby agreed to buy from the petitioner certain lumber and outside and inside finish, which they required for the construction of three houses on College Avenue and Summer Street in Medford. Before April 29, 1897, the premises were owned in fee by one Michael F. Dwyer, who on that day conveyed the property to the respondents Hyndman and Strongman. The deed was signed and acknowledged on that day. On the same day and as part of the same transaction Hyndman and Strongman executed a mortgage upon the same property to Michael F. Dwyer for $3,000. The deed and the mortgage were each re-acknowledged on July 10, 1897. Both instruments were recorded July 12, 1897.</p> <p>It was contended at the trial that it was understood and agreed that the original deed and mortgage were not to be delivered so as to take effect until a construction mortgage had been negotiated upon the premises, and that in accordance with this agreement Richard J. Dwyer, a brother of Michael, who as justice of the peace had taken the acknowledgments, retained possession of said deed and mortgage until in July, 1897, a mortgage having been negotiated with one Mercer, other papers were executed. These other papers were: 1st. A partial release to Hyndman and Strongman by Michael F. Dwyer of the premises covered by the mortgage of April 29, said release covering land on the easterly side of College Avenue, acknowledged July 10 and recorded with the other papers on July 12. 2d. Hyndman</p> <p>and Strongman executed a mortgage upon the lot thus released to William L. Mercer to secure $2,500 payable in two months, which mortgage was recorded with the other papers on July 12. 3d. Hyndman and Strongman executed a second mortgage upon the same parcel, subject to the mortgage to Mercer, to secure $1,000 payable to Michael F. Dwyer in two months, acknowledged on July 10 and recorded with the other papers on July 12. On the same day and as part of the same transaction the original deed and mortgage dated April 29, 1897, were re-acknowledged as above .stated.</p> <p>The referee found that the deed from Michael F. Dwyer to Hyndman and Strongman was duly delivered on April 29,1897, to Richard J. Dwyer to hold and to record for the grantees, and that Hyndman and Strongman were therefore the owners of the property after that date. The mortgage of $3,000 back to Michael F. Dwyer was also delivered on that date, but was not recorded until July 12.</p> <p>Before the execution of the contract of May 12,1897, the petitioner was informed that Dwyer had taken back from Hyndman and Strongman a mortgage on the property. Under this contract the materials named in the petition were furnished by the petitioner and actually used by the respondents in the construction of their houses on the land described in the petition.</p>

<p>Pub. Sts. c. 49, §13, does not apply to the alteration and widening of a highway crossing the location of a railroad at grade. In such a case, application should be made under Pub. Sts. c. 112, § 129, providing for the alteration of such crossings and their approaches, under which a widening is included.</p> <p>St 1890, c. 428 and amendments thereto relate only to the abolition of grade crossings and have no application to the alteration of a highway crossing the location of a railroad at grade.</p>

<p>A will contained the following provision: “ I give and bequeath to each one of the servants who at the time of my death shall have been in my employ at my homestead or at the stable connected therewith, a period of four consecutive years, the sum of one thousand dollars each. I do not, however, by this legacy give any sum or sums of money to any person or persons in my employ at the Faulkner Farm, or upon my yacht." Held, that the word “homestead” was used in a restricted sense to mean “ dwelling-house,” and that the bequest was intended only for house servants and stable hands', and did not include a man who worked for four consecutive years on the grounds about the homestead, and for two of the years as watchman, and whose work in the house was to carry in wood or coal or once in a while to move heavy furniture. Held., also, that the mention of persons employed at the Faulkner Farm or upon the testator’s yacht was merely intended to make clearer what the testator meant by the word “ servants,” and was not intended to exclude one who had worked as a house servant or stable hand for four consecutive years, in case he also had worked at the Faulkner Farm or on the yacht.</p>

<p>The provision of St. 1898, c. 548, § 230, that no ballot without the official indorse* ment except in a certain case provided for shall be deposited in the ballot box, does not prohibit the counting of such ballots when cast in good faith without objection.</p> <p>A cross marked on a ballot in the square opposite a blank and next below the square opposite the name of a candidate cannot be counted as a vote for such candidate.</p>

