Volume 199 — Massachusetts Reports

<p>Contract under R. L. c. 33, § 44, to recover money paid by the plaintiff’s intestate to the defendant for land informally sold and conveyed to him. Writ in the Superior Court for the county of Middlesex dated March 30,1907.</p> <p>There was a trial before Pierce, J., without a jury, who made findings of fact and found generally for the plaintiff. His findings of fact and the questions of law raised by his rulings and the exceptions of the defendant thereto are stated in the opinion.</p>

<p>Tax, Assessment, Street Watering, Abatement. Statute. Certiorari.</p> <p>R. L. c. 26, §§ 26, 27, providing for a tax upon estates abutting upon streets which a city has determined to water, is not unconstitutional in not giving the owner of such an estate an opportunity to be heard in regard to the assessment, since § 27 provides that such assessment in many specified particulars shall be like the annual tax upon property and “ shall be a part of the tax for that year on such ” estates, “ but the assessors shall make no abatement thereof except upon the recommendation of the board or officer by whom,” under § 26, a list, containing information for their guidance in making the assessment, was certified to them; and thus by implication gives to persons assessed a right to be heard before the assessors upon an application for an abatement, and also a right, upon an application for a recommendation of an abatement to the board or officer who certified the list to the assessor, to be heard upon all questions affecting the validity and amount of the assessment, and it is the duty of such board or officer to give the recommendation, and the duty of the assessors to make the abatement, if, upon a hearing, the assessment seems to be unwarranted or excessive.</p> <p>An assessment of a tax for street watering, assumed to have been made under R. L. c. 26, §§ 26, 27, upon vacant, unimproved land is illegal, and, upon application made to the assessors for an abatement and to the board or officer, whom the board of aldermen had designated to certify to the assessors for their guidance in assessing the tax the lists specified in § 26, for a recommendation of an abatement, it would be the duty of such board or officer to make the recommendation, and of the assessors to make the abatement.</p> <p>Where assessments of a tax for street watering have been made under R. L. c. 26, §§ 26, 27, according to the linear feet of frontage upon the streets watered of various parcels of land of different sizes and shapes, situated in different portions of a city under different conditions of travel, occupation and population and upon streets of varying widths, while full effect must be given in all ordinary cases to the legislative determination that such assessment, where conditions are similar, is as nearly proportional and equal as is reasonably practicable, nevertheless, if it appears that an assessment made in this way will impose upon any property a liability substantially in excess of the special benefits conferred, such an assessment cannot lawfully be made.</p> <p>At the hearing of a petition for a writ of certiorari to quash an assessment of a tax for street watering assumed to have been made under R. L. c. 26, §§ 26, 27, by a city, it appeared that the total tax assessed for this purpose was $34,000, of which $564 was assessed upon estates of the petitioners, that the estates of the petitioners were parcels of land of different sizes and shapes, situated in different portions of the city, under different conditions of travel, occupation and population and on streets of varying widths, that $19 of the tax was assessed illegally on the land of one of the petitioners because the land was vacant and unimproved. Held, that there was not shown such a departure from the correct application of the statute as to require the quashing of the entire assessment as illegal, and that the petitioners had no remedy except by proceedings for an abatement.</p> <p>Assuming to act under the provisions of R. L. c. 26, § 26, the board of aldermen of a city, without first having determined by vote that the whole or any part of the streets of the city should be watered at the expense of the abutters, passed an order on March 5 of a certain year estimating the expense of the watering as $40,000, directing that four fifths of the expense be borne by abutters and that the rate of the tax assessed be four cents per linear foot of frontage upon the abutting estates, and designating the superintendent of streets as the officer to determine the amount of the assessment upon each estate and to make the lists required by § 26 and to commit them to the assessors. The vote was approved by the mayor on March 7. On April 2 the board of aldermen adopted an order determining that “ all the public ways within the limits of the city ” should be watered. At some time before September 16, the exact date not more definitely appearing, the superintendent of streets made the lists required by § 26 but kept them in his office, which was directly under that of the assessors, where the latter had access to them. The assessors had upon their own books all of the details contained in the superintendent’s books. The assessors made an assessment upon abutters amounting to $34,278.58 on August 31, at the rate of four cents per linear foot. On September 16 the superintendent of streets gave to the assessors a certificate that “ the amount of street watering assessment as shown by the detailed books in this office is $34,278.58,” and stated the amount to be assessed by wards. It appeared that the net expense of such watering was $38,440.66, which included the value of water used for the purpose from the city's waterworks, $8,273.52. Held, that no such irregularity appeared in the assessment as to justify the issuance of a writ of certiorari quashing it.</p> <p>In making the estimate of the cost of watering the streets of a city for the purpose of an assessment upon abutters under R. L. c. 26, §§ 26, 27, it is proper to include the value of water used from the city’s waterworks by the department which had charge of the watering, although there never was any charge made as to such water as between the departments.</p>

Contract to recover the value of professional services as an attorney at law alleged to have been rendered to the defendant by the plaintiff from March, 1904, to January, 1905. Writ in the Superior Court for the county of Norfolk dated January 19,1905.

