Volume 198 — Massachusetts Reports

<p>Two actions OF contract, each for $3,400 and interest, the first against the Sparrell Print, a corporation, as lessee under a lease for a term of five years from August 1, 1899, of the third, fourth and fifth floors of the building numbered 55 on Franklin Street in Boston, excepting the stairways and hallways to be used in common with other tenants of that building, to recover damages from loss of rent, under a covenant in the lease as described in the opinion, and the second action against R. Edwin Sparrell, as guarantor of the performance of all the terms and conditions of the lease by the defendant in the first case. Writs dated respectively March 20, 1905, and September 19, 1904.</p> <p>In the Superior Court the cases were tried before Richardson, J. The only defense relied upon was that the plaintiffs did not make proper efforts to relet the premises. The material facts are stated in the opinion.</p> <p>The plaintiffs asked the judge to make the following rulings:</p> <p>1. That on all the evidence the plaintiffs are entitled to recover.</p> <p>2. The plaintiffs are entitled to recover for the period that the premises, which were the subject of the lease in question, remained unleased.</p> <p>3. The plaintiffs were not obliged to use any effort to get new tenants for the premises in order to recover for the period that the premises in question remained unleased.</p> <p>4. The plaintiffs were not required to repair the premises out of their own funds as an aid in securing a tenant to entitle them to recover.</p> <p>5. The plaintiffs had a right to rely on their best judgments exercised in good faith in determining the time of making repairs and the amount of repairs.</p> <p>6. The plaintiffs were not required to make additions to or alterations in the premises as an aid to securing a new tenant to entitle them to recover.</p> <p>7. The plaintiffs had the right to reject the offer of Samuel Ward Company made in its letter of May 17, 1903, because it involved changes in and additions to the premises and a longer term than remained of the lease.</p> <p>8. The plaintiffs were not obliged to make a counter offer to the Samuel Ward Company as to price if the two elements were fixed, namely, the five years’ lease and the changes and additions proposed.</p> <p>9. The burden of proving want of diligence by the plaintiff in reletting is on the defendant.</p> <p>10. Interest is to be reckoned on the several instalments of lost rent from the time the lease provided that they severally became due.</p> <p>The judge refused to make any of these rulings as requested except the sixth. His charge to the jury was in part as follows:</p> <p>“ The lessors were not bound absolutely to let the premises, perhaps they could not, and if they used fair, honest judgment and made reasonable honest efforts to let the property and could not do so to get an income from it, they did all that they were required by the law to do. Referring to what is claimed and what has been argued I will say further, I do not think that the plaintiffs were obliged to make alterations or additions to the structure of those premises or to put these premises in with the other premises in order to let them, yet if the roof by being worn out leaked or if the stairs by being worn out were unsafe or appeared to be unsafe, I am not sure that the plaintiffs might not be under an obligation to make such repairs if they reasonably could do so in order to let these premises.</p> <p>“I leave that question whether they should have made any repairs or such repairs as I have indicated, or any other, or even other repairs, I leave it all to you, because when a case comes down to be decided ordinarily upon the reasonableness of a thing being done or not done, as a rule that question of reasonableness is left to a jury, although in some cases the court interferes upon decisions of the highest courts and either lets a case go to the jury or not as he thinks the law has decided.</p> <p>“ On the- other hand I do not think that the lessors were justified in insisting if they did, on getting the full rental value or full rent of $2750, and yet,— the clause in the lease referred to intimates, or at least suggests the possibility if they take possession and relet the premises that they may not be able to get that, the full rental. The clause is ‘in case of such determination the lessee shall be liable to the lessor for all loss and damage sustained by the lessors on account of the premises remaining unleased or being let for the remainder of the term for a less rent than that herein reserved.’ That implies I think pretty strongly that if these plaintiffs could have let those premises for even a less rental they were under this reasonable obligation to let them and get a less rental if they could, by reasonable efforts I mean. They were not obliged, I should say the lessors were not obliged in order to let these premises to put other premises in with them. At the same time if by putting other premises in which they had to let and wanted to let and could let as well as not, and they so could have got an income from these premises, then it might be a question and I think it is a question for you to say whether or not they should not have done that. . .</p> <p>“ I have been asked by the learned counsel for the plaintiff to give you some instructions. I cannot give the first, or the second, or the third. The fourth I give in part. ‘ The plaintiffs were not required to repair the premises out of their own funds as an aid in securing a tenant to entitle them to recover.’ If by repairs mentioned here it refers to alterations or additions in the structure of the building, like removing floors or partitions or altering the structure of the building, I should say they were not required to make those repairs or large repairs, and I give that if it means that, but if it means, the repairs there, if it means only repairing the roof so as to make it safe and tight and in a condition to be occupied, or if the stairs by being worn out had become unsafe and unsuitable, then I think you may consider whether or not in view of the circumstances and the situation, whether or not they ought not to have made those repairs, if by making those repairs to the roof and stairs, and possibly the doors and some others — you may consider whether or not under all the facts and circumstances they should not have made those small repairs in order to have performed their obligation under lease.</p> <p>“ Fifth. ' The plaintiffs had a right to rely on their best judgment exercised in good faith in determining the time of making repairs and the amount of repairs.’ That is true, if they take into account the fact that these defendants were also interested to some extent in that matter. These plaintiffs could not act entirely regardless of the defendants, the Sparrell Print, as I have said before, because there was a relation there between these parties existing after the termination of the lease, and as the Supreme Court of the United States in this case has said, ‘ It was the duty to prevent unnecessary loss or diminution of rent in consequence of the termination of this lease, so far as they could, by using fair, reasonable diligence and effort to let them so as to get some income out of them.’ They were not obliged to let to an irresponsible tenant, — there has been nothing said in this case about that as far as I know, — they would not be obliged to, they would not be obliged to let to anybody that would run down and depreciate the character of the building probably. There has been nothing said about that, no intimation of that. I thought I would say that because it seemed to me pertinent or proper that I should do so.</p> <p>“ The sixth of the plaintiffs’ requests I give to you. ‘ The plaintiffs were not required to make additions to or alterations in the premises as an aid to securing a new tenant to entitle them to recover.’ And I will say in that connection what I have said before, it rests with the jury to say whether in the exercise of due diligence and care and in the performance of their duty they may not have been required to make some slight repairs such as I have stated to make the premises tenantable and presentable to tenants who might come to see them.</p> <p>“ The seventh request I think is for the jury, or the question raised by the seventh request is for the jury. ‘ The plaintiffs had the right to reject the offer of Samuel Ward Company made in its letter of May 17, 1903, because it involved changes in and additions to the premises and a longer term than remained of the lease.’ Whether they should have rejected the offer of Ward and Company or broken off the negotiations, if they did, I don’t recall just now how it stopped, or whether they should have gone on with the negotiations and tried to make further efforts to let these premises to Ward and Company is for your consideration and your determination.</p> <p>“ The eighth request is, ‘ The plaintiffs were not obliged to make a counter offer to the Samuel Ward Company as to price if the two elements were fixed, viz: the five years’ lease and the changes and additions proposed.’ I do not recall, I shouldn’t undertake to state if I did, exactly what these offers were or what the counter offer was. That is a question as I have just stated, for you«to consider.</p> <p>“ The ninth. ‘ The burden of proving want of diligence by the plaintiff in reletting is on the defendant.’ I do not give that.</p> <p>“ The tenth. ‘ Interest is to be reckoned on the several instalments of lost rent from the time the lease provided that they severally became due.’ I cannot give that. There is no rent due as rent. The rent is ended. That is a sum of money that describes the amount to be paid in the lease, and when that is terminated they were not liable for rent as rent. These defendants are liable if at all for damage and loss. That is all. It is not rent as rent, and in the case which has been referred to it is decided that no action could be maintained for that loss and damage until the lease had expired, but the plaintiffs here are not entitled to rent as rent, in that name, although I say — I have said if you find that the plaintiff did their whole duty in this case you may consider the amount mentioned in the lease on the question of damages, but it is .not conclusive, you can only refer to that as showing what perhaps the parties on both sides reasonably thought the premises were worth at the time this lease was given.”</p> <p>At the close of the charge the plaintiffs requested further instructions, and excepted to the parts of the charge where the judge left it to the jury to determine whether it was the duty of the plaintiffs to hitch to the short term remaining of the defendant’s lease a longer term of the same premises or to include other premises. They also excepted to the part of the charge which referred to repairs, and the refusal of the judge to give the rulings requested by the plaintiffs and to the rulings given inconsistent therewith.</p> <p>The judge then further instructed the jury as follows: “ Counsel think perhaps there is a misunderstanding about one thing. The impression seems to have been that I did not refer to the matter of whether it was the duty of the plaintiffs or nob to let these premises for a longer term than a year and four months or for a time extending beyond the termination of this lease. What I meant to do, or intend to do, what I say now is, the plaintiffs were not under any obligation to let it for a longer term or to put any other premises in with these premises in order to get them let. What I meant to say, if they could have done so and you find it was a reasonable thing and they had opportunities to do so and no reason appears to you why they should not have done so, then it is for you to say whether or not they should not have let them, or at least whether or not I had better say they should not have used reasonable diligence to so let them. Now I don’t say, I do not mean to intimate that they should or should not have let those premises in connection with any others or for a longer term than beyond the termination of the lease. In view of the somewhat peculiar facts and circumstances and situation of this case, which is all before you, I mean to say that I leave that question all to you. The plaintiffs were not bound to do anything unreasonable as landlords, as owners of property, not at all, — they were only bound to do what was reasonable and to use reasonable diligence in that event, not bound absolutely to do anything, that is what I mean to say, and I meant to leave all those questions for you.”</p> <p>The plaintiffs excepted to this additional instruction. The jury returned a verdict for the defendant in each case; and the plaintiffs alleged exceptions.</p>

<p>Bills and Notes. Agency. Evidence, Best and secondary, Proof of foreign law. Words, “Indorse.”</p> <p>In an action against the indorsers of a promissory note, where it appears that the names of the indorsers were written on the back of the note by an agent before delivery, expressly waiving demand and notice, and the defendants admit that they gave the agent authority to indorse the note in their names but deny that they gave him authority to waive demand and notice, the terms of a former note, in renewal of which the note in suit was given, on which the same indorsers expressly waived demand and notice, are material, the former note and its indorsement being a part of the circumstances affecting the situation at the time the authority was given to the agent to indorse the note in suit.</p> <p>In an action against the indorsers of a promissory note, where the terms of a former note, in renewal of which the note in suit was given, are material, if it appears that the plaintiff cancelled and surrendered the former note at the time the note in suit was given, and that the surrendered note, even if it is in existence, is beyond the jurisdiction of the court, and the defendants fail, upon the plaintiff’s demand, to produce it at the trial, the trial judge may admit secondary evidence of the contents of the surrendered note.</p> <p>In an action against the indorsers of a promissory note, where it appeared that the names of the indorsers were written on the back of the note by an agent before delivery, expressly waiving demand and notice, and the defendants admitted that they gave the agent authority to indorse the note in their names but denied that they gave him authority to waive demand and notice, the evidence showed that the authority to indorse the note was given by brief telegrams from the indorsers authorizing the agent to indorse the note for them without further directions, the evidence also showed that the note was given in renewal of a former note on which the same indorsers expressly had waived demand and notice, and it might have been found that at the time of the telegrams it was neither the expectation nor the purpose of the defendants that the note should be paid when due, and that they desired simply an extension of time by the way of a renewal and not a change in their liability to the payee, and it further might have been found that the defendants supposed that the second note was to be made in the same general form as the first and that all the names should be placed on the note before its delivery to the payee. The. trial judge found for the plaintiff. Held, that the finding was justified ; that the word “ indorse ” in the brief telegrams was not used in its strictly technical sense, but was to be interpreted as authorizing the placing of the names of the defendants on the back of the note before its delivery in the same way in which they stood on the former note and with the same legal effect; and, consequently, that the defendants were bound as though they personally had done what their agent did for them.</p> <p>In an action against the indorsers of a promissory note where the liability of the defendants depends on the law of another State, if it appears that the names of the defendants were upon the note before its delivery to the payee, and no evidence in regard to the common law or the statute law of the other State is introduced to show that it differs from the common law of this Commonwealth, whether the liability of the defendants will be determined by the common law of this Commonwealth as it was before the enactment of St. 1874, c. 404, which would make the defendants liable as joint promisors, quaere.</p>

Tort for personal injuries alleged to have been incurred by the plaintiff on May 22, 1905, from being thrown from his seat to the floor in a car of the defendant, in which he was being transported as a passenger, by the violent jolting and swaying of the car, alleged in the first count to have been due to the negligent and reckless operation of the car by the servants of the defendant, and alleged in the second count to have been due to the unsafe and dangerous condition of…

<p>Bill in equity, filed in the Supreme Judicial Court on February 25, 1907, by Effie L. Macomber, of Braintree, as the purchaser and holder of a certain mortgage for $2,000, hereinafter called mortgage B, against Clifton L. Bremer, trustee under the will of Francis W. Sayles, Susan E. French and Edwin F. French, Charles F. Berry and James D. Colt, the trustee in bankruptcy of the estate of Charles F. Berry, praying (1) that a certain mortgage hereinafter called A be deemed to be a cloud upon the plaintiff’s title, and that Charles F. Berry, or any one having his estate in the locus, be perpetually enjoined from assigning, transferring, foreclosing by suit, entry or sale mortgage A, or from exercising any of the powers therein contained, or (2) that mortgage A and note be delivered up and cancelled, and also be cancelled on record and be no longer a lien upon the premises described, or (3) that it be decreed that mortgage A be no longer a lien upon the locus as against the plaintiff or any person or persons claiming by, through or under her, and that Berry, and all .persons claiming by, through or under him, be debarred and perpetually enjoined from setting up that mortgage as against the plaintiff, and (4) for further relief.</p> <p>The case was submitted to Loring, J., upon the pleadings and the following agreed statement of facts:</p> <p>On March 10, 1898, Charles F. Berry, not an attorney at law, was appointed trustee under the will of Francis W. Sayles, and, at the request of the beneficiaries, without sureties on his official bond, they being Jane H. Sayles and Laura H. Sayles, both of age at that time. From then until 1904 Berry was acting as trustee for three or more estates besides the Sayles estate, and during that time embezzled some hundreds of thousands of dollars. For the purposes of this case, it may be assumed that he mingled the funds of all the trust estates with his own, in a bank account standing in the name of Charles F. Berry, trustee. Berry bought a number of shares of stock in his name as trustee under the will of Francis W. Sayles, paying for them by a check on this bank account, which at that time contained more than $10,000 belonging to the Sayles estate, which was more than the amount necessary to pay for the stock so bought. This stock afterwards was sold by Berry through his brokers, and a check for a part of the proceeds, drawn by his brokers, payable to Charles F. Berry, trustee, was used by Berry, on May 19, 1900, in purchasing from one Trask the mortgage for $2,600 referred to as A in the plaintiff’s bill, Trask indorsing the note without recourse to Charles F. Berry, and assigning the mortgage to Charles F. Berry individually; and the mortgage and assignment were recorded. The principal being overdue, Trask previously had filed in the registry of deeds a certificate of entry made by him on the premises described in the mortgage for the purpose of foreclosing it, but this certificate was not recorded within thirty days from the date of entry.</p> <p>The defendants French were the makers of the note to secure the payment of which mortgage A was given, and were the mortgagors named in the mortgage. Soon after the, assignment, Berry told the defendants French that he wished to replace mortgage A by two mortgages, aggregating the same amount, for the purpose of getting a better first mortgage. The defendants French, believing Berry to be the sole owner in his own right of mortgage A, the latter having possession of the note and deed, and being ignorant that any one else had or claimed to have an interest in that mortgage, gave Berry the two notes and the mortgages called B and C in the bill, upon the agreement that the last named mortgages operated to satisfy, extinguish and pay mortgage A, and all parties intending thereby to discharge mortgage A; but they did not take up the note of mortgage A, and no written discharge ever was executed or recorded, and Berry thereafter had all three notes and mortgages in his possession until the assignment to Macomber, hereinafter mentioned. Mortgage B was for $2,000 and mortgage C was for $700. Both mortgages and both notes were made to Charles F. Berry individually. In mortgage B the property was warranted to be free from all incumbrances, and in mortgage C it was warranted to be free from all incumbrances except mortgage B for $2,000.</p> <p>. The Sayles beneficiaries, being deceived by Berry’s accounts, had no notice of the above facts, and thereafter no rights were asserted under mortgage A until August, 1906, after the appointment of Clifton L. Bremer as trustee under the will of Francis W. Sayles, succeeding Berry. Nor was the interest of the mortgagee in the locus under mortgage A insured against fire during that time.</p> <p>Effie L. Macomber, the plaintiff, relying upon the statement by Berry that mortgage B was a first mortgage, and the fact that it was so described in note B, and relying upon the covenants of mortgage B that the premises were free from incumbrances, and having no actual notice of mortgage A, or reason to suspect its existence (not having had the title examined), purchased from Berry the note of mortgage B, paying its full face value and accrued interest. Berry thereupon indorsed and delivered the note and assigned mortgage B to Macomber, and thereupon the assignment was recorded. Payment was made by check of Ma-comber, payable to Berry personally, and the check was deposited by Berry in the bank account hereinbefore mentioned, and was paid on presentation. Berry previously had acted in certain capacities for Macomber in foreclosing mortgages and collecting interest on mortgages, and had at various times notes and mortgages of Macomber in his possession, but in this matter he did not act except that he advised her that he had had the title examined, that it was perfect, that mortgage B was a first mortgage and mortgage C was a second mortgage.</p> <p>Suit was brought by the defendant Bremer, trustee, in this court to recover the amount of the check given by Berry to Trask in payment for mortgage A, asserting that the word “ trustee ” in the check was sufficient notice. The case was decided adversely to Bremer, trustee. Bremer, trustee, also proved a claim in bankruptcy against the estate of Berry for an amount which included an indebtedness due from Berry by reason of his failure to account to the estate for the proceeds of the shares of stock sold as aforesaid; but no money, property or benefit of any kind ever was received by the Sayles estate in return for the moneys used by Berry in the purchase of the Trask assignment, unless the deposit in the bank account of the check of Macomber was a credit.</p> <p>At the time of the filing of the bill the plaintiff was the holder and owner of note and mortgage B, and had entered for breach of condition and had recorded a certificate of such entry, and was possessed of the premises.</p> <p>Berry being bankrupt, the question was as to the rights of all the parties to the bill; the defendants French joining in the prayers of the bill for such relief as might seem proper.</p> <p>The justice made a memorandum of decision, containing, with other things, the following:</p> <p>“The debt secured by the mortgage referred to as mortgage A was in fact and in law paid by the execution and delivery of the two notes secured by mortgages B and C. That being so, the plaintiff Macomber is not bound to pay anything to redeem from the mortgage given to secure that debt.”</p> <p>“ There is no cross bill in this suit, and the question whether Bremer can follow the trust property into the $700 note is not before me.”</p> <p>He made a final decree that the mortgage referred to in the bill as mortgage A has been paid, and there “is now nothing due thereon; and that the defendant Clifton L. Bremer, trustee, and all persons claiming under him, be perpetually enjoined from assigning, transferring or any way enforcing the note to secure the payment of which said mortgage deed was given, or any of the powers in said deed contained.”</p> <p>The defendant Bremer, trustee under the will of Francis W. Sayles, appealed.</p> <p>The case was submitted on briefs.</p>

<p>Equity Pleading and Practice,• Appeal. Contract, Construction.</p> <p>Where a suit in equity is referred to a master who files a report to which both the plaintiff and the defendant file objections and exceptions and, after a hearing, a judge, on motion of the plaintiff, makes an interlocutory decree overruling all the exceptions and confirming the report, and a final decree in accordance with the report is entered, and the defendant appeals from both decrees but the plaintiff appeals from neither, the plaintiff, at the hearing on the defendant’s appeal in this court, cannot object to the decrees.</p> <p>A corporation engaged in the manufacture of automobiles made a contract in writing with one whom, by the terms of the contract, it' appointed its “regular agent ” within a certain territory. The corporation agreed not to appoint any other agents in the territory, to sell machines to the agent at a reduced rate, and “ to allow and pay to the ” agent “ a commission ... on any and all sales made in the above described territory by them, on which the ” corporation “ has no knowledge that the ” agent “ has individually solicited to buy an automobile manufactured by the ” corporation. It was agreed that the word “them ” referred to the corporation. Held, that the terms of the quoted portion of the contract did not require the corporation to pay to the agent a commission on a sale which was made by it in the specified territory without any individual solicitation on the part of the agent.</p>

Bill in equity to foreclose a mortgage, filed in the Superior Court for the county of Suffolk March 20, 1906.

<p>Contract for goods sold and delivered. Writ in the District Court for East Norfolk dated May 21, 1906.</p> <p>On appeal to the Superior Court, the case was tried before Wait, J., without a jury. There was an account annexed to the declaration containing one hundred and seventy-five items. The plaintiff called the defendant’s wife as a witness, she was handed the account annexed and was asked to examine it and state the articles that were delivered to the defendant by the plaintiff. The defendant objected, but the judge permitted the question to be answered, and the defendant excepted. It did not appear from the record what the answer was.</p> <p>The plaintiff also called the defendant as a witness and he, having stated that he had received from the plaintiff statements containing the items alleged by the plaintiff to have been delivered to him, that he had received a notice from the plaintiff requesting him to produce them at the trial and that he had them with him, was asked to produce them. No subpoena duces tecum directing the production of the statements had been served upon him, and his counsel refused to produce the writings and contended that therefore the plaintiff must resort to secondary evidence to prove their contents. The judge ruled that the defendant must produce the statements.</p> <p>The alleged agreement of the plaintiff with one Tirrell and the defendant, referred to in the opinion, was to the effect that the plaintiff was to supply the defendant with goods up to an amount owed to the defendant by Tirrell, and that Tirrell thereupon was to give the plaintiff credit on account of rent due to Tirrell from the plaintiff. The defendant testified that such an agreement was made; both the plaintiff and Tirrell denied it.</p> <p>There was evidence tending to show that the defendant had received from the plaintiff statements in writing containing the items of goods alleged to have been delivered to him by the plaintiff, that the plaintiff several times had demanded of the defendant payment of the amount shown as due by the statements and that the defendant never had contended that the goods had not been furnished, or that the bill was not just, and that he had promised to pay the claim. In the course of the trial the defendant’s counsel said that there was no dispute that payment for the items was due from some one ; but such statement was made “ without any intention on his part to waive any objections to proof already taken.”</p> <p>The judge found for the plaintiff and found specially that no agreement between Tirrell, the plaintiff and the defendant ever was made; and the defendant alleged exceptions.</p>

<p>Petition, filed in the Probate Court for the county of Suffolk February 8, 1906, to reach and apply in satisfaction of an execution of the petitioner against one Bullock funds alleged to be in the hands of commissioners who had, on a decree of partition, sold land in which Bullock had a part interest, the petitioner alleging that he had made an attachment of Bullock’s interest in the land before he procured the judgment upon which the execution issued; also a</p> <p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk May 22, 1906, by a creditor of Bullock to establish a lien upon the same fund.</p> <p>In the Probate Court, McKim, J., entered a decree granting the petition, and Swain, the plaintiff in the bill in equity, and the trustee in bankruptcy of Bullock, appealed. The two appeals and the bill in equity were heard together in this court by Hugg, J., who entered a decree reversing the decree of the Probate Court, directing the petition therein to be dismissed, ordering payment of Mr. Swain’s claim first out of the fund held as the proceeds of the sale of Bullock’s interest, and making distribution of the balance. Whittemore alone appealed.</p> <p>Other facts are stated in the opinion.</p>

<p>Landlord and Tenant, What constitutes relation. License. Contract, Performance and breach. Damages.</p> <p>By an agreement in writing between the proprietor of a department store and a dealer in sheet music, the proprietor did “give and grant unto” the dealer “the exclusive license and privilege of selling and dealing in sheet music within" his “premises,” “the location to be assigned to” the dealer “upon the balcony floor of the building of ” the proprietor of the store, “ such space to be substantially forty feet in length”; the dealer agreed to furnish his own fixtures, to carry on his business as a music department of the store and to use the trademark of the proprietor of the store in his advertising, “to pay” a stipulated “ rental in regular monthly instalments,” and, if the stipulated sum Was less than a certain percentage of his gross sales in the music department, he was to pay a sum proportionately larger. There were stipulations for termination of the “ agreement ” in case of destruction of the premises or bankruptcy or insolvency of the dealer, and for a cessation of payments “ of money or remuneration” in case of the premises becoming from certain causes unfit for use by the dealer. There also was a provision that the dealer would “ not assign or transfer this lease or contract or sublet said premises nor any part of the same,” and, in case of violation of that agreement, it was provided that the proprietor of the store should “ have the right to re-enter said premises and remove ” the dealer “ and his property ”; and, under certain other specified circumstances, it was provided that he should “ have the right forthwith to declare this contract null and void and to re-enter the premises and remove ” the dealer “ and his property therefrom.” Held, that the contract gave no interest in the land, but was merely a license to use a “location” in the store for specified purposes.</p> <p>By a contract in writing between the proprietor of a department store and a dealer in sheet music, the proprietor of the store allotted to the dealer a " location " in the store and gave him a license to sell his goods there for a certain period of time, the dealer agreed that he would pay the proprietor of the store a certain sum of money and that he would “not assign or transfer” the contract, and it was stipulated that, in case the dealer should violate that agreement, the proprietor of the store should " have the right to re-enter said premises and remove the ” dealer “ and his property,” and it also was provided that in case of a breach of the contract by the dealer, the proprietor of the store should “ have the right forthwith to declare this contract null and void, and to re-enter the premises and remove ” the dealer " and his property therefrom.” Before the expiration of the term of the contract, the dealer without the consent of the proprietor of the store sold and assigned his rights under the contract to a third person, who demanded to be allowed to remove the dealer’s property. Upon the proprietor’s calling this fact to the dealer’s attention, the dealer wrote to the proprietor that he did not intend to proceed any further under the contract or to make any payments thereunder. The proprietor wrote to the dealer: “ This sale and assignment constitute a violation of the contract and render the contract void, and I shall hold you responsible in damages for breaking the contract. Our failure to oppose the removal of the goods and fixtures by ” the assignee “ is not to be considered as a waiver of our claim against you for failure to fulfil the terms of the contract.” Held, that, in writing the letter, the proprietor of the store was not acting and did not intend to act under the clause of the contract allowing him to treat the contract null and void and terminated upon a breach of it by the dealer, but that he was asserting and intending to assert his right under the general law to regard the contract as broken in its essence or as repudiated by the dealer, and to recover full damages therefor.</p> <p>At the trial of an action of contract brought by the proprietor of a department store against a dealer in sheet music for breach of an agreement whereby the plaintiff allotted to the defendant a “ location ” in his store and gave the defendant a license to sell music in that space as a department of the plaintiff’s store, and the defendant agreed not to assign the contract, it appeared that the defendant had assigned the contract to one who removed his goods from the plaintiff’s premises, and that the plaintiff thereupon made use of the space thus made vacant to display goods of his furniture department. Held, that the" measure of damages was the difference between what the plaintiff would have received if the contract had been fully performed, and what the plaintiff actually did receive, taking into account any benefit that he may have derived from the defendant’s non-performance of the contract or from the plaintiff’s use of the space formerly occupied by the defendant’s music department.</p> <p>The proprietor of a department store for a certain sum allotted a “ location ” in his store to a dealer in sheet music under a contract in writing whereby the dealer agreed not to assign the contract. The dealer broke the contract by assigning it and the assignee removed the goods of the dealer from the store. Held, that it was not only the right but also the duty of the proprietor of the store to exercise reasonable diligence to use the space abandoned by the dealer so as to decrease the damages resulting from the dealer’s breach of the contract.</p>

<p>Contract, Construction, Building contracts, Subsequent modification shown by conduct, of parties. Evidence, Extrinsic affecting writings, Circumstantial.</p> <p>Upon the question, whether a contract in writing by a builder to do “ the excavating, foundation and carpentering work ” for a certain building according to certain specifications includes an agreement to do the lathing and plastering for the building, a provision in the contract that a certain payment shall be made when the plastering is completed, there being a later provision that the last payment shall be made when the whole building is completed, has no bearing, its only purpose being to fix the time when the payment is to be made.</p> <p>The conduct of the parties to a contract in writing is not admissible to contradict its plain terms, although such conduct may be evidence of a subsequent modification of the contract by the parties.</p> <p>By a contract in writing a builder agreed with a landowner “ to furnish all of the excavating, foundation and carpentering work ” and to furnish all the materials including tools, implements and stagings necessary to do such work “ for the erection and completion of a five story wooden hotel building.” The work was to be done in conformity with certain specifications. The specifications for excavating and foundation work were subdivisions under the heading “ Mason Work.” “Lathing and Plastering” was another subdivision under “Mason Work.” There was a general heading “ Carpenter Work” with nearly fifty subdivisions, none of which included lathing and plastering. The arrangement and framework of the specifications showed that lathing and plastering were regarded as a part of the mason work and not as a part of the carpenter work, and they were not a part of the excavating or the foundation work. There was a provision in the contract that a certain payment should be made when the plastering was completed. The last payment was to be made when the whole building was completed. The builder, who made the contract above described, made a sub-contract for the lathing and plastering and paid for that work. He was paid by the landowner the sums of money named in the contract at the times specified, and was paid no additional sum for the lathing and plastering. After the last payment, the landowner sued the builder on the contract to recover damages for its imperfect performance. There was evidence that the lathing and plastering were defective. The defendant asked for a ruling that he was not required to do any of the work under the head of Lathing and Plastering in the specifications. The presiding judge refused to make this ruling and instructed the jury, that either the defendant originally was bound to do the lathing and plastering under the specifications, or that, as he went ahead and did it and as the plaintiff paid the contract price for the completed work, the rights of tile parties must be governed by the construction which by their conduct they had put upon the contract. Held, that the refusal of the ruling and the instruction were erroneous; that the lathing and plastering were not included in the defendant’s contract, the provision that a certain payment should be made when the plastering was completed having no bearing on this question; and that, as the terms of the contract in writing were plain, oral evidence was not admissible to contradict it; also that, if the plaintiff had contended that the conduct of the parties showed a subsequent modification of the contract, although the doing of the lathing and plastering by the defendant without making any claim for it as an extra might have been evidence of such a modification, yet even then it would be a question of fact for the jury whether the contract had been changed, and the instruction that as matter of law the defendant was bound to do the lathing and plastering as a part of the contract was erroneous. Whether the plaintiff could have any remedy in equity by a reformation of the contract was not before the court.</p>

<p> Mechanic’s Lien. </p> <p>A mechanic’s lien for labor and materials is created by § 1 of R. L. c. 197 when the work is done and the materials are furnished, and the function of the statement required by § 6 to he filed in the registry of deeds, within thirty days after the person claiming the lien ceased to labor or to furnish labor or materials, is merely to preserve the lien already in existence, which otherwise will expire.</p> <p>If one, who has a mechanic’s lien for labor only, flies in the registry of deeds a statement of his claim under § 6 of R. L. c. 197, claiming a lien for both labor and materials furnished under an entire contract at an entire price without any statement of the number of days of labor and the value of the same, and brings a petition to enforce the lien setting forth a like statement of his claim, but later amends his petition by setting forth a claim for labor alone, and if at the hearing upon the petition it appears that there was no intent on the part of the petitioner to mislead and that nobody was in fact misled by the form in which the statement was filed in the registry of deeds, the defects in the statement are cured by these facts and the statement is sufficient under the statute to preserve the lien.</p>

Tort by the administratrix of the estate of Nathaniel H. Moore under the employers’ liability act, to recover damages for causing the death of the plaintiff’s intestate after conscious suffering. Writ dated December 2, 1901. In the Superior Court the case was tried before Fessenden, J. The plaintiff’s intestate was a longshoreman and on February 21,1901, was engaged with several other men in unloading coal from a large vessel which was lying at Sargent’s wharf in Boston.