<p>Contract, against a surety, for breach of condition of a bond given by contractors, to secure the construction in accordance with certain specifications of a building on the corner of Eustis and Adams Streets in that part of Boston called Roxbury. Writ dated September 4, 1897.</p> <p>At the trial in the Superior Court, before Bond, J., after certain evidence had been put in, the judge ordered further testimony to be limited to the question of the alleged breach of the bond, stating that, if judgment should be entered for the plaintiff, another trial might be had to ascertain the amount for which execution should issue; and thereafter the trial proceeded upon the issue as to the breach of the bond, and no other issue was submitted to the jury. The bond was dated January, 1897, was made to Franklin D. Amsden, the plaintiff, and was executed by Walter G. Crowther and Lewis P. Kaufman as principals, and Lorin G. Parmelee, the defendant, as surety. The condition was as follows:</p> <p>“The condition of the obligation is such, that whereas said Crowther and Kaufman have this day applied to said Amsden for a loan of $28,000 upon property on the corner of Eustis and Adams streets, in said Boston, in that part thereof formerly Roxbury, and said Amsden has accepted said application, and a mortgage on said premises for said amount has this day been given by said Crowther and Kaufman to said Amsden, and said Amsden has agreed to advance the consideration of said mortgage as set forth in said application, and is desirous of security that said Crowther and Kaufman shall well and truly observe and perform all the terms and conditions of said application up to the time the building referred to therein is up, all floors up, roof on and covered, and front, sides and rear wall up and properly joined with the roof and cornices on, and shall construct said building in accordance with the plans and specifications referred to in said application, or in accordance with any other plans and specifications which may hereafter be agreed upon by and between said Crowther and Kaufman and the said Amsden, until it has reached the stage of completion aforesaid, and shall save harmless the said Amsden from any and all loss or damage by reason of the failure of said Crowther or Kaufman, or either of them, to keep and perform all the terms and conditions of said application up to the time said building has reached the stage of completion aforesaid, then this obligation shall be void, otherwise it shall be and remain in full force and virtue.”</p> <p>The jury returned a verdict for the plaintiff for $1,500, the penalty of the bond, and the defendant alleged exceptions to rulings of the judge excluding and admitting evidence during the trial. The evidence thus excluded or omitted is sufficiently described in the opinion of the court.</p>

Tokt to recover for the alleged conversion of fifty tons of hay. Writ dated July 15, 1898. At the trial in the Superior Court, before Pierce, J., it appeared that on August 20, 1896, the plaintiff sued out a writ from the Superior Court of Essex County, against one Horace Moody, and placed it in the hands of one Ayers, a deputy sheriff, for service.

<p>Tort for personal injuries alleged to have been caused by the negligence of the defendant’s servant in driving an express wagon of the defendant against the plaintiff’s wagon on Dedham Street at the corner of Harrison Avenue in Boston. Writ dated August 17, 1898.</p> <p>At the trial in the Superior Court, before Sherman, J., there was evidence in regard to the collision which is sufficiently described in the opinion of the court. In the course of the trial, the defendant put upon the stand one Cooper, its master of transportation, and proposed to show by him all the routes of the express wagons of the company in Boston, and what men were employed upon them, and where it was the duty of each to go on the day of the accident, for the purpose of showing that none of them was authorized to go by- the corner of Dedham Street and Harrison Avenue on the day of the accident, and that no driver of the defendant if there with liis team was in the course of his employment.</p> <p>The judge excluded the evidence, ruling that the defendant might show that its men were not there, but could not show where they ought to have been, and the defendant excepted.</p> <p>At the close of the evidence, the defendant requested the judge to give the following instructions to the jury: 1. That the evidence does not show the plaintiff to have been in the exercise of due care. 2. That the evidence does not show that the defendant was negligent. 3. That there is no evidence connecting the American Express Company with the accident. The judge refused to give the instructions requested.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>An application was made in this State by a married woman to an agent of a New York company for insurance upon the life of her husband for her own benefit. In response, a policy was sent from New York, by which the premiums and insurance money were payable in New York, and containing a clause, not applied for, providing that in case of the death of the beneficiary before her husband the insurance should be payable to her children. This policy was delivered in Massachusetts on payment of the first premium. Held, that the contract of insurance was not complete until the policy was delivered and accepted, and that the rights of the parties under it must be determined by the law of Massachusetts.</p> <p>A husband in the name of his wife applied for and procured a policy of insurance upon his own life for. the benefit of his wife “ for her sole use, if living, and, if not living, to her children." The husband signed the application in his wife’s name as applicant and in his own name as the person whose life was proposed for insurance. The policy referred to the application, and provided for payments of premiums by the wife. The wife died before her husband, leaving children. The children died before the husband. All the premiums on the policy were paid by the husband both before and after the death of his wife. Held, that the contract of insurance was between the wife and the company, insuring her interest in the life of her husband, for her benefit, if she survived him, otherwise for the benefit of her children, and was not an insurance by the husband of his own life for the benefit of his wife and children. And accordingly the administrator of the estate of a deceased daughter could recover from the executor of the husband of the insured such daughter’s share of the insurance money.</p> <p>Whether, if one insures his life for the benefit of his wife and children, and they die before him, there is a resulting trust for the benefit of his estate, qucere.</p>