<p>Contract, Construction, Performance and breach. Evidence, Extrinsic affecting writings, Admitted without objection, Admissions and confessions. Waiver. Practice, Civil, Rulings and instructions. Agency, Authority to make admissions. Corporations. Damages.</p> <p>A contract in writing for the sale and delivery of coal began as follows: “ We have this day sold you fifty thousand tons bituminous coal to be shipped as follows: twenty five hundred tons per month from September 1,1902, until April 1, 1903, at price of $2.80 per gross ton . . ., balance of tonnage, about thirty two thousand five hundred tons, to be shipped in about equal proportions between April 1 and September 1, 1903, at the price of $2.60 per gross ton.” A subsequent provision was as follows : “ Should we fail to ship to you the full tonnage due to you from September 1,1902, to April 1, 1903, in about equal monthly quotas, we authorize you to go into the open market and buy any balance unshipped, sending us bill for the difference in price, if any.” Held, that by this agreement the seller was bound to ship at least twenty-five hundred tons of coal in each month from September 1,1902, to April 1,1903; that the words “in about equal monthly quotas ” as used in the clause providing a mode for the assessment of damages could not control the express stipulation with which the contract opened, the clause being inserted, not for the purpose of defining the obligation of the seller as to shipments, but to provide a ready means of settling the damages in case of a breach of the contract, and that the utmost effect that could be given to the words “in about equal monthly quotas” would be to treat them as giving the seller liberty to ship somewhat more than twenty-five hundred tons in any particular month.</p> <p>In an action for the alleged breach of a contract in writing for the sale and shipment of a certain amount of coal in each month during a period named, the correspondence and negotiations of the parties before the making of the contract may be competent, under the circumstances of the particular case, as an aid in construing the language in which the parties finally embodied their agreement, by enabling the court to understand the subject matter of the contract as it lay in the minds of the parties and thus to determine the meaning which they put upon any doubtful or ambiguous terms they may have used; but merely tentative offers made by either party while they were endeavoring to reach an agreement cannot control the plain meaning of their contract as finally concluded.</p> <p>In an action for damages incurred by reason of the alleged failure of the defendant to deliver coal to the plaintiff at the times and in the amounts required by the terms of a contract in writing, under which the defendant was bound to ship to the plaintiff at least twenty-five hundred tons of coal “f. o. b. vessel ” at a port named in each month during a period named, where it appeared that there was no storage for coal on the piers from which the coal was shipped, that a vessel arriving for coal anchored in the stream to await her turn to load, that when she took her place at the piers the coal was dumped into her from the railroad cars which brought it from the mines, that when the vessel was loaded she left the piers, and the coal, then and not before, was billed by the defendant to the plaintiff, it was held, supporting the findings and rulings of an auditor as adopted by the trial judge, that the meaning of the contract was that the defendant should place twenty-five hundred tons of coal each month on vessels to be furnished by the plaintiff, so that the vessel or vessels during the month could sail for their destination with at least twenty-five hundred tons, that it was the duty of the plaintiff to furnish each month vessels capable of carrying the twenty-five hundred tons, and that a failure to do so would excuse the defendant, that, if the plaintiff in any month sent a vessel capable of carrying more than twenty-five hundred tons, the defendant’s obligation for that month ceased upon its loading the twenty-five hundred tons into the vessel during the month, and, if the plaintiff saw fit to hold the vessel over for a full cargo, it could not show any breach of the defendant’s contract for that month, but that the dates of the respective shipments were the dates when the vessels were loaded and ready to sail and were not the dates when portions of the coal were dumped into a vessel from time to time before she was loaded sufficiently to be ready to sail.</p> <p>In an action for damages incurred by reason of the alleged failure of the defendant to deliver coal to the plaintiff at the times and in the amounts required by the terms of a contract in writing which contained a clause making the delivery of coal subject to causes beyond the defendant’s control, if it appears that the defendant failed to make the deliveries at the times required by the contract but afterwards shipped substantially all the coal stipulated for and that the plaintiff received and paid for it without any reservation or claim for damages on account of delay, and made statements of satisfaction with the conduct of the defendant, this does not constitute, as matter of law, a waiver of the plaintiff’s claim for damages for breach of contract if it also appears that the acts and statements of the plaintiff, relied on to show a waiver, were done and made when the plaintiff supposed that the defendant unavoidably had been prevented by a scarcity of coal from making its deliveries more promptly, and when the plaintiff was ignorant of the fact, afterward discovered by it, that during the period in which the defendant failed to make the deliveries of coal to the plaintiff called for by the contract it was making deliveries to other persons, which it was not under obligation to make, of coal more than sufficient in amount to comply with the requirements of the contract.</p> <p>Where a seller has agreed to deliver goods in specified amounts at certain times, and fails to comply with the terms of his contract as to the times at which the specified amounts shall be delivered, but ultimately delivers all the goods stipulated for by the contract, the buyer by taking what he can get under the contract when he can get it does not necessarily, as matter of law, waive his claim for damages for a failure to make the deliveries at the agreed times and in the agreed quantities.</p> <p>The proprietor of a coal mine agreed in writing with a coal merchant to ship to him at a price named twenty-five hundred tons of coal in each month from September 1, 1902, until April 1, 1903. The contract contained the following provision : “ Should we fail to ship you the full tonnage due you from September 1, 1902, to April 1, 1903, in about equal monthly quotas, we authorize you to go out into the open market and buy any balance unshipped, sending us the bill for the difference in price, if any.” Held, that the provision quoted was inserted for the benefit of the buyer and gave him a privilege to be exercised at his option, and was not provided as the exclusive means for ascertaining or liquidating the buyer’s damages in case of a failure of the seller to ship the required amount of coal in each month during the period named, so that, in case of such a breach of the contract by the seller, the buyer did not waive his claim for damages by failing to buy coal to fill the deficiencies and sending bills to the seller for the difference in price.</p> <p>In an action by a coal dealer against the owner of mines of bituminous coal for the alleged breach of a contract in writing for the sale and shipment of a certain amount of coal in each month during a period named, it appeared that there were printed at the head of the paper on which the contract was written the words “Sales subject to strikes, accident or causes beyond our control.” In the body of the contract were the words “ in case of strikes at the mines then such portion as should have been shipped during that period is to be cancelled.” During the period in which the deliveries were required there was a strike in anthracite coal mines which seriously affected the coal business in regard to bituminous as well as to anthracite coal. The judge ruled that the words “Sales subject to strikes, accident or causes beyond our control” at the head of the paper formed a part of the contract, and added “ but the word ‘ strikes ’ means strikes at the defendant’s mines.” The judge refused a request of the defendant to rule that “Upon the evidence at the time of making the contract there was an established custom in the coal trade in Pennsylvania that all sales were subject to strikes, accident, and causes beyond the control of the seller.” The judge, however, did rule that “ Upon the evidence the delivery of coal by the defendant under its contract was subject to strikes, accident, and causes beyond its control,” although he found as a fact that the defendant did not bring itself within the terms of the request. Held, that the ruling last quoted and the finding of fact by the judge, made it unnecessary to pass upon the judge’s ruling that the word “ strikes,” in the sentence at the head of the paper meant strikes at the defendant’s mines or upon his refusal to make the ruling requested in regard to the existence of the alleged custom, as the defendant could not have been aggrieved by this ruling and refusal to rule whether they were correct or not.</p> <p>In an action by a coal dealer against the owner of coal mines for the alleged breach of a contract in writing for the sale and shipment of a certain amount of coal in each month during a period named, the contract containing a clause ' making the deliveries of coal subject to strikes, accident and causes beyond the control of the defendant, the trial judge ruled in substance that the defendant would not be liable for deficiencies on its part which were due to a strike or a shortage of cars or other causes beyond its own control, if under the circumstances it had treated the plaintiff fairly and ratably with reference to the various other parties with whom it was dealing, and that the defendant was not bound under the terms of the agreement to deliver to the plaintiff the whole amount of its order to the exclusion of other customers entitled to receive coal under contracts with the defendant. The judge added the following: “ But when the defendant was in default to the plaintiff, or when it became reasonably apparent to the defendant that it could not supply the coal called for under its contract with the plaintiff, it could not then enter into new obligations and rely upon deliveries of coal in fulfilment of such obligations to support its defense that its default to the plaintiff arose from causes beyond its control.” Held, that the general ruling was correct, and that the additional ruling also was correct.</p> <p>Where at a trial relevant evidence has been admitted without objection it has become a part of the case even if it might have been excluded upon objection.</p> <p>If the president of a corporation, who is its chief executive officer, makes a statenient in a letter, written by him in his official capacity in conducting the business of the corporation, upon a matter which naturally would be within his personal knowledge, his statement is admissible in evidence in an action against the corporation in which the statement is relevant as an admission of the defendant.</p> <p>In an action for the alleged breach of a contract in writing for the sale and shipment at a port named of a certain amount of coal in each month during a specified period, where it is admitted by the defendant that the plaintiff was bound to have vessels at certain piers at the times when the defendant ought to have delivered the coal, if it appears that the defendant did not supply coal for these vessels to the extent and at the times required by the contract, the plaintiff is entitled to recover as an element of his damages any payments for demurrage, incurred by him under reasonable contracts with the owners of vessels, which are found to have been a direct and natural consequence of the defendant’s failure to furnish the coal on time.</p>