<p>Fraudulent Representations. Contract, Evidence of fraud to avoid. Deceit, As matter of defense. Sale, Seller’s commendation.</p> <p>In an action for the alleged breach of an agreement by which the plaintiff sold to the defendant the right to manufacture and sell within certain territory portable cement burial vaults, on which the plaintiff held a patent, and the defendant agreed to manufacture three hundred of the vaults before a day named and agreed to pay to the plaintiff $2 royalty on every vault manufactured under the patent, and also to recover a balance of a cash payment alleged to be due under a lease in writing of certain moulds for making cement burial vaults under the patent, the defense relied upon was that the defendant was induced to execute the contract and lease by false and fraudulent representations on the part of the plaintiff and its agents. There was evidence that the defendant was not only unskilled in the matter but was wholly ignorant of the prices and values of the vaults, that the plaintiff’s agent represented to the defendant that the vaults were water tight, that water or moisture could not enter them and that only one barrel of cement was required to make a vault, and that these representations were false and were known to the plaintiff’s agent to be false, that the defendant said to the agent that he did not believe that the vaults could be made waterproof and the assurance was repeated, also that the statements of the agent were accompanied by false statements of the great value of the vaults, of the prices at which they could be and were sold and of the extent of the demand for them, the vaults being comparatively new articles not commonly sold in the market. Held, that, although the statements of the value of the articles, however exaggerated, might be mere seller’s commendation and insufficient to show actionable fraud, the evidence as to the statements of the plaintiff’s agent went much further than this, and there was evidence for the jury that the execution of the instruments sued on was procured by fraud, and that it was for the jury to determine what opportunity the defendant had for investigation and how far he was justified in relying upon the statements of the plaintiff’s agent.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on June 2,1906, and amended on May 31, 1907, by the owners of house lots and the houses thereon in a certain block on Bay State Road in Boston, deriving their title either by direct or mesne conveyances from the Riverbank Improvement Company, which imposed certain restrictions on the land, and also by that corporation itself, against the owner of a similar lot in the same block with a house thereon numbered 310, and the sister of such owner, both of them being physicians, to restrain them from using the building as a hospital.</p> <p>The case was heard by Loring, J., who ruled that the plaintiff was entitled to an injunction, and by agreement of the parties reported the case for determination by the full court.</p> <p>The deed of the defendants and those of the plaintiff owners contained, among others, the following restrictions:</p> <p>“1st. No buildings other than dwelling houses (which word shall include club houses), with the usual outbuildings appurtenant thereto, shall be erected, placed or used upon the said land. No stable of any kind, private or otherwise, shall be erected or maintained on any portion of said land. No building erected on this land shall be used as an apartment house, family hotel or flats, or in design or construction be fitted for occupancy by more than one family.</p> <p>“ 2d. No building erected on said land shall be used for any manufacturing, mercantile, or mechanical purposes.</p> <p>“ 3d. No building, except the customary outhouses to dwellings, shall be erected or placed upon the said land, the exterior walls of which shall be composed of any other material than brick, stone or iron.”</p> <p>Later in the deed, separated by other provisions, were the following provisions:</p> <p>“ The restrictions and agreements hereinbefore contained are intended and shall he for the benefit of the grantor and of the owner or owners from time to time of all the land aforesaid constituting said Block F shown on said plan, and none other.”</p> <p>“ The foregoing agreements and restrictions shall not be personally binding on any person or persons, except in respect of breaches committed during his, her or their seisin of or title to the land to which the same relate respectively.”</p>

<p>Statute, Repeal. Executor and Administrator, Liability under R. L. c. 141, § 26, of distributees after settlement of estate. Corporation, Statutory liability of directors. Evidence. Words, “Debt,” “Creditor.”</p> <p>An action of contract against a corporation to enforce the payment of a debt was brought on September 14, 1903, and a judgment for the plaintiff was entered in March, 1906, and, under the circumstances set forth in R. L. c. 110, § 60, the corporation neglected to pay an execution which issued thereon and it was returned unsatisfied. A bill in equity alleging that the debts of the corporation exceeded its capital stock from 1901 to and including September 14, 1903, was brought to enforce.the liability of a director under R. L. c. 110, § 58, cl. 3, "to the extent of such excess existing at the time of the commencement of the suit against the corporation in which the judgment was recovered." The defendant contended that St. 1903, c. 437, § 95, which took effect on August 1,1903, repealed the section relied on, and that the action accrued after that date and therefore could not be maintained. This court, since it decided on other grounds that the bill must be dismissed, refrained from deciding that question.</p> <p>On September 14, 1903, an action of contract was brought against a corporation. Judgment therein was entered on March 10, 1906, and an execution was issued which was duly served upon the corporation, and, the corporation neglecting to pay it, was returned unsatisfied on May 14, 1906. The corporation’s debts exceeded the amount of its capital stock on September 14, 1903. One who was a director at that time died on November 1,1903, and the administrator of his estate qualified and gave a bond on November 5,1903. The judgment creditor did not ask to have funds retained by the administrator as provided in R. L. c. 141, § 13, and distribution of the estate was made. On May 19,1006, the judgment creditor under R. L. c. 141, §§ 26, 27, providing a liability for the payment of certain debts by heirs, next of kin, devisees and legatees of a deceased person after the expiration of the time limited for the commencement of actions against the executor or administrator in certain cases, filed a bill in equity against the distributees of the deceased director’s estate to enforce against funds paid to them from that estate the director’s liability under R. L. c. 110, § 68, cl. 3. Held, that, since the judgment creditor had not asked to have funds retained by the administrator under R. L. c. 141, § 13, the bill could not be maintained, even if such liability of the director were a debt under R. L. c. 141, § 26, which was not decided.</p> <p>Whether certificates filed by the directors of a domestic corporation with the secretary of the Commonwealth as required by R. L. c. 110, § 61, containing affidavits of the officers of the corporation as to the amount of the debts of the corporation and of its capital stock, are competent to prove that the debts of a corporation exceeded its capital stock, here was not decided, but it was intimated that they probably would be admissible for such purpose, at any rate against the individuals who signed them.</p>

<p>Practice, Civil, Service of process, Motion to dismiss, Continuance, Amicus curiae. Superior Court. Jurisdiction. Rules of Court. Waiver.</p> <p>In an action of contract or tort against two defendants described in the writ as copartners, one being alleged therein to be a resident of this Commonwealth and the other a non-resident, there was no attachment of property, and the return of the officer as to service upon the non-resident was that he delivered summonses to the resident defendant “as agent,” and “ as copartner,” of the non-resident defendant. The non-resident defendant moved that the action be dismissed as to him. Held, that the action should be dismissed as to the nonresident defendant for want of service upon him.</p> <p>Where no personal service has been made upon a non-resident defendant and he has no attachable property within the Commonwealth, the provisions of R. L. c. 170, § 6, requiring a continuance for further service of an action against a non-resident in certain cases where there has been a lack of service or defective service upon such defendant, do not require the continuance of the case in order that further service not effectual to give jurisdiction should be made upon him.</p> <p>Where, in an action of contract or tort in the Superior Court against a nonresident defendant in which there was no attachment of property and in which the officer’s return stated that, the defendant being a non-resident and the officer not knowing his whereabouts, he served upon a certain person “as agent," and upon another “ as copartner ” of the defendant, and the defendant within ten days after the return day of the writ applied to the court for an extension of the time within which he should appear in order that he might decide whether to waive the lack of proper service and voluntarily appear or to insist upon his rights as a non-resident, it is within the inherent power of the court to grant the extension, and therefore a motion to dismiss, which was filed within the time stated by the court in allowing the extension, but after the ten days within which an appearance and motion to dismiss should have been filed under R. L. c. 173, § 54, and Rule 9 of the Common Law Rules of the Superior Court, properly was considered and allowed.</p> <p>In an action of contract or tort against a non-resident in which there was no attachment of property and in which, upon the officer’s return, there appeared to be no proper service upon the defendant, an attorney at law filed an affidavit stating that he had been requested by the defendant “ to safeguard his interests in the action,” and requested an extension of the time within which an appearance must be filed in order that he might procure sufficient information to decide what were the proper steps to take for adequate protection of the defendant; and an order was made accordingly. Subsequent extensions of time for appearing also were made for similar reasons advanced by the same attorney and another associated with him, both of them acting in tile same capacity as had the single attorney, and finally a motion to dismiss because of lack of proper service was filed on behalf of the defendant by the attorney and his associate, who stated that they appeared for the purpose only of the motion. Later the officer who served the writ moved to amend his return, and, at a hearing on that motion, the associate of the first attorney, acting as amicus curiae with the consent of the judge, suggested an addition to the proposed amendment to conform to the truth and, at a subsequent hearing on the motion, tile same attorney, acting again as amicus curiae with the consent of the judge, suggested that the defendant’s motion to dismiss and the officer’s motion to amend his return be heard together. The latter suggestion was adopted and both the officer’s motion to amend his return and the defendant’s motion to dismiss were allowed. Held, that there had been no waiver by the defendant of lack of service upon him.</p>

<p>Great Pond. Crystal Lake. Prescription. Commonwealth. Evidence, Presumptions and burden of proof.</p> <p>In good faith and in the belief that a certain great pond was public domain, the commissioners of inland fisheries, acting on behalf of the Commonwealth and assuming to act under St. 1869, c. 384, § 9, which provided that they might, in such capacity, “ lease any great pond . . . for the purpose of cultivating useful fishes,” in 1870 made a lease of the pond of more than twenty acres in area which in 1684 had been granted to one whose descendants still possessed the grant by an unbroken chain of title. The lease provided that the lessees should keep the pond stocked with black bass, and the lessees took possession and occupied for twenty years thereunder. Held, that the provision of § 8 of the same chapter, that “ the fishery of any pond, the superficial area of which is more than twenty acres, shall be public, except such as may have been specially granted by law,” did not prevent the act of the commissioners from operating as an assertion of a right of the public to the pond, which, coupled with possession under the lease for twenty years, was primo facie sufficient to show the acquisition of a right in the public by prescription, which right belonged to the Commonwealth.</p> <p>At the hearing upon a bill in equity under St. 1888, c. 318, § 6, now R. L. c. 96, § 25, by the Attorney General against one who was encroaching below high water mark upon a great pond known as Crystal Lake in Newton, in which the Attorney General sought to enjoin such encroachment, the defendant admitted the acts complained of, but contended that the pond was not subject to the provisions of the statute. It appeared that the Court of Assistants held in Boston in 1634 made a valid grant of land to one Haynes which included the great pond, which land, by an unbroken chain of title, had come into the possession of persons living at the time the suit was begun, but, for at least sixty years before the suit, the pond had been used by any one who desired to do so for boating, bathing, fishing and the cutting of ice, although not to such an extent that a prescriptive right thus to use it had accrued to the public from such use alone; that no objection to such use or any claim to the control of the pond had been made by any one representing the Haynes interest; that, more than twenty years before the commencement of the suit, the Commonwealth, by its commissioners of inland fisheries, had executed to certain parties a lease of the pond for a term of twenty years, which contained strict provisions and limitations upon the acts of the lessees in and upon the pond and in the use thereof and provided that they should thoroughly stock it with black bass. The commissioners in giving the lease acted in good faith upon the belief that the pond was a part of the public domain. The lessees took possession under the lease and held possession during its term. Held, that findings that the lease was a declaration and claim of title on the part of the Commonwealth, and that, upon the occupancy under it for twenty years together with the other use by the public of the pond for sixty years, a title to the pond and its waters and the right to control them had become vested in the Commonwealth, were warranted; and consequently that the suit might be maintained and the defendant should be enjoined.</p> <p>Where a lease to certain persons by the Commonwealth through its commissioners of inland fisheries of a great pond in 1870, and possession and occupation thereunder for twenty years are relied on by the Commonwealth to prove a prescriptive right of the public to the control of the waters of the pond as against those to whom had come by an unbroken chain of title a grant of the pond made by the Court of Assistants in 1634, it is immaterial that the lease was not recorded as required by Gen. Sts. c. 89, §§ 1, 8, and that no notice of the lease or the acts of the lessees thereunder had been given to those holding the grant.</p>

<p>Tort for personal injuries received by the plaintiff by reason of a mass of snow and ice falling upon her from premises of the defendant while she was walking on Hancock Street in Boston, it being alleged that the mass fell from under a roof gutter and from the. upper portion of the conductor running from the gutter, it having formed there because of a faulty construction of the conductor. Writ in the Superior Court for the. county of Suffolk dated February 19, 1904.</p> <p>There was a trial before Richardson, J., and, it appearing, while the plaintiff’s evidence was being introduced, that the defendant had let the premises in question by a lease in writing to some one other than the plaintiff, and that the lease contained the provisions stated in the opinion, the plaintiff made an offer of proof including all of the facts that he expected to show, and the presiding judge directed a verdict for the defendant and reported the case for the consideration of this court. The material facts included in the plaintiff’s. offer are stated in the opinion.</p>

<p>Contract for a commission alleged to be due to the plaintiffs, real estate brokers doing business under the firm name of Coffin and Taber, for procuring for the defendant a lease to the Henry H. Tuttle Company of certain premises on Tremont Street in Boston. Writ in the Superior Court for the county of Suffolk dated March 7, 1906.</p> <p>There was a trial before Schofield, J., without a jury.</p> <p>The evidence as to a custom, referred to in the fourth paragraph of the opinion, was to the effect that, in cases where a lease was negotiated and a broker was entitled to a commission, but there had been no express agreement as to whether the lessor or the lessee should pay the broker’s commission, there existed in Boston a custom that the lessor should pay the commission.</p> <p>The defendant contended, and introduced evidence tending to show, that his son, Pierce J. Grace, was the efficient, moving cause of the lease which finally was negotiated, and, when the treasurer of the Henry H. Tuttle Company was testifying, offered as evidence in support of his contention the letter of one Redfern, referred to in the fifth paragraph of the opinion. It appeared that Redfern was alive and could have been brought in as a witness by the defendant. The letter was dated February 7,1906, which was also the date of the lease of the defendant to the Henry H. Tuttle Company. The letter, which was addressed to the defendant, and was signed “Benj. F. Redfern, Prest. The H. H. Tuttle Co.,” was as follows: “In anticipation of the lease about to be entered into between us for the store and basement premises at 159 Tremont Street, and in answer to .the inquiry as to who is the broker who has actually effected this deal between us, would say that immediately upon the death of the late Mr. T. D. Cook, and learning that the property which had been leased to him had come back into your hands, we approached your son, Mr. Pierce J. Grace, as your agent, and have carried on our negotiations directly with him and he is the sole party who has been instrumental in any way in effecting this deal between us.”</p> <p>It was admitted by the plaintiffs that, if present, Redfern would have testified that the facts stated in the letter were the facts that were in his mind at the time when he wrote it and that he would reiterate as facts what the letter stated.</p> <p>The judge excluded the letter on the ground that it was a recital by Redfern of past transactions and not a communication made in the course of negotiations for the purpose of bringing about a lease.</p> <p>The defendant in direct testimony stated that he had had one conversation with the plaintiff Taber with regard to leasing the property. In cross-examination, he was asked the question stated in the fifth paragraph of the opinion for the purpose of fixing the date of the conversation as to the mortgage so as to refresh the defendant’s recollection with regard to other conversations which, the plaintiffs contended, he had had with the plaintiff Taber. The question was allowed to be put, subject to the exception by the defendant. The answer was “ I cannot say.”</p> <p>At the close of the evidence, the defendant requested the judge to rule: (1) that, upon all the evidence in the case, the plaintiff could not recover; (2) that, in order to recover, “ the plaintiffs must show that they were the actual, moving, efficient cause which brought about the lease to Tuttle Company ”; (3) that, “ as a matter of law, it is not sufficient that they introduced the person who finally took the lease, to wit, Tuttle Company, to Pierce J. Grace or to James J. Grace during the continuance of the Cook lease ”; (4) that there was no evidence in the case which would warrant the judge in finding that the plaintiffs were the efficient, moving cause of the lease between Grace and the Tuttle Company, and that they could not recover; (5) that the custom introduced in evidence as a matter of law could not be taken into consideration by the judge in the decision of the case.</p> <p>Besides making findings of fact as stated in the opinion, the judge refused the defendant’s first and fourth requests for rulings generally; granted the second request; granted the fifth request “ but solely for the reason that a contract of employment existed between the plaintiffs and the defendant ”; and refused to grant the third request for the reason that it asked “ for a ruling upon the effect of a single fact, leaving out other material facts which exist in the case”; and the defendant alleged exceptions.</p>

<p>Insurance, Of honesty of employee. Bond. Guaranty Company. Evidence, Declarations of deceased persons.</p> <p>In an action against a guaranty company on a bond by which the defendant agreed to make good to the plaintiff any pecuniary loss he might sustain from any dishonesty of a certain employee, if it appears that the defendant issued the bond relying upon a statement in writing signed by the plaintiff that he had examined the accounts of the employee at a date a week before" the date of the bond and found them correct in every respect up to that date, and if the statement was not true and the employee at that time was a defaulter to a large amount and a proper examination of It is accounts would have disclosed that fact, the defendant cannot be held liable for a breach of the condition of the bond by the dishonesty of the employee causing loss to the plaintiff.</p> <p>In an action against a guaranty company on a bond by which the defendant agreed to make good to the plaintiff any pecuniary loss he might sustain from any dishonesty of a certain employee, where it appears that the defendant issued the bond relying upon a statement in writing signed by the plaintiff that he had examined the accounts of the employee at a date a week before the date of the bond and found them correct in every respect up to that date, and an auditor has found that this statement was not true, that the employee at that time was a defaulter to a large amount and that a proper examination of his accounts would have disclosed that fact, and also has found that a merely cursory examination of the checks drawn against the plaintiff’s bank account and paid would have disclosed to the plaintiff several obvious forgeries and probably several conversions of sums of money wrongfully drawn over the genuine signature of the plaintiff by the employee, the plaintiff does not acquire the right to have his case go to the jury by introducing in evidence certain checks forged by the employee and other genuine checks signed by himself to show their similarity, nor by showing that he was not an educated man and was not a practical bookkeeper, that his system of bookkeeping was very crude, and that he discovered the dishonesty of his employee only a day or two before the employee absconded and before that time had had the greatest trust in him.</p> <p>In an action where the original plaintiff has died and the executor of his will or the administrator of his estate has been admitted to prosecute the action, a declaration made by the original plaintiff relating to a material matter witiiin the personal knowledge of the declarant is not admissible under R. L. c. 176, § 66, until it has been offered under that section and the presiding judge has found that it was made in good faith before the commencement of the action.</p>

<p>Tort, brought by the plaintiff through his next friend, for personal injuries sustained by the plaintiff by reason of his hand getting caught in the machinery of a glue machine while in the employ of the defendant, with two counts, the first at common law, alleging a failure of the defendant to furnish safe appliances, machines and instrumentalities and a safe and proper place in which to work, and the second under the employers’ liability act. Writ dated August 28,1905.</p> <p>In the Superior Court the case was tried before Hardy, J. The plaintiff introduced evidence tending to show that the defendant operated a glue factory, in a room of which the plaintiff was employed in carrying cakes of glue from one table to another; that there was a passageway in the room about three feet wide; that on one side of this passageway was a glue machine in which a piston rod pushed the glue through some knives which cut the glue, and the glue, having been cut into cakes, came out on a table, from which the plaintiff was taking the glue at the time he was hurt; that on the other side of the passageway was a machine and a table; that in front of the table from which the plaintiff took the glue there were two platforms or footboards, each between three and four feet long and about two and one half feet wide, which were laid upon the floor end to end without being fastened together; that the cleats of which the platforms were made were three inches in width and two inches thick; that the platforms were taken up nearly every night and washed and put down on the floor the next morning, but not always with the same side toward the machine, and sometimes their positions were reversed.</p> <p>The plaintiff testified that at the time of the accident he was thirteen years of age ; that he came to this country on April 17, 1903, and went to work for the defendant about three weeks before the accident, which occurred on July 27, 1905; that when he went to work no instructions were given to him except that he was told “to get to work and spread glue with another boy ”; that his duty required him to go to the table and take the cakes of glue off the table; that the glue came out on the table after having been pushed through some knives by a piston rod; that the table was about four feet high; that in front of the table on the floor were two footboards or platforms, each between three and four feet in length and about two and one half feet wide; that if the glue was on one side of the table he did not have to step on the footboard to take it off, but that if it was just coming out of the machine he would step on the footboard; but in order to get in front of the table and lift the glue off the table, he had to step on the footboard; that the foot-board was right up alongside the glue table; that it was made of long cleats nailed about one inch apart; that he never examined the footboard; that the floor was gluey and slippery, and that there was glue upon the platform; that the footboard between the two tables covered about two thirds of the space; that at the time of the accident he went to 'the table to get some glue and was hurrying, and the last step he took his foot got caught, he slipped in the hole and he pitched forward and tried to catch himself from falling, and in saving himself got his hand caught in the machinery; that when he was falling his hand went in where they put the glue in; that he never saw any hole or broken cleat on that footboard before, and did not know that there was any; that in walking on the platform before he was hurt his foot had never gone through or got caught before this time; that the floor, where the footboard was was dark; that the machine, table and things around there shut off the light.</p> <p>Other witnesses testified for the plaintiff. At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Finding of judge on preliminary question of fact. Evidence, Proof of anonymous letters.</p> <p>Where, at the trial of an action, anonymous letters are offered in evidence, and there is conflicting evidence, warranting a finding either way, upon the question whether the letters were written by or with the authority of a party to the action, to whom they are attributed by the adverse party offering them, the letters cannot be admitted in evidence until the presiding judge has passed upon this preliminary question, and, if he finds that the letters were not written by or with the authority of the person to whom they are attributed, his exclusion of the letters based on this finding of fact is final.</p>

<p>Tax, Assessment. Mortgage, Of real estate. Joint Tenants and Tenants in Common.</p> <p>A statement to the assessors of a city under R. L. c. 12, § 45, attempted to be made by a mortgagee of real estate, in order that the assessors may ascertain the proportionate interests of the mortgagor and mortgagee in the property described and assess the interest of the mortgagee separately under §§ 16, 17 of the same chapter, does not comply with the statute, if the statement relates to two separate lots of land held under one mortgage by the person making the statement and the only description of the land is that it is located on “Norton and Olney Streets ” in Dorchester, whereas only one of the lots covered by the mortgage abuts on both of the streets named and the other lot abuts on only one of them, especially where the statement also is fatally defective in containing neither a statement “ of the amount secured ... on each separate parcel ” nor an “estimate of the interest of the mortgagee ... in each part,” and an assessment upon the lot not covered by the description, made wholly to the mortgagor after^the receipt of such a statement by the assessors, is valid.</p> <p>Land owned in common may be assessed for taxation to the tenants in common together, and need not be assessed to each of them separately upon his undivided share.</p> <p>Where land has been laid out by the owners in lots according to a plan recorded in the registry of deeds, and some of the lots have been sold, it may be assessed for taxation in lots although it is unoccupied, especially if the owners do not object to this method of assessment.</p> <p>Although, where no statement by a mortgagor or mortgagee of real estate is presented to the assessors of a city or town in compliance with the terms of R. L. c. 12, § 45, for the purpose of obtaining a separate assessment of the respective interests of the mortgagor and the mortgagee, it is not customary for the assessors to make such separate assessments, yet under § 16 of the same chapter they may make such separate assessments, if they please, either where there has been no statement or where there has been an imperfect one.</p> <p>Where the holder of a mortgage for an entire amount upon two parcels of real estate attempts to make a statement to the assessors under R. L. c. 12, § 45, for the purpose of obtaining a separate assessment of his interest as mortgagee, but his statement contains a description intended to cover both parcels which applies only to one of the lots and also fails otherwise to comply with the terms of the statute, and the assessors assess the mortgagee’s interest in the only lot described in the statement at the amount of the whole mortgage as given in the statement, the assessment is valid, and if the mortgagee deems it excessive in amount his only remedy is by abatement.</p>

Tort for personal injuries incurred on October 5, 1906, while in the employ of the defendant from having the plaintiff’s left hand crushed by the gearing of a crane or derrick maintained by the defendant, with counts under the employers’ liability act and at common law. Writ dated December 18, 1906. In the Superior Court the case was tried before Gaskill, J., who ordered a verdict for the defendant.

<p>Contract for a commission alleged to be due to the plaintiff for procuring for the defendant a purchaser of his liquor business. Writ in the Municipal Court of the City of Boston dated September 10, 1906.</p> <p>On appeal there was a trial before Pierce, J. The plaintiff’s evidence tended to show that the employment of the plaintiff by the defendant was not exclusive of other brokers, and the other facts which the opinion states the jury were warranted in finding; and the defendant’s evidence tended to controvert those facts.</p> <p>At the close of the evidence, the defendant requested the presiding judge to direct a verdict for him, and to rule as follows:</p> <p>“ 14. If the interest of this plaintiff, or any one acting for him or in his behalf, in the matter of the negotiations for the sale, and the sale itself, was antagonistic to the interest of the defendant, the plaintiff cannot recover.”</p> <p>“ 16. If the jury find that Casey was acting for or in behalf of the plaintiff, in the negotiations preceding the sale and in the sale itself, and that Casey, as an officer of the Massachusetts Breweries Company, had an interest in the sale and in securing a customer who would agree to use the products of the company in the conduct of the business, the plaintiff cannot recover.”</p> <p>The presiding judge refused the requests, there was a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Equity Jurisdiction, To reach and apply equitable assets. Equity Pleading and Practice, Bill.</p> <p>A bill in equity against R. and B. and a bank alleged that the plaintiff had brought an action at law against R. and had attached certain real estate of his which was subject to a mortgage held by the bank, that, about a month and a half after the action was commenced, R., with the intention on his part and on the part of B. to defeat, delay and defraud the plaintiff in the collection of the debt due to him from R., conveyed his equity of redemption to B., that the bank foreclosed its mortgage by sale and received from the sale more than enough to satisfy the mortgage debt and expenses of foreclosure, that, about a year after the foreclosure, the plaintiff recovered judgment in the action at law, but no execution issued thereon until forty-six days after judgment, and it was returned to court in no part satisfied, that R. had no other property in-the Commonwealth which could be applied to the payment of the plaintiff’s judgment against him. The prayer of the bill was that the plaintiff’s debt be paid out of the balance in the possession of the bank. The defendants demurred for want of equity in the bill. Held, that'the demurrer must be overruled, since, on the allegations of the bill, the suit might be maintained under It. L. c. 159, § 3, el. 8, as a suit to reach and apply in payment of a debt due to the plaintiff property which the defendant had conveyed with intent to defeat, delay or defraud his creditors.</p>

Petition, filed in the Probate Court for the county of Suffolk under St. 1906, c. 129. On appeal to this court, the case was reserved for consideration of the full court by Sheldon, J. The facts are stated in the opinion. The case was submitted on briefs.