<p>In the assessment under St. 1892, c. 415, § 2, of damages occasioned by the laying out of a street, if the order of location prescribes a grade for the street throughout its entire width, the petitioner is entitled to have his damages assessed on the assumption that the street will be graded in accordance with the order, in spite of the fact that the city has constructed the street through only half of its authorized width, and he is entitled to have it fully graded within a reasonable time.</p> <p>In the assessment under St. 1892, c. 415, § 2, of damages occasioned by the laying out of a street, if the order of location contains nothing to show that the street is to be graded throughout its entire width, and the city council makes an appropriation contemplating a construction of the street through only half of its authorized width, and such construction is completed and the street opened to travel, and the board of aldermen assess betterments upon abutters under a statute providing that betterments shall not be laid until the work of construction is completed, this constitutes a completion of the street as fully as if the width adopted had been prescribed by the order of location, and damages are to be assessed for the laying out of the street as actually constructed.</p>

<p>One who for a reasonable purpose drives h'is wagon in a cobble stone gutter close to a curbstone in which is set a post hydrant, which he can plainly see and is approaching, and whose wheel strikes on a projecting nut of the hydrant, can be found to be in the exercise of due care, so as to recover for an injury caused by the collision.</p> <p>A post hydrant so placed in the curbstone of a sidewalk that the wheel of a carriage passing close to the curbing cannot get by the hydrant without hitting a projecting nut upon it, may constitute a defect in the highway for which the city maintaining such hydrant is liable.</p> <p>Water commissioners, appointed by a city council under a special statute voluntarily accepted authorizing the city to take and distribute water to its inhabitants for a price, and who are “subject to such ordinances, rules and regulations in the execution of ” the powers entrusted to them “ as the city council may from time to time ordain,” are agents of the city for whose acts the city is liable.</p>

<p>A lessor owes no duty to a guarantor of the lease to use diligence in collecting the rent, or to notify the guarantor of a series of defaults on the part of the lessee, and in an action on the guaranty the guarantor cannot be allowed to show, that the lessor failed to collect the monthly rent for twenty-three months during fifteen of which the lessee had abundant property, and that the lessee had obtained his discharge in insolvency before the guarantor was notified of any default on the part of the lessee. Clark v. Remington, 11 Met. 361, distinguished.</p> <p>The Massachusetts rule, that the guarantor of a promissory note is discharged if he has suffered from want of notice of the default of the promisor, discussed by Losing, J.</p>

<p>An action of tort for the conversion of goods of the plaintiff under Pub. Sts. c. 167 is equivalent to trover at common law, and cannot be maintained by one who has a right of property without the right of immediate possession.</p> <p>In an action of tort for a conversion of goods, evidence of a subsequent sale of the goods at auction is admissible to show their value at the time of the conversion, unless the condition of the property had changed or the time of the sale was too remote.</p>