<p>Practice, Criminal, Placing indictment or complaint on file, Probation- Placing on Pile. Probation. Statute.</p> <p>An indictment or complaint cannot lawfully be placed on file without the consent of the defendant, who has a right to have his case finally disposed of without unreasonable delay.</p> <p>Although the provisions of R. L. c. 217, § 84, c. 220, § 2, in regard to putting persons charged with crime upon probation, do not say in terms that, if after a season of probation the object of the probation seems to be accomplished in such a way as not to require any punishment of the defendant, either for his own reformation or in the interests of the public, the court may dispose finally of the case by dismissing it, such a power is required for the exercise of the large discretion conferred upon the courts by the statute and is given by necessary implication.</p>

<p>Contract for wages for services as foreman of the yard of the health department of the defendant from March 28, 1907, to the date of the-writ. Writ dated July 17, 1907.</p> <p>At the trial in the Superior Court before Bell, J., the facts appeared in evidence which are stated in the opinion or are there referred to as warranting the findings stated. At the close of the evidence the defendant asked the judge to make the following rulings, besides others which have become immaterial:</p> <p>“ 1. On all the evidence the plaintiff is not entitled to recover.</p> <p>“ 2. The records of the board of health are conclusive upon the question as to the reason why the position of yard foreman was abolished, if it was abolished, and we cannot go behind them.”</p> <p>“5. The position of foreman of the yard in the Lowell health department is an ‘ office,’ which could be abolished by the board of health.”</p> <p>The judge refused to make any of these rulings. He submitted the following questions to the jury, which the jury answered as stated after each:</p> <p>“ 1. Was the vote of March 28, 1907, abolishing the position of yard foreman, a mere pretext or device to get rid of the plaintiff?” “ Yes.”</p> <p>“2. Was said vote passed in good faith on grounds of economy ? ” “ No.”</p> <p>“ 3. Were the duties of the office substantially transferred to some other person employed for the purpose of taking them ? ” “No.”</p> <p>“ 4. Was the action of the board of health taken because of the plaintiff’s refusal to render some political service ? ” “ Yes.”</p> <p>The amount of damages being agreed upon by counsel for both parties, the judge ordered a verdict for the plaintiff in the sum of $293, and, at the request of the defendant, reported the case for determination by this court. If the rulings of the judge were erroneous in law, a new trial was to be granted; otherwise, judgment was to be rendered on the verdict.</p>

<p> Attorney at Law. Agency. Partnership. </p> <p>An attorney at law, who is retained generally by a client to render such services as the client may need from time to time, is not the agent of such client to receive notice of the withdrawal of one of the members of a firm to whom the client is about to sell goods, where the attorney at the time he receives the information is not acting for the client in any way and does not know that such client has any business relations with the firm, and does not learn of such relations until after the client has sold the goods to the firm; so that, in an action for the price of the goods sold and delivered brought by the client against the members of the firm including the retiring partner, such knowledge of the attorney is no evidence of notice to the client of the withdrawal of the partner from the firm.</p> <p>In an action for the price of goods sold and delivered against the members of a partnership including as an ostensible member one who had retired from the firm before the goods were purchased, it is no evidence of notice to the plaintiff of the withdrawal of this partner from the firm that an attorney at law, who was retained generally by the plaintiff to render such services as the plaintiff might need from time to time but who had no knowledge of the sale of the goods by the plaintiff to .the defendants, said a few days after the date of the sale of the first item of goods in the plaintiff’s account, that all the creditors knew that the retiring partner was out, how he got out and when he got out, for, even if this statement has been admitted without objection instead of being excluded as hearsay, it is too indefinite to show any notice to the plaintiff of the withdrawal of the partner, where there is nothing to show that the attorney at law in speaking generally of the knowledge of creditors had had any reason to suppose that the plaintiff was among the creditors or that he referred to the plaintiff in any way in making the statement.</p>

<p>Indictment, found and returned in the Superior Court in the county of Suffolk on May 11, 1907, under R. L. "c. 208, § 41, charging that Thomas Johnson, John Harris, William Dolan, John Williams, Frederick Dickerson and John Owens on March 24, 1907, at Boston “ knowingly did have in their possession certain machines, tools and implements adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom such money and other property as might be found therein, the said Johnson, Harris, Dolan, Williams, Dickerson and Owens knowing said machines, tools, and implements to be adapted and designed for the purpose aforesaid, and intending to use and employ them therefor.”</p> <p>At the trial in the Superior Court before Bond, J., the jury returned a verdict of guilty against each of the six defendants; and the defendants alleged exceptions, the judge making an order staying the execution of the sentences he had imposed until further order of the court.</p> <p>The case was submitted on briefs.</p>

<p>Two actions of toet. Writs in the Superior Court for the county of Middlesex dated April 10, 1906.</p> <p>The cases were tried together before Hardy, J., who, at the close of the plaintiffs’ evidence, ordered a verdict for the defendant, and the plaintiffs alleged exceptions.</p> <p>The facts are stated in the opinion.</p>

<p>Contract by the receiver of the First National Bank of Chelsea to recover from the defendant, as a shareholder therein, an assessment levied by the comptroller of the currency under U. S. Rev. Sts. §§ 5151, 5234. Writ in the Superior Court for the county of Suffolk dated March 5,1907.</p> <p>At the trial, which was before Hardy, J., evidence was introduced as stated in the opinion, and he directed a verdict for the defendant and, at the request of the parties, reported the case for the consideration of this court.</p>

<p>Contract by the assignee of a contract in writing for the conveyance of land by the defendant to Alfred A. Marcus and Son, for breach of the contract in failure to convey. Writ in the Superior Court for the county of Suffolk dated February 7, 1903.</p> <p>There was a trial before Fox, J., without a jury. The terms of the contract required that Marcus and Son should pay to the defendant $1,000 on or before February 1, 1903. Other facts are stated in the opinion. The judge found- that the contract was duly executed and was sufficient, but, in response to a request for a ruling, which was the fifth request, that, “ if H. A. Howard agreed to accept a check for $1,000 as compliance on the part of the plaintiff to the terms of the contract upon the return of the deed, it is not necessary for the plaintiff to show a further tender of $1,000 before February 1, 1903, to enable him to recover in this action,” he ruled, “ There is no evidence of any tender either of check or cash ”; and refused to rule that, “ (7) upon all the evidence in the case there was evidence sufficient to warrant the court in finding that a valid contract was entered into between the defendant with Marcus; that such contract had been violated and that the plaintiff was entitled to recover damages for the breach of the contoact,” or that, “ (8) upon all the evidence in the case the finding should be for the plaintiff.” There was a finding for the defendant and the plaintiff alleged exceptions.</p>