<p>Equity Jurisdiction, Accounting. Trust, Constructive.</p> <p>A guardian of three minors, assuming to act under power given by a decree of the Probate Court, conveyed land of the wards to himself through a third person, built a house thereon, and, after some years, conveyed the property without consideration to one of the wards. After a decree in a suit in equity brought by the other two wards after becoming of age against him who received the property, directing him to convey to the plaintiffs a two thirds undivided interest therein upon their paying to him such amount as might be found to be due upon a certain accounting between the parties, it was held, with regard to the accounting, that the plaintiffs should be charged with two thirds of the value of the improvement to the land by the addition of the house, with two thirds of the amount paid by the guardian and by the defendant for taxes upon the land exclusive of the house up to the date of the commencement of the suit, and with two thirds of all the defendant’s proper expenditures for taxes, repairs and insurance upon the land and house after the time of the commencement of the suit; and that the defendant should be charged with two thirds of the rental value of the land without the house from the time when the guardian received a deed of it to the time of the commencement of the suit, and with two thirds of the value of the rental of the land and house for the time since the commencement of the suit. s</p>

<p>Trust, Termination. Devise and Legacy.</p> <p>A bill in equity alleged that the plaintiff was the only child and heir at law of one of three children of a testator who were living at the time of his death, the other two children and their children, together with trustees under the testator’s will, being made defendants, that by his will the testator left property in the hands of trustees and gave to them full powers as to investment and reinvestment “ always having regard to the security thereof and the certainty of the income,” and directed them “ to pay to and distribute ” the income among his children and the issue of any deceased child “ every year, during the life of the longest liver of said children,” and, in case of the decease of any of his children leaving no issue, to pay the share which would have been that child’s if living to the survivors of the testator’s children and the lawful issue of any deceased child, and, on the decease of all the testator’s children, the trustees were directed to distribute the trust property among “ the heirs at law of my deceased children, said heirs taking in right of representation.” The trustees also were empowered, if they or a majority of them were of opinion that it was expedient so to do, to pay portions of the principal from time to time to any one of the testator’s children, such portion not to exceed the share, the net income of which was payable to such child ; and in such case such child thereafter was' to receive a proportionate diminution of income. The bill further alleged that the interests of the other beneficiaries of the trust would not be prejudiced by the plaintiff's full share being given to her, and that the further continuance of the trust as to her portion caused the plaintiff unnecessary inconvenience and expense. The prayer of the bill was that the plaintiff’s entire proportional share be paid to him. The other beneficiaries under the trust demurred to the bill. Held, that the demurrer must be sustained since the trust was valid and its purposes did not appear yet to be fulfilled and it did not appear that others interested in the trust assented to its termination.</p>

Bill in equity, filed April 13,1905, by the trustees under the will of Catherine D. Hancock, successors to one Charles F. Berry as trustee under that will, against Lucia Gr. Hall of Cambridge, alleging that Berry wrongfully indorsed and delivered to the defendant a note of one Beckler for $4,250 and the mortgage securing it, to compel the surrender of the mortgage and note to the plaintiff as trustees.

<p>Partition. Devise and Legacy. Words, “ Direct.”</p> <p>A testator by his will, after giving pecuniary legacies to the amount of §20,000, provided as follows: “ All the rest, residue and remainder of my estate . . . I direct my executors hereinafter named to divide and distribute among my heirs and next of kin according to the laws of distribution and descent now in force in said Commonwealth.” An heir at law of the testator brought a petition for partition, alleging that this clause gave the executors no right to divide and distribute the real estate of the testator which, he alleged, vested in the heirs at law, subject only to the rights of creditors. It appeared that the real estate of the testator consisted of twenty-two different parcels, varying in value from §300 to $18,000, that the personal property amounted to about §49,000, and that the claims of creditors were much less than this amount. Held, that the testator by using the word “ direct ” had imposed on his executors the duty of dividing and distributing the residue of his estate among ins heirs and next of kin, that it was not necessary to decide whether there was a devise to the executors, because it was clear that, if they did not have the title to the land, they were given by necessary implication a power to sell and dispose of the property for the purpose of making the directed distribution, so that, even if.the heirs at law took the real estate in fee, it was subject to the necessary exercise of this power, and a partition, if made, soon would become of no effect, and, if effective, would defeat the purpose of the testator; therefore that the petition should be dismissed.</p>

<p>Practice, Civil, Proceedings for contempt. Contempt of Court. Metropolitan Park Commission.</p> <p>The questions whether proceedings for contempt of a decree of court can be brought before this court by an appeal from an order dismissing a petition to punish the respondent for contempt or by exceptions to the refusal of requests for rulings at the hearing on such a petition, here were not passed upon, as the court assumed for the purposes of decision that the questions raised by such an appeal and exceptions were properly before them.</p> <p>By a final decree of the Superior Court in accordance with the decision of Newton Rubber Works v. de las Casas, 182 Mass. 436, the metropolitan park commissioners were enjoined from maintaining a dam to divert the waters of the Charles River from its east branch and from obstructing the free and natural flow of water down such east branch. After the entry of this decree, St. 1903, c. 391, was enacted giving the commissioners authority to construct new bridges and dams and providing for the payment of damages sustained by any person from the exercise of the powers conferred by the act. Under authority of this act and in conformity with its terms the commissioners constructed a dam across the east branch of the Charles River at or near the position of the former dam enjoined by the decree, causing damage to the property of the corporation to which the decree was granted. Upon a petition to punish the commissioners for contempt of the decree, it was held, that the commissioners, acting under new powers and within the provisions of the statute conferring those powers, were not in contempt of court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on December 10, 1906, by the Second National Bank of Pittsburgh, a corporation organized under the laws of the United States, having a usual place of business in the city of Pittsburgh in the State of Pennsylvania, for itself and all other creditors of the J. C. Lappe Tanning Company, a corporation organized under the laws of the State of Pennsylvania, who might desire to become parties, against the last named corporation, alleging that the defendant was insolvent and had assets in this Commonwealth, that S. W. Cunningham of Pittsburgh had been appointed receiver of the property of the corporation by the Court of Common Pleas No. 1 of Allegheny County in the State of Pennsylvania, and praying that some competent person might be appointed ancillary receiver of the property of the defendant in this Commonwealth.</p> <p>The Supreme Judicial Court appointed S. W. Cunningham of Pittsburgh, already named, such ancillary receiver. On September 10,1907, the receiver filed a petition for the removal of assets, which is considered in the opinion. An answer to this petition was filed by Albert Bernard, an intervening petitioner, who was an attaching creditor of the J. C. Lappe Tanning Company at the time of the filing of the bill for the appointment of an ancillary receiver.</p> <p>The case came on to be heard upon the petition of the receiver for the removal of assets, the answer of Albert Bernard thereto, and an agreed statement of facts, before Sheldon, J., who reserved it for determination by the full court, such decree to be entered as justice and equity might require.</p>

<p>Negligence, Employer’s liability. Statute, Remedial. Pleading, Civil, Declaration. Evidence, Materiality, Presumptions and burden of proof. Practice, Civil, Amendment, Exceptions.</p> <p>St. 1906, c. 370, amending R. L. c. 106, § 72, by adding a provision that, in an action for causing the death of an employee where such death is not instantaneous or is preceded by conscious suffering, the plaintiff “ under a separate count at common law, may recover damages for conscious suffering from the same injury,” is a remedial statute and applies to actions which were pending when it was enacted, the effect of the amended statute as to such cases being the same as if it had been enacted originally in its present form.</p> <p>In an action against a street railway corporation by the administrator of the estate of a workman, for personal injuries incurred by the plaintiff’s intestate while at work for the defendant in the hold of a coal barge as a shoveller in unloading coal, from being struck by a lump of coal which fell from an ascending bucket, it appeared that the defendant, whose wharf was fully equipped with the necessary mechanical apparatus, previously had hired stevedores to unload its coal from the barges, but that on this occasion, instead of doing so, its division superintendent ordered one of the defendant’s foremen “ to take a gang of men from work upon the tracks and do the work.” There was evidence on which it could have been found that the fireman, who was in charge of the hoisting engine at the time of the accident, and the “ hooker on,” who managed the filled buckets below the level of the platform of the staging upon which the coal was' being unloaded, were incompetent to use and manage the hoisting apparatus properly, and that they performed their work at the wharf in an inefficient manner, and it further could have been found that this lack of experience and skill was known to the division superintendent, and that the accident would not have happened except for their incompetence. Held, that there was evidence for the jury of the defendant’s negligence.</p> <p>If a street railway company, which maintains a coal wharf where coal is unloaded from vessels, takes a foreign workman, whose knowledge of English is imperfect, from his usual employment as one of a track gang on the company’s tracks and puts him at work in the hold of a coal barge as a shoveller in unloading coal, which by means of an engine is hoisted in buckets to a staging above, and the shoveller when at work in the hold is expected to stand under the ascending bucket, from which, if not properly hoisted, coal may fall upon him, and if, on the afternoon of the first day that he is so employed, he is injured by a lump of coal falling upon him in this manner, in an action against his employer for the injuries thus caused, it cannot be said as matter of law, taking into consideration the inexperience of the workman and his want of opportunity for observation, that the danger was so obvious to him that it was not the duty of his employer to warn him in regard to it, and it is a question for the jury whether the workman’s intelligence and previous experience were such that it was the defendant’s duty to call his attention to the danger attendant upon his position.</p> <p>In an action by an administrator for causing the death after conscious suffering of the plaintiff’s intestate, when set at work by the defendant in the hold of a coal barge as a shoveller in unloading coal, which by means of an engine was hoisted in buckets to a staging above, from being struck by a lump of coal which fell from an ascending bucket, if there is evidence that a foreman of the defendant was present in charge of unloading the coal and supervised the work as it proceeded, that in exercising such supervision he either knew or ought to have known that previously the bucket as it ascended had come in contact with the end of the staging and was being carelessly handled by the “ hooker on ” or by the engineer or his fireman, and that if this method was not remedied or the shovellers in the hold were not warned of the danger they might be injured from falling coal, and that the foreman in charge failed to change the method or to give the warning, there is evidence for the jury of negligence of a superintendent of the defendant.</p> <p>In an action under the employers’ liability act for personal injuries to a workman alleged to have been caused by the negligence of a superintendent of the defendant, if there is evidence that a person acting as superintendent was in charge of the work, evidence that immediately after the accident such person gave certain directions regarding the conduct of the work may be competent to show the way in which the work was being carried on at the time of the accident.</p> <p>A workman, previously employed as one of a gang of trackmen on a street railway, who is put to work in the hold of a coal barge as a shoveller in unloading coal, which by means of an engine is hoisted in buckets to a staging above, does not assume, as matter of law, the risk of an accident due to the inability of either the fireman of the engine or the “ hooker on ” to manage the hoisting machinery properly, and, in an action for injuries from his being struck by a lump of coal which fell from an ascending bucket owing to such incompetent management of the machinery, it is a question of fact for the jury whether the shoveller from the place where he worked should have observed and comprehended the inefficiency of these fellow workmen.</p> <p>In an action by an administrator under R. L. c. 106, § 72, for causing the death of the plaintiff’s intestate after conscious suffering, although to recover it is necessary to show that the intestate left a widow or next of kin, who at the time of his death were dependent upon his wages for support, this need not be stated in the notice required by § 75 of the same chapter, which provides that notice of the time, place and cause of the injury shall be given to his employer within sixty days.</p> <p>In an action by an administrator under R. L. c. 106, § 72, for causing the death of the plaintiff’s intestate after conscious suffering, where the declaration states no cause of action because it fails to allege that the intestate left a widow or next of kin, who at the time of his death were dependent upon his wages for support, but there is evidence at the trial of the existence of next of kin so dependent, and the questions of such existence and dependence are submitted to the jury, who return a verdict for the plaintiff, the defect in the declaration may be cured by an amendment after verdict, which it is within the discretion of the presiding judge to allow.</p> <p>Where a defect in a declaration has been remedied by an amendment allowed after verdict, an exception founded on the defect will not be sustained on the ground that it was good at the time it was taken, because the error has been cured by the allowance of the amendment.</p> <p>In an action by an administrator under R. L. c. 106, § 72, for causing the death of the plaintiff's intestate after conscious suffering, where the intestate left no widow and to recover it was necessary to show that he left next of kin, who at the time of his death were dependent upon his wages for support, it appeared that three years before his death the intestate had a sister living to whom he had made remittances in money and that she was in feeble health. Held, that, the sister having been shown to have been living three years before the death of the intestate, she was presumed to have continued to live until the contrary was shown, and that from the facts that she was in feeble health and that he had made remittances to her in money it could be inferred that she relied upon his pecuniary aid for her support, a partial dependénce being sufficient to satisfy the statute.</p>

<p>hand Court, Jurisdiction, Withdrawal of petition for registration of title. Jurisdiction. Statute. Practice, Civil, Exceptions. Words, “Final decree.”</p> <p>By the provision of R. L, c. 128, § 36, that “ the applicant” in a petition for registration of the title to land “ may withdraw his petition at any time before final decree, upon terms to be determined by the ” Land Court, such withdrawal upon terms may be made after a verdict of a jury in favor of the respondent in the petition at a trial of issues framed on appeal by him to the Superior Court from a decision in the petitioner’s favor in the Land Court, and after a motion for a new trial has been overruled and bills of exceptions by the petitioner to rulings of the judge presiding at the trial and at the hearing of the motion for a new trial have been filed and allowed.</p> <p>The “final decree,” at any time before which, under R. L. c. 128, § 36, “the applicant ” in a petition for registration of the title to land “ may withdraw his petition . . . upon terms is the decree described in § 39, which is made, according to § 14, after appeals and exceptions, if there are any, are disposed of, and which, when registered according to the provisions of § 40, becomes the certificate of the title.</p> <p>Under R. L. c. 128, § 36, providing that “ the applicant ” in a petition for the registration of the title to land “ may withdraw his application at any time before final decree, upon terms to be determined by the court,” the Land Court, upon a motion to withdraw being filed by the petitioner after a verdict has been rendered against him by a jury before whom issues were tried on an appeal by the respondent to the Superior Court from a finding of the judge of the Land Court, has no power to impose as terms upon which the withdrawal would be permitted a requirement that the petitioner should either waive exceptions taken by him at the trial in the Superior Court, or prosecute them to final determination; but, in imposing terms, the Land Court is not restricted to taxable costs.</p> <p>Where, after the trial in the Superior Court of issues framed on appeal from a decision of the Land Court upon a petition for the registration of the title to land, and a verdict against the petitioner, a bill of exceptions taken by him at the trial is filed and allowed but not entered in this court, and he then files in the Land Court a withdrawal of the petition, but the terms upon which, under R. L. c. 128, § 36, the withdrawal would be allowed have not been determined, the proceeding is suspended until such terms are determined and the time has come for the petitioner either to comply with them or to refuse to do so, and the Superior Court has no power in the meantime to order the petitioner’s exceptions taken at the trial to be overruled unless they are printed and entered in this court by a certain date.</p>

Bill in equity filed in the Supreme Judicial Court for the county of Suffolk June 12, 1907, seeking to redeem certain parcels of land in Boston, in which the plaintiff owned an interest, from four mortgages, and an accounting as to such mortgages and five others; and Cross bill in equity, seeking specific performance of a contract in writing and under seal with the defendant in the first suit whereby the plaintiff therein for the stated consideration, among others, that the…

<p>Bill in equity, filed in the Superior Court for the county of Suffolk August 29, 1904, and afterwards amended, seeking to establish an alleged equitable title of the plaintiff to seven United States patents and one pending application for a patent.</p> <p>On the filing of the bill, an ad interim injunction was ordered and, after a hearing on an order of notice to show cause why the injunction should not be continued pendente lite, an inter-locutory decree was entered so continuing the injunction and ordering a speedy hearing before a master. Hearings were held accordingly and a draft report submitted to counsel, whereupon the plaintiff moved before the master to reopen the case for the submission of further evidence, and the master granted the motion and reopened the case, further evidence was taken, further arguments made and the case again taken under advisement. The master’s first report was filed December 81, 1906. A motion of the plaintiff on January 16,1907, to recommit the case to the master for a supplemental report on certain specified matters, was denied as to certain of the matters specified, and granted as to others, if the master “could make such report upon evidence already introduced at the hearings before him.” The plaintiff appealed from so much of the order as denied its motion in part.</p> <p>The supplementary-report was filed February 6, 1907, and there was a hearing upon exceptions of both parties * to the report before Schofield, J., who, on March 15, 1907, made a “ memorandum and order ” on the exceptions and an “ order for final decree,” which is referred to in the opinion and portions of which are hereinafter quoted. This memorandum directed a decree for the defendants as to what are hereinafter called the tubing machine patent and the three loom patents, and for the plaintiff as to the remaining three patents and the application for a patent.</p> <p>From the order contained in the memorandum, the plaintiff appealed on March 18, and thereupon, on April 3, the defendants filed a motion that the injunction be dissolved as to the patents regarding which a decree had been ordered in its favor, a motion that the plaintiff be required to give a bond “to compensate the defendants . . . for the damages sustained by ” them “ by reason of any injunctions or restraining orders or stipulations ” theretofore issued or made in the case, and also a motion that the damages which they had sustained by reason of the injunction with regard to the tubing machine patent, and the three loom patents be assessed. On April 4, all three of the motions were denied, the last two “with leave to the defendants to renew the application later if” they were “so advised.” The defendant James S. Wilson appealed from the order denying his motion to dissolve the injunction as to the tubing machine patent and the three loom patents.</p> <p>On May 4, 1907, an interlocutory decree was entered overruling some and sustaining others of the plaintiff’s exceptions to the master’s report. The decree as to the defendants’ exceptions was as follows: “ The defendants’ exceptions are all overruled. They are four in number, and relate almost wholly to rulings of the master upon matters of law. The court will state its own rulings upon matters of law so far as necessary to dispose of the case in the order for final decree.” From this decree the defendants appealed but the plaintiff did not.</p> <p>On May 25, 1907, the defendants filed a motion that the report be recommitted to the master for findings upon certain specified matters as to which, according to an affidavit of their counsel annexed to the motion, the inferences contained in the judge’s memorandum for a decree and drawn from facts reported by the master were at variance with the evidence as introduced before the master. Counsel for the plaintiff submitted an affidavit stating that the findings for which the defendants desired a recommittal of the report “are either wholly immaterial or are already sufficiently covered by matters now appearing in said master’s report, or are directly contrary to the findings made by the master and the evidence upon which the master made said findings; that many of said matters set forth concerning which further findings are requested involve purely questions of law and inferences of fact and matters which can clearly be inferred from fabts already appearing in said master’s report.” The motion was denied on September 3, 1907, and the defendants appealed.</p> <p>On September 3, 1907, upon a renewal by the defendants of their motions that the plaintiff be required to give a bond to pay damages sustained by the defendants by reason of the injunction, restraining order and stipulation, and that the damages which they had suffered from the injunction as to the tubing machine patent and the loom patents be assessed, the motions were denied, the interlocutory decrees therein stating that the first was denied as a matter of discretion, and the second as a matter of law; and the defendants appealed.</p> <p>With regard to the terms of Wilson’s employment by the plaintiff, the master’s findings in substance were as follows, James S. Wilson being called the defendant:</p> <p>“In 1892 the plaintiff was engaged in a small way in producing flexible tubing at a small shop or factory at West Hanover, Massachusetts. Both its output and financial resources were very small. The defendant at this time was the owner of a factory building in Chelsea, Massachusetts, and a resident of that city. He was then about thirty-one years of age and temporarily out of employment. He had had a varied business experience, having been a travelling salesman, a shipping clerk, and assistant superintendent of a paper mill and factory, and had for some time run a stock farm. He was a man of energy and executive ability and of good character, and the matter of renting his factory in Chelsea to the plaintiff and entering its employ came up. At a directors’ meeting held in 1892, the following vote was passed: 'Voted, that the treasurer be authorized to make a contract with J. S. Wilson of Chelsea, Mass., for the rent of his factory at Chelsea, Mass., at a rent of $1000 per year, with the privilege of four years at the same rate, also for his services for one year at $1800 to be paid at the rate of $100 per month and $600 at the end of the year.’ No written contract was executed, but a verbal agreement in the matter was entered into, following sundry conversations between the defendant and the officers of the plaintiff company. The verbal agreement as regards the employment was in substance for the services of the defendant at'the salary above named, and defendant entered plaintiff’s employ in June, 1892, in accordance with said agreement, and rented his factory to the plaintiff in accordance with the terms of said vote.</p> <p>“ The first important contested question which arises is as to the terms of this verbal contract of employment. What did the parties understand by the ‘services’ of Wilson? The plaintiff contends that defendant was hired in part at least as an inventor or mechanical expert to improve the slow and inefficient methods then in use in making flexible tubing, and in general to have full charge and control of the mechanical and producing end of the business, subject, however, to one Brooks, who was then and until his death in July, 1899, the general manager of the company; that the defendant, either by express agreement or necessary implication, bound himself to transfer to the plaintiff patents to all inventions which he might either make or acquire while in the employ of the plaintiff, or at any rate to transfer to the plaintiff all rights under such patents except in so far as he, the defendant, might be able to utilize such patents in lines of business not conflicting or competing with the plaintiff’s business. The defendant denies that there was any such agreement or understanding, express or implied, as regards inventions of his own or others, or patents on the same, which he might in any way acquire. The burden of proof is on the plaintiff to establish such an agreement to transfer patents or rights thereunder, and, so far as any express contract or agreement is concerned, it has failed entirely to sustain the burden. This leaves, therefore, to be considered what contract or agreement, if any, the law would imply in the matters in dispute on the facts found. . . .</p> <p>“ I find that the defendant was employed as a superintendent of the manufacturing department of the plaintiff’s business under and subject to the directions of Brooks, the general manager of the corporation in June, 1892, and for some seven years thereafter. His employment involved the directing of the employees in the manufacturing department, and in general the running of the manufacturing end of the business for the best interests of the plaintiff, but under and subject to Brooks down to the time of his death. Such employment would naturally require, if a superintendent was competent, and I find did require in this case, though not formally stated in the hiring, the looking after the machinery, making improvements on the same, if within his power, and generally the improvement of the plant as regards increasing the output, raising the quality and diminishing the expense. And from July, 1899, the date of Brooks’ death, the defendant had full charge and control of the manufacturing and producing end of the business, subject to one Clark, who succeeded Brooks as general manager, and subject also to the board of directors. The evidence shows and I find that the board of directors and Clark gave the defendant practically a free hand in his department. He became an employee of the plaintiff company in a position important at the time and which steadily became more important. He was legally bound to serve it faithfully and to the best of his ability. On April 5, 1898, he was elected a director of the plaintiff company, and remained a director from that time down to a few weeks before the bringing of the present suit, to wit, to August 18, 1904, when he failed of re-election at an adjourned annual meeting of the stockholders. With the selling and financial end of the business, except incidentally as a member of the board of directors, the defendant had no active duties. As regards making purchases, he had no direct or specific authority, and with one or two exceptions made none of any size. So far as the evidence shows, what purchases he did make were at all times approved or ratified by the plaintiff. He was, of course, aware of the prosperity of the plaintiff company and was a sharer therein. His own salary was increased from time to time, as were also other salaries, until it reached $5000 per annum. And, as the business of the plaintiff company increased, his responsibilities also increased. From the time he was elected a director he also knew that the com-pony was financially able and likely in all probability, if it knew of the opportunity, to purchase patents or patent rights which might be useful in improving the quality of its goods, or its processes of manufacture, or cheapening, such processes, or in any way aiding to preserve its almost" complete monopoly. Especially did the defendant know of this disposition on the part of the plaintiff company after August, 1901.”</p> <p>As regards the tubing machine invention, the master made the following findings: “ The application for the patent describes the invention as that of the defendant, and the patent itself was issued to him. . . . The expenses involved in procuring the patent, to wit, the patent solicitors and patent office fees, were paid by the plaintiff. The product turned out by the machine is the same product which is covered by the Herrick patent [a patent covering the then product of the plaintiff]. The first machine constructed which embodied the invention was paid for by the plaintiff and is the plaintiff’s machine. This is true of a large number of other machines embodying the same inventions, and subsequently built from time to time to meet the growth of the plaintiff’s business. Each of the machines built was in use much of the time from the date of its completion and installing in the factory before referred to down to August 18,1904, when defendant left the employ of the plaintiff company, and, I am informed by counsel, all these machines are still there and in use or ready to use.”</p> <p>The findings and rulings of the judge with regard to the tubing machine patent, contained in his memorandum for a decree, were in substance as follows: “ This patent was issued in 1895 to the defendant, the inventor. At that time Wilson was superintendent in charge of the manufacturing department of' the plaintiff’s business, receiving a salary as superintendent, and having a duty of making improvements in the plaintiff’s machinery. There was no express agreement between the parties in regard to the ownership of inventions which Wilson might make or of patents which he might obtain upon them. ... In the absence of express agreement between the parties the law will not imply an agreement requiring Wilson to convey or assign to the plaintiff any interest in his own invention, or in the patent obtained upon it. Upon the facts found by the master, there was no breach of confidence or other violation of duty by Wilson to his employer in relation to his own invention and patent, and therefore no ground upon which to raise a constructive trust in favor of the plaintiff.</p> <p>“The plaintiff contends that at least an exclusive license should be implied in its favor, on the ground (among other grounds) that the plaintiff had a substantial monopoly in the business of making and selling such flexible tubing, and the defendant owed a duty to protect that monopoly. The court declines to imply a right to an exclusive license. The plaintiff, in order to protect its monopoly, might have insisted upon making an express agreement with Wilson in regard to any patents he might obtain upon inventions made by him. Not having done so, it is entitled only to such rights as can justly be implied from the relation of the parties, and the surrounding material facts. The court rules that upon the facts of this case no license can be raised by implication against Wilson, except a license to use the existing machines actually constructed under the patent while he was in the employment of the plaintiff. If it is attempted to extend the implied license beyond such existing machines, there is no definite principle by which to limit its scope and extent, and it is therefore safer and more just to leave the parties where they have left themselves.</p> <p>“ The master reports that an agreement was made before him upon the subject of shop rights or implied licenses in machines, by which the whole matter was left open, and. not to be passed upon in this suit. There is reason to fear that there has been some misunderstanding in regard to the scope of the agreement made before the master. Counsel for the plaintiff understood the expression ‘ shop rights or implied licenses ’ to mean merely rights in existing machines, and contend that the agreement left them free to argue that the plaintiff had an equitable right to compel the defendant Wilson to execute a license permitting the plaintiff to construct and use additional machines under the patent, to any extent to which the law would imply a license. • It is not clear to the court, after comparing the various passages in which the master used the expression ‘ shop rights or implied licenses,’ that he used it in the narrow sense in which it was understood by counsel for the plaintiff. In view of the possible misunderstanding upon this point, the court would not feel at liberty to imply a license applicable to any but existing machines constructed during the employment of Wilson, without sending the case back to the master for a further report upon the whole question of licenses. It is unnecessary to take this action, however, for the reason that the.court is of the opinion, and rules as matter of law, that upon the facts found the plaintiff has no rights in the tubing machine patent except the right to use machines constructed under it while the defendant James S. Wilson was in its employment. This right rests upon estoppel in pais. As to the tubing machine patent, the bill is ordered to be dismissed.”</p> <p>The findings of the master as to the three loom patents were in substance as follows: “ Very late in 1900 one Brown began work experimenting, having in mind to invent a circular loom of an improved pattern, primarily intended to weave the cylindrical cotton covering for flexible metallic tubing. Brown was an inventor and machinist. He had a shop of his own, and before this time had frequently built machines and given expert service to the plaintiff company. He had never been in the employ of the plaintiff company on wages or salary, but had done his special work as an independent contractor. There was no evidence that Brown was asked by any one to turn his inventive ability in this direction. He apparently did it of his own accord. And he finally succeeded in inventing such improved loom, and the invention" is embodied in the circular loom patent and the two ancillary patents, the shuttle patent and the bobbin holder patent, covering two separate mechanical devices in the improved loom. These loom patents are of great value, not only in the plaintiff’s business, but in other lines.</p> <p>“ About January, 1901, the defendant, and very shortly afterward Clark, the treasurer of the plaintiff corporation and a director therein, learned that Brown was making experiments and endeavoring to perfect an improved circular loom. Each separately interviewed Brown and advanced him money, the defendant making advances before the invention had been perfected, and Clark making his advances subsequently, to enable Brown to build the first machine. The defendant’s advances were made because he anticipated purchasing the invention, or an interest therein, and Clark’s in the expectation of getting some control thereof, if the machine to be constructed should prove a success. Clark testified, and I find, that his efforts toward obtaining this invention and the patents which might be procured thereon were made in behalf of the plaintiff corporation, and by himself as its representative. Defendant did not disclose to the officers of the plaintiff company that he knew of the invention of the loom and of Brown’s work in that direction nor did he disclose that he was furnishing money to Brown to assist him in the matter, and they ascertained these facts in another way. Clark concealed his negotiations from defendant for a time and actively tried to prevent defendant from learning what he, Clark, was trying to do. . . .</p> <p>“ Something of a quarrel took place between Clark and the defendant, but the final outcome was that in February, 1902, after the loom patent had been issued, and after the applications for the shuttle patent and the bobbin holder patent had been filed, Clark abandoned his attempt to get from Brown these inventions for the plaintiff company, turned his contract with Brown over to the defendant, and left the defendant to deal with Brown as he might see fit. Defendant agreed to repay and did repay Clark the moneys which Clark had on the plaintiff company’s account advanced Brown, and, without further opposition on the part of the plaintiff or Clark, completed the trade with Brown, took assignments from him of the inventions and the rights thereunder, and personally paid him about $8000. ... At the time the plaintiff company, as above stated, was through Clark desirous of purchasing these inventions, and the patents thereon. It was financially amply able to do so, and it was greatly to the financial interest of the plaintiff company to acquire them.</p> <p>“ It did not appear that Clark’s knowledge of the whole situation and the dealings between the defendant and Brown were absolutely complete, but I see no reason to believe that Clark’s information on the subject was not reasonably complete. Except that he was not informed, and did not ascertain until some two years later, what amount Wilson claimed to be the purchase price. I do not find that defendant actually concealed or misrepresented anything to Clark in the matter, unless certain statements of the defendant to Clark* are to be considered as material mis-statements of fact.</p> <p>“ The defendant, at the time he was thus dealing with Brown, was superintendent, and in charge of the mechanical and producing end of the plaintiff’s business, as hereinbefore fully found, and subject of course to the general manager. He was, and for nearly three years had been; a director of the plaintiff company. He was legally bound from his position to use all reasonable efforts to serve the plaintiff’s interests, and, in view of his position and his office as director, I rule he was legally bound not to act in antagonism to the interests of the plaintiff corporation, and I find his purchase of these patents was directly antagonistic to its interests, and I rule was in violation of his duty to it, inasmuch as defendant made no attempt to protect the interests of the plaintiff company in this connection. The situation was very different from the situation as regards the tubing machine, both because the tubing machine was his own invention, and because at the time that patent was obtained he was not a director. I find, however, that there was no direct contract between plaintiff and defendant covering the subject of inventions which defendant might acquire. Apparently such a contingency was not thought of when defendant entered plaintiff’s employ.</p> <p>“ Considering the question of law on all the facts heretofore found and herein recited, I rule on the facts found that defendant was not justified in himself purchasing these three loom patents against the plaintiff’s interest and desire, unless in so doing he should take proper steps to secure to the plaintiff company full rights to use the inventions in its business. So far as other and non-competing use was concerned, I see no reason why he did not have the right to obtain them for himself if the interests of his company were protected.</p> <p>“ But the directors of the company knew through Clark sometime prior to the closing of the defendant’s trade with Brown, as well as at the time thereof, February, 1902, in part what defendant was doing, and beyond question knew generally that the defendant was paying considerable money to Brown for these inventions, or some interest in the same, and for building new looms, and also knew he was repaying Clark the moneys Clark had advanced on plaintiff’s account as heretofore stated, knew that the looms which were built under the patents and were set up and used in the plaintiff’s factory by the plaintiff were not paid for by the plaintiff,' but were the defendant’s own property. Knowing this the plaintiff company made no demand on the defendant, made no offer to reimburse him in whole or in part, and brought no action against him to assert the rights which it claims in this bill until August, 1904, a period of almost two years and eight months from the granting of the principal patent. I rule as matter of law that this long lapse of time operates as a bar to the plaintiff company now enforcing the rights which it formerly had to relief in the matter of these patents. . . . The long delay was unreasonable. To permit the plaintiff to make its election after such delay would be to allow it to wait for time to determine the value of the inventions, and then, if defendant’s bargain with Brown turned out a good one, to take the advantage of it in large part away from the defendant, and, if it proved a bad bargain, to leave it on his hands.”</p> <p>As to two of the remaining four patents, namely, those called the Blackler patent and the Thibodeau patent, the master found that assignments of them were procured by the defendant under circumstances similar to those appertaining as to the loom machine patents, except that there were no circumstances which would show acquiescence in the defendant’s acts on the part of the plaintiff, or which would import loches to the plaintiff.</p> <p>The master found that the plaintiff procured from the inventor assignments of the remaining patent, called the pipe cleaning machine patent, and the application for a patent upon a pipe bending machine, while he was president of a corporation called the Boston Electroduct Company and under circumstances which imported breaches of trust on his part toward that company such as appertained toward the plaintiff with regard to the Blackler and the Thibodeau patents. The Electroduct Company, he found, was organized by the plaintiff and Clark and Brooks, all then directors of the plaintiff, and had an unsuccessful financial career, and that, finally, a majority of its capital stock came under the control of the plaintiff, who thereupon carried on its business as co-ordinate with its own, but that the corporate existence of the Electroduct Company continued. The plaintiff, in order to establish that it was a successor to the rights of the Electroduct Company as to the pipe cleaning machine patent and the application for a patent on the pipe bending machine, introduced evidence of an oral assignment to it before this suit was begun of the assets of the Electroduct Company by the latter and offered evidence of a formal assignment in writing made after the suit was begun. The master’s report states on this subject: “ I am unable to find on the evidence that there had been any previous assignment, oral or otherwise, or transfer, or any attempt to transfer legal title to the assets of the Electroduct Company. Under the circumstances I doubt if there is anything really to confirm or ratify beyond the conduct of the plaintiff in taking charge of the affairs of the Electroduct Company. But, assuming that there had been an original assignment or transfer of title of the assets, or what might be treated as such, or that the confirmatory assignment might be considered as an original assignment or transfer, either one which related backward or not, I am still of opinion and rule that equitable rights of the Electroduct Company against the defendant, if any, such as this bill is based upon, are not transferable by assignment at all. And I excluded the evidence of such assignment, saving the rights of the plaintiff in the matter.”</p> <p>The record shows that on December 9, 1904, the Electroduct Company petitioned to be admitted as a party plaintiff. On January 16,1905, the following order was made on the petition: “ The defendant averring that he does not put or rest his defence on the ground that the Electroduct Company has any right or title in or to the patents or any of them or the application therefor, this motion is now denied.” On February 24, 1905, the plaintiff was allowed to amend its bill setting forth in detail the facts as it contended them to be with regard to the Electroduct Company and its assignment of its assets to the plaintiff.</p> <p>The findings and rulings of the judge with regard to the loom patents, the Blackler and the Thibodeau patents, the pipe cleaning machine patent, and the application for a patent upon the pipe bending machine were as follows:</p> <p>“ As to the patents acquired by Wilson by purchase: Wilson held a position of great importance to the plaintiff’s business, as superintendent of its manufacturing department. The court finds as a fact that it was a confidential position. He had, as the master finds, ‘practically a free hand in his department.’ By virtue of his employment he had the best means of obtaining knowledge in respect to the plaintiff’s machines. By reason of the situation in which he was placed, he owed his employer the duty to be vigilant in acquiring information as to all experiments made in the plaintiff’s factory relating to machinery, and to communicate to the board of directors or at least to the managing director all material information he might obtain in regard to contemplated improvements, in order to enable his employer to act intelligently and promptly upon the subject of acquiring title to any new inventions or patents relating to its machinery. The duty of Wilson may be described as the duty of fidelity, an implied condition in his contract of employment. The court rules that if the defendant Wilson withheld information from the plaintiff which it was his duty to communicate, such withholding of information was a breach of confidence and a violation of his duty of fidelity to the plaintiff; and if by reason of such breach of confidence he prevented the plaintiff from acquiring title to the patents in question or any of them, equity will follow the title to such patents into his hands and charge it with a constructive trust in favor of the plaintiff. There is a real distinction between the case of the patent obtained by Wilson for his own invention and those patents which he acquired by assignment from others. In the former case there was no breach of confidence. In the latter case he was bound to make full disclosure to his master before acquiring for himself.</p> <p>“ In applying this ruling it seems to the court that upon the facts found by the master the three loom patents stand upon a different ground from the others. As to these inventions, Wilson had negotiations with Clark, the managing director of the plaintiff corporation, and Clark left the defendant to deal with Brown, the inventor, as he saw fit. Wilson was at that time a director and paid employee of the plaintiff. It was competent for the hoard of directors to divide and apportion the duties of management of the affairs of the corporation among themselves, for convenience and efficiency in management. Wilson, as director, was not charged with any duty in respect to the purchase of inventions or patents. As employee, that is, superintendent in charge' of the mechanical department of its business, it was competent for the plaintiff by its board of directors to make such contract with him for his services as they saw fit, and to release him from obligations of his existing contract. Upon the facts found by the master the court rules that in dealing with Clark in reference to the loom inventions Wilson could properly assume that Clark was acting for and in behalf of the corporation, and that any arrangement he might make with Clark would be in effect an arrangement between the corporation and himself. The facts then known to Clark were sufficient to put him fully on his guard against Wilson as a competitor for the loom inventions. Two other directors, who owned a majority of the stock of the corporation, knew substantially the facts which Clark knew, and the court rules that the arrangement between Clark and Wilson in respect to the loom patents was the agreement of the corporation, and binding upon it until set aside by a bill by minority stockholders or by some other legal proceeding. The effect of the arrangement between Clark and Wilson was to leave Wilson free, as between himself and the corporation, to purchase the loom patents for himself. As to these three patents the bill is ordered to be dismissed.</p> <p>“ The remaining patents can be disposed of together. The court finds that Wilson failed to perform his duty to the plaintiff in respect to each one of the four patents above named, that he failed to' disclose information which it was his duty to disclose and that such failure was a violation of the confidence reposed in him by his employer. The two patents relating to electroduet stand, in respect to this duty of Wilson, upon the same ground as the Blackler patent and the Thibodeau patent, notwithstanding the somewhat peculiar business relations between the plaintiff and the Boston Electroduct Company, shown in the report of the master. Wilson’s employer, the plaintiff, was obtaining profits from the sale of electroduct under contract, and had an interest in all improvements in machinery used for making electroduct, and a right to compete with any person for the purchase of such improvements or of any patent protecting them. The master finds' that the plaintiff would have purchased the Blackler patent if it had been given the opportunity to do so. The court finds as a fact, from other facts stated in the master’s report, and in addition to facts stated by him, that the plaintiff would have purchased the Thibodeau patent and the pipe bending machine patent and the pipe cleaning machine patent, if the defendant Wilson had performed his duty of fidelity to his employer. The court finds as a fact that his failure to perform that duty prevented the plaintiff from acquiring title to each of those four patents, and rules that Emma M. Wilson holds the legal title to the Blackler patent, the Thibodeau patent, the pipe bending and pipe cleaning machine patents, charged with a constructive trust in favor of the plaintiff. The remedy in damages is not adequate, and, by reason of the breach of confidence, equity imposes a trust. The defendant, James S. Wilson, was a director of the plaintiff corporation from April 5, 1898, but the court deems it unnecessary to rule upon the difficult question of the duties of an unpaid director, not charged with any specific duties as such director, and raises the constructive trust wholly out of his violation of his contract of employment, under which he was paid for his services.</p> <p>“ The plaintiff is entitled to an assignment of each of the four patents named, but upon condition of repaying to the present holder of the title the amount expended by Wilson to obtain title, with interest.”</p> <p>A final decree in accordance with the judge’s memorandum was entered October 14, 1907, from which all parties appealed.</p> <p>Other facts are stated in the opinion.</p>