<p>Tort, under Sfc. 1887, c. 270, brought by a workman in a quarry against his employers for injuries sustained by reason of the alleged negligence of the defendants’ superintendent. Writ dated December 7, 1899.</p> <p>At the trial in the Superior Court, before Maynard, J., there was evidence of the following facts: The plaintiff was a laborer working in the defendants’ quarry. His general work was breaking stone with a sledge hammer and working with a bar, and when he had time he would load the car; he had nothing to do with the work of blasting. Shortly before the accident, the plaintiff, while at work breaking stone with a bar and filling wheelbarrows with stone to go to the crusher, discovered an unexploded or “ missed ” hole, so called; that is, a hole in the rock which had been charged with dynamite and had failed to explode with the other kales comprising the blast of which it was a part. This hole was about eighteen feet deep, and had about fifteen dynamite cartridges in it. The plaintiff immediately notified the foreman of the quarry of his discovery. It was admitted that the foreman was the superintendent of the quarry, and that his principal duty was that of superintendence. The foreman called one Melone, an employee whose work was unloading and exploding the mines or holes in the quarry, and told him to unload the unexploded hole about three or four feet, and then blow it off. Melone and the foreman went together to the unexploded mine, Melone carrying with him a tool called a scraper, which was an iron rod five or six feet long with a spoon shaped end about the width of a man’s thumb. This scraper was used about the quarry for the purpose of cleaning out the holes drilled in the rock to prepare them for the reception of cartridges for blasting, and bad never before been used for the purpose of unloading an unexploded mine or “ missed ” hole. Melone started to unload the hole, putting the scraper into the hole and turning it around so as to dislodge the cartridges, in order that they might be removed from the hole. The cartridges were about as large in diameter as the hole, so that they fitted into the hole tightly. The foreman stayed at the hole watching Melone using the scraper in this way for four or five minutes. He then said to Melone “ After you unload that four or five feet explode it,” and went away. The foreman said nothing to the plaintiff by way of warning, and did not tell him to go away from the hole while it was being unloaded. Almost immediately, and while Melone continued to use the scraper in the same way as before, the hole exploded, and the plaintiff, who was working near by, received the injuries complained of. There was expert testimony to the effect that the use of an iron scraper in boring around a hole is very dangerous, and that the explosion in this case was caused either by the scraper coming in contact with an explosive cap of the kind customarily used, which are fixed in some of the sticks of dynamite in the hole for the purpose of exploding a mine, or by the scraper striking the rock in such a way as to cause a spark which set off the dynamite.</p> <p>At the close of the evidence, the defendants, among other requests, asked the judge to rule: l.vThat upon all the evidence in the case the plaintiff was not entitled to recover. 2. That there was no evidence that the defendants’ superintendent was negligent, or that the plaintiff was in the exercise of due care. 3. That upon all the evidence in the case the accident was due solely to the negligence of Melone, a fellow servant, and the plaintiff was not entitled to recover. The judge declined to give these rulings.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>The fact that a party to a suit has filed no exceptions to a master’s report is not a ground for dismissing his appeal from a final decree confirming such report, and upon such appeal the question is open to him whether the decree is justified on the facts as found by the master.</p> <p>An appeal by one of two co-administrators from a decree against the estate will not be dismissed on the ground that the co-administrator did not join in the appeal, where a severance in pleading appears on the record.</p> <p>An assignee of a chose in action, whose right is denied by the administrator of his assignor and by the person from whom lie must collect the claim assigned, has a remedy in equity.</p>