<p>Witness, Cross-examination. Negligence, Street railway. Carrier, Of passengers.</p> <p>At the trial of an action of tort against a street railway company for injuries alleged to have been received by the plaintiff by reason of his having been assaulted by the conductor of a car, upon which he was a passenger, and expelled . therefrom with an unwarranted use of force, it appeared that the conductor, whose testimony tended to prove facts inconsistent with the plaintiff’s allegations, had made no report of the accident to the defendant. The conductor testified in cross-examination that he had made no report because he considered the affair insignificant and that, under the defendant’s rules, whether or not a conductor should make a report was left to his discretion. Against the objeotian and subject to exception by the defendant, he then was asked: “Don’t you understand there is a rule applying to conductors that they shall make a report of an accident, no matter how insignificant 1 ” and answered “ Yes.” Held, that the question was allowable in cross-examination as bearing on the conductor’s real understanding of the rule, and thus to discredit his entire testimony.</p> <p>If, after having discharged all its passengers at the end of its route, a street railway car has started without passengers to return to the car barn, there is, while it is in motion, no oiler to accept any one as a passenger, and one who persists in an attempt to enter the car, understanding that the conductor refuses to receive him as such, and takes hold of the “ grab irons ” by the entrance steps, is a trespasser, and the conductor has a right to use a reasonable degree of force to prevent him from entering the car or continuing his hold upon it.</p>

<p>Tort for the alleged conversion of household furniture of the plaintiff by an agent of the defendant. Writ in the Municipal Court of the City of Boston dated November 1, 1904.</p> <p>On appeal, there was a trial before Wait, J. The evidence introduced on behalf of the plaintiff tended to show that her husband sought of the defendant a loan upon household furniture situated where he and his wife lived, that a representative of the defendant went to the house in the absence of the plaintiff and examined the furniture, that the husband at that time signed a mortgage of the furniture which was left with him to procure thereon the signature of the plaintiff, that thereafter the husband brought the mortgage to the defendant with what purported to be the plaintiff’s signature thereon, but that the plaintiff did not know that the mortgage was made and had not signed it.</p> <p>In default of payment of the amount due on the mortgage note, the defendant gave the mortgage and note to one Mitchell to whom the defendant testified that he gave no other instructions than that he “ told him to collect.” On cross-examinatian, however, the defendant stated that he would not say that he gave to Mitchell a general power of attorney to look after all matters of that kind for him, nor would he say that testimony of a witness for the plaintiff, that he had seen a power of attorney in the hands of Mitchell signed by the defendant and authorizing Mitchell’s acts, was false. The defendant also testified that Mitchell was “ what you might call a professional fore-closer,” and that he foreclosed most of the defendant’s mortgages for him. In response to a question as to whether or not, in this case, he “ backed up ” Mitchell’s actions, the defendant stated, “Well, I said I should not have anything to do with it at all.— Q. By that you mean that the matter was entirely in the hands of Mr. Mitchell, and what he did you would stand up to; isn’t that exactly what you mean ? A. Well, I suppose he knew what he was doing — Q. Yes. A. — and had a right to do it. — Q. And, relying upon that supposition, you were perfectly willing to leave it to him and let him do as he pleased ? A. Yes, sir.”</p> <p>It also appeared that, after he placed the matter in Mitchell’s hands, the defendant had no further knowledge of what was done by Mitchell, until demand was made upon the defendant by the plaintiff’s attorney for return of the property, which he refused to do.</p> <p>There also was evidence tending to show that, after the foreclosure, the plaintiff, though denying her signature, and the validity of the mortgage as binding her, after trying, without success, for six weeks every means that she or her counsel could devise to get possession of said furniture without bringing any action, paid to the defendant, under protest, the amount due upon said mortgage, together with some costs and expenses connected with the foreclosure of the same, and the goods were returned to her.</p> <p>At the close of the evidence, the defendant requested the following rulings : “ (1) If the plaintiff knew of the existence of the mortgage, and that her husband’s name was signed thereto, and knew that the defendant claimed by virtue of the mortgage, and afterward paid the defendant the amount due thereon, and got a discharge of the mortgage, and received the goods back to herself, then the plaintiff ratified the mortgage, and she cannot recover. (2) If the defendant gave the mortgage and note to an attorney, with the simple instruction to collect the amount due, and took no further part in the proceedings, he is not responsible for the mistake or tort of his attorney.”</p> <p>The requests were refused, there was a verdict for the plaintiff and the defendant alleged exceptions.</p> <p>Other facts are stated in the opinion.</p>