<p>Bill in equity filed in the Superior Court for the county of Suffolk May 24,1907.</p> <p>The allegations of the bill were as follows in substance: On April 1, 1906, The Bruce-Merriam-Abbott Company, an Ohio corporation, was engaged in the manufacture and sale at Cleveland, Ohio, of gas engines, and had works at Cleveland, Ohio, where engines which it sold were manufactured and tested, and also had printed forms of contracts intended to be made by it with purchasers of its engines. On that date the plaintiff was a general agent of The Bruce-Merriam-Abbott Company, had possession of its printed form of contracts above referred to and had a place of business in Boston, and did not manufacture gas engines and had no works at which gas engines should or could be tested. The defendant was informed of the foregoing facts, and negotiations opened between the plaintiff, as agent of and on behalf of The Bruce-Merriam-Abbott Company, and the defendant for the purchase by the defendant of an engine; as a result of these negotiations duplicate forms of a contract or letter were prepared by altering one of the printed forms prepared by The Bruce-Merriam-Abbott Company for its use, and such duplicate forms were then signed by the plaintiff and by the defendant in the manner and form hereinafter indicated. It was the intention of the plaintiff in making the alterations in the printed form and in causing it to be signed as it was signed to act as agent and for and in behalf of The Bruce-Merriam-Abbott Company and not to act in any way or manner so as to bind itself by any of the writing or printing contained in said paper. The defendant intended said paper writing to be a contract between The Bruce-Merriam-Abbott Company and itself, and, when said paper writing was signed in its behalf, understood and believed it was an agreement between The Bruce-Merriam-Abbott Company and the defendant, and did not intend nor believe nor understand that the plaintiff was a party thereto except in its capacity as agent of The Bruce-Merriam-Abbott Company. An engine claimed by The Bruce-Merriam-Abbott Company to be such as is described in said paper was furnished by The Bruce-Merriam-Abbott Company F. O. B. Cleveland, consigned to defendant, and the defendant received it and paid for it the price stipulated, in the contract together with transportation charges from Cleveland. “ The defendant claims the engine was not what it was warranted to be by the terms of the contract, that there are several breaches of the warranties contained therein, and that the contract was between the plaintiff and the defendant, and that the plaintiff and not The Bruce-Merriam-Abbott Company is responsible for breach of its terms, and has brought an action at law . . . against this plaintiff to recover damages because of several alleged breaches of the warranties contained in said agreement, and among others because of an alleged breach of the agreement contained in said paper, ‘That the engine shall be tested at our works and develop 55 actual brake H. P.’ The defendant in this suit claims in said action at law that the words ‘ our works ’ in said agreement mean the works of the J. P. Eustis Manufacturing Company whereas in fact it was the intention of all the parties to this suit and to said contract that these words should mean the works of The Bruce-Merriam-Abbott Company, where the engine was manufactured; and it was well known to the defendant that the plaintiff had no works for testing said engine and no works at all in said Cleveland, where the defendant was to and did through its agent receive said engine. ...”</p> <p>The prayer of the bill was that the defendant be enjoined from further prosecution of the action at law, and be ordered to discontinue it.</p> <p>Such portions of the agreement as are material to this decision are as follows: “ Saco Brick Co., Saco, Me. The J. P. Eustis Mfg. Co.,.General Agents for The Bruce-Merriam-Abbott Co., hereby propose to furnish and deliver F. O. B. cars Cleveland, not later than April 24, 1906, one 55 H. P. Twin Cylinder, vertical Gas engine, with belt pulley, the same arranged for gasoline fuel, and to have air starting outfit. The Engine shall be tested at our works and develop 55 actual brake H. P. . . . [Then follow certain specifications and guaranties.] . . . Foundation plan only is furnished by B. M. A. Co. Foundation to be built by their purchaser. Foundation bolts to be furnished by B. M. A. Co. All necessary labor to be furnished by purchaser, except the services of one erecting man which we agree to furnish without charge. The purchaser to set the engine on the foundation, our man will make the connection, start the engine, and instruct your engineer in its use and care. It is guaranteed that all our engines are thoroughly tested and found to be in good working order before leaving the factory. That this machine will do good work when properly handled. Any part or parts becoming broken or useless through defective workmanship or material during the first year will be supplied the purchaser without charge F. O. B. Cleveland. We propose to furnish the above Engine for $1750.00 F. O. B. Cleveland. . . . We guarantee to use all best endeavors to secure through the transportation companies the earliest possible delivery to Saco. It is agreed that the title and right of possession shall remain in J. P. Eustis Mfg. Co. until payment has been made in full, and, if such payment is not made, J. P. Eustis Mfg. Co. may take possession of said engine and sell the same, on giving ten days notice of such sale by posting notices, and apply the proceeds of such sale to the expense of taking possession and making sale, and to cover the balance due on this contract, with interest, and render the overplus to you.</p> <p>“ Accepted Saco Brick Co. Lewis B. Stillman, President, James A. Durgin, Treas.</p> <p>“ Approved, J. P. Eustis Mfg. Company, J. P. Eustis, Treas.”</p> <p>The defendant demurred and alleged as grounds of demurrer, “ that plaintiff has not stated such a case as entitles it to any relief in equity against defendant ” ; “ that plaintiff has a plain, adequate and complete remedy at law ”; that The Bruce-Merriam-Abbott Company is a necessary party to the bill, but plaintiff has not made it a party to the bill; and “ that plaintiff is not entitled to any relief in equity against this defendant without a reformation of the contract set forth in the bill, that said contract cannot be reformed to the facts alleged in the bill without making The Bruce-Merriam-Abbott Company a party-to the bill and that The Bruce-Merriam-Abbott Company is a foreign corporation as appears from the bill and therefore cannot be made a party to the bill in such manner as to be bound by any decree entered in said cause.”</p> <p>There was a hearing before Fox, J., who filed the following memorandum: “The plaintiff asks by his bill to be relieved from the effect of a contract which he alleges was signed by both parties under a mistake and misapprehension as to its true construction, the parties intending that The Bruce-Merriam-Abbott Company should be bound by it, instead of the plaintiff. The plaintiff has not cited any case to the point that in such a case it is permissible to show, either in law or in equity, that the written contract does not express the real intention of the parties. Demurrer sustained.” A final decree was entered dismissing the bill, and the plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p> Municipal Corporations. Intoxicating Liquors. </p> <p>A town lawfully can expend money to reimburse a special police officer, who had been duly appointed by the authorities of the town as a committee to have charge of the expenditure of money appropriated by the town for the purpose of prosecuting breaches of the law with regard to the sale of intoxicating liquors, for expenses incurred by him in defending himself in an action of tort for malicious prosecution brought against him by one whom he in good faith had caused to be arrested and unsuccessfully prosecuted for breaches of such law.</p>

<p>Tort by a woman employed in the defendant’s shoe factory at Danvers, to recover for injuries alleged to have been caused by negligence of the defendant in not providing a safe place for the plaintiff to use in the course of her employment. Writ in the Superior Court for the county of Essex dated March 24, 1905.</p> <p>There was a trial before White, J. Besides the facts stated in the opinion, it appeared that the shafting there described was about a foot and a half above the floor, and that, where it extended into the dressing room, it rested upon a bracket; and there was evidence tending to show that all of this machinery which was in the dressing room always had been covered by the box so completely that none of the plaintiff’s witnesses knew that there was any machinery under the box.</p> <p>The immediate circumstances of the accident were as follows: The engineer of the factory had been repairing the machinery on the evening before the accident, had. removed the box in the dressing room and, not completing his task, had left the machinery uncovered until the next morning. Having completed his repairs the next morning, he went downstairs to the engine to start the machinery so that he could put the belts on, but left off the box covering in the dressing room, and thus the machinery was exposed. The plaintiff, in changing to her working clothes, had her large working apron partly on when it caught in the machinery into which her hand then was drawn.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge refused to direct a verdict for the defendant, the jury found for the plaintiff, and the defendant excepted.</p> <p>The case was submitted on briefs.</p>

<p>Contract, Construction, Party wail agreement. Party Wall.</p> <p>By an agreement in writing, owners of adjoining parcels of land “mutually” granted and covenanted “ each with the other that either party ” might “ build a party wall on any part or the whole of the boundary line between the said estates which the other party should have the right to use as herein provided." Other provisions of the agreement related to the extension of the wall in any direction, and to the rebuilding of it in case it got out of repair or was destroyed; “ and when any portion of any wall so built, extended or rebuilt shall be used by the party by whom the portion so used was not constructed, he shall pay to the party who constructed it one half of the value at the time of such use of the whole thickness of the portion so used.” One of the parties to the agreement built the entire wall, which was sixteen inches thick for the four lower stories and stood equally on the land of the two, and the other party used and paid for a part of it as a side wall of a building constructed by him, and drove into the remaining portion ten-penny nails upon which he hung rugs for display in connection with his business, not paying to the party who constructed the wall any compensation for the portion so used, and the party who constructed the wall brought against him an action of tort. Held, that the action might be maintained, since the entire wall was the plaintiff’s until paid for by the defendant under the agreement, and since the use of the wall contemplated by the agreement was a use only for the erection or support of a building, and therefore the use on the part of the defendant to which the plaintiS objected was an interference with the plaintiff's rights.</p>

<p>Negligence, Street railway, In use of highway. Evidence, Opinion.</p> <p>At the trial of an action of tort against a street railway company to recover for personal injuries received by the plaintiff from being thrown from an ice wagon, which he was driving, because of an electric car of the defendant running into the wagon, there was evidence tending to show that the plaintiff was driving the wagon for his employer, and that, together with its load, the wagon weighed about four and a half tons, that it had no springs and no cut under; that the plaintiff was driving with two horses on the extreme right side of a principal street of a city, upon which were double tracks of the defendant, and, arriving opposite to the office and barns of his employer, which were on the other side of the tracks, he received a signal to turn in ; that, thereupon, he looked from his seat backward along the side of the wagon, got a view of the defendant’s track for two or three hundred feet, neither saw nor heard a car, and then began to cross the track; that the horses and the fore part of the wagon had got across the track when the car, which came from the same direction from which the plaintiff had been driving, struck the rear wheel with such force that it made a loud noise, tipped over the wagon, spilled the ice and forced some of it through the front of the wagon, and carried the wagon along the track for five qr ten feet; that the car was running ten or twelve miles an hour and did not slacken its speed before the collision, although there was an outcry from its passengers when it was still thirty feet from the wagon, and that no gong or bell was sounded on the car. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the defendant or its employees.</p> <p>At the trial of an action of tort against a street railway company to recover for personal injuries alleged to have been received by reason of a car of the defendant running from behind into a wagon which the plaintiff, after having looked to see whether a car was coming, was driving across the defendant’s tracks, it is competent for the plaintiff’s counsel to ask the plaintiff, for the purpose of showing that he did not believe that there was any peril in crossing the track as he did, “At the time you crossed over, did you think there was any danger in passing over as you did i ”</p>

<p>Practice, Civil, Auditor’s report, Inferences by judge from auditor’s report. Wagering Contract. Evidence, Presumptions and burden of proof. Contract, Validity.</p> <p>Where the only evidence introduced at the trial of an action before a judge without a jury is the report of an auditor to whom the case had been referred, the judge may draw such inferences from the statements in the report as they fairly warrant, even if the inferences so drawn are contrary to the conclusions of the auditor.</p> <p>At the trial before a judge without a jury of an action of contract to recover under R. L. c. 99, § 4, sums paid by the plaintiff to the defendant under contracts to buy and sell upon margins certain shares of the capital stock of corporations, the only evidence introduced was the report of an auditor to whom the case had been referred. The auditor found that the plaintiff carried on business as the Commercial Stock Company, and had<two offices in Boston, one on Tremont Street and the other on Congress Street, the two being connected by telephone, that the transactions described in the declaration took place in the Tremont Street office, which “ was fitted up with all the paraphernalia of a broker’s office.” The auditor’s description of the method of dealings between the plaintiff and the defendant accorded with the method of dealings between a stockbroker and his customer, but he found that the buying and selling were wholly fictitious and understood to be so by both parties, and that the plaintiff “ was not a broker and did not undertake to act as such in these transactions.” The judge refused to rule that there “ was nothing in the auditor’s report to warrant the court in finding that the plaintiff acted as a broker in the sense of being employed by the defendant to make the transactions alleged in the declaration.” Held, that the inference drawn by the judge from the facts stated in the report, although contrary to the conclusion of the auditor, was warranted.</p> <p>A broker cannot recover under R. L. c. 99, § 4, sums paid by him to a customer as “gains on trades ” in shares of the capital stock of various corporations, where such “ trades ” were, by agreement between the broker and his customer, wholly fictitious, and the calculation of the sum called the “ gain ” on a designated stock was based upon the amount which the market value of such stock, at the time the “ account” as to that stock was “closed” between the broker and the defendant, exceeded its market value at the time when the “ account ” was “ opened,” since such transactions are a species of gambling or wagering contracts, alike prohibited at common law and by statute.</p>

Petition, filed in the Superior Court for the county of Norfolk December 14,1906, for the assessment by a jury of damages caused to the petitioner by the alleged taking of certain land and water rights by the respondent for the purposes of its water supply. The case was tried upon an agreed statement of facts before Bishop, J., who dismissed the petition, and the petitioner appealed. The facts are stated in the opinion.

<p>Municipal. Corporations, By-laws and ordinances, Officers and agents. Trust. Statute. Fall River. Water Works. Tax. Mandamus. Equity Jurisdiction, To restrain illegal expenditure of money by city or town.</p> <p>By St. 1871, c. 133, §§ 15, 17, providing that the city of Fall River might issue “ Water bonds ” to an amount not exceeding $500,000 to meet the expenses ' incident to the construction of its waterworks, and that the city council from time to time should regulate the price for which the water might be used, with a view to paying from the net income and receipts of the waterworks “ not only the interest, but ultimately the principal of the debt so contracted, so far as the same may be practicable and reasonable,” such net receipts are not constituted a trust fund for the benefit and security of the holders of the bonds authorized by that act and acts supplementary thereto.</p> <p>Under St. 1871, c. 133, §§ 15,17, providing that the city of Fall River might issue “ water bonds ” to an amount not exceeding $500,000 to meet the expenses incident to the construction of its waterworks, and that the city council from time to time should regulate the price for which the water might be used, with a view to paying from the net income and receipts of the waterworks “ not only the interest, but ultimately the principal of the debt so contracted, so far as the same may he practicable and reasonable,” bonds were issued and some of them were outstanding in 1907, when a fund of $90,000 had been accumulated and was standing to the credit of the waterworks under ordinances then in force, which provided that receipts from water rates should be so placed to the credit of the waterworks and that appropriations should be made therefrom for the payment of expenses incurred in connection with their construction and maintenance and the payment of the interest and principal of the water loan. In 1907 an ordinance was passed amending the previous ordinances and providing that receipts from the water rates should be paid into a general fund from which appropriations were made for general expenses of the city, and that payments of interest and the principal of the water loan should “ follow the usual course of other city indebtedness,” and an order was adopted by the city council transferring $59,000 from the sum held to the credit of the waterworks to the general fund. Held, that tile ordinance was not contrary to the public policy of the Commonwealth as displayed in the Constitution and developed in its legislation; and that neither the ordinance nor the order impaired the obligation of the city with its bondholders, there having been no contract that the fund should be held only for the purpose of paying the principal and the interest of the bonds.</p> <p>An ordinance of a city provided that receipts from water rates, which were fixed from time to time by the city council with legislative authority, should be paid into a general fund from which appropriations were made for general expenses of the city, and that payments of interest upon bonds, theretofore issued for loans for the purpose of constructing and maintaining the waterworks and of making payments on account of sinking funds provided for such loans and on account of the principal of the debt, should “ follow the usual course of other city indebtedness.” Held, that the ordinance did not create any disproportionate burden of taxation.</p> <p>A city lias power, acting through its proper authorities, to provide for the management of its internal affairs by providing that a finance committee or other officials shall submit detailed estimates of intended expenditures and shall make recommendations to the city council in reference thereto before the making of appropriations by the latter body.</p> <p>It is not necessarily unlawful for a city council to provide by ordinance that costs and expenses incurred in taking land adjoining its water supply, for the purpose of providing a reservoir and storage basin and of preserving the purity of the water supply, should be paid by special appropriation of the city council "after such expenditures shall have had the approval of the council, to which body they must have been recommended by the committee on finance.” And it does not follow that the council by such ordinance would be deprived of the power to act upon such question by the mere inaction of a finance committee, since, it being a mere matter of procedure, the council, in any special case, may waive or abrogate the provisions of the ordinance with regard to the recommendation of the finance committee.</p> <p>An ordinance of the city of Fall River, adopted over the veto of the mayor, amended previous ordinances in accordance with which receipts from water rates were placed by the city treasurer to the credit of the waterworks and were to be appropriated to pay expenses incurred in connection with their construction and maintenance and to the payment of the interest on and the principal of loans secured by bonds of the city issued under the provisions of St. 1871, c. 133, §§ 16,17, and of statutes in amendment thereof and supplementary thereto, and directed that receipts from water rates should be paid into the general fund from which appropriations were made for general expenses of the city, and that payments of interest upon the bonds and on account of sinking funds, which had been provided for the payment of the principal of the bonds, should “ follow the usual course of other city indebtedness." An order of the city council passed after such ordinance and also over the mayor’s veto, transferred $59,000 of a sum of $90,000, which had been accumulated by the city under the previous ordinances from the net receipts of the waterworks, to the general fund to be used for general expenses of the city. The mayor, the treasurer and the auditor of the city, acting under the advice of the city solicitor, refused to recognize or to act in accordance with the ordinance and the order, and sixteen individuals who comprised a majority of the board of aider-men, acting as individuals and as a board, brought a petition for a writ of mandamus directing the mayor, treasurer and auditor to recognize the validity of the ordinance and the order and to carry out the latter, and also brought a bill in equity under R. L. c. 25, § 100, to prevent an alleged illegal expenditure and appropriation of money by the treasurer and auditor. Held, that both the ordinance and the order were valid and binding, and therefore that both the petition and the bill in equity might be maintained and that the writ prayed for in the petition should issue.</p>