<p>Tort to recover for injuries received by reason of the improper management and control of a car of the defendant in entering upon a switch thereby causing a jolt of the car and causing the plaintiff, who was standing on the front platform of the car, to be thrown to the ground and injured. Writ dated November 18,1898,</p> <p>At the trial in the Superior Court, before Stevens, J., the plaintiff testified that on the 7th day of October, 1898, he boarded a car of the defendant company at Central Square in Lynn at about half past six o’clock in the evening, and took a position upon the front platform of the car on the right hand side of the door as the car was going; that he was as close to the door as he could get, and was holding on to • the rail that is in front of the body of the car which was a closed car; that when he got on to the car all the seats were taken, and people were standing in the aisle; that on the front platform there were four others besides himself at the time he boarded the car; that there were people standing on the rear platform at the same time; that while so riding he was smoking and held on to the rail with his left hand; that he had ridden upon the front platform from the time the car started from Central Square to the point of the accident; that the car was going up Union Street to Chestnut Street, and that when it got to the junction of Chestnut and Boston Streets, the motorman turned off his power so as to run over the .switch, and turned his brake the other way, and when he turned it the other way he struck into the switch as if the car struck a solid ledge of rocks; that the effect of this wag to throw him off to the right, and that at the time he was thrown off he was holding on to the car with his left hand.</p> <p>On cross-examination the plaintiff testified that he was accustomed to ride upon this line; that when he took this car he saw it was crowded; that he made no attempt to get upon the car anywhere but at the front; that the rear platform was not crowded; that there was room for more there; that there were not so many upon it but what more could get on; that there was a chance to get inside the car if he wanted to get in and stand, and that he was smoking and stood on the front to smoke; that the passengers that were standing on the front platform with him at the time he started on his journey had got off; that he had been riding alone upon the platform not more than five minutes; that he had a small bundle with him about four inches wide and fifteen inches long, but it was standing behind him; that he did not see the sign on the bonnet of the car notifying passengers not to stand on the front platform; that he had seen it since the accident, but never had seen it before.</p> <p>The following question was asked the witness: “ Had you seen that sign would you have remained upon the front platform ? ” This question upon objection of the plaintiff was excluded, and the defendant excepted.</p> <p>Upon re-direct examination the plaintiff testified, that the rate of speed at the time the car came tip to the frog he should think was from twelve to fifteen miles an hour, and that the car was going at this rate when it struck the frog; that the conductor or motorman did not speak to him as to where he was standing or riding ; that after he boarded the car passengers got off the front platform; that he did not think any got in from the time he left Central Square; that the conductor collected fares from them and from the plaintiff as he stood upon the front platform.</p> <p>A witness for the plaintiff testified, that when the car started to go down the hill before it reached the place of the accident the car had to take a switch ; that it started a little, then started at the rate of perhaps eight miles an hour, and when it got within a few feet of the switch the car started ahead at a sudden jump at a rate he should say of fifteen miles an hour, and when it struck the switch it gave a sudden jump as if it ran up against something solid, it started so around the curve and the switch about forty feet; that when the car started ahead he was looking in the direction of the plaintiff, and when the car ran up against what it struck, the plaintiff was thrown off the car on the right hand side, and the car kept going; that the distance from Central Square to the point of the accident is about two miles.</p> <p>The defendant introduced evidence, that at each end of the car overhead inside the hood or bonnet was a sign reading as follows : “ Notice. All persons are forbidden to be on the front platform of this car, and this Company will not be responsible for their safety. Per order of the Directors.”</p> <p>It appeared that the hood or bonnet of the car projects over the motorman’s head out over the entire platform; that these signs were placed on the bonnet in the centre, so as to face a person standing upon the platform with his back toward the body of the car; that the sign was opposite the glass door of the car; that the car was lighted by electricity and the sign could be seen by the light.</p> <p>Against the objection and exception of the defendant, a witness for the defendant was asked, on cross-examination, the following questions, and gave the following answers: “ Q. I want to know if it is not the habitual custom for persons smoking to . ride on the front platform ? A. It is the custom for people to smoke on the front platform.— Q. How I ask you if it is not the habitual custom for passengers having bundles to ride on the front platform ? A. It is the custom for bundles to be placed on the front platform.”