<p>Contract to recover a balance of $17,994.14 alleged to be due under a contract in writing for the construction of a six story brick factory building on land of the defendant on Massachusetts Avenue at the corner of Magazine Street in Boston, with a second count upon an account annexed for the same sum of money. Writ in the Supreme Judicial Court dated January 19, 1904.</p> <p>The defendant filed an answer containing a general denial and matter in recoupment, and also filed a declaration in set-off.</p> <p>The contract declared on was as follows:</p> <p>“ This Agreement, made the thirtieth day of January in the year one thousand nine hundred and two by and between the Norcross Brothers Company, a corporation duly organized under the laws of the Commonwealth of Massachusetts, party of the first part (hereinafter designated the Contractor), and Julian W. Vose of Boston, County of Suffolk and said Commonwealth, party of the second part (hereinafter designated the Owner),</p> <p>“ Witnesseth that" the Contractor, in consideration of the fulfillment of the agreements herein made by the Owner, agrees with the said Owner, as follows:</p> <p>“ Article I. The Contractor under the direction and to the satisfaction of Harrison H. Atwood, Architect, acting for the purposes of this contract as agents of the said Owner, shall and will provide all the materials and perform all the work mentioned in the specifications and shown on the drawings prepared by the said architect for the construction and completion of a six story brick factory building with power and dry houses in connection therewith on land owned by the said Owner, and situated on Massachusetts Avenue, at the corner of Magazine Street (North) Ward 17, in said city of Boston, which drawings and specifications are identified by the signatures of the parties hereto.</p> <p>“Article II. The Architect shall furnish to the Contractor such further drawings or explanations as may be necessary to detail and illustrate the work to be done, and the Contractor shall conform to the same as part of this contract so far as they may be consistent with the original drawings and specifications referred to and identified, as provided in Art. I.</p> <p>“ It is mutually understood and agreed that all drawings and specifications are and remain the property of .the Architect.</p> <p>“ Art. III. No alterations shall be made in the work shown or described by the drawings and specifications, except upon a written order of the Architect, and when so made, the value of the work added or omitted shall be computed by the Architect, and the amount so ascertained shall be added to or deducted from the contract price. In the case of dissent from such award by either party hereto, the valuation of the work added or omitted shall be referred to three (3) disinterested Arbitrators, one to be appointed by each of the parties to this contract; and the third by the two thus Chosen; the decision of any two of whom shall be final and binding, and each of the parties hereto shall pay one-half of the expenses of such reference.</p> <p>“Art. IY. The contractor shall provide sufficient, safe and proper facilities at all times for the inspection of the work' by the Architect or his authorized representatives. He shall, within twenty-four hours after receiving written notice from the Architects to that effect, proceed to remove from the grounds or buildings all materials condemned by them, whether worked or unworked, and to take down all portions of the work which the Architect shall by, like written notice condemn as unsound or improper, or as in any way failing to conform to the drawings and -specifications.</p> <p>“ Art. Y. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the Architect, the Owner shall be at liberty, after ten days written notice to the Contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the Contractor under this contract; and if the Architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the Owner shall be at liberty to terminate the employment of the Contractor for the said work and to enter upon the premises and take possession, for the purpose of completing the work comprehended under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the Contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the Owner in finishing the work, such excess shall be paid by the Owner to the Contractor, but if such expense shall exceed such unpaid balance, the Contractor shall pay the difference to the Owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the Architect, whose certificate thereof shall be conclusive upon the parties.</p> <p>“ Art. VI. The Contractor shall complete the whole of the work comprehended in this Agreement by September 1st, 1902, in the event of failure on the part of the Contractor to so complete the whole of said work at the time herein before stated, the contractor shall allow and pay the Owner at the rate of fifty dollars ($50.00) for each and every day after said September 1st, 1902, until the whole of said work is fully completed, provided that should the Contractor complete the whole of said work before September 1st, 1902, then the owner shall allow and pay the Contractor at the rate of fifty dollars ($50.00) for each and every day prior to said September 1st, 1902, that the said work is so fully completed.</p> <p>“ Art. VII. Should the Contractor be obstructed or delayed in the prosecution or completion of his work by the act, neglect, delay or default of the Owner, or the Architect, or of any other Contractor employed by the Owner upon the work, or by any damage which may happen by fire, lightning, earthquake or cyclone, or by the abandonment of the work by the employees through no default of the Contractor, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid; but no such allowance shall be made unless a claim therefor is presented in writing to the Architect within twenty-four hours of the occurrence of such delay. The duration of such extension shall be certified to by the Architect, but appeal from his decision may be made to arbitration, as provided in Art. Ill of this contract.</p> <p>“ Art. VIII. The Owner agrees to provide all labor and materials not included in this contract in such- manner as not to delay the material progress of the work, and in the event of failure so to do, thereby causing loss to the Contractor, agrees that he will reimburse the Contractor for such loss; and the Contractor agrees that if he shall delay the material progress of the work so as to cause any damage for which the Owner shall become liable (as above stated), then he shall make good to the Owner any such damage. The amount of such loss or damage to either party hereto shall, in every case, be fixed and determined by the Architect or by arbitration, as provided in Art. Ill of this contract.</p> <p>“ Art. IX. It is hereby mutually agreed between the parties hereto that the sum to be paid by the Owner to the Contractor for said work and materials shall be ($135,000.00), One hundred and thirty five thousand dollars subject to additions and deductions as hereinbefore provided, and that such sum shall be paid in current funds by the Owner to the Contractor in installments, as follows: ninety per cent of the value of work performed and materials delivered at the site, to be paid in monthly payments or at such other times as may be mutually agreed upon by the Owner and Contractor.</p> <p>“ The final payment shall be made within thirty-five days after this contract is fulfilled.</p> <p>“ All payments shall be made upon written certificates of the Architect to the effect that such payments have become due.</p> <p>“ If at any time there shall be evidence of any lien or claim for which, if established, the Owner of the said premises might become liable, and which is chargeable to the Contractor, the Owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such claim after all payments are made, the Contractor shall refund to the Owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the Contractor’s fault.</p> <p>“ Art. X. It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.</p> <p>“Art. XI. The Owner may during the progress of the work maintain full insurance on said work, in his own name and in the name of the Contractor, against loss or damage by fire. The policies shall cover all work incorporated in the building, and all materials for the same in or about the premises, and shall be made payable to the parties hereto, as their interest may appear.</p> <p>“ Art. XII. The said parties for themselves, their heirs, executors, administrators and assigns, do hereby agree to the full performance of the covenants herein contained.</p> <p>“In Witness Whereof,the parties to these presents have hereunto set their hands and seals, the day and year first above written.</p> <p>“ The Norcross Brothers Co. [seal]</p> <p>By Freelon Morris [seal]</p> <p>Julian W. Vose [seal]</p> <p>“ In presence of .”</p> <p>The account annexed to the declaration in set-off was as follows:</p> <p>' “ Norcross Brothers Company.</p> <p>“ To Julian W. Vose Dr.</p> <p>Item 1. Overtime or overlap in not completing work as required by Article VI of contract Sept. 1, 1902 to Nov. 5, 1902 66 days</p> <p>@ $50.00 ...........$3,300 00</p> <p>Item 2. 259 perch of block stone foundations saved by alterations in drawings and specifications by architect, @ $6.00 ..... 1,554 00</p> <p>Item 3. Interest on $4,854.00 from Dec. 10th, 1902,</p> <p>to Jan. 19,1904 ........ 322 79</p> <p>Item 4. Total......$5,176 79 ”</p> <p>The case was referred to James D. Colt, Esquire, as auditor. He filed a report, making the findings stated at the beginning of the opinion. The case was tried before Rugg, J., with a jury.</p> <p>At the request of the defendant the jury viewed the concrete floors in the defendant’s factory. The plaintiff introduced in evidence the contract, printed above, upon which the action was brought, and also the specifications. The plaintiff read the auditor’s report, and rested. The defendant introduced evidence to show the defective character of the concrete work in the building and the amount of delay for which the plaintiff was responsible.</p> <p>The facts reported by the auditor on which the plaintiff founded its contention, that the architect had made a final certificate under article ten of the contract, were as follows:</p> <p>On February 3, 1903, the following bill was sent to the defendant:</p> <p>“ Worcester, Mass., Feb. 3, 1903.</p> <p>“Vase & Sons Piano Co.,</p> <p>“ To the Norcross Brothers Co., Dr.</p> <p>1902. Nov. 24 Bill rendered......$16,532 82</p> <p>1903. Jan. 29 “ “ voucher attached 97 67</p> <p>Feb. 3 “ “ “ “ 27 50</p> <p>« « « « “ “ 32 01</p> <p>$16,690.00” ■</p> <p>On March 9 the architect returned this bill, having deducted $70.10 from the total (as appeared by his figures in pencil) and having written the following approval on the face of the bill:</p> <p>“ Approved for sixteen thousand six hundred nineteen dollars and ninety cents ($16,619.90) less the sum of allowance agreed upon.</p> <p>“ Harrison H. Atwood, Arch’t.”</p> <p>The bill was returned with a letter written by the architect.</p> <p>On March 2 the plaintiff, by Mr. O. W. Norcross, wrote a long letter to the architect, reciting claims made by- Mr. Vose for damages resulting from faulty work of Simpson Brothers, and for an allowance for delay in completion of the building, and denying that the delay was due to any act or neglect of the Norcross Brothers Company, or that it was in any way responsible therefor. The letter went on to state in detail a large number of causes of delay directly attributable to the defendant or his architect, admitted that Simpson Brothers caused a part of the delay, and asked that the subject be reviewed and an early decision rendered.</p> <p>The letter with which the architect returned the bill to the plaintiff was as follows:</p> <p>“ March 9,1903.</p> <p>“ Nor cross Bros. Co.</p> <p>Tremont Building, Boston.</p> <p>“ Gentlemen: — In pursuance with the written request contained in your letter to me of March 2d for a written opinion as the Architect of the Vose Building relative to the question at issue between your Company and the Owner pending a final settlement of the contract, I find but two main points of contention both of which are substantially acknowledged by each party at interest;</p> <p>“ 1st. — The defective concrete work.</p> <p>“ 2nd. — Overlap on time allowance for finishing the building under the contract.</p> <p>“ Upon the first item defective concrete work, it is agreed that the only question is the amount of allowance; without going into detail I should place this at the sum of six thousand dollars ($6,000.00)</p> <p>“Upon the second item that of overlap on time allowance, I should place this at sixty days, allowing therefore the sum of three thousand dollars. ($3000.00)</p> <p>“ It is my opinion that of this time allowance Simpson Bros. Co. are directly responsible for fifty days of the overlap by their act of neglect in not commencing their part of the work promptly at the time the building was ready, also, by unnecessary and needless delays after the commencement of their work and by the employ of negligent and incompetent workmen.</p> <p>“ Your bills are returned approved with the exception of three small items.</p> <p>“ Very truly yours,</p> <p>“ Harrison H. Atwood.”</p> <p>Other facts found by the auditor are described in substance in the opinion.</p> <p>No evidence was introduced by the defendant tending to controvert the finding of the auditor that the defendant refused to arbitrate the question of delay nor tending to controvert any of the facts found by the auditor upon the question of the defendant’s refusal to arbitrate that question.</p> <p>The plaintiff introduced no evidence in rebuttal and at the close of all the evidence asked the justice to rule as follows:</p> <p>1. As the plaintiff was not satisfied with the finding of the architect as to the amount to be allowed the defendant for delay in the construction of the building, and as it requested a reference of the matter to arbitration in accordance with the provisions of the contract, the submission of this matter to arbitration by the terms of the contract was a condition precedent to the defendant’s right to receive or recover any deduction or allowance for such delay. As the defendant entirely refused to comply with this provision in the contract as to arbitration, though such arbitration was requested and demanded by the plaintiff, he cannot, as a matter of law, receive or recover any deduction or allowance whatsoever on account of the delay.</p> <p>2. The written approval of the architect upon the plaintiff’s final bill is a final certificate of the architect within the meaning and requirement of the contract for the sum of $16,619.90. As it does not appear and is not claimed that this certificate was obtained by any fraud or collusion on the part of the architect or the plaintiff, it is conclusive as to the performance by the plaintiff of the work covered by the contract. The defendant is not, therefore, as a matter of law, entitled to receive or recover any allowance or deduction on account of the concrete work or any other part of the building.</p> <p>3. The written approval of the architect on the plaintiff’s final bill, taken together with the architect’s letter of March 9, is a final certificate of the architect, within the meaning and requirement of the contract, for the sum of $10,619.90, aside from allowance for delay. As it does not appear and is not claimed that this certificate was obtained by any fraud or collusion on the part of the architect or the plaintiff, it is conclusive as to the performance by the plaintiff of the work covered by the contract. The defendant is not, therefore, as á matter of law, entitled to receive or recover any further allowance or deduction on account of the concrete work or any other part of the building.</p> <p>The justice refused to make any of these rulings and gave other instructions to the jury.</p> <p>The plaintiff excepted to the refusal of the justice to rule as requested and also excepted to the rule of damages laid down by the justice in his charge to the effect that if the jury found it was a reasonable thing for the defendant to take off the present surface of the floors and put on in its place a new surface of the character called for by the contract, they would be entitled to allow him, as damages for the failure of the plaintiff to construct floors as called for by the contract, the cost of putting on such a new surface, and then they could estimate that cost, in the absence of other evidence, from what they saw at the view of the premises.</p> <p>The justice submitted to the jury the question, “ How many days, if any, was the completion of the contract delayed by reason of acts for which the plaintiff was responsible ? ” To this question the jury answered, “ forty-five days.”</p> <p>The jury returned a verdict for the defendant; and at the request of the parties the justice reported the case for determination by the full court. If no error was disclosed the verdict was to stand. If the plaintiff’s first request for instructions should have been granted, and no other error appeared, judgment was to be entered for the plaintiff in the sum of $2,250, together with interest from December 10,1902. If an error was disclosed in the refusal to give the second or the third instructions requested by the plaintiff or in the rule of damages laid down in the part of the charge to which the plaintiff excepted, a new trial was to be granted.</p>