<p>Tort for damage to the automobile of the plaintiff caused by a collision with an electric street car of the defendant on East Main Street in Orange. Writ in the Superior Court of the county of Worcester dated November 21, 1906.</p> <p>There was a trial before Wait, J. Besides the facts stated in the opinion, the plaintiff’s evidence tended to show that there were no lights in the electric car, that the street where the accident happened was a fifty foot street, and that the distance from the curb to the nearer rail was thirteen and a half feet, that, before the accident, the plaintiff had started to back his car in a semicircle with a view to turning around. Other facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge refused to rule that the plaintiff was guilty of negligence which contributed to the injury, or to direct a verdict for the defendant. There was a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff while being removed by force from the lower step of a closed electric car of the defendant. Writ in the Superior Court for the county of Suffolk dated February 8, 1905.</p> <p>There was a trial before Richardson, J. The substance of the evidence is stated in the opinion. The presiding judge charged the jury in part as follows:</p> <p>“ The first question which lies at the foundation of the plaintiff’s claim is the question of whether the plaintiff ever became a passenger on this car, having the rights of a passenger and having created the obligations of a carrier to a passenger. Now, that depends upon whether or not there was' any contract between the passenger and the carrier; nobody will gainsay that. I do not mean by that anoexpress contract. Probably nine tenths of the contracts that are made when we ride on the cars, especially the street cars, are made by implication — by conduct; and the inquiry arises whether or not in this case a contract is made by implication, because there was no express contract.</p> <p>“ Now, when it is said that a common carrier, a corporation of this kind, which has public duties, is bound to carry every one who presents himself, I do not think that counsel for the plaintiff means that. It is not true. They have a duty to perform, and if they don’t undertake to perform the duty and you are injured by your not being taken on the car, the road might be liable for not taking you; but, inasmuch as the obligation to carry you safely and not put you off the car grows out of a contract, unless the circumstances are such that they show you that there has been a contract implied, the obligation does not arise. . . . ‘ Generally a carrier of passengers is not bound to carry all persons at all times, for it might be utterly unable, if such a requirement were made of it, to prevent itself from ruin. For instance, a carrier is not required to receive and carry any one whose ostensible business is such as would injure the line, one fleeing from justice, one going upon the train to assault a passenger or to commit larceny or robbery, or for interfering with proper regulations of the company, or for crime,’ and there have been a good many cases in this State where carriers have refused to carry people who are under the influence of liquor, and suits have been brought against conductors because they have refused to put out people who were intoxicated. So you see that that contract is qualified by the condition and the situation, and I state this, as I think it is the rule of the law, that this defendant corporation might refuse to take anybody, you or me even, if we presented ourselves to be taken. They might be liable to an action, if we suffered any loss of time or were thrown out of employment or lost business, for not taking us ; but I could not make, nor can you make, a contract with a corporation to carry you against its will.</p> <p>“ It takes two to make a contract, and, if a passenger presents himself and the railroad company won’t take him, is there any contract ? Can you fight your way on to a passenger railroad car and then claim that you are a passenger ? Why, you see in a moment you can’t do that. You go down to Park Street — very likely some of you take the car there — or the next station, Boylston Street, you will find sometimes the car starts when it is not half full, and a guard steps upon the front steps, and another upon the lower step of the car, and prevents you from getting on the car when it is half full. He can do it. Perhaps you might sue him if you were injured by having to wait for the next car, but you can’t oblige him to take you on that car. . . .</p> <p>“ The plaintiff’s claim is that he was standing at Marcella Street, and this car came along and stopped there, and he attempted to get on while the car was standing still, and got both feet on to the running board, and a conductor came out and something occurred there, and he told him that he must get off, that he could not ride on that car. Now, if there had been an invitation — an apparent invitation up to that time, for him to get on to that car and ride, which might have ripened into a contract right off if the conductor had assented to his riding there, that would have been one thing; but it appears that, as soon as the conductor saw he was on there, and immediately when he got on, he told him he must get off the car. That is his theory of the case, as I understand ; that is his claim. Now, as I began to say, if there had been the appearance of an assent for the plaintiff to get on, by getting on, it was revoked by the manager and conductor of the car stating to him that he could not ride, to get off. . . . ‘ Out of the duty to carry springs a license to every person, having no notice to keep off, to go upon the carrier’s conveyance; but with such notice the license is withdrawn, and, whether rightful or wrongful, such right cannot be enforced vi et armis,’ that is, it can’t be enforced by force. The remedy of a person so aggrieved is by action. And, referring once again to what may be familiar to you, which occurs at the stations, where you are ready to get on and want to get on the car, but a guard prevents you from getting on the car, just as a car starts; does anybody claim that a man who is prevented from getting on at the Park Street station or any other similar place, can fight his way on to the platform of the car, against the request and objection of the guard there, and then claim that he has all the rights of á passenger ? If he can, one party—one man — can make a contract alone and hold another party obliged to it. You see, that is not so, and the very fact that they do it when the cars are not half full sometimes, shows what the practice is, at all events. I know that parties have been held to be passengers who have been standing on platforms, and in one case where he was on the running board. That is a case I referred to, a case which I tried, myself, in this very room, I think, ten years ago. A man was standing on the running board, the car was full, and he could not get on to the platform or into the car, and the conductor let him stay on the running board. Well, that made a passenger of him, because the conductor saw him there and assented to it. Whether he took fare or not is perhaps immaterial, only that it would be pretty good evidence, perhaps, that he assented to it. If he assents to it, then he becomes a passenger; but if the man who has charge of the conveyance — the conductor usually — refuses absolutely to take a passenger on the car, I don’t understand, or I don’t see how it could be claimed that there is a relation existing, created by contract, between the passenger and the carrier, and I make this ruling, applicable to this case: If the car had stopped at a stopping place and was at a standstill, and the plaintiff had stepped on the lower step, and at once, as soon as he did so, the conductor objected and forbade his coming on to the car, it was the duty of the plaintiff to step off, if he could do so easily, and safely. He had no right to force himself on to the car against the will and express objection of the conductor who was in charge and control of the car, and, after standing and waiting a reasonable time for the plaintiff to step off, he still refusing to do so, or to come into the car, the conductor had the right to remove him from the steps, using no more force than was reasonably necessary.</p> <p>“ Something has been said about reasonable rules of the road for the protection of the passengers. All railroads may make reasonable rules and regulations in respect to the conduct of their business and the safety of passengers, and I understand it to be a rule, and the courts have recognized it time and time again, that it is a reasonable rule that railroads, street railways especially — and I say ‘ especially ’ because this is a case arising on a street railway — that a regulation forbidding a passenger to ride on the steps of a car is a reasonable regulation, provided there is room in the car and there is nothing to prevent his going into the car and remaining there in a place of safety. And the rule is not simply for the protection of the moneyed interest of the company; it is for the safety of the parties as well.</p> <p>“ Speaking about the fact that a man may create the obligation that exists between a carrier and a passenger by getting on to the running board, why, can a man run and jump on to the running board, when the car is in motion, and call himself a passenger ? Can a boy do that ? Why, of course not; you would say he can’t do it that way. Well, that shows that there is some limitation to this statement that, if a man is once on the running board, he is a passenger. You will see by a little consideration that that can’t be so. If he gets on to the running board stealthily, or if he gets on to the running board and stays on the running board against the wishes or assent of the conductor of the car, the court says if he is injured by being obliged to keep off the car, he must seek damages in law. The court will give you redress if you suffer any damages, but you can’t take the law into your own hands and fight yourself on to a car; you can’t do that. So that is the reason that I have given you the rule I have, to the effect, referring to the theory of the plaintiff in this case that they would not let him get on to the car at all.”</p> <p>At this point in the charge, counsel for the plaintiff interrupted the presiding judge, saying, “ Pardon me ; I don’t think that is our claim at all. Our claim is that we were on the car, and no objection at all made to our getting on.” The presiding judge replied, “You were on the car? You were on the step, and I say, if your client was on the step, do you claim that he had a right to ride on the step against the will of the conductor ? ” The plaintiff’s counsel answered, “ I have so claimed, but I claim that he was a passenger when he was on the step, and entitled to all the rights of a passenger.”</p> <p>The presiding judge then continued with the charge: “Well, it is not the right of a passenger on a street electric car to ride on the lower step of a car, standing there, when there is plenty of room inside, and when there is no reason at all why he should not get on to the car and go into a place of safety. That is laid down in all the authorities and cases that I know of. There are a few exceptions, and I have stated one, where a man got on to the running board and stayed there because he could not do otherwise; but that is not this. All the evidence is in this case that there was plenty of room inside.</p> <p>“ Now the defendant has made another claim which is quite different from what the plaintiff claims. He says that the plaintiff got on or swung himself on to the car somewhere in the vicinity of Townsend Street . . . and that then an altercation took place between him and one Clarke, who stood on the platform, between the controller and that side of the car, and that some question arose about whether the plaintiff could have Clarke’s place, . . . that the plaintiff was on the step of the car, riding there, and had ridden there part of the way between Townsend Street and Marcella Street, and was requested repeatedly, while he was there and riding there, to either come up into the car or to get off, that he ought not and could not ride there. If there was room in the car for him to go in, and there was nothing to prevent his going in, I state to you that it was the plaintiff’s duty to do one thing or the other. The defendant claims that he did not do one thing or the other, that just before he got to Marcella Street the conductor caused the car to stop, and then the request was repeated. ... So I say that, if the request for him to get off was repeated after the car stopped, when he could have got off safely and without any risk to himself, it was his duty to do so; and, further, if that was the case, that the plaintiff would not either come into the car or come off the step of the car, and, there being nothing why he could not do it, if he was requested to do one or the other, and did not do it, the conductor had the right to use sufficiently reasonable force to remove him from the steps or to carry him into the car; and, inasmuch as you would not expect a man to carry a passenger into the car who did not want to go in, if that is so, why, you would suppose he would remove him from the steps and put him down into the street. And if you find that he refused to come into the car or step off from the step of the car, you are brought to the only question in the case, if you find for the contention of the defendant, namely, whether or not in removing him from the car unreasonable and unnecessary force was used and the plaintiff injured. . . . And you will recall as well as you can what was done. I do not understand that the plaintiff claims that anybody struck him. That question was asked him, and he said ‘ No,’ as I remember it; the parties took hold of his hands, released them from the irons on one side and the other, and one man put his arm around him and stood him down in the street. They say that is all they did. They say, further, that he undertook to assault the conductor, to get at him, or do something to him — made some threat. Perhaps that is unimportant except to throw some light upon the disposition of the plaintiff.</p> <p>“ Now, assuming that [the defendant] had a right to remove [the plaintiff] from the steps, if unnecessary and unreasonable force were used to do that, for that excessive force, if the plaintiff received an injury, the defendant might be liable. You will have to separate that, if you come to that question, from the question of the indignity of being put off, because, if you find the defendant’s contention correct, the defendant had a right to put him off — I mean the contention that he refused either to come on to the car farther or to step off the car. . . . This case differs quite materially from the case which some of you possibly tried the other day, where there was a question of excessive force of a constable who arrested a man for non-payment of tax. It might have seemed in that case that the constable might have waited until the next day, or the next, or made some further demands; but here the conductor was in charge of a car coming into the city with passengers, and the cars were waiting there, and he had to do something or else stop the transit of cars and the carriage of passengers. Three cars had already stopped there. So, when you come to consider the conduct of the conductor or motorman in removing him from the steps, you take all that into account.</p> <p>“So the question comes down to this, on the rules which I have stated to you, whether or not the plaintiff became a passenger on the car at all. If he did not, then I don’t understand that the plaintiff has any claim whatever here, unless it be a claim for the use of excessive force for removing him from the car. If he became a passenger, on the rules of law that I have endeavored to state to you on the one side and the other, then the plaintiff had a right to ride on the car, and the defendant would have no right to remove him, and the road would be subjected to an action and to damages if he did remove him.”</p> <p>In response to a request by the plaintiff, made after the charge, that he rule that, “ If the conductor invited the plaintiff to enter the car, that created him as a passenger,” the presiding judge stated, “ No, not unless he accepted the invitation. If he invited him into the car and he did not come, an invitation not accepted did not amount to anything ” ; and the plaintiff excepted.</p> <p>Upon the plaintiff’s counsel asking to have an exception noted “ to the portion [of the charge which states] that his intent to get on — that is, of the plaintiff’s intent— was revoked by the conductor,” the presiding judge stated, “ No; I say it might be revoked. A man might present himself with the appearance of becoming a passenger, but if before he got on to the car and had become a passenger, and as soon as the intention was made known to the conductor, the conductor might refuse to accept him as a passenger, and refuse to let him get on to the car, and in that situation he can’t force himself on to the car — he can’t put himself on to the car by force; he must have his resort to law, if he sustained any damage. That is what I meant to say.”</p> <p>The plaintiff excepted to the whole charge and pointed out various portions to which he specifically excepted. There was a verdict for the defendant.</p>

<p>Sale, Caveat emptor, Of provisions, Implied terms of. Negligence, Of dealer in selling unwholesome provisions. Contract, Implied.</p> <p>Discussion by Losing, J., of the doctrine of caveat emptor as applied to sales of provisions.</p> <p>It seems that, where one, in purchasing provisions from a dealer, gives his order in such a way that he leaves the selection of the provisions to the dealer’s skill and judgment, and they prove to be unwholesome and the purchaser is injured thereby, the dealer is liable to the purchaser in an action either of contract or of tort.</p> <p>A dealer who offers provisions for sale thereby represents that he believes them to be sound and wholesome, and, if he bona fide does so believe, he is not liable for the consequences of their not. being so unless the contract of sale is made upon an express or implied term or condition that they are sound and wholesome.</p> <p>In an action of tort by a woman against the proprietor of a provision market, the declaration alleged that the defendant at his market sold to the plaintiff as food, “ with the implied warranty that it was fit for food, a certain slaughtered fowl which was not safe for eating, but was poisonous,” “ that ttie defendant knew, or in the exercise of reasonable care and diligence could and should have known, that the fowl was unfit for food,” and that the plaintiff ate thereof and became sick. At the trial it appeared that the plaintiff had gone to the defendant’s market on a Saturday night in July and, at a counter where the defendant was accustomed on Saturday nights to sell fowl at half price, asked the salesman if a certain fowl was “ a cold storage fowl.” The salesman replied, “ Don’t you know a good thing when you see it ? It’s strictly fresh.” The plaintiff thereupon purchased the fowl at half price. The fowl proved to be unwholesome and the plaintiff was injured as alleged in the declaration. There was evidence that one familiar with the examination of chickens would have.ascertained the unwholesomeness of the fowl purchased by the plaintiff by an external examination. A verdict was ordered for the defendant. Held, that the verdict was ordered rightly, since there was no evidence which would warrant the submission to the jury of the question whether the plaintiff relied on the skill and judgment of the salesman in the selection of the fowl, and therefore the defendant was not liable if he believed the fowl to be wholesome, and there was no evidence that he did not believe it to be wholesome.</p> <p>Negligence is not the test of the liability of a dealer for selling unwholesome food.</p>

<p>Bill in equity for instructions, filed in the Supreme Judicial Court for the county of Suffolk March 29, 1907, by the trustee under a written instrument according to the terms of which income was to be paid to the defendants M. Ella Holmes and L. Frank Holmes during their lives, and the principal was to be divided among their issue on the happening of certain contingencies.</p> <p>The bill alleged, in substance, that a part of the principal of the trust fund was invested in three hundred and twenty-four shares of the capital stock of the Pullman Company. On November 14, 1906, at an annual meeting of the stockholders of that corporation, the following resolution was adopted:</p> <p>“ Whereas, The value of the assets of this company exceeds the par value of the capital stock by more than $26,000,000,</p> <p>“ Resolved, That for the purpose of representing in the capitalization of this company existing surplus assets to the extent of $26,000,000, the capital stock of the company is hereby increased to $100,000,000; and the proper officers of the company are hereby directed to issue additional stock to the amount of $26,000,000, and</p> <p>“ Resolved, That the directors be authorized to distribute said $26,000,000, capital stock, with a necessary additional amount from the stock held in the treasury of the company, pro rata, to stockholders of the company, in the ratio of thirty-six shares to each one hundred shares held by stockholders of record at the close of business on the 80th day of November A. D. 1906.” Pursuant to the above vote, the plaintiff received and held, in addition to the three hundred and twenty-four shares originally held by him, one hundred and sixteen additional shares of capital stock and $64 in cash, being the proceeds of the sale of scrip certificates issued to him.</p> <p>Twenty-eight shares of the Farr Alpaca Company also were included in the trust fund held by the plaintiff. That company was engaged in the textile manufacturing business and for many years the business had been very profitable. Before November 1,1906, its total authorized and issued stock was four thousand shares, which was and for many years had been closely held. It was worth several times its par value, and for many years had paid large dividends.</p> <p>At a meeting of the stockholders of the Farr Alpaca Company on June 80, 1906, the following vote was passed: “ That it is expedient to increase the capital stock of the Farr Alpaca Co. by the amount of $800,000 so that the capital stock shall be $1,200,000 represented by twelve thousand shares common stock fully paid in cash, instead of $400,000 represented by four thousand shares common stock fully paid in cash as now constituted.”</p> <p>At a meeting of the board of directors on the same day, the following resolutions were voted: “ That a regular dividend of $50 per share be declared payable November 1, 1906, to stockholders of record of October 25, 1906. That an extra dividend of $100 per share be and is hereby declared payable January 1, 1907 to stockholders of record of December 24, 1906.”</p> <p>On July 1, 1906, the treasurer of the Farr Alpaca Company forwarded a notice to the stockholders, in substance as follows: “ In lieu of dividends usually paid between July and November inclusive, the board of directors has declared a regular dividend of $50 per share, payable November 1,1906, to stockholders of record of October 25, 1906. . . . They have also declared an extra dividend of $100 per share payable January 1, 1907, to stockholders of record December 24, 1906. ... At the stockholders’ meeting held June 30 current, it was voted to increase the capital stock of the company by the issue of two thousand new shares to stockholders at par on November 1, 1906, and six thousand new shares to stockholders at par on January 1, 1907. Valuable rights will therefore attach to the original shares.”</p> <p>On October 1, 1906, a notice was forwarded by the treasurer of the Farr Alpaca Company to the plaintiff, in substance as follows: “ At the annual meeting of the stockholders of this company held June 30 last, it was voted to increase the capital stock of the company by the issue on November 1, 1906, of two thousand new shares of the par value of $100 each to stockholders ... in proportion to their holdings on the latter date. You are entitled to fourteen shares of this new issue, and form for subscription therefor is enclosed herewith. ... You were advised under date of July 1 last, that a dividend of $50 per share had been declared from accumulated profits, payable November 1 next, to stockholders of record of October 25 next. If you elect to subscribe for the new issue of stock of November 1, 1906, which you undoubtedly will do, please date and sign the enclosed dividend order and return to the secretary of the company, and it will be applied in full payment of the new shares apportioned to you as at November 1, 1906. As already advised, a further issue of six thousand shares at par will be made January 1,1907, apportioned alike on old shares and the new issue of November 1,1906, as held by stockholders of record of December 24,1906, and an extra dividend of $100 per share will be paid January 1, 1907, to stockholders of record of December 24,1906. Valuable rights will therefore attach to all shares held December 24,1906, and stockholders should be careful not to part with any of their shares previous to issue of January 1,1907, without getting full value for these rights. Blank forms for subscription to the January issue and dividend order for January dividend will be sent you later.”</p> <p>The plaintiff, using blank forms enclosed in the foregoing letter, directed the dividend due November 1 to be applied to the purchase of fourteen shares of the new stock, which was issued to him forthwith.</p> <p>A similarly suggestive notice was received by the plaintiff from the treasurer with regard to the new issue of shares to take place on January 1, and to the dividend due on the same date; and, as in the former instance, he signed, on blanks enclosed with the notice, an order that the dividend be applied to the purchase price of the new shares, which was done.</p> <p>On November 1, 1906, and January 1, 1907, the plaintiff charged himself on his books with having received $1,400 and $4,200 in cash dividends, respectively; and on the above dates credited himself with having paid out on account of subscriptions for new stock of the Farr Alpaca Company the sum of $1,400 and $4,200 respectively. During the period from October 1, 1906, to January 1, 1907, the petitioner had cash funds belonging to the principal of said trust, aggregating between $17,000 and $18,000.</p> <p>The Farr Alpaca Company would have paid in cash the dividends of November 1, 1906, and January 1, 1907, if the plaintiff had not assigned the said dividends in payment for stock subscribed by him.</p> <p>The dividends were declared and paid by the Farr Alpaca Company from its cash surplus, representing undistributed cash earnings of the company, and no part of them was derived from the sale of plant or machinery.</p> <p>The instructions sought were as to whether the shares in the stock of the two corporations, procured as alleged in the bill, should be held as principal or as income.</p> <p>The answers admitted the allegations of the bill. There was a hearing before Braley, J., who decreed that all the shares so acquired should be held as principal. The life beneficiaries appealed.</p>

<p>Unlawful Interference. Labor Union. Strike. Equity Pleading and Practice, Parties.</p> <p>The legality of a combination not to work for an employer, made by persons who are not under contract to work for him, depends on the purpose for which the combination is formed.</p> <p>A combination not to work for an employer, made by persons who are under contract to work for him in violation of that contract, is necessarily an unlawful interference with the employer’s business.</p> <p>Whether a combination not to work for an employer, made by persons who are not under contract to work for him, for the reason that the employer lias posted “ open shop rules ” declaring, among other things, that “ there shall be no discrimination for or against any workman on account of membership or non-membership in any organization,” which is a strike against working under those rules and to compel a return to carrying on the shop under a previously existing arrangement with a trades union, is an illegal interference with the employer’s business, depends on the character of the arrangement which it is the purpose of the strike to re-establish.</p> <p>A combination not to work for an employer, made by persons who are not under contract to work for him, for the purpose of forcing the employer to submit to a delegate body of employees all questions between him and his individual employees, is an unlawful interference with the employer’s business. Knowlton, C. J., dissenting on the ground that the rules and by-laws, which were held by the majority of the court to show the purpose above stated, merely provided a proper method of preliminary investigation.</p> <p>The rules of a trades council, which was an unincorporated association made up of delegates from the local trade unions with which it was affiliated, provided that every grievance which a member of a local union had against his employer was to be investigated by the executive committee of the council, that, if the employer did not comply with the decision of the executive board he should be reported to the council as “ unfair,” and that, upon his being declared “ unfair ” by the council, the executive board again should “ interview ” the employer, and, if he continued in his refusal to comply with the demands of the council, the board should “ at once remove all union men ” from his employ and no union man should “be allowed to go to work ” for him until he should be “again placed upon the fair list by the . . . council.” Held, that' by these rules the members of the association undertook to decide each case of an individual grievance between a single employee and his employer, and that a strike for the purpose of imposing the adoption of these rules upon an employer against his will should be enjoined as an unlawful interference with his business. Knowlton, C. J., dissenting.</p> <p>A strike, to force employers to comply with the decision of a delegate body of employees as to whether a single employee is or is not to work for his employer, is in the nature of a sympathetic strike and will be restrained by injunction. Knowlton, C. J., dissenting.</p> <p>In case, of a strike which is an unlawful interference with the business of an employer, such employer is entitled to an injunction restraining the strikers from doing any acts whatever, peaceful or otherwise, in furtherance of their unlawful combination, including the payment of strike benefits and putting the employer on an “ unfair ” list.</p> <p>A trade union and a trades council, which are unincorporated associations, cannot be made parties to a suit in equity.</p> <p>Where it is desired to make the members of an unincorporated association defendants in a suit in equity, this cannot be done by an allegation in the bill that John Doe and Richard Roe and sundry persons, whose names and whose residences or places of business are unknown to the plaintiffs, are the members of the association.</p> <p>Where it is desired to make the members of an unincorporated association defendants in a suit in equity, and the persons desired as defendants are members of a class who have a common interest and are too numerous to be made parties individually, even if their names are known to the plaintiff, the proper way to. bring them before the court is to join as defendants persons who are proper representatives of the class, describing the class to which they belong and alleging them to be proper representatives of it, stating that the members are too numerous to be joined individually as defendants.</p>

<p>Evidence, Materiality, Remoteness, Opinion: experts. Witness, Examination. Practice, Civil, Conduct of trial. Corporation. Bills and Notes. Payment. Insanity.</p> <p>In an action by an administrator against a bank for the alleged balance of a deposit made by the plaintiff’s intestate, the defense set up was that the balance of the deposit had been paid to the intestate upon a check drawn by him, and the plaintiff contended that this check had been forged and that its payment had been procured through a conspiracy in which the intestate’s wife, who received the proceeds, participated. The plaintiff called as a witness the widow of the intestate, who testified that after receiving the money drawn upon the check she liad deposited it in another bank and some two months later had withdrawn it and had used it for the payment of rent and household expenses. The plaintiff then asked her where she had kept the money after so withdrawing it. The defendant objected to the question. The plaintiff’s counsel stated that he offered the evidence as showing a knowledge or consciousness on the part of the witness of having money in her hands or control that was tainted, and argued that this was material as bearing upon the genuineness of the check by which the money was obtained. The judge excluded the question. Held, that the exclusion was right; that, adopting the plaintiff’s theory that the money was obtained by a conspiracy in which the witness participated, the conduct of the witness two months after the illegal purpose had been accomplished was immaterial for the purpose of showing such illegal procurement.</p> <p>Whether a party to an action shall be allowed to put material leading questions to a witness whom he has called, on the ground of the hostility of the witness, is, at common law, within the discretion of the presiding judge.</p> <p>The provision of R. L. c. 175, § 22, providing that “ a party who calls the adverse party as a witness shall be allowed to cross-examine him,” does not apply to an officer of a corporation who is called as a witness in an action to which the corporation is a party, such a witness not being a party, and ample provision for the examination by interrogatories of the officers of a corporation which is a party to an action being made by R. L. c. 173, § 61.</p> <p>Where it is material to show that an order in writing was written by a person not living at the time of the trial, a witness who never saw the deceased write, when qualified as an expert, may be allowed to testify that the order was written by the same person who signed certain checks of the deceased admitted to be genuine.</p> <p>At common law the fact that a check when presented for payment at the bank on which it is drawn has the space for the name of the payee left blank does not authorize the bank to pay the money to the bearer unless the check was delivered to such bearer with authority to receive the money.</p> <p>Where a deposit has been made in a bank by a person of sound mind, and such depositor afterwards becomes insane or mentally incapacitated and when in this condition draws a check upon his account in the bank, if the bank pays the cheek in the ordinary course of business without any knowledge of the insanity or mental incapacity of the drawer, such payment is a discharge of the indebtedness of the bank to its depositor to the amount of the check, and the money cannot be recovered back.</p>

Bill in equity, filed in the Superior Court, as amended, on December 19, 1906, by Benjamin F. Colby and William H. Griffith to restrain the defendants from taking possession of certain personal property under an instrument purporting to be a mortgage and alleged by the plaintiffs to be invalid. In the Superior Court the case was heard by Richardson, J. The facts are stated briefly in the opinion. The partnership of the plaintiffs was formed on or about July 27, 1906.

<p>Contract, Performance and breach, Consideration. Release. Compromise. Attorney at Law.</p> <p>I£ in settlement of a pending action a defendant agrees to pay a certain sum of money and costs, and, owing to a mistake as to the costs, tenders an insufficient amount, and if, before the time expires within which a tender of the correct amount can be made, the plaintiff in the action withdraws his offer to accept the sum in settlement, the unqualified refusal to accept excuses the defendant in the action from making a useless tender in accordance with the terms of the agreement, and, if the agreement is binding, he has not lost his right to enforce it.</p> <p>An agreement, not under seal, by a creditor to accept from his debtor a part of an undisputed debt in payment and satisfaction of the whole is not binding for want of a consideration.</p> <p>Whether ah attorney at law under a general employment has authority to compromise the case of his client, referred to as an open question.</p>

<p>Contract for goods sold and delivered as stated in the opinion. The answer was a general denial. Writ dated April 14, 1906.</p> <p>In the Superior Court the case was tried before Hardy, J. The order for the goods was contained in the following letter of the defendant addressed to the president of the plaintiff:</p> <p>“ Mr. F. G. Perkins, Pres.</p> <p>West End Manufacturing Co.,</p> <p>73 Murray Street,</p> <p>New York, N. Y.</p> <p>“ Dear Mr. Perkins:</p> <p>“ I have before me your letters of the 10th, 16th and 18th and trust you will pardon my delay in making reply. I have been very busy of late and I turned your financial letter of the 10th over to Mr. Warren and trust he will take the matter up immediately.</p> <p>“ Telegram sent you was telephoned from our office to the telegraph company. This accounts for the end and tail of our firm name being omitted.</p> <p>“ Enclosed herewith are specifications for a car of Manila lined chip, and in looking it over you will see that we have made the sizes so that they will almost entirely fill up the machine. This car you will please have shipped to the Whitmore Manufacturing Company, Holyoke, Mass., and in loading it, please instruct your mill to put the sheet stock in the car first, leaving the space near the doors for the rolls. It is our purpose to have this roll stock coated white and we think we can arrange with the Whit-more people to permit the car to remain on their siding while this stock is being coated, and when it is finished the whole car can come forward to us here. We hope you will emphasize this point of loading, for it would be extremely inconvenient if the matter is overlooked and it will become necessary to handle the whole car of stock to get the rolls out.</p> <p>“ I will take up with Mr. Warren this morning the matter referred to in the last paragraph of your letter of yesterday.</p> <p>“ Shall be glad to hear from you in regard to the coated stock proposition when you are ready to talk.</p> <p>“ With kindest regards always,</p> <p>Yours sincerely,</p> <p>The P. R. Warren Company,</p> <p>463-467 Commercial Street,</p> <p>Boston, Mass., Jan. 18, 1906.</p> <p>“ Please send us immediately with bill — ” [Here followed the different specifications.]</p> <p>The substance of the evidence admitted and the character of the evidence offered by the defendant and excluded by the judge are described in the opinion.</p> <p>The portion of the charge of the judge in regard to the acceptance of the goods was as follows:</p> <p>“ You have very little evidence here as to what was the method of dealing with reference to the acceptance of goods of this kind, but supposing you find under all the facts in the case that it was an article which was not merchantable, that it was delivered to this company for the purpose of coating it, it is for you to say whether there has not been an acceptance by reason of the fact that it was delivered to this company for coating.</p> <p>“ Nothing appears showing that the defendant had any other method of accepting goods of this character except by allowing his agent, the person engaged in coating the paper there, coating it and changing its form, changing its character by putting on this coating.</p> <p>“ Now, that evidence will be sufficient to justify you in finding that there was an acceptance, in the absence of any other evidence showing that there was a different method adopted by the defendant.</p> <p>“ Now, if there has been an acceptance of this paper, if the defendant did not see fit to send any one there to examine it before this new manufacture or this new process was applied to it, then he could not come in now and say, I wish to rescind this contract; I refuse to carry it out. If he has accepted it, that would not be fair to the seller, for a man to go on and deal with property as his own, changing its form, changing its character, dealing with it as his own, dealing with it through his agent, a man engaged in the manufacture, engaged in coating it, and then say, Now, I will throw it back on your hands; if a man is going to rescind a contract, it is his duty to place the seller back in the place where he was before and by coating a part of it and retaining a part of it—he could not retain part of it, coat part of it and return part of it; it is his duty to rescind all of it, if he is going to rescind a part and as you will find here, you may be justified in finding, upon all this evidence, that there was an acceptance upon the part of the defendant by allowing it to be dealt with in this way, under this process.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1,292.71; and the defendant alleged exceptions, including those which are considered and sustained in the opinion, the others having become immaterial.</p>

<p>Jurisdiction, In trademark cases. Equity Jurisdiction, To restrain infringement of trademark. Trademark.</p> <p>The federal courts have not exclusive jurisdiction of all matters pertaining to trademarks registered in accordance with U. S. St. 1905, c. 692.</p> <p>The courts of this Commonwealth have jurisdiction in equity of a suit by the owner of a trademark, whether such trademark is or is not registered under U. S. St. 1905, c. 692, to restrain an alleged infringement through the use by the defendant of another trademark, which is so registered.</p>

<p>Nuisance. Negligence, In nse of sewer, In use of highway.</p> <p>One who has permission from the authorities of a municipality to use a drain in connection with a municipal sewer provided that he will use it “ for the carrying of clear water only,” is not justified hy such permission in discharging through the drain into the sewer a substance which causes steam to arise from the sewer from which injury results to a person rightfully on the public street. At the trial of an action of tort against an electric light company for injuries alleged to have been caused to the plaintiff, a woman, by reason of steam discharged by the defendant upon the public street, it appeared that the defendant had been permitted by the municipal authorities to construct a private drain from its station connecting with a public sewer, it being stipulated that the drain should be used “ for the carrying of clear water only.” There was evidence tending to show that, as the plaintiff was passing on the street adjoining the defendant’s premises, she became enveloped in a cloud of steam coming from a culvert opening into the sewer, became confused, fell and was injured. The defendant admitted that the steam came from its station, but gave no explanation of its presence in the sewer. Held, that there was evidence from which the jury would have been warranted in finding that such unexplained escape of steam upon the highway was a nuisance, for which the defendant was responsible, and that such an'injury to travellers as that caused to the plaintiff might have been found to have been the natural consequence of the defendant’s act.</p>

Contract upon an account annexed. Writ in the Municipal Court of the City of Boston dated October 5,1906.