</p> <p>It was admitted, that a rule of the railway company required its cars to go over the frog where the accident occurred at a rate not exceeding four miles an hour, and the motorman testified that at the time of the accident he was not going at a greater rate than this.</p> <p>The plaintiff called as a witness in rebuttal a police officer, who testified that he had been a conductor of the defendant’s cars before the accident for a year and three months, and had ceased to be in their employ two or three months before the accident ; and that he now lived within forty feet of this switch.</p> <p>Against the objection and exception of the defendant, this witness was asked and permitted to answer the following question : “ Q. I want to know what was the custom up to the time of this accident as to riding on the front platform, — the habitual custom ? A. They always rode on the front platform when they saw fit.”</p> <p>The plaintiff also called in rebuttal another witness, who, against the objection and exception of the defendant, was permitted to testify as follows: “ Q. I want to ask you what was the custom on that line and elsewhere in Lynn with reference to riding on the front platform? Stevens, J. The habitual custom. A. The custom was that anybody getting on the car on the rear end, smoking, was requested by the conductor — Q. You may give the custom regardless of the talk. What was the habitual custom about it? A. To go to the front end to smoke. — Q. I will ask you if that was an habitual custom on the Lynn & Boston road? A. Yes, sir.”</p> <p>The plaintiff also called another witness, who testified that he had ridden on the cars of the defendant for some six years; that he travelled on the line on which the plaintiff was injured and on the Peabody line, and against the objection and exception of the defendant was permitted to answer the following questions: “ Q. I want to know if you know whether there was an habitual custom there as to the use of the front platform ? A. Yes, sir. — Q. What was it ? A. Smokers. — Q. Anybody else? A. Anybody that chose to ride there.”</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence in the case the plaintiff could not recover. This ruling the judge declined to give. At the request of the defendant, the judge gave the following instruction to the jury: “ The defendant had the right to make reasonable rules and regulations regulating the manner and place passengers should ride upon its cars, and a rule forbidding passengers to ride upon the front platforms of its cars is a reasonable rule and regulation.”</p> <p>The defendant asked the judge to give the following instruction : “ If the plaintiff knew that there was a rule forbidding passengers riding upon the front platform, and if at any time after boarding the car there was room inside the car where he could have stood or sat, and the plaintiff knew there was room inside the car, and the plaintiff refused or neglected to avail himself of the opportunity to go inside, but continued to ride upon the front platform in violation of such rule, he cannot recover.”</p> <p>The judge gave this instruction with the following qualification : “ unless he was justified in assuming from the manner in which the railroad was operated that the enforcement of the rule had been waived.” To this qualification the defendant excepted.</p> <p>The defendant asked also for the following ruling: “ If the jury find that at the time and before the accident there was posted upon this car in a prominent place a notice that ‘ passengers are forbidden to ride upon the front platform,’ which notice the plaintiff saw, or by the exercise of reasonable care he might have seen, but still persisted in riding upon the platform, he did so ,,at his own risk and cannot recover.” This ruling the judge declined to give.</p> <p>The jury found a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Petition in insolvency, filed January 30, 1896.</p> <p>The' Court of Insolvency appointed William H. Preble and Isaac F. Paul co-assignees of the respondent. After meetings of creditors, a discharge was granted to the respondent and from the order granting the discharge an appeal to the Superior Court was taken by Isaac F. Paul, one of the assignees, the other assignee refusing to join therein.</p> <p>At the hearing in the Superior Court, before Bell, J., the appellee requested the judge to rule that the court had no jurisdiction of the appeal, for the reason that it was not taken by both of the assignees. The judge so ruled; and the appellant alleged exceptions.</p>

Indictment, for murder, returned June 12, 1900. At the trial in the Superior Court, before Sherman and Stevens, JJ., the defendant at the close of the evidence asked the judges to rule and instruct the jury: first, that there was not sufficient evidence to warrant the jury in finding a verdict of guilty; and, second, that there was not sufficient evidence to warrant the jury in finding a verdict of guilty in the first degree.

Contract for labor done and materials furnished in the construction of an additional storage house for the defendants’ brewery at Forest Hills in Boston. Writ dated April 15,1899. The case came up on appeal from a judgment of the Superior Court for the defendants, rendered by Fessenden, J., upon the report of William J. Forsaitb, Esq. as referee. The pleadings, contract and specifications are sufficiently described in the referee’s report.