<p>Petition, filed in the Supreme Judicial Court on March 11, 1907, by the Boston Elevated Railway Company under R. L. c. 14, § 67, as amended by St. 1906, c. 349, for the repayment of the amount of an excise tax of $3,410.03, alleged to have been assessed and exacted from the petitioner without authority of law, with interest from February 25, 1907.</p> <p>The case came on to be heard before Sheldon, J., who, at the request of the parties, reserved it upon the petition, the answer and an agreed statement of facts for determination by the full court, such order to be entered as law and justice might require.</p>

<p>Bill in equity, filed in the Superior Court on January 25, 1907, by a corporation engaged in doing business as a wholesale baker against the members of a firm of wholesale bakers, to restrain the defendants from unfair competition with the business of the plaintiff by selling loaves of bread made in imitation of bread manufactured and sold by the plaintiff, as described in the opinion, praying for an injunction, the assessment of damages and further relief.</p> <p>In the Superior Court the case was heard by Fox, J., who made the following memorandum of decision:</p> <p>“ The case at bar is quite unlike the case of George G. Fox Co. v. Glynn, 191 Mass. 344, for the defendants’ loaf without the label is easily distinguished from the plaintiff’s loaf, and the two loaves are conspicuously distinguished by their labels. A small label bearing the name ‘ Creamalt ’ is pasted upon the plaintiff’s loaf, and a broad paper band, bearing the name ‘ Hathaway’s Log Cabin Bread, Malted,’ encircles the defendants’ loaf. I think the defendants bring themselves well within the limits of permissible competition as established in Flagg Manuf. Co. v. Holway, 178 Mass. 83."</p> <p>The judge made a final decree that the bill be dismissed with costs to the defendants; and the plaintiff appealed. The evidence was reported by a commissioner appointed by the judge under Chancery Rule 35.</p>

<p>Thebe bills I$r equity, filed in the Supreme Judicial Court, the first two on July 30,1907, and the third on August 5, 1907, to restrain the defendant Foss from allowing his building on the southerly side of Newbury Street, the erection of which as an automobile garage was declared in Evans v. Foss, 194 Mass. 513, to be in violation of the restrictions on his land, to be any longer maintained as such garage and to restrain the defendant Locomobile Company of America from any longer making use of that building as a garage.</p> <p>The three cases were heard together by Loring, J., whose findings are stated and described in the opinion. In each of the cases the justice made a final decree granting the injunction as prayed for; and the defendants appealed.</p> <p>The bill in Evans v. Foss was filed on June 4, 1906. The rescript in that case was handed down on March 1, 1907, and the garage was then substantially completed. The deed from Charles E. Evans to Joseph Weeks was dated April 9, 1907, but was not recorded until June 10, 1907. On April 16,1907, a decree was entered in Evans v. Foss, by consent of parties, dismissing the bill. The defendant Locomobile Company moved in some automobiles in March and began to use the building as a garage early in April, 1907.</p>

<p>Appeal from a decree of the Probate Court for the county of Middlesex made on October 9, 1905, authorizing the petitioner to bring an action on the bond of one Willard Houghton as guardian of one George Houghton, an insane person.</p> <p>The appeal came on to be heard before Hammond, J., who reserved it for determination by the full court, reporting the facts as agreed to by all the parties in interest. If upon the facts reported any action could be maintained against the sureties on the bond, the decree of the Probate Court was to stand; otherwise, the decree was to be set aside so far as it related to the sureties.</p> <p>The case was submitted on briefs.</p>