<p>Practice, Civil, Motion to advance for judgment, Notice of motion, Motion made in judge’s lobby. Superior Court. Rules of Court. Judgment, Motion to advance for.</p> <p>The second standing order of the Superior Court relating to business in Suffolk County, which provides that, in the First Equity Division, a daily motion list “ will be kept on which motions . . . whether in equity, common law, or divorce, may be placed ... if from Suffolk, by either party, first giving notice in writing to the other party seven days before the day of hearing,” was not intended to, and does not, limit the power of any judge of that court to hear a motion in any other session of the court, or in chambers, when the circumstances are such as to make a hearing proper.</p> <p>On Thursday, December 26, the defendant in an action in the Superior Court which had been advanced for a speedy trial after an affidavit by the plaintiff that there was no defense to it, was defaulted and the court ordered that judgment be entered on the first Monday of February. On December 27, the plaintiff left a notice in writing at the office of the defendant stating that he would on Saturday, December 28, at eleven o’clock in the morning in the judges’ lobby of the court move that judgment in the action be entered on the first Monday of January.</p> <p>The motion was heard and allowed at the time and place stated in the notice. The defendant appealed. Held, that the notice was sufficient and the court had jurisdiction to allow it.</p>

<p>Negligence, Employer’s liability.</p> <p>The declaration in an action of tort for personal injuries suffered by the plaintiff while in the defendant’s employ was in three counts, one being at common law and alleging that the plaintiff was injured upon an elevator used by the defendant in the construction of an eleven story building and allowed by the defendant to be in an unsafe condition, and the second and third being under R. L. c. 106, § 71, cl. 1, 2, respectively, alleging a defect in the ways, works and machinery used by the defendant, and negligent superintendence. At the trial the evidence tended to show that the plaintiff, while standing on the top of an elevator for the purposes of greasing the runways as the elevator ascended, was injured because there was no indication to the engineer of how far the elevator had proceeded, and therefore it ran higher than it should have and crushed the plaintiff against the machinery at the top of the well, that the elevator was a temporary appliance and had not before been run above the third floor of the building, that the cable which raised and lowered the elevator ran upon a drum at the engine on the first floor, that temporary tags were put on the cables of other temporary elevators on the same work by the defendant’s engineer for his own convenience, to show him, as the cable ran upon the drum, when the various floors were reached by the elevator car, but that none were on the cable of this elevator, that, although a system of bells for signalling was used by the defendant on other elevators, there was no signalling apparatus on the elevator where the plaintiff was injured from which the engineer could be told by the plaintiff when the elevator car had gone high enough to be stopped, and that the plaintiff knew of this lack before he started on the elevator, but made no arrangements with the engineer as to how the latter should be told when to stop the elevator. Held, that the risk was an obvious one which the plaintiff must be deemed to have assumed, and that there was no evidence that the plaintiff’s injury was caused by negligence for which the defendant was responsible.</p>

<p>Elections, Party denomination, “Two leading political parties.” Words, “Two leading political parties.”</p> <p>The State convention of the democratic party, held in the autumn of 1907 for the purpose of placing in nomination candidates for State officers to be voted for at the next annual election, divided into two factions, one of which nominated one B. for governor, while the other nominated one W. Each faction claimed the party designation, and, under St. 1907, c. 560, §§ 171, 175, 176, filed with the Secretary of the Commonwealth a ticket designated “democratic,” and, each objecting to the ticket filed by the other, the dispute was referred under § 179 of that statute to the State ballot law commission. It becoming apparent that the decision of the commission would be so delayed that, after its rendition, the defeated faction would be unable to file nomination papers under § 177, both factions filed such papers, each placing in nomination the persons upon the ticket nominated by its convention. The nomination paper containing W. as a candidate for governor was designated “ democratic citizens.” After the time within which nomination papers must be filed under § 177 and the time within which they might be withdrawn under § 180, the commission decided that the ticket headed by W. as a candidate for governor was entitled to the designation “ democratic.” On the ballot at the State election, W. therefore appeared as a candidate for governor under the designations “ democratic ” and “ democratic citizens, nomination paper.” At that election, a candidate designated “ republican ” received the highest number of votes, and a candidate designated “ independence league ” received more votes than were cast for W. under the designation “ democratic,” but less than the total number cast for W. under both the designations “ democratic ” and “ democratic citizens.” A member of the party designated “ democratic,” as representative of one of the two leading political parties, was appointed a member of the board of registrars of voters of a city under § 27 of the statute mentioned above, which provides that such members shall be so appointed that they shall represent, as equally as may be, the “ two leading political parties,” and an information by the Attorney General, at the relation of members of the party designated “ independence league,” in the nature of a quo warranto, was filed to try the title of the appointee to his office. Held, that under the circumstances the votes cast for W. under the designation “ democratic citizens, nomination paper,” were votes belonging to the party designated “ democratic,” and therefore that the respondent was entitled to his office, since he was a member of the “democratic” party, which was one of the “ two leading political parties ” under § 1 of the statute.</p>

<p>Two appeals from a decree of the Probate Court for the county of Suffolk allowing the will of George H. Ingalls. The cases were consolidated in this court, issues for a jury were framed and, by agreement of parties, the cases were sent to the Superior Court for trial.</p> <p>There was a trial before White, J., and, the jury having answered the questions stated in the issues framed, he set aside the verdict and ordered a new trial on motions by the appellees; and the appellants appealed therefrom.</p>

<p>Tort for personal injuries received by the plaintiff while a passenger of the defendant on a train in the subway in Boston. Writ in the Superior Court for the county of Suffolk dated November 18, 1904.</p> <p>The allegations in the declaration as to the cause of the plaintiff’s injury were as follows: “ One of the defendant’s agents and servants negligently, carelessly and improperly pushed a person who was boarding said train against the plaintiff and at or about the same time the side door of the car in which the plaintiff was was shut by one of the defendant’s agents and servants in such a negligent, careless and improper manner that one of the plaintiff’s hands became caught in said door.”</p> <p>There was a trial before Aiken, C. J. It appeared that the accident to the plaintiff happened at about eight o’clock on August 18, 1904. Other facts are stated in the opinion.</p> <p>The presiding judge refused to direct a verdict for the defendant. The jury found for the plaintiff and, at the request of the parties, the presiding judge reported the case for consideration by this court, judgment to be entered on the verdict if his ruling was right; otherwise, judgment to be entered for-the defendant.</p>

<p>Tort for alleged malicious interference with a contract of copartnership. Writ in the Superior Court for the county of Suffolk dated March 23, 1901.</p> <p>The declaration alleged that the plaintiff and one Doherty, as partners, owned and conducted a good and profitable hotel and liquor business on June 1, 1900, and in the first count stated that on that date “ the defendant, maliciously intending and contriving to ruin the plaintiff and confederating and conspiring with the said Doherty to injure and ruin the said plaintiff in said business, break up the said partnership, remove the plaintiff therefrom, and establish the said Doherty alone in said business, caused the property and business of said partnership to be seized without due process of law by the servants and agents of the defendant; that said servants and agents of the defendant assumed the custody, control, and management of said partnership business and property, and collected the proceeds and income thereof and paid over the same to the defendant and upon his order in fraud of the plaintiff and without his consent or acquiescence; that the defendant, his agents and servants unlawfully prevented the plaintiff from participating in said partnership business, . . . excluded him from access to the property of said partnership and from its place of business, ... by intimidation and unlawful inducements caused . . . Doherty to break his contract of partnership with the plaintiff and to exclude the plaintiff from said partnership business.. . .”</p> <p>The second count alleged that “ the defendant by intimidation and unlawful inducements’ procured the said Doherty to break his contract of partnership with the plaintiff and to deliver to the defendant possession and control of the place of business and the property of said partnership and to exclude the plaintiff from participation in said business; that the defendant, by the means aforesaid and in fraud of the plaintiff, procured the proceeds of said partnership business to be paid over to him and the said partnership to become indebted to him in large sums and by unlawful inducements and intimidation procured the said Doherty to conceal the books of said business from the plaintiff ' and to refuse to deliver the same to the plaintiff and to refuse to account to the plaintiff for the plaintiff’s share of the profits of said business, . . . that, by reason of the acts of the defendant as aforesaid, the said business has come under the management and control of the defendant without the consent or acquiescence of the plaintiff, and the defendant unlawfully retains possession and control thereof and has deprived the plaintiff of the profits and advantages that he would have otherwise made and received from the said business.”</p> <p>The action was referred to an auditor, who filed a report. At the trial, which was before DeCourcy, J., without a jury, the auditor’s report was the only evidence.</p> <p>In his report, besides the facts stated in the opinion, the auditor found that the defendant owned the real estate upon which the business of the plaintiff and his partner had been conducted, and had advanced to them large sums at various times for the purposes of the business; that in May, 1900, he advanced them $1,300 on a note to assist them to procure a new license, that thereafter from time to time the plaintiff withdrew $1,300 from the business for the purpose of paying to the defendant the note for that sum, but did not pay any of it, and the note was protested for non-payment in June, 1900.</p> <p>The auditor also found that it was not contended “ that the accounts [of the partnership] show any profit down to June, 1900,” and “ I cannot find any ground to charge the defendant with any acts done in the business before June, 1900, for the partners were in active control and management. . . . After June, 1900, Doherty was at all times under the direction and control of the defendant in all matters connected with the business, and exercised no authority in the business except at the defendant’s direction. . . . For a large part of this time, Doherty exercised no authority or control over the business affairs of the hotel, and had no access to the cash or books, . . . the business was run solely for the benefit and advantage of the defendant and the companies with which he was connected,” and Doherty, at his solicitation, acquiesced in all of the defendant’s acts and assisted and allowed him to accomplish them.</p> <p>The judge found for the defendant and, at the request of the parties, reported the case for consideration by this court.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff by reason of his stepping into a large hole in a sidewalk on Prescott Street in the city of Worcester. Writ in the Superior Court for the county of Worcester dated January 6, 19.06.</p> <p>■ There was a trial before Wait, J., who, at the close of the evidence declined to rule, at the request of the defendant, “ that the- defendant had not had legal notice of the defective condition of the sidewalk.” There was a verdict for the plaintiff, and the defendant alleged exceptions.</p> <p>The facts are stated in the opinion.</p> <p>The cáse was submitted on briefs.</p>

<p>Petition, filed in the Supreme Judicial Court for the county of Suffolk October 28, 1907, for a writ of certiorari to quash an order of the board of gas and electric light commissioners granting to the Boston Consolidated Gas Company locations for a pipe line in certain highways in Chelsea; also</p> <p>Two petitions, filed in the same court on November 20, 1907, for writs of mandamus directing the aldermen and the superintendent of streets of Chelsea, respectively, to issue to the petitioner a permit to open and make excavations in Williams Street for the purpose of laying its pipe line therein in accordance with the order of the board of gas and electric light commissioners.</p> <p>The cases were consolidated and heard together before Sheldon, J. It appeared that the petition of the Boston Consolidated Gas Company to the board of aldermen of Chelsea, referred to in the opinion, was presented to them June 28,1907, and in substance was for a location for a pipe line as follows:</p> <p>“Beginning at the northerly terminus of Williams Street . . . which point is at or near the northerly side of Spruce Street, extended to, into or across said Williams Street . . . the location of said pipe line to be ten feet more or less distant easterly from the centre line of said Williams Street . . . thence . . . [through various specified public streets] . . . thence continuing by the same course along and through a private way in continuance of said Central Avenue and on the northerly side of said centre line of said private way upon and over land now belonging to the Boston & Albany Railroad Company a distance of nine hundred twenty feet, more or less, to Eastern Avenue; thence southerly in said Eastern Avenue and the street leading to the Chelsea Street bridge, so-called, between Chelsea and East Boston, five hundred forty feet, more or less, as is more fully shown on a set of three plans, entitled, . . . [describing the plans by names].”</p> <p>The appeal of the gas company to the board of gas and electric light commissioners, referred to in the opinion, was filed August 14,1907. A hearing was had on September 4, at which counsel appeared for the gas company, but the city of Chelsea was not represented. The hearing was adjourned to September 17, and, in the meantime, on September 16, the board of aldermen of Chelsea acted on the petition of the gas company, granting it subject to certain stipulations as to the condition in which the company should leave the streets, as to preference to be given to citizens of Chelsea in the hiring of help, rates to be paid for labor, and the number of hours which should constitute a day’s work. On September 20, the board of gas and electric light commissioners granted to the gas company the location it had asked for in its petition to the board of aldermen in accordance with the description therein contained, the plans being stated to be filed in the office of the board. On October 2, 1907, the gas company in writing requested the superintendent of streets of Chelsea to issue a permit to open and lay pipes in Williams Street, and, he refusing to issue such permit, the company appealed' to the board of aldermen on October 7, who also refused to issue it.</p> <p>Other facts are stated in the opinion.</p> <p>The presiding justice reserved the cases for consideration by the full court.</p>

<p>Contract for breach of an agreement in writing. Writ in the Superior Court for the county of Middlesex dated June 6, 1902.</p> <p>At the trial before Lawton, J., without a jury, the execution of the agreement was admitted. By its terms the defendant agreed to allow the plaintiff to remove stone from a lot of land on Denver Street in Saugus for five cents per ton, and, in consideration of certain money advanced by the plaintiff to build a side track on the premises running to the Boston and Maine Railroad, the defendant agreed that the plaintiff might keep one cent per ton until thus reimbursed for the advance. “ This contract can be determined by either party by giving four months’ notice in writing to the other and the party of the second part paying balance due for construction of side track to party of the first part, otherwise the contract is to remain in force.”</p> <p>The evidence introduced by the plaintiff tended to show that, without having given any notice to him in writing, the defendant “ saw him with reference to leasing the quarry to one O’Brien,” and he “admitted that he told the defendant that the same was satisfactory to him, provided suitable arrangements were made concerning ” him ; that, before the plaintiff knew of the defendant’s intention to lease the premises, he had offered to furnish to one Gill, a contractor, three thousand tons of crushed stone at eighty-five cents per ton; that this offer was accepted by Gill on the evening of the day when the plaintiff and the defendant had the conversation about a lease by the defendant to O’Brien; that the next day the defendant told the plaintiff that he had made a lease to O’Brien. Subsequently the plaintiff unsuccessfully attempted to make arrangements with O’Brien with regard to taking out crushed stone from the quarry. O’Brien by a suit in equity compelled him to quit the premises. There was evidence that the plaintiff was unable 'to procure elsewhere stone with which to fill the Gill contract at a profit to himself, and that the profit on the Gill contract would have been twenty cents per ton. The defendant introduced evidence tending to show that the plaintiff was in arrears in his payments under the contract.</p> <p>The defendant requested the judge to rule (1) that upon all the evidence the plaintiff was not entitled to recover; (2) that the plaintiff, being in default or arrears on his contract, cannot maintain a claim against the defendant for a breach of the contract by him; (3) that the plaintiff cannot recover for profits on a contract made two days after notice of the termination of the agreement with the defendant; (4) that, the plaintiff being in arrears or default, the defendant had the right to terminate the contract with him without notice.” As to these requests, the judge ruled: “ The first is refused. The other three are refused because they are in each case based on an assumed finding of fact, which finding of fact was not made. I do not find that the plaintiff was in default or arrears or that he received notice of the termination of the agreement before the contract with Gill was made.” There was a finding for the plaintiff in the sum of $4,510, and the defendant alleged exceptions.</p>

<p>Damages, For impaired capacity to labor. Declaration, Allegation as to damages.</p> <p>In an action of tort by a married woman to recover damages for a personal injury, an impairment of lier capacity to perform labor may be considered as an element of damage, whether she ever has worked or not, and although the declaration alleges merely that she suffered “great and severe bodily injury and anguish of mind.”</p>

<p>Tort for the conversion of two horses. Writ in the Superior Court for the county of Middlesex dated December 10, 1906.</p> <p>There was a trial before Lawton, J. It appeared that possession of the horses in question had been delivered to the plaintiffs by the defendant under the agreement of conditional sale described in the opinion, that the plaintiffs had defaulted in the payment of the first two of the three notes given by them to the defendant, that the defendant had recovered judgment thereon, which had been satisfied, and then, the plaintiffs not paying the third note, had taken possession of the horses, which was the conversion complained of.</p> <p>The presiding judge refused to direct a verdict for the defendant but ruled “ that the defendant was liable on the evidence and that the only thing for the jury to do was to assess the damages.” There was a verdict accordingly for the plaintiffs, and, the defendant excepting, the presiding judge by agreement of the parties reported the case for consideration by this court.</p>

<p>Insurance, Life, Proof of death, Fraud or misrepresentations of insured. Evidence, Presumptions and burden of proof.</p> <p>At the trial of an action against an insurance company by the beneficiary under a policy issued “in consideration of the answers and statements contained in the application . .. all of which . . . are made warranties,” and containing the stipulation, “No obligation is assumed by the company . . . unless upon this date the insured ... is in sound health,” it appeared that in the application the insured stated that he never had had any disease of the kidneys and that he was in sound health, that the policy was issued July 19, that the insured was taken ill on August 9 and an operation was performed on August 24, at which it was discovered that he had cystic disease of the kidneys from which he died. There was evidence tending to show that the insured was strong and in sound healtli when the policy was issued and continued about his daily work, which required activity and much lifting, up to the time of his illness on August 9, and a physician, qualified as an expert, testified that in his opinion the insured might not have had cystic disease of the kidneys at the time when the policy was issued. The defendant introduced evidence to the effect that the insured did have a disease of the kidneys when he was insured, and requested that a verdict be directed in its favor. The presiding judge refused the request, and charged the jury that, if the insured was not in sound health, or if he had a disease of the kidneys when he was insured, the plaintiff could not recover. The jury found for the plaintiff. Held, that the refusal to direct a verdict was right, since there was evidence upon which the jury were warranted in finding for the plaintiff.</p> <p>A policy of insurance contained the stipulation, “ No obligation is assumed by the company . . . unless upon this date the insured ... is in sound health,” and also contained a condition that “Proofs of deaths shall be made ... in the manner and to the extent required by blanks furnished by the company, and shall contain answers to each question propounded to the claimant, physicians and other persons indicated in the blanks. . . . The proof of death shall be evidence of the, facts therein stated in behalf of, but not against the company." In his application, the insured stated that he was in sound health and never had had any disease of the kidneys. He died less than two months after the policy was issued of cystic disease of the kidneys. The beneficiary under the policy filed a proof of claim containing a statement of an attending physician that the insured died of "cystic disease of the kidneys of long duration.” At the trial of an action brought by the beneficiary upon the policy, there was evidence that the insured was of sound health when insured and did not then have a disease of the kidneys. The defendant introduced in evidence the proof of death and requested the presiding judge to rule that the plaintiff was bound by the statement of the physician therein which “ as matter of law ” showed that the insured had a disease of the kidneys when he was insured, and that therefore the plaintiff could not recover. The request was refused. Held, that the request rightly was refused, since, under the terms of the policy, the statement of the physician at most was evidence merely and not conclusive evidence; also, that Campbell v. Charter Oak Ins. Co. 10 Allen, 213, was distinguishable, and would not be extended.</p> <p>At the trial of an action against an insurance company by the beneficiary under a policy of life insurance stated to be issued “in consideration of the answers and statements contained in the application ... all of which . . . are made warranties," it appeared that the insured in his application had stated “ No one of my parents, grandparents, brothers or sisters ever had consumption or other pulmonary disease,” and therein had expressly warranted and agreed that the representations in the application “ were strictly correct and wholly true.” There was some evidence that brothers of the insured, before the date of the application, had died of consumption. The defendant requested the presiding judge to rule that the burden was upon the plaintiff to show by a fair preponderance of evidence that the statements in the application were true without exception, or that any matters misrepresented therein did not increase the loss and were not misrepresented with actual intent to deceive. The presiding judge refused the request. Held, that the request rightly was refused, since, under R. L. c. 118, § 21, if the defendant relied in defense upon an alleged misrepresentation or false warranty in the application, the burden of proof was upon it to show either that such misrepresentation or warranty was made by the insured with actual intent to deceive, or that it increased the risk of loss.</p>

<p>Tort under R. L. c. 106, §§ 71, 72, for personal injuries received by the plaintiff while in the defendant’s employ. Writ in the Superior Court for the county of Suffolk dated February 20, 1905.</p> <p>There was a trial before Bond, J., who ruled that it did not appear that the notice required by R. L. c. 106, § 75, was given before the action was commenced, and directed a verdict for the defendant,. The plaintiff excepted.</p>

<p>Tort for personal injuries received by the plaintiff while in the defendant’s employ at Milford as a farm hand. Writ in the Superior Court for the county of Norfolk dated July 11, 1905.</p> <p>There was a trial before Schofield, J. Evidence introduced on behalf of the plaintiff tended to show that on May 10 the plaintiff had interviewed the defendant at his farm with regard to employment as a farm hand, but that he was not hired on that day and did not enter the barn. The next day he was hired and, having been shown his room at the house by the defendant, was told to go to the barn and clean the horse stalls which were at the left of the door by which the barn was entered. There was a big door to the bam, and, as part of it, a small door. Both were closed. He opened the small door, entered and closed the door behind him because, finding it closed, he thought the defendant desired it kept so. The bam was “ as dark as it is on a dark night,” but, if he had left the door open, he would have been able to see his way and see where he was going. As he turned to the left to go to the horse stalls, he fell into a silo, the opening into which was about six feet from the entrance door to the barn, and was about three feet across. Other facts are stated in the opinion.</p> <p>The jury found for the plaintiff, and the defendant moved for a new trial, which the presiding judge allowed, and made the following report of the case to this court, to which the evidence given at the trial was annexed:</p> <p>“This was a motion for a new trial. The court is of the opinion that upon all the evidence the jury could not properly find that the plaintiff was in the exercise of due care, and orders the verdict to be set aside. If this order is right, the verdict is to be set aside and judgment entered for the defendant. If the order is erroneous, the verdict is to stand and judgment is to be entered on the verdict.</p> <p>“ Counsel for the plaintiff objects to that part of the reservation which provides for ordering judgment for the defendant, and is to be at liberty to argue that the court has no authority to make it. At the trial, at the close of all the evidence, defendant moved that a verdict be ordered for the defendant. The court then informed counsel that the case seemed close, and that it was desirable to obtain a verdict with a view to a report and final disposition of the case by means of one trial. Ho agreement was made in regard to the form of reservation, and counsel for the plaintiff is now nnwilling to stipulate that judgment may be entered for defendant in case the verdict is set aside. As one reason in support of his position, he alleges that there is another witness, whom he might call at a new trial, to the fact that at times prior to the accident a board was kept across the opening to the silo into which the plaintiff fell. The court is of the opinion that this testimony would add nothing material to the evidence already introduced, and rules that, the plaintiff having submitted the ease to court and jury upon the evidence annexed, it is competent for the court to make the reservation above stated.”</p>

<p>Trust, Of savings bank deposit. Gift. Savings Bank. Evidence, Relevancy and materiality, Declaration of deceased person, Admissions and confessions.</p> <p>In order to establish a trust in favor of F. in a savings bank deposit made by one “ in trust for F.,” where the bank book was never delivered to F., it is necessary to show that the depositor had manifested a completed and executed intention to establish the trust, which intention had been communicated to F. and assented to by him.</p> <p>In an action against a savings bank to recover the amount of a deposit made by a depositor “in trust for F.,” it appeared that the bank book never had been given to F. by the depositor, that the depositor was an elderly woman and an aunt of F., that F. was a spendthrift and a person of intemperate habits and had several times been arrested, fined and imprisoned for various offenses, that on a number of occasions the depositor had said to a niece of F., pointing to the deposit book, “ That is for F.,” that several times F. had asked the depositor for money, and had said in the presence of the depositor that she had money belonging to him and he could not get it, that the depositor at one time kept in her possession a number of bonds belonging to F. and gave him some of the interest on them from time to time, that, finally, because of contentions that arose between them when she did not desire to give him the interest on the bonds on account of his habits, she gave him back all of the bonds but not all of the interest. Held, that there was evidence warranting a finding that there was a completed gift of the deposit by the depositor to F.</p> <p>In an action by the executor of one who had deposited money in a savings bank ■ “ in trust for F.,” to' recover the amount of the deposit, where it appears that F. had died and that the bank book never had been delivered to him, and there is evidence of an intention on the part of the depositor to hold the deposit in trust for F., evidence of statements made by F. in the presence of the depositor that the latter had money belonging to him which he could not get is admissible both because it tends to show an acceptance of the trust by F., and as a declaration of a deceased person under R. L. c. 176, § 66.</p> <p>In an action by the executor of one who had deposited money in a savings bank “ in trust for F.,” against the bank and F.’s executor, to recover the amount of the deposit, where it appears that there had been no delivery of the bank book to F., but there is evidence that the plaintiff’s testate had intended to create a trust in F.’s favor and that F. had assented thereto, evidence that, although he knew of the deposit, the plaintiff did not account for it in his accounts as executor, is admissible as an admission by the plaintiff.</p>

<p>Tokt for personal injuries sustained by the plaintiff, while in the defendants’ employ, by reason of his foot becoming caught in a hole in the plaster wall of a freight elevator upon which he was riding. Writ in the Superior Court for the county of Middlesex dated November 4, 1902.</p> <p>After a former trial of the case and a verdict for the plaintiff, exceptions by the defendants were sustained in a decision reported in 190 Mass. 391.</p> <p>At a second trial, before Dana, J., there was evidence that the hole in which the plaintiff’s foot was caught was, horizontally, from eighteen inches to two feet in length, from four to six inches high, and from three quarters of an inch to an inch and a half deep.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence, on motion of the defendants, the presiding judge directed a verdict for the defendants, and the plaintiff excepted.</p>

<p> Supreme Judicial Court. Probate Court. Equity Jurisdiction. Jurisdiction. </p> <p>The Supreme Judicial Court has no jurisdiction as a court of equity to deal with statutory proceedings which are prescribed for the Probate Court.</p> <p>The Supreme Judicial Court as a Probate Court of appellate jurisdiction has no jurisdiction to hear and determine as an original matter a petition to revise a decree which was made on an appeal from a decree of the Probate Court allowing a will, and which reversed that decree, disallowed the will and directed that the case be remanded to the Probate Court for further proceedings, where it appears that the case has been so remanded and that the Probate Court has acted in accordance with the decree sought to be revised.</p> <p>It seems, that, where, after an appeal from a decree of the Probate Court allowing a will has been taken to the Supreme Judicial Court where issues were framed and tried by a jury, in accordance with whose verdict a decree was entered reversing the decree of the Probate Court, disallowing the will and directing that the case be remanded to the Probate Court for further action, and after the case has been so remanded and the Probate Court has appointed an administrator of the estate of the deceased person, it is discovered that the verdict which was rendered by the jury in the Supreme Judicial Court was a fraud upon the court, the proper course for the aggrieved party to pursue is to file in the Probate Court a petition for a bill of review to review the proceedings of that court made in accordance with the remanding decree.</p>

<p>Petition, filed February 21, 1908, for a writ of mandamus commanding the mayor of Quincy to reinstate the petitioner as an assessor of that city.</p> <p>The case was heard by Rugg, J., who ordered that the petition be dismissed, and at the request of the petitioner reported the case upon the petition and answer for determination by the full court. If the ruling was right, the order dismissing the petition was to be confirmed; if it was wrong, an order for a peremptory writ of mandamus was to be issued.</p> <p>The case was submitted on briefs.</p>

<p>Information in equity, filed on October 3, 1906, by the Attorney General at the relation of the commissioner of corporations, under St. 1906, c. 372, § 1, which provides that “ upon an information in equity in the name of the attorney-general, at the relation of the commissioner of corporations, the Supreme Judicial Court shall have power to restrain by injunction any corporation from assuming or exercising any franchise or privilege or transacting any kind of business not authorized by the charter of such corporation and the laws of this Commonwealth.”</p> <p>The information in substance alleged that the New York, New Haven, and Hartford Railroad Company is a corporation organized under the laws of this Commonwealth for the purpose, among others, of owning and operating a railroad therein, having a usual place of business in Boston; and that such corporation has directly and indirectly subscribed for, taken and held the stock and bonds and has guaranteed the bonds and dividends and is now directly and indirectly holding the stock and bonds and is guaranteeing the bonds and dividends of certain domestic corporations, all of which are street railway companies incorporated under the laws of this Commonwealth; and that the stock and bonds held and the bonds and dividends guaranteed by such railroad company are so held and guaranteed without authority from the General Court of the Commonwealth and without authority under any law thereof ; and that the defendant now owns and is operating the roads and properties of those domestic street railway companies; that by these acts the defendant has assumed and exercised and is assuming and exercising a franchise and privilege, and has transacted and is transacting a kind of business not authorized by its charter or by the laws of this Commonwealth.</p> <p>The case came on to be heard before Rugg, J., who reserved it upon the pleadings, a master’s report, including the evidence therewith reported, an interlocutory decree confirming the master’s report, and the appeal of the informant, for determination by the full court, such decree to be entered as equity and justice might require.</p>

<p>Contract by the collector of taxes of the town of Tewksbury, to recover a tax of $98.24, with interest from December 4,1900, for the year 1900 upon real estate' owned by the defendants in that town. Writ in the Police Court of Lowell dated September 14, 1906.</p> <p>On appeal to the Superior Court the case was tried before Lawton, J., without a jury. He found for the plaintiff in the sum of $135.32; and the defendants alleged exceptions, raising the question stated and disposed of in the opinion.</p> <p>The case was argued at the bar in November, 1907, before Knowlton, C. J., Hammond, Loring, Braley, & Rugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

Contract for services as a stenographer under an oral agreement alleged to have been made with the plaintiff by the defendant Parsons and the defendants J. Sumner Holt and Russell L. Holt jointly, when certain actions, brought by Parsons and the Holts against each other, had been referred to an auditor. Writ dated February 12, 1906. In the Superior Court the case was tried before Hardy, J. The defendants Holt did not appear in the action, and were defaulted.