<p> School. Chilmark. Mandamus. </p> <p>At the hearing of a petition for a writ of mandamus commanding the town of Chilmark to provide a sufficient number of schoolhouses, properly furnished and conveniently located, for the accommodation of the petitioner’s children, it appeared that at the time of the filing of the petition the petitioner lived with five children on the island of Noman’s Land, a part of the respondent town, that there was no schoolhouse on Noman’s Land, that the ages of the children were twenty-four, nineteen, seventeen, twelve and four years, that there were no other children on the island who would attend school, that the island was four miles distant from the island of Martha’s Vineyard, where the main part of the respondent town was located and where it maintained a sufficient number of schools properly furnished and conveniently located. For some time previous to the filing of the petition, an arrangement had existed between the petitioner and the school committee, whereby the board and lodging of the petitioner’s children of school age on the island of Martha’s Vineyard and their transportation to and from there were paid by the town, but, upon the town refusing to pay such expense as to one of the children who became over fourteen years of age, the arrangement was abrogated by the petitioner, who thereupon filed this petition, contending that a school should be maintained on the island of Noman’s Land. Held, that the contention could not be sustained and that the petition should be dismissed.</p>

<p>Insolvency. Equity Pleading and Practice, Exceptions, Dismissal without prejudice. Equity Jurisdiction. Supreme Judicial Court.</p> <p>It is within the discretion of a justice of this court presiding at the hearing on the merits of a bill in equity, filed under K. L. c. 163, § 17, seeking a reversal of a decree of the Court of Insolvency, to refuse to allow a motion of ,the plaintiff that the bill be dismissed without prejudice, where such motion is made after such hearing has begun; and to the exercise of such discretion no exception lies.</p>

<p>Municipal Corporations, Officers and agents. Waterworks. Lowell.</p> <p>Acting under St, 1855, c. 435, §§ 3, 5, the city of Lowell by ordinance vested in its water board the power to conduct the cityjs waterworks, and, among other tilings, to “ regulate the use of said water, and establish and collect the prices to be paid therefor, and also to do any other acts or things necessary or convenient and proper.” In 1907 reasonable means of extinguishing fires were furnished by the public hydrants, but the city had not required and did not purpose to require any payment for water used in private fire service systems for the extinguishment of fires. Its water board however made a regulation requiring the measuring of water from the city’s waterworks used in such systems, and the installation by the city, at the owners’ expense, of meters to be used for that purpose. The principal objects of the regulation were to prevent the surreptitious or careless withdrawal of water for other purposes, and to check wastage. The water board enforced the regulation gradually, beginning with those who used water most extensively for such private fire service systems. The owner of such a system brought a bill in equity against the city to enjoin the enforcement of the regulation. Held, that the bill must be dismissed, since the regulation was reasonable and was within the powers of the water board, and since the board had not unjustly discriminated against the plaintiS in its enforcement.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff, while he was upon a sidewalk on Washington Street in Boston, by being struck either by the tongue of a dump cart owned by the defendant and in charge of an employee of his, or by glass falling from a window which the tongue fell against and broke. Writ in the Superior Court for the county of Suffolk dated March 15, 1906.</p> <p>There was a trial before Sanderson, J., without a jury. The facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence the defendant rested, and requested the judge to rule as follows : (1) On all the evidence the plaintiff cannot recover; (2) the accident happened through the negligence of an outsider and the plaintiff cannot recover; (3) if the swinging of the pole was not to be expected, the plaintiff cannot recover; (4) the proximate cause of the accident was the pulling of the blanket by an outsider and therefore the plaintiff cannot recover.</p> <p>The requests were refused, there was a finding for the plaintiff, and the defendant alleged exceptions.</p>

<p>Contract upon a promissory note of which the defendant was alleged to be the maker, one O. O. Owen the payee, and the plaintiff an indorsee. Writ in the Superior Court for the county of Suffolk dated August 13, 1904.</p> <p>There was a trial before Aiken, C. J. The facts are stated in the opinion. At the close of the evidence, the plaintiff requested rulings (1) that upon all the evidence no legal defense had been shown upon the issue of no consideration or payment; and (2) that upon all the evidence the verdict should be for the plaintiff. The requests were refused, there was a verdict for the defendant, and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p> Corporation. </p> <p>By St. 1855, c. 140, afterwards Pub. Sts. c. 105, § 9, and now R. L. c. 109, § 13, which provides that the persons named in an act of incorporation “and their associate subscribers to stock before the date of the act shall hold the franchise or privileges granted until the corporation -is organized,” it is necessarily implied that the franchise does not remain in the incorporators as such after the corporation is organized. Where there are no subscribers to the stock before the date of the act of incorporation, the franchise is held by the incorporators named in that act until the corporation is organized, and if such an incorporator refuses to subscribe to the stock and fails to become a stockholder he ceases upon the organization of the corporation to have any interest in its franchise.</p> <p>Under the statute which now is R. L. c. 109, § 13, which provides that the persons named in an act of incorporation “ and their associate subscribers to stock before the date of the act shall hold the franchise or privileges granted until the corporation is organized,” a corporation is organized within the meaning of the statute when the first meeting has been called and held, the act of incorporation has been accepted, the officers have been elected and by-laws for future meetings have been adopted, at least where there are any stockholders. It does not matter that at the time of the meeting only a very small part of the stock of the corporation has been subscribed for.</p>

<p> Boston Elevated Railway Company. </p> <p>By § 13 and § 19 of the charter of the Boston Elevated Railway Company, St. 1894, c. 548, a fund of $500,000 was required to be deposited with the treasurer of the Commonwealth. Section 14 of the charter provides that “ the Supreme Judicial Court may at any time, on application of said corporation, when it shall satisfy said court that there is no longer occasion for said fund for the purposes of this act, order the said treasurer to pay the same to said corporation or its assigns.” That corporation made an application by petition to the Supreme Judicial Court for an order for such repayment of the fund. The case was reserved by a single justice with a report of his findings of fact for determination by the full court. It appeared that all the lines of railway specified in § 19 and amendments thereto had been built, and that the whole of the fund was held under the provision of § 13 which declares that the deposit “ shall be in the hands of said treasurer a fund out of which any execution issued pursuant to the provisions of the preceding section shall be paid by said treasurer.” The executions referred to are those for damages to abutters by reason of the construction, maintenance and operation of the elevated railway. Held, that the court would not assume that the sole cause of the requirement of the deposit was the uncertainty of the success of the enterprise when the charter was granted in 1894, and that its purpose was not to provide security in the future as well as in the past for the damages caused to abutters by the construction and operation of the elevated railway, and the petition was dismissed, with the suggestion that if this construction of the charter was erroneous relief could be had by application to the Legislature.</p>