<p>Evidence, Relevancy, Collateral issues. Practice, Civil, Conduct of trial. Will•</p> <p>It may be doubted whether a will by which a certain building is devised to a certain person, to whom all the residue of the estate of the testator also is devised and bequeathed, is any evidence that the testator agreed to devise the building to that person.</p> <p>Where a document, offered in evidence, is of little or no value upon the only issue in the case to which it is relevant, and the admission of the document would raise collateral issues as to its validity which would submerge the proper issues of the case on trial, it is the duty of the presiding judge to exclude it.</p>

<p>Tort for personal injuries alleged to. have been received by the plaintiff by reason of her having been run into and knocked down by a street car of the defendant. Writ in the Superior Court for the county of Suffolk dated August 20, 1902.</p> <p>There was a trial before Richardson, J. It appeared that the plaintiff was injured while standing between the north bound and the south bound street car tracks on Atlantic Avenue on the crosswalk in front of the station of the Boston, Revere Beach and Lynn Railroad, as shown on the plan on page 446.</p> <p>Besides the facts stated in the opinion, the witnesses for the plaintiff stated that, just before the plaintiff was struck by the car, she was carrying a pasteboard box about three feet long and over a foot wide under her right arm, and had reached out her left hand and placed it on the shoulder of her mother, who was in front of her, the plaintiff testifying that she wanted to ask her mother to wait for her, and that, “before she had so asked, she was on the ground.” The plaintiff also testified in cross-examination that she had no knowledge of a car striking her at all, but that she drew that inference from what happened. The plaintiff’s evidence also tended to show that there was much noise and confusion in the neighborhood, due to passing drays and street cars. Other facts are stated in the opinion.</p> <p>At the close of all the evidence, the defendant asked that a verdict be directed in its favor, but the presiding judge refused to do so and submitted the case to the jury after a charge to which no exception was taken. After the jury had been considering the case for some time, and after adjournment of the court, the presiding judge caused the jury to be brought in and, without notifying counsel, further charged them as follows:</p> <p>“ I notice, Mr. Foreman, that you do not agree, and I thought I would have you come in and see if I could aid you about any question that you may have, any question of law, if your diffi-</p> <p> </p> <p>culty is over the question of law, or any instruction that was given by the court.”</p> <p>The Foreman: “There is no instructions in regard to the questions of law, it is really questions of fact.”</p> <p>The Presiding Judge: “ I had at the time you went out some evidence of the plaintiff and her mother written out, and if you differ as to those facts, perhaps I could read from the testimony that is written out by the stenographer. I did have the intention to read to you some of the evidence which was taken the first day as to whether when they got off the first car they got on to, whether they got off there right at the crosswalk or whether before they got off they were carried down some and I have what the plaintiff says about that if there is any difference of opinion or if you think that is of importance.”</p> <p>The Foreman: “ I think if you would read the plaintiff’s evidence and the mother’s evidence.”</p> <p>The Presiding Judge: “I can’t read it all but as it passes along it may throw some light upon disputed questions in the case. . . . [The presiding judge then read portions of the testimony.] ... Is there any other disputed point of fact that you think I can clear up ? ”</p> <p>The Foreman: “I think you have covered the point under discussion.”</p> <p>The Presiding Judge: “ I have looked over the minutes since you were in. I think this is a case you ought to decide. It is one of the objections to our trial by jury that there are so many cases where the jury disagree and put the county to expense and all that. Of course we want to get verdicts if we can, and, of course, we want to get them right also. I don’t know that I could add anything by restating the law which I stated, that is, if a person takes a position on or near a railroad track so near that he is in danger of being hit by a car without paying any attention to whether a car is coming or not, without looking out or taking any care as to the danger, as to the possibility of being hit,—if a person voluntarily stands in that position, I think the law is well settled in this State, and I think it is so most everywhere, that the person who does that is not in the exercise of due care. I say voluntarily— unless there is something which prevents such a person from stepping one side and getting out of danger. I can’t help feeling that that is the law laid down in a great many cases.</p> <p>“ Of course, the defendant says that the plaintiff was not near enough to the car to be hit. If she was not, of course she was not hit, and, if she was not hit by the car and knocked down, of course the defendant is not liable. It does not follow that, if she was hit and knocked down by the car, the defendant was liable, because you may find that it was her duty under the law as I have stated it to have been more alert and more careful and more diligent to see whether a car was coming or not and to have stepped one side a little unless there was some reason why she could not.”</p> <p>The counsel for the plaintiff by chance entered the court room during the closing sentences of the foregoing charge, and, at its conclusion, excepted to the giving of the charge without notifying counsel. The defendant’s counsel was not present.</p> <p>The jury then again retired and resumed the consideration of the case. At an hour which previously had been fixed by the presiding judge in directions to an officer as a time when the jury should be allowed to separate in case they had not yet agreed as to a verdict, they announced their disagreement to the officer and were permitted to separate and go to their homes. On the following morning, upon their reporting their disagreement to the presiding judge at the opening of court, he directed them to bring in a verdict for the defendant, which verdict they immediately rendered.</p> <p>The plaintiff duly excepted to the power or right of the court to direct a verdict after the jury had separated, and also excepted to the order of the presiding judge directing the jury to return a verdict for the defendant^ upon all the evidence.</p>

<p>Contract. Writ in the Superior Court for the county of Middlesex dated October 4, 1904.</p> <p>The declaration alleged that the plaintiff was a creditor of the Newton Moulding and Lumber Company, a corporation duly established in October, 1901, under the laws of South Dakota, whose charter provided that the principal place of business of the corporation should be Pierre, South Dakota, but that a branch office might be located at Newton and Boston, Massachusetts, where directors’ and stockholders’ meetings might be held and business of the corporation transacted; that the corporation was organized “to buy, sell, manufacture and generally deal in lumber and building materials of all kinds and machinery of all kinds ”; that in -October and November, 1901, the plaintiff sold certain lumber to the corporation at Newton, and thereafter brought suit on notes of said corporation given for said lumber; that August 26, 1902, in the Police Court of said Newton the plaintiff recovered judgment against the corporation for $377.20, damages, and $11.35 costs; that an execution issued on the judgment and was returned to court unsatisfied; that on February 25,1904, an alias execution issued on said judgment, and, after due search and diligence, no property of the corporation could be found to be taken in satisfaction of it; that on February 26,1904, said alias execution was served on the commissioner of corporations of this Commonwealth, the duly authorized attorney and agent of said corporation, in the manner prescribed by statute, and was thereafter held by a deputy sheriff of Suffolk County for thirty days and nothing was received in satisfaction of the same; that by 1901, Annotated Statutes of South Dakota, § 3851,* it was provided that each stockholder should be individually and personally liable for the debts of corporations established under the act of which said section was a part to the extent of the amount that is unpaid on the stock held by him; that the Newton Moulding and Lumber Company was established under and by virtue of the act of which said section was a part; that the defendant was a stockholder in said corporation owning and holding ten shares of the capital stock at a par value of $100 each, but that nothing had been paid on the said ten shares of stock owned by the defendant; that the plaintiff had received nothing in satisfaction of her debt.</p> <p>The defendant demurred to the declaration on general grounds, the demurrer was overruled, and the defendant appealed.</p> <p>An answer having been filed, there was a trial before Fessenden,, J., without a jury. The plaintiff introduced evidence tending to prove all the allegations of her declaration. The testimony of Bassett, referred to in the opinion, was that he was treasurer of the Newton Moulding and Lumber Company. He was shown a stock certificate book and identified the writing on the stubs as his. The first stub stated that certificate numbered one was issued to “H. 1ST. Mabie, Somerville,” for ten shares. Being shown the certificate, he identified the signatures thereon as those of himself as treasurer, of the defendant as president and of one Ricketson as secretary.</p> <p>There was also in evidence a certificate filed with the commissioner of corporations on January 2, 1902, which was signed by the defendant as president of the corporation and by the other officers, and stated that the capital stock of the corporation was $25,000 and that none of it had been paid in.</p> <p>At the close of the evidence, the defendant made the following requests for rulings:</p> <p>1. Any proceeding to enforce the alleged liability should be in equity and not at law.</p> <p>2. In the absence of evidence of any proceedings in the courts of South Dakota, an action at law cannot be maintained here.</p> <p>3. There was no sufficient evidence that the defendant was a holder of any shares at the time this suit was commenced.</p> <p>5. The liability under the statute was to be primarily established by a proceeding in the courts of South Dakota.</p> <p>6. The remedy given was to be sought in the courts of South Dakota by proceedings to determine the whole amount of unpaid subscriptions and the amount necessary to pay the debts.</p> <p>7. The remedy given by the law of South Dakota was not enforceable in this court.</p> <p>The presiding judge refused the foregoing requests absolutely. The defendant also asked him to rule as follows:</p> <p>8. Under the law of South Dakota any shares issued without a subscription therefor and without payment or promise of payment would be void and impose no liability on the holder.</p> <p>9. If the court finds that no meeting for organization was held within the time required after the filing of the articles of incorporation, the corporation would be dissolved and the directors would be trustees for the benefit of creditors and an action at law to enforce a stockholder’s liability could not be maintained.</p> <p>13. If the court finds that ten shares of stock were issued to the defendant without a subscription and promise to pay therefor, such issue would be illegal and the defendant could return the same and his delivery of the certificate by him indorsed in blank to the corporation would be a sufficient surrender.</p> <p>He refused to give either of the last three rulings requested in the form in which they were asked, but gave the ninth as far as the words, “ and an action at law ” only, and, instead of the eighth and thirteenth, ruled as follows:</p> <p>8. Under the law of South Dakota any shares issued without a subscription therefor or a subsequent acceptance of the stock and without payment or promise of payment, express or implied, would be void and impose no liability on the holder.</p> <p>13. If the court finds that ten shares of stock were issued to the defendant without a subscription and promise, express or implied, to pay therefor and without an acceptance of the stock by the defendant, such issue would be illegal and defendant could return the same and his delivery of the certificate indorsed by him to the corporation would be a sufficient surrender.</p> <p>The judge found for the plaintiff and the defendant alleged exceptions.</p>

<p> Equitable Process after Judgment. Interest. </p> <p>A judgment for the entire amount claimed in both counts of a declaration, the first count of which is for use and occupation of a house used by the defendant and his family from January to April, 1903, and the second count for interest on the amount claimed in the first count from the time of an alleged demand in January, 1905, to the date of the writ, is a judgment “ founded upon a claim for the necessaries of life furnished to the judgment debtor or his family," upon which equitable process after judgment may issue under R. L. c. 168, § 80.</p>

<p>Bills and Notes, Liability of indorser, Accommodation paper, Payment. Practice, Civil, Exceptions. Evidence, Presumptions and burden of proof. Fraud. Payment.</p> <p>It is not necessary, in order to charge an indorser of a promissory note which the maker failed to pay when it became due, to prove a formal protest by a notary; it is enough to prove that there have been proper demand upon the maker and a refusal by him to make payment, and that seasonable notice of these facts has been given to the indorser.</p> <p>Exceptions by the defendant in an action upon a promissory note, brought against an indorser by one alleged to be a holder in due course, to rulings of the judge presiding at the trial permitting the notary who protested the note to “ extend " his record of protest while on the witness stand by affixing his seal to the certificate of protest, and then allowing the certificate to be introduced in evidence, will not be sustained where the defendant, in the course of the trial, admitted that he had received from the plaintiff a proper notice of the maker’s default in payment, the defendant not being harmed by the rulings.</p> <p>In an action by one alleged to be the holder in due course of a negotiable promissory note against an indorser, the defendant’s answer alleged that the plaintiff was not a holder in due course, and that the defendant’s signature was procured by false pretenses. At the trial, the plaintiff testified that he purchased the note from one C. and that, before purchasing, he made diligent search to investigate the authenticity of the note, but did not inquire of the defendant, and that he" did not know that the defendant was an accommodation indorser until after the note went to protest. The presiding judge refused to allow the defendant to show that he was an accommodation indorser, and the defendant excepted. In cross-examination the defendant stated that he procured the note from a person not the maker or an indorser and paid nothing for it, that he indorsed it and gave it to one R., who was to negotiate it and give a portion of the proceeds to him. It appeared that R. indorsed the note and gave it to C. The judge, at the request of the defendant, ruled as a matter of law that the jury must be satisfied, in order to find for the plaintiff, that at the time he bought the note he had no notice of any infirmity in it or defect in the title of C. and no knowledge of such facts as to make his action in taking it bad faith, but ruled that there was no evidence that would warrant a finding that any defense to the action was made out, and directed a verdict for the plaintiff. Held, that there was error both in the exclusion of evidence that the defendant was an accommodation indorser and in ruling that there was no defense made out and directing a verdict for the plaintiff, since the jury were not bound to believe the plaintiff, but should have been allowed to determine whether the note had been put into circulation fraudulently, and, if so, whether the plaintiff had sustained the burden of showing himself to be a holder in due course.</p> <p>The answer of the defendant in an action against an indorser of a negotiable promissory note set up payment. At the trial there was evidence that the plaintiff had received from another indorser, to apply toward liquidation of his liability, notes . signed by the H. company, which was not the maker of the note in suit, that he had sold the H. company’s notes to a person who gave him certain stock in a corporation which was to be the plaintiff’s if such person was able to recover anything on the H. company’s notes, but that nothing had been realized upon such notes. The defendant introduced no evidence of payment, but requested a ruling that he was entitled to a credit for all that the plaintiff had received on the H. company’s notes. The request was refused. Held, that the request was refused rightly, since there was no evidence tending to show any payment of or on account of the note, the burden of showing which was on the defendant.</p>

<p>Petition, filed in the Supreme Judicial Court for the county of Suffolk November 26, 1906, under R. L. c. 14, § 67, as amended by St. 1906, c. 349, seeking the repayment to the petitioner of taxes alleged by it to have been assessed illegally and paid by it under protest in the years 1902, 1903,1904.</p> <p>There was a hearing before Sheldon, J., on agreed facts. It appeared that the petitioner had been authorized to engage in insurance business in this Commonwealth in 1867, and since then had been doing so; that, previous to 1902, it had paid in this Commonwealth a tax assessed under the provisions similar to those in R. L. c. 14, § 24, only. In October, 1901, Session Laws of New York for 1901, c. 118, went into effect, which imposed upon domestic and foreign insurance corporations doing business in the State of New York a tax equal to one per cent of all premiums received on contracts made with residents of New York after January 1, 1902. Thereupon a tax was assessed upon the petitioner in this Commonwealth under R. L. c. 14, § 28, but equal to one per cent of all premiums received by the petitioner after January 1, 1902, upon contracts in this Commonwealth, without regard to when the contracts were made.</p> <p>The tax which would have been due from the petitioner if assessment had been made under R. L. c. 14, § 24, would have been, in 1902, $12,338.57; in 1903, $14,728.37; in 1904, $18,026.07. The amount which would have been due if the tax had been assessed for one per cent of the amount of premiums on policies issued after January 1, 1902, only, would have been, in 19Ó2, $3,543.63; in 1903, $9,960.50; in 1904, $15,830.86. The amount which was assessed, and which the petitioner paid under protest, was, in 1902, $36,184.64; in 1903, $39,628.17; in 1904, $43,844.31. The petitioner contended that assessment should have been made only under R. L. c. 14, § 24, and therefore that it should be paid back, on account of the payment in 1902, $23,846.07, on account of the payment in 1903, $24,899.80; and on account of the payment in 1904, $25,818.24.</p> <p>The presiding justice reserved the case for consideration of the full court.,</p> <p>The case was argued at the bar in January, 1908, before Knowlton, C. J., Hammond, Loving, Sheldon, & Rugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Tort for personal injuries sustained by the plaintiff on June 23, 1904. Writ dated December 21, 1904.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The plaintiff at the time of the injury was in the employ of one Rand, a mason contractor, and was working on a building numbered 46 on the Fenway in Boston. The defendant was putting a tar and gravel roof on this building. The plaintiff was injured while using a hoisting tackle belonging to the defendant. The tackle consisted of a fall passing over a wheel, the wheel being suspended from a hook attached to a beam. The rope overhauled or ran up, so that a small hook on the end of the rope struck against the wheel, causing it to jump from the large hook and fall, knocking down the staging on which the plaintiff was standing. The hook from which the wheel jumped was not secured by lashing or “ mousing,” and this omission was relied on by the plaintiff to show negligence on the part of the defendant. Shortly before the accident a derrick, constructed with a heavy beam nailed and braced and rigged with a double sheave, had been placed on the roof by the plaintiff and other workmen in the employ of Rand. There was evidence tending to show that this derrick was removed by the employees of the defendant with the knowledge of the plaintiff, and that the plaintiff was told by the foreman in charge of the gang who did this work that he might use the defendant’s hoist in place of the one the defendant’s employees removed.</p> <p>At the close of the evidence the Chief Justice ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in December, 1907, before Knowlton, C. J., Morton, Hammond, Braley, & Rugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Two actions of tort, respectively for personal injuries and loss of services as described in the opinion. Writs dated March 24, 1903.</p> <p>At the trial in the Superior Court Harris, J., refused to rule that the plaintiff could not recover or that the plaintiff was not in the exercise of due care or that there was no evidence of negligence on the part of the defendant. He submitted the cases to the jury, who returned a verdict for the plaintiff in the first case in the sum of $1,700 and a verdict for the plaintiff in the second case in the sum of $300. The defendant alleged exceptions.</p>

<p>Contract, Construction, Validity, Performance and breach. Mistake. Equity Jurisdiction. Agency. Waiver. Evidence, Extrinsic affecting writings. Practice, Civil, Parties. Damages.</p> <p>An agreement in writing under seal by a landowner to sell to a certain individual a certain tract of land for a price named, the option to be good until a date named, with a declaration that the option is given merely to enable the person to whom it is given to offer the land to a certain corporation and that the option shall be void unless that corporation shall decide to build a plant in the city in which the land is situated, is a contingent contract of sale between principals and not merely an instrument making the individual to whom the option is given the agent of the landowner to sell the land to the corporation.</p> <p>If a person has agreed in writing to sell a certain tract of land to another person at a price named if paid by a certain date, forgetting the fact that half of the tract of land belongs to his wife, and if the person who took the agreement accepted the statement of the landowner that he owned the whole of the tract, this is not such a mutual mistake of fact as will enable the landowner either at law or in equity to escape the obligation of the terms of his contract.</p> <p>A person who has agreed to convey certain land forgetting that only half of it belongs to him and that the other half has been conveyed to his wife, when sued for a breach of the contract in conveying only his own half of the land, cannot rely in defense upon his good faith in regard to his misapprehension or forgetfulness, and evidence of his mental and bodily condition and the impairment of his memory before and at the time he signed the agreement, which is offered, not to show unsoundness of mind or that fraud was practised upon him, but only as bearing upon the question of his mistake and good faith in forgetting the transfer to his wife, should be excluded as immaterial.</p> <p>Mere mental or physical weakness not amounting to incompetence to act, where it does not appear that advantage has been taken of the infirmity, is not a sufficient ground for avoiding a contract.</p> <p>An agreement in writing to sell and convey a certain tract of land for a price named, the option to be good until a date named and to be void unless a certain corporation shall decide to build a plant in the city where the land is situated, is accepted by a tender of the purchase price named in the agreement after the decision of the corporation to build the plant and before the expiration of the time limited.</p> <p>In an action on an agreement in writing under seal to sell and convey to the plaintiff a certain tract of land for $3,800, the option to be good until a date named, with a statement in the agreement that the option was given to enable the plaintiff to offer the land to a certain corporation and was to be void unless that corporation should decide to build a plant in the city in which the land was situated, it appeared that the defendant at the time he signed the contract had forgotten that only half of the tract of land belonged to him, the other half having been conveyed to his wife, so that he was unable to perform the contract in accordance with its terms. There was evidence on which it could have been found that the plaintiff was interested deeply in having the plant of the corporation established in that city, and in all that he did in the transaction was actuated solely by public spirit and not by any hope of private reward, that the acquisition of the whole of the tract of land described in the option was essential to the success of the project for which the plaintiff was striving, that he disclaimed to the defendant orally and in writing any intention of gaining profit, and that, when he learned of the defect in the defendant’s title and his consequent inability to convey the whole of the land, he made no demand for damages, but sent to the defendant an option for the purchase of the other half of the land to be signed by the defendant’s wife with the request that the defendant should procure her signature, that, having offered the whole tract of land to the corporation, he prepared a deed for the defendant to execute of his half of the land and accepted the conveyance from him, paying him $1,900, one half of the price named in the original option, that he accepted from the defendant’s wife an option to sell her half of the land for $2,600 and took from her a deed in pursuance of this option, paying her that amount for it, and that it was not until two days later that he notified the defendant that he should hold him liable for his breach of contract in failing to convey the whole of the land. The defendant knew from the first that the acquisition of the whole of the tract of land was essential to the project. The defendant contended that the plaintiff had waived his claim for damages under the agreement of option sued upon. The judge ruled that, if the jury found that the plaintiff had made a tender to the defendant of $3,800, he was entitled to recover $700 damages. Held, that the ruling was wrong]; that, although the burden of proving a waiver was upon the defendant, and although it is not necessarily a waiver to take all that one can get under a contract by way of part performance, yet, with the inferences which the jury could draw from all the circumstances shown, there was evidence for the jury that the original contract in writing had been modified, and that the plaintiff had accepted as a substituted performance the two conveyances at the prices paid by him. Held, also, that, if the jury in a new trial should find that there was no waiver and it became necessary to consider the rule of damages, it could be found that the proximate and probable consequence of the defendant’s breach of contract was the purchase of the other half of the land from its owner at the advanced price, and that in that case the difference in price would be the measure of damages. An action at law on a contract under seal must be brought by a party to the contract. A person who becomes a party to a contract under seal, acting not for himself but wholly for the benefit of another, to whom his relation becomes fiduciary by the subsequent acceptance of his act, in suing in his own name for a breach of the contract, may recover for the benefit of his beneficiary the amount of damages which such beneficiary could have recovered if he had been the contracting party, but the plaintiff must show that he brings the action by the authority and for the benefit of the beneficiary.</p>

<p>Voluntary Association. Equity Pleading and Practice, Master’s Report. Words, “Eligible to vote.”</p> <p>A voluntary association, called an improvement society, organized for the purpose of securing united effort in the promotion of such local improvements of a public nature as should be deemed advisable within a certain district of a certain town, the members of which hold a fair to raise money for the purchase of fire apparatus or for fire protection in that district, and as a result of such fair and of contributions receive about $700, which is more than double what the fire apparatus contemplated by them would cost, in the absence of any objection on the part of the persons who contributed the money, by authority of a majority vote of the members of the association lawfully may use the money to purchase land and erect a building containing a hall for meetings and lectures with a place for fire apparatus.</p> <p>In a provision, in the constitution of a voluntary association for the promotion of local improvements within a certain district of a certain town, that any person in the town “ eligible to vote on town affairs ” can become a member of the association by signing the constitution, the words “ eligible to vote ” do not require that the members should be registered voters hut only that they should be persons qualified to be registered as voters.</p> <p>In a suit in equity, where the validity of a vote of a voluntary association was in question which depended on whether two of the persons who voted were members of the association, and the constitution of the association provided that persons having the necessary qualifications might become members by signing the constitution, a master to whom the case was referred, found that the two voters had the necessary qualifications. As to one of them he found expressly that he had signed the constitution, while as to the other he made no express finding of that fact but found that he was a member. Held, that the finding last named necessarily must be taken to include a finding that the person in question had signed the constitution.</p>

<p> Stakeholder. Trust. </p> <p>In a suit in equity, by a subscriber to shares' of a corporation, to set aside an assignment made by the plaintiff of the shares which he was entitled to receive from the corporation and to compel the president of the corporation, to whom the shares had been issued by the corporation, to transfer them to the plaintiff, it appeared that the shares had been issued to the president for the protection of the corporation, in order that he might hold them as stakeholder and might transfer them to the person who was entitled to them, who if the assignment was invalid would be the plaintiff and if the assignment was valid would be the assignee, and that the stakeholder thereafter bought the interest of the assignee in the shares. It was found upon the facts that the assignment was valid. The plaintiff contended that the stakeholder held the shares in trust for the plaintiff and that, since he stood toward the plaintiff in a fiduciary relation, he could not be allowed in equity to buy in a conflicting title and set it up against his beneficiary. At the hearing the plaintiff offered to return the purchase price paid by the stakeholder to the assignee. Held, that, as the plaintiff had turned out not to be the owner of the shares, whatever duty the stakeholder owed to the beneficiary was owed to the assignee and not to the plaintiff, and that the bill should be dismissed.</p>

<p>Negligence, Railway in subway. Practice, Civil, Conduct of trial, Judge’s charge, Exceptions.</p> <p>In an action of tort against an elevated railway company by one who, when a passenger in a station in a subway through which the defendant’s railway ran, received personal injuries by falling between the station platform and the side entrance of a car as he was attempting to enter the car, it appeared that the car could not run closer than twenty-one inches to the platform of the station at the point where the side door of the car opened, and that the defendant had provided a movable extension of the permanent platform, which was intended to slide out from under the permanent platform to the car and thus to close the open space. The plaintiff’s evidence tended to show that the car which he was attempting to board stopped in such a place that, when the movable platform was extended, it was opposite only a part of the door, there being an open space opposite the rest; that other passengers were in front of and close beside the plaintiff as he started to enter the car, so that he could not see the open space, that an employee of the defendant called out “Step lively,” that the passengers preceding the plaintiff passed into the car safely at almost the same place that he attempted to enter, but that the plaintiff fell into the open space. The defendant requested the presiding judge to rule that there was no evidence that the plaintiff was in the exercise of due care, and that, if he by looking could have seen the hole into which he stepped, and did not look, he was not in the exercise of due care. The requests were refused. Held, that the requests were refused rightly, since there was evidence that the plaintiff was in the exercise of due care, and the question for the jury was not as stated in the second of the above requests of the defendant, but was, whether an ordinarily prudent person under the circumstances should have looked so as to have discovered the danger.</p> <p>An exception to the refusal of the judge presiding at a trial to give a ruling in the words in which it is requested will not be sustained, although the ruling requested is a correct statement of the law applicable to the case on trial, if it appears that it was given in substance in the judge’s charge to the jury.</p> <p>At the trial of an action of tort against an elevated railway company, by one who, while as a passenger he was in a station in a subway through which the defendant’s railway ran, was injured by falling between the platform of the station and the door of a car of a train which he was attempting to enter, there was evidence tending to show that, from the construction of the subway, for which the defendant was not responsible, the car which the plaintiff attempted to board could not, at that point, be brought nearer than twenty-one inches "to the permanent platform of the station, that, to fill the gap thus formed, the defendant had provided a movable extension platform, which was the best device then known for the purpose, that an employee of the defendant on the station platform had been instructed not to pull out the extension platform if the car did not stop in front of it, that an “ average ” motorman would run the train too far for the extension platform to cover the whole space in front of the car door about once a day, and the most cautious motorman less frequently, that, at the time when the plaintiff was injured, the car stopped in such a position that the extension platform would cover the space in front of only half of the car door, but that the defendant’s employee extended the movable platform nevertheless and the plaintiff, attempting to enter, in the exercise of due care, fell into the uncovered space. Held, that there was evidence from which the jury were warranted in finding that the employees of the defendant were negligent.</p> <p>An exception to a ruling by the judge presiding at a trial allowing a certain question to be put to a witness will not be sustained if it appears that the answer of the witness to the question did the excepting party no harm.</p> <p>At the trial of an action of tort against an elevated railway company to recover for injuries received by the plaintiff through his falling into a space between a car of a train of the defendant, which he was attempting to enter, and the platform of a station in a subway, there was evidence tending to show that the space into which the plaintiff fell was left uncovered by a movable extension platform, which was intended to cover it, because the train had been run by the place where it should have stopped for the movable platform to be used properly. The defendant requested, but the presiding judge refused to give, a ruling that, “If the defendant had adopted and had in use, with respect to its platforms and the means afforded to passengers for entering cars, the best practical devices known and obtainable at the time of the accident, then the defendant was not negligent with respect to the construction of its platform or the means afforded to passengers for entering cars.” Held, that the ruling properly was refused, since, even although the movable platform was the most perfect device known and was perfectly constructed, its operation in connection with the train which the plaintiff was attempting to board might have been found to be negligent.</p> <p>While under ordinary circumstances it may not be negligent for an employee on the platform of a station of an elevated railway to call out to the passenger “ Step lively,” still, if, by the operation of a movable extension of the station platform, which was intended to cover a space between the car door and the platform, and by the operation of the train with reference thereto, a dangerous place was created for the passengers to pass over in entering the car, such an exclamation by the employee might be considered as one circumstance tending to show negligence for which the elevated railway company was liable.</p> <p>A trial judge cannot be required to rule in general terms upon the effect of a particular and indecisive portion of the testimony.</p> <p>An exception to a portion of a charge to a jury will not be sustained although the portion excepted to, if read alone, misstates the law, if, when read with the whole charge, it correctly states the law with regard to the facts in evidence.</p> <p>The provisions of R. L. c. 173, § 80, that “ the courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law ” do not prevent a trial judge from accurately summarizing the testimony, or from furnishing to the jury guides or illustrations as to the meaning of equivocal language given in testimony and as to tests by which the reliability or credibility of witnesses may be determined; but the established practice, consistently followed in this Commonwealth, is to preserve to the trial judge the power and to impose upon him the duty of so enlightening the intelligence and directing the attention of the jury that, notwithstanding disparity in skill, ingenuity and efficiency with which the various issues are presented, justice may be even, and incline, one way or the other only according to the weight of credible evidence.</p> <p>It is error for a judge presiding at a trial before a jury to suggest in his charge a ground of liability of the defendant which is not clearly open under the pleadings and as to which no evidence has been introduced by either the plaintiff or the defendant.</p>

<p>Evidence, Presumptions and burden of proof. Negligence, Of one owning or controlling real estate.</p> <p>A jury before whom is being tried an action of tort, wherein the defendant and employees of the defendant testify in his behalf, has a right to accept any admissions against the defendant’s interest made by him or by his witnesses, to reject so much of their testimony as was favorable to him, and to reach a conclusion directly opposite to statements of one of such witnesses, provided such conclusion is warranted by other parts of the evidence, contained in the testimony of such witnesses or elsewhere, or inferences therefrom.</p> <p>Although customers in shops must maintain a reasonable outlook for the condition of the premises and govern themselves accordingly, nevertheless they may reasonably expect, unless warned, to be in safety while they are examining goods, bargaining, or waiting for the delivery of purchases in the place where the proprietor displays goods for sale either upon permanent counters or in the hands of an employee.</p> <p>At the trial of an action of tort against the proprietor of a meat and fish market to recover for injuries alleged to have been received by the plaintiff, a woman, because an employee of the defendant negligently pushed a door against her while she was in the market as a customer, there was evidence tending to show that the plaintiff often had been to the store before, but never had noticed the door in question, which was the door to the defendant’s meat refrigerator, that the door weighed one hundred and sixty-two pounds, and, when closed, was secured by a brass bar which was fastened to the door jamb and swung across the door and fitted into a finger of brass which protruded about two and a half inches from the door and extended upward about three inches, that, when the door was opened at right angles to the passageway in front of it, it extended to within ten and one half inches of a counter composed of a bench and a series of blocks which formed the other side of the passageway, that the counter ran down the middle of the rear part of the market, had goods displayed upon it, and had passageways on each side of it, that fish were kept in the rear of the market but, when customers desired them, were brought to them at the counter by a clerk; that, on the occasion when the plaintiff was injured, she had walked into the market until she met a clerk to whom she gave her order and, while she waited for him and was standing in the passageway in front of the refrigerator, where she had stood before, she was struck in the back by the brass finger in the door, and thrown forward two or three steps. Evidence introduced by the defendant tended to show that an employee of the defendant had opened the door in seeking to come out of the refrigerator, but that, before entering it he had warned the plaintiff not to stand in front of the door. Held, that there was evidence warranting a finding that the plaintiff was in the exercise of due care and that the defendant’s employee negligently opened the door against her.</p>

<p>Petition for registration of the title to certain land in the Roxbury District of Boston, filed in the Land Court October 4, 1906.</p> <p>After a trial before Davis, J., there was a finding for the petitioner, from which the respondents appealed and presented for allowance by the judge of the Land Court the issue stated in the opinion, and he made the. following memorandum and decision:</p> <p>“ On the presentation by the respondents of a claim of appeal and an issue framed to try this question of fact, coupled with an offer of proof by evidence not offered before me, the petitioner requested me to rule that the issue presented is not in regard to a matter as to which the respondents were aggrieved by my decision, for the reason that, even if the fact was found on jury trial to be as claimed by the respondents, there would not as matter of law be a resulting trust in the demanded premises in favor of the heirs of said Michael, and as matter of law the petitioner would still be entitled to a decree for registration as previously ordered.</p> <p>“ In this case I rule, as requested by the petitioner, that the respondents are not parties aggrieved by the decision from which they are appealing, as to the matter specified by their claim of appeal and proposed issue thereon to the Superior Court, for the reason that, if there should be a finding after jury trial in favor of their contention, there still, on all the facts in this case, would be no resulting trust in the properties in question in favor of the heirs of Michael Malady, and as matter of law the petitioner would be entitled to a decree for registration.”</p> <p>The respondents excepted. Other facts are stated in the opinion.</p>

Contract under R. L. c. 99, § 4. Writ in the Municipal Court of the City of Boston dated September 28, 1905. On appeal to the Superior Court the case was tried before DeCourcy, J. According to her declaration the plaintiff sought to recover $135, alleged to have been paid by her to the defendant under stock wagering contracts, and interest thereon.

Tort, under R. L. c. 106, § 71, cl. 2, for personal injuries alleged to have been received by the plaintiff, while he was in the defendant’s employ, by reason of negligence of a superintendent of the defendant. Writ in the Superior Court for the county of Suffolk dated October 12,1903. There was a trial before White, J. Besides the facts stated in the opinion, it appeared that the plaintiff was injured by being hit by a pry which was used to turn the pile driver.

<p> Negligence. Street Railway. </p> <p>In an action by a motorman against a street railway company for injuries alleged to have been caused by a defective brake upon a car of the defendant which the plaintiff was operating, by reason of which the car ran into a car ahead of it on the same track which had stopped at a regular stopping place, it appeared that the plaintiff had been working as a spare motorman for about two weeks, having previously received instruction from employees of the defendant for twelve days, that when the plaintiff became a spare motorman he was given two books of rules made by the defendant for the guidance of its employees, the rules being preceded by a notice that the employees must not be ignorant of them, that all the rules pertaining to motormen in both books could be read deliberately in less than half an hour, that under the heading “ Inexcusable accidents” there were explicit instructions as to avoiding rear end collisions, such as that which caused the injury to the plaintiS, and that if the plaintiff had followed these instructions the accident would not have happened. The plaintiff testified that he read some of the rules, but “ did not have time to read.all,” and sought to excuse his ignorance of the rules on this ground. Held, that the defendant had done all that it reasonably could to charge the plaintiff with a knowledge of the rules and that there was abundant time for the plaintiff to have become familiar with them, that, as between the parties, the same duty of obedience existed as if the plaintiff in fact knew the rules, and that, as to his employer, a disobedience of the rules was want of due care.</p> <p>In an action by a motorman against a street railway company for injuries alleged to have been caused by a defective brake upon a car of the defendant which the plaintiff was operating, by reason of which the car ran into a car ahead of it on the same track which had stopped at a regular stopping place, if it appears that the plaintiff, who, after receiving instructions from employees of the defendant, had been working as a spare motorman for about two weeks, noticed upon getting on the car that there was trouble with the brakes, that on his route an inspector of the defendant boarded his car and the plaintiff told him' that the brake was not working right, that the inspector took the brake handle and attempted to operate it and at his first attempt was not able to stop the car any better than the plaintiff had been able to, but on a second attempt succeeded in stopping the car, and said that the brakes were not working right, but gave the plaintiff some directions about operating the brake and told him that it would work all right, that after the inspector left the car the brake continued to work in the same bad way that it had previously throughout the trip, that at the time of the accident the plaintiff had been running the car for about two hours and had gone over his entire route and more, that for more than a quarter of a mile he was immediately behind the car with which he came in collision, that he knew that his was a faster car than the one ahead and, as he followed, was throwing his power off and on and kept his car as near as he would have done if his brake had been in perfect order, that the car in front reduced its speed in the ordinary way at a regular stopping place, that the plaintiff then discovered that his brake was not stopping his car, that he did not attempt to reverse the power, although he knew that this was the most efficient way of bringing the car to a stop, and the collision occurred. Held, that the danger of collision was obvious to one with the knowledge which the plaintiff possessed; that the remark of the inspector did not justify the plaintiff in running his car as if nothing was the matter with it, after he had seen that even the inspector was not able to make the brake work well and that after the inspector left it continued to work as badly as before, that the plaintiff was not justified in surrendering his own intelligence and was bound to be alert to avoid danger, and that there was no evidence for the jury that the plaintiff was in the exercise of due care or that his injuries did not result from his own negligence.</p>

<p>Tort by a minor sixteen and a half years of age, by his next friend, against a corporation publishing the Brockton Times for the publication of an alleged libel of and concerning the plaintiff in that newspaper in Brockton on November 20, 1906. Writ dated December 17, 1906.</p> <p>In the Superior Court the case was tried before King, J. It appeared that the alleged libel was the story of a breaking and entering and larceny in Worcester, and that the defendant had taken the story from the Worcester Telegram, a newspaper published in Worcester, and in doing so had changed the name of “ Harry Ellis,” described as of Brockton, to “ Harold L. Ellis,” which was the name of the plaintiff, supposing that the plaintiff was the person referred to, which was not the case, and a paragraph was inserted giving the plaintiff’s address and mentioning facts tending to identify him, that on the day of the publication the plaintiff went with his mother to the office of the defendant, and the mistake was explained in the next publication of the paper. The evidence was conflicting as to the promptness with which the mistake was corrected in a bulletin that was placed in the window of the defendant’s office.</p> <p>The defendant asked the judge to make, among others, the following rulings:</p> <p>“ 1. On all the evidence the jury should find for the defendant. “ 2. On all the evidence the plaintiff is entitled to nominal damages only.”</p> <p>“ 4. The plaintiff is not entitled to damages for any alleged injury to his feelings or for alleged mental suffering; nor is he entitled to damages for alleged injury to his character or reputation.”</p> <p>“ 6. [The name used is not conclusive in determining the meaning of a libel in respect to the person referred to therein.] If, therefore, the jury find that so much of the alleged article as has not been shown to be true of Harold L. Ellis referred to another person, one Harry Ellis, for instance, then their verdict should be for the defendant.”</p> <p>The judge refused to make any of these rulings except the first sentence of the ruling numbered six, which is enclosed in brackets. He left to the jury the question whether the words charged as libellous were spoken of and concerning the plaintiff.</p> <p>Upon the question of damages the judge instructed the jury as follows: “ If you find that some part or all of what was pub-, lished by the defendant was published of and concerning this plaintiff, then you are to determine what injury, if any, he has suffered thereby. Now that is a question entirely for the jury to determine. It is for you to say, if you reach that point, what the plaintiff has suffered, if anything has been published of him libellous in nature. The plaintiff has said, testifying in his own behalf, that he suffered in his feelings. I charge you that that is an element which you may take into account, if you reach the question of damages, and if you believe the plaintiff’s testimony ; and in that regard you have the testimony of the plaintiff’s father and mother. How much he has suffered in his feelings, if any, it is for you to determine. And if you determine he has suffered, it is for you to determine what the compensatory damages, actual damages, are. Now injury to feelings may be a substantial injury, and in that respect it depends upon who the party is; his age, his social standing, his connections, his business. All these circumstances, and other’s which will come to your attention, you have heard. You are to determine, if you reach that point, whether his reputation has in any respect been harmed. For it is bis reputation and his standing, not his character, that is to be affected.”</p> <p>Upon the question of retraction the judge instructed the jury as follows: “ Did the defendant, the publishing company, immediately, as soon as it reasonably could, make adequate retraction? You are the judges of that under all the circumstances. You will have submitted to you the account which they published. They claim that they published equally conspicuously a complete retraction so far as this plaintiff is concerned, and so that if any one had thought that it referred to this plaintiff, they should see that it did not refer to this plaintiff. Whether that is adequate is for you to determine.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $154; and the defendant alleged exceptions to the refusals to rule and to such parts of the judge’s charge as were inconsistent with its requests.</p>

<p>Practice, Civil, Indorser of writ, Security for costs.</p> <p>Since the repeal of Pub. Sts. c. 167, § 30, by the enactment of the Revised Laws there has been no law by which a plaintiff residing in this Commonwealth can be required to procure an indorser for costs.</p> <p>An order of a trial judge that the plaintiff in an action file a bond to secure the costs of the defendant is void, the only method of securing such costs being by an indorser of the writ in cases where this may be required.</p> <p>An order of a trial judge that the plaintiff in an action file a bond to secure the payment of costs to one of the defendants, for whom at a previous trial of the case the presiding judge ordered a verdict and a judgment for costs was entered, • is void, there being no authority to require such a bond.</p>

<p> Devise and Legacy. </p> <p>The will of a testatrix after various pecuniary legacies contained the following residuary clause : “ I direct my executor hereinafter named to convert all the rest and residue of my estate into cash and to divide the same among the pecuniary legatees hereinbefore named in proportion to their several pecuniary legacies; but should my estate not herein specifically devised be insufficient to pay all my debts, charges of administration, and the pecuniary legacies herein given, said pecuniary legacies are to be proportionately abated.” One of the legatees was a corporation and most of.them were not relatives of the testatrix or of one another. One of them to whom $10,000 had been left died, leaving no issue. On a bill by the executor of the will for instructions, it was held, that the residuary clause showed an intention of the testatrix to make a complete disposition of all her property, and that the lapsed legacy of $10,000 to the deceased legatee became a part of the residue; also, that the residuary clause should be treated as if the legatees referred to w.ere mentioned by name and that it gave to each legatee his proportional share; therefore, that the legacy- of the deceased legatee under that clause, ¡consisting of his proportional share of the residue, lapsed _ and must b.e distributed among the next of kin of the testatrix as property undisposed of by her will. • ,</p> <p>Where by the residuary cláuse of a will certain persons are to receive the residue in proportions- naSnied, and' one of them dies before the testator, leaving no issue, so that the legacy to him lapses, his share, being a part of the residuum itself, does not pass to the remaining residuary legatees, but is left undisposed of by the will, and must be distributed as intestate property.</p>

Tort for personal injuries received in the manner stated in the opinion. Writ dated September IT, 1903. At the trial in the Superior Court before White, J., the jury returned a verdict for the plaintiff in the sum of $1,800 ; and the defendant alleged exceptions. The following is a reduced copy of the plan referred to in the opinion. The case was submitted on briefs.

<p>Contract, Construction, Performance and breach, Effect of statute on existing contract. Statute.</p> <p>A contract in writing, made in November, 1900, by a contracting company with the Commonwealth, acting by its board of metropolitan sewerage commissioners, for the construction of a section of a sewer for the metropolitan system of sewerage, provided that if at any time the contractor abandoned the work, “ or if at any time the engineer shall be of opinion, and shall so certify in writing to the board, that the said work is unnecessarily or unreasonably delayed, . . . the board shall have the power and right to notify the contractor to discontinue all work,” and shall also have power to complete the work at the expense of the contractor. The contract also provided that the word “ board,” when used in the contract, meant the board of metropolitan sewerage commissioners, and that the word “engineer” meant “the chief engineer of the said board, acting either directly or through his properly authorized agents.” The contractor and a surety executed a bond conditioned upon the performance of the contract. Work was begun under the contract in December, 1900. St. 1901, c. 168, which went into effect on March 20, 1901, abolished the metropolitan water board (created under St. 1895, c. 488,) and the board of metropolitan sewerage commissioners, and transferred all their “ powers, duties and liabilities ” to a new board called the metropolitan water and sewerage board, and provided that “ no existing contracts . . . shall be effected hereby, but the [new] board . . . shall be the lawful successor of ” the old ones. In January, 1902, one B., as “ engineer sewerage works ” certified to the new board that the work specified in the contract “ had been unnecessarily delayed and abandoned,” and recommended that it be completed by the board. The board acted on the suggestion, and, after the completion of the work and notice to and a demand upon the contractor, brought an action upon the bond against the contractor and the surety. At the trial of the action, the foregoing facts appeared, and there was evidence that B. had been chief engineer under the board of metropolitan sewerage commissioners, but that, after the consolidation of boards in 1901, one S. became chief engineer for the new board and B. “ was engineer to the metropolitan sewerage works " and was in charge of the work on the section to which the contract referred, that he was not an authorized agent of S. and that S. had no connection with him or his department. The presiding judge directed a verdict for the Commonwealth and the defendants excepted. Held, that the exception should be sustained, and that the judge should have ruled that it was not proved that any person within the definition of “ engineer ” stated in the contract made the required certificate to the board as to a breach of the contract.</p>

<p>Contract upon two bills of exchange. Writ in the Municipal Court of the City of Boston dated September 20, 1905.</p> <p>The declaration alleged as to each bill that the drawer, Lyon-Taylor Company, “ Endorsed said bill to the plaintiff for value and before maturity.” The indorsements upon the bills, in order, were as follows: “Pay J. C. Stouffer or order, Lyon-Taylor Co. by M. H. Taylor.” “ J. C. Stouffer.” “ Pay any Bank or Banker or order, Johnson County Savings Bank, Iowa City, Iowa, Wm. A. Fry, Cashier.”</p> <p>The answer specifically denied the signatures to the indorsements ; alleged fraud in the procuring of the defendant’s signature, and that the instruments were drawn and delivered without consideration; denied that “the instruments set forth in the plaintiff’s declaration were ever endorsed by the payee thereof and delivered to the payee or to any other person, and especially ” denied “ the signature of the payee therein.”</p> <p>There was a trial before Hardy, J. At the close of the plaintiff’s evidence, which is stated in the opinion, the defendant rested. Exceptions taken by the defendant to rulings and refusals to rule on the part of the presiding judge are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

Contract upon two promissory notes by the payees against the makers. Writ in the Municipal Court of the City of Boston dated January 5,1900.

<p>Negligence, Street railway.</p> <p>At the trial of an action brought by an aged woman against a street railway company to recover for injuries alleged to have been received by her through being thrown from a closed car of the defendant by its being suddenly started while, as a passenger, she was on the lowest step of the front platform attempting to enter the car, there was evidence tending to show that the plaintiff, having received a transfer from another car, was attempting to board the car from which she was thrown at a transfer station in order to complete her journey, that, after the car stopped, passengers alighted from, and other passengers were waiting to get on at, both the front and rear platforms, that she tried to enter the car at the front platform because it was nearer to her, and succeeded in getting on to the lowest step, where she was waiting,holding on to the “grab irons,” until passengers in front of her should get out of the way so that she could reach the platform and enter the car, when the car started with a jerk and she was thrown to the ground. Held, that there was evidence tending to show that the plaintiff was in the exercise of due care and that the' defendant’s employees were negligent; and, also, that the plaintiff did not as a matter of law assume the risk of injury attending a position such as she occupied, since, under the circumstance's, she had a right to rely on the assumption that the car would not be operated carelessly.</p>

<p>Two actions OB' tort, the first by the owner and operator of an automobile, to recover for injuries alleged to have been received by him by reason of a collision between the automobile and a train of the defendant at a grade crossing of Oliver Street with the defendant’s railroad in North Easton, the second by the daughter of the plaintiff in the first, who also was in the automobile. Writs in the Superior Court for the county of Norfolk dated April 20, 1906.</p> <p>The first count of the declaration alleged failure on the part of the defendant’s employee to ring a bell or blow a whistle as required by R. L. c. Ill, § 268, as the train approached the crossing, and the .second made general allegations of failure by the defendant to warn the plaintiff of the train’s approach. Other facts as to the pleadings are stated in the opinion.</p> <p>There was a trial before Crosby, J., who, at the close of the evidence, directed a verdict for the defendant on the second count, and the plaintiffs excepted.</p> <p>The first count was left to the jury, the presiding judge submitting to them the following questions, to which no objection was made by the plaintiffs: “ 1. Were the statutory signals given for the Oliver Street crossing, as required by law? 2. Were the plaintiffs guilty of gross or wilful negligence at the time of the collision, and did the same contribute to their injuries?” The jury answered “ Yes ” to both questions and found for the defendant.</p> <p>The only exception by the plaintiffs is to the direction of the verdict for the defendant upon the second count.</p>

<p>Practice, Civil, Verdict, Exceptions.</p> <p>Where a presiding judge, after a verdict for a plaintiff, on a motion by the defendant for a new trial granted the motion upon the condition that the defendant should elect within five days to have a new trial on the question of damages, only, and the defendant within the time named filed a paper signed by him making such election, and thereupon a new trial was had upon the question of damages only, the defendant’s liability being treated as admitted, and the jury returned a general verdict for the plaintiS covering the whole case, it was held, that the second verdict was the only one in force, the first verdict having been set aside by the order granting the new trial, and therefore that a bill of exceptions alleged by the defendant relating only to the proceedings which resulted in the first verdict must be dismissed.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a workman against a stevedore by whom he was employed, for injuries incurred while assisting to unload iron girders or beams from the hold of a vessel, from a beam falling upon him after it had been lifted out of the vessel and was being moved across the wharf on trucks, it appeared that the beam in being lowered from the ship had fallen flat upon the wharf and that it was necessary to move it to a place where it was to be deposited, that it,might have been moved safely by a “ bogie ” or platform truck, that instead of that the superintendent appeared and ordered the men “ to go to one end of the beam, and pick it up with trucks,” that in obedience to this order the men took common hand or baggage trucks with projecting blades, which they gradually inserted under the beam until they raised and lifted it upon the trucks, that the superintendent then directed them “to shove it along,” that accordingly the beam was wheeled to where it was to be deposited, that during this time the plaintiff had held the handles of a truck, but that when the beam was about to be deposited his place was taken by the superintendent, who ordered him to help lift or turn the beam over, that in obedience to this command the plaintiff took a position near the centre of the beam where he stood between two trucks, that he stooped over, placed his hands under the edge and lifted, but, while the beam was being turned or lifted over the wheels, its weight so pressed upon the blades that it caused the truck, of which the superintendent held the handles, suddenly to recoil, and the beam fell upon the plaintiff, causing his injuries. There was evidence on which the jury could have found that the “ bogie ” trucks previously used for moving this class of freight were without handles or blades and were much more suitable for this purpose, and that if the beam had been raised, by the use of a boom ordinarily used for the purpose or by the men themselves, upon a “ bogie ” truck, and then had been wheeled away in the usual manner, the accident would not have happened. It did not appear that the plaintiff ever had been called upon previously to assist in lifting a beam that had fallen. Held, that there was evidence for the jury that the plaintiff’s injuries were caused by the negligence of the defendant’s superintendent while exercising superintendence, and that the superintendent by momentarily holding the handles of the truck whose rebound caused the beam to fall did not cease to be such superintendent; also, that the plaintiff, in performing his work under the immediate supervision and express commands of the superintendent, had a right to rely on the assumption that a reasonably safe method for depositing the beam had been adopted and that while he was in a position where it was impossible for him to observe all the details of the situation the superintendent would take suitable precautions for his protection.</p> <p>A workman does not assume the risk of injuries caused by the negligence of a superintendent of his employer whom it is his duty to obey and upon whose judgment as to the method to be adopted when an emergency arises he has the right reasonably to depend.</p>

<p> Damages. Interest. </p> <p>The owners of unimproved land in the city of Boston, which would continue to be unavailable for years unless and until streets should be laid out and constructed, made with the city the following agreement: "We .... in consideration of the immediate laying out and construction of said proposed street at a width of fifty feet, under the provisions of c. 323, of the Acts of the year 1891 and acts in amendment or addition thereto, and of any assessments which may be laid upon our several estates for the cost of said laying out and construction being delayed until the damages caused to us severally by the taking of said land and the cost of construction of said street shall be determined, and of said damages being offset against the proportionate part of said cost which may be levied upon our respective estates, agree that the payment for the said damages shall be delayed until the balance due from us severally after making said offset has been determined.” Held, that under this agreement no claim was to be made on either side until the time had come for setting off the betterments against the damages and the balance had been struck, and that until then nothing was payable by either party, so that the landowners could claim no interest on the amounts respectively awarded to them as damages for the period before the offset of betterments was made.</p>

<p> Railroad. County Commissioners. Certiorari. </p> <p>Upon a petition of the mayor and aldermen of a city under R. L. c. Ill, § 132, averring that a railroad so crosses a public way as to obstruct it contrary to law, and that the corporation maintaining the railroad refuses and neglects to keep in repair a bridge or other structure which is required and necessary at such crossing, the county commissioners have no jurisdiction to order a separation of the grades of the railroad and the way at the crossing.</p> <p>If an order made by the county commissioners upon the petition of the mayor and aldermen of a city under R. L. c. Ill, § 134, which gives the commissioners authority to prescribe the manner and limits within which an alteration shall be made in a crossing of a public way and a railroad, the approaches thereto, the location of the railroad or way or in a bridge at the crossing, when the alteration does not involve the abolition of a crossing at grade, makes no reference to the taking of any land, although the carrying out of the order would require the taking of considerable land, and the plan referred to in the order does not show where the lines of the street to be constructed are with reference to the existing street or how much land is to be taken on one side or how much on the other, if land is to be taken, and there is nothing to show whether the filling of the space between the, bridge to be constructed and another bridge is to be supported by sloping embankments of earth or by retaining walls, and certain sidewalks are designated without anything to indicate the material of which they are to be constructed, and the plan also contains other uncertainties, the order is too indefinite to meet the requirements of the statute and is void.</p> <p>Where two petitions for writs of certiorari to quash orders made by a board of county commissioners were considered together by this court, each order purporting to authorize the construction of a railroad bridge over a highway, the locations of the proposed bridges being on the same street about one hundred and fifty feet apart, one of them being upon a branch road and the other upon the main line of the same railroad company, the two orders having been made at the same time as parts of a single scheme which called for the construction of a steel bridge in each location, and the order relating to the bridge on the branch road plainly was void as beyond the jurisdiction of the commissioners, while the order relating to the bridge on the main line was too indefinite to meet the requirements of the statute under which it was made, it was intimated that, even if the errors and omissions in the last named order had not been fatal, this court would have hesitated to sustain that order when the result of carrying it out with the other order quashed would be useless and undesirable.</p> <p>Under St. 1902, c. 544, § 27, which provides that on a petition for a writ of certiorari the court at any time after the petition is presented “ may order the proceedings brought up; and after they are brought up, may quash or affirm them, or may make such order, judgment or decree as law and justice may require,” this court, even if otherwise the case were an appropriate one for such a procedure, would not exercise the powers given by the statute to order the record brought up for its action for the purpose of making a decree which would produce a result useless and undesirable.</p>

<p> JReceiver. Attachment. United States Courts. </p> <p>The provision of R. L. c. 167, § 126, that “ an attachment of property on mesne process shall he dissolved by the appointment by .any court of competent jurisdiction in this Commonwealth of a receiver to take possession of such property,” does not apply to an appointment of a receiver made in this Commonwealth by a federal court.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff by reason of his being thrown from the rear platform of a street car of the defendant because it was run too rapidly around a curve. Writ in the Superior Court for the county of Suffolk dated December 30, 1904.</p> <p>There was a trial before Hardy, J. At the close of the evidence, and before the judge’s charge, the plaintiff made the following requests for rulings: “ (1) Passengers on street cars are not required to expect that on turning a curve in the street that the car will be driven at a rapid rate, but on the contrary they may reasonably expect a careful driver to slacken the speed of the car. (2) Passengers have a right to believe that the car will be operated in view of the fact that some of the passengers may be standing in the car or on the platform.”</p> <p>At the close of the charge, under the circumstances stated in the opinion, the plaintiff made the following further requests for rulings:</p> <p>“ (3) There is no evidence in the case that the plaintiff had rheumatism; the testimony as to what Mrs. Zamore said respecting rheumatism, if made, can only be considered to affect her credibility and not to prove the fact that the plaintiff had rheumatism. (4) It is not necessary for plaintiff to show that the rate of speed rounding the curve was unusual or extraordinary if it was moved at such a rate of speed round the curve as to make it likely to throw people off standing on the rear platform, in what the jury would consider a safe position. (5) The plaintiff was not bound to anticipate that the car might be run at an unusual rate of speed either before reaching the curve or while rounding it, even though the jury may find that he heard the conductor tell the motorman that they were three or four minutes late. (6) Passengers have a right to believe that the car will be operated in view of the fact that some of the passengers are or may be standing in the car or on the platform, provided such position was reasonably safe.”</p> <p>As stated in the opinion, the presiding judge refused to give “ any further instructions,” there was a verdict for the defendant, and the plaintiff excepted.</p>

<p>Contract, Consideration. Mortgage. Accord and Satisfaction.</p> <p>At the trial of an action of contract by a mortgagee to recover from the mortgagor a balance alleged to be due upon the mortgage note after a foreclosure sale, it appeared that the mortgage contained a power of sale and agreements that the mortgagee might purchase at the foreclosure sale, that the mortgagor should pay all reasonable expenses of the foreclosure, and that, if the net proceeds of the sale exceeded the amount due on the debt secured by the mortgage, such excess should be paid to the mortgagor. A breach of the mortgage occurred in November, an entry was made by the mortgagee on the January 30 following, and a foreclosure sale occurred on February 29, at which the property was sold to the plaintiff for less than the amount due on the note. The mortgagor relied in defense upon an alleged accord and satisfaction by an agreement with the mortgagee, and introduced evidence tending to show that, on the day before the mortgagee’s entry, an agreement was made whereby the defendant should pay the expense of foreclosure proceedings, and, if the proceeds of the sale were more than the amount due on the note, the plaintiff should pay the excess to the defendant, but, if they were less, the note should be cancelled, and that the plaintiff was to collect the rents from the last day of the preceding month. The presiding judge ruled that the “alleged agreement, if made, was without consideration.” Held, that the ruling was erroneous, since the fact, if true, that the defendant by agreement gave the plaintiff the right to collect the rents due before the date of the plaintiff’s entry, was sufficient consideration for the agreement of accord and satisfaction.</p>