<p>Bill in equity filed in the Supreme Judicial Court on September 1, 1899, for the purpose stated in the opinion, where also the decree and appeal are stated.</p> <p>The case had been referred to Benjamin N. Johnson, Esquire, as master. The portions of the master’s report especially referred to in the opinion were as follows:</p> <p>“ As to the claim of the plaintiffs that certain of the stockholders of the Meigs Elevated Railway Company associated together in 1893 or 1894 and employed Towle and Howland as attorneys for the stockholders of said company to obtain this legislation, I find that there was neither such association nor such employment. The plaintiffs, that is, the stockholders - of the Meigs Elevated Railway Company, did not employ Towle and Howland, or either of them, as their attorneys to secure such legislation, nor did such stockholders take any action, part, or interest in securing the same, except as herein appears. There was, in 1893 and 1894, no relation established between Towle and Howland, or either of them, on the one hand, and the body, of stockholders of the Meigs Elevated Railway Company on the other, except that which arose from the relation of Towle and Howland to the Meigs Elevated Railway Company as a corporation, and that relation was clearly determined by the agreement of October 9, 1890. Unless the court shall otherwise construe its provisions, I find that this agreement did not establish the relation of attorney and client, and did not create, a trust relation between the parties, as claimed by the plaintiffs. I also find that the actions and statements of Towle and Howland prior to and subsequent to the execution of said agreement, taken in connection with said agreement, did not create any such trust relation. The agreement provided that when ‘ any corporation organized by Towle and Howland ’ should be granted the right to use the Meigs system, the Meigs interests were to be paid in the form of stock in such corporation ‘ a royalty for and in full payment of all claims for royalties for the use of the patents of said Meigs system.’ On the other hand, the agreement clearly contemplated that Towle and Howland were to labor at their own risk, both as to their services and disbursements. The only compensation open to them was by way of a possible profit arising from their securing, in any arrangement they might make for the use of the Meigs invention, a larger consideration or allotment of stock than -that which they were required by said agreement to turn over to the Meigs interests. Towle and Howland did not obligate themselves to continue such efforts any further than they deemed it for their own interest so to do. Such an arrangement negatives the suggestion of a trust, and was wholly inconsistent with the relation of attorney and client. During the three years ending October 9,1893, the only relation between Towle and Howland and the Meigs Elevated Railway Company was the contractual one established by said agreement, except that Towle was, or claimed to be, a stockholder in said company. Subsequent to October 9, 1893, the relation was the same as during the previous three years. It does not appear that the agreement of October 9, 1890, was extended, or that any notice was given of its termination. No new arrangement or agreement was entered into. Whether the agreement of October 9,1890, remained in force for all purposes or not, therefore, the relationship of Towle and Howland to the Meigs interests, and therefore to the Meigs Elevated Railway Company, was the same as while said agreement was in full force. It was expected and understood by the Meigs interests that Towle and Howland were devoting their time and energy to the promotion of the Meigs inventions without compensation and at their own risk and for such profit as they might be able to make in securing the use of such inventions by any corporation which they might organize; and it was understood by the Meigs interests that the only way in which they were related to these efforts of Towle and Howland was that they would be entitled to receive royalties, or other similar compensation, for the use of the Meigs inventions, either on the basis fixed by the agreement of October 9, 1890, or on some other basis to be agreed upon in the event that Towle and Howland should succeed in securing the construction of a railroad upon the Meigs system. Such royalties could not be properly payable unless a practical use of that system could be made, or, at least, determined upon, by investing capitalists. It was only in that event that the Meigs interests could realize anything under their patents; and they assumed no responsibility for the efforts or disbursements of Towle and Howland, who, on their part, must succeed, not only in securing a satisfactory charter, but in inducing capitalists to invest money in the building of a railroad upon the Meigs system, in order to enable the Meigs interests to receive their expected profit.</p> <p>“ In conclusion I find that, there being no trust relation between the plaintiffs and Towle and Howland, and there being no employment by the plaintiffs of Towle and Howland, or either of them, as their attorneys to secure said act of 1894, and Towle and Howland having secured said act and the charter embodied therein as the result of their own labors, and at their own risk, the plaintiffs had no interest either at law or in equity in said act of 1894, and said charter, and that they were not, therefore, in any way interested in the proceeds of the sale thereof to Morgan.</p> <p>“ The plaintiffs requested me to find that Towle was the personal counsel of Meigs during the legislation of 1894 and in obtaining that legislation, but I do not so find. Evidence was introduced by the plaintiffs, in the form of statements by Meigs and otherwise, tending to show such a relation on the part of Towle to Meigs, or at least that Meigs so considered the relation, but upon all the evidence I find that Towle was acting on his own account in securing the legislation of 1894, and that while he did not appear openly as a petitioner, he in fact had the interest of a petitioner in the proposed legislation. It is true that Meigs looked to Towle to protect his interests, and frequently -referred to Towle as his attorney, and that he trusted him in all legal matters in the same way that a client would trust his attorney, but 'Meigs nevertheless understood that in striving for the legislation Towle was working with him and not for him.</p> <p>“ The plaintiffs also requested me to find that the defendant Howland was the legislative counsel of Meigs with reference to securing said legislation, and that he filed his appearance as such on the docket of legislative counsel at the state house in 1894. I find that Howland did so file his appearance, but that the purpose of filing the same was to enable Howland to appear without question before the appropriate committees in behalf of the petition without disclosing the fact that he was in fact jointly interested as a petitioner.</p> <p>“As to the relation of the plaintiffs to the defendant Meigs, I find that the action of Meigs in conjunction with Towle and Howland in securing the act of 1894 was prompted by his own interests, and that he was not so related to the plaintiffs that he was bound to hold the result of his efforts in trust for the plaintiffs so far as they related to the procurement of said act and the disposition of said charter. He was one of the largest equitable owners in the patents, and was therefore greatly interested in having his invention introduced into actual use. Besides this, he had an especial pride in his system, and having devoted twenty years to its development and exposition, it was one of the objects of his life to see it put into practical use. It is true that it was for the possible advantage of those owning an interest in the Meigs inventions that Meigs should assist Towle and Howland in all their efforts to secure the construction of a road upon his system. He, more than any one else, stood for and believed in that system and was best able to expound it, but he also, so far as the plaintiffs were concerned, labored on his own initiative and at his own risk. Had he succeeded in demonstrating to capitalists the value of the Meigs system the patent owners and those associated with them might have profited by such demonstration. In this, however, he did not succeed, although I find that it was his purpose and intention throughout his action in this matter to secure the adoption of the Meigs system, and that he, in good faith, made every effort in that direction.</p> <p>“ Towle and Howland requested his help in what they were seeking to accomplish, and Meigs appears to have had an agreement with Towle at one time that he should share with Towle in any profits which might be made in the enterprise. Meigs accordingly assisted Towle and Howland in securing the act of 1894, and when the control of the charter embodied therein was turned over to Morgan in 1895, Meigs joined in effecting the transfer. I find, however, that Meigs did not understand, at the time of the transfer to Morgan, that such transfer meant an abandonment of the Meigs system, this fact not having been communicated to him.</p> <p>“ As to all the incorporator defendants, I find that it was understood by them, and intended by the Legislature, that those who were named in said act as incorporators of said Boston Elevated Railway Company should be such incorporators in their own right, and not as representing the plaintiffs or any other persons, and that they, the incorporator defendants, had no knowledge of any interest on the part of the plaintiffs or the stockholders of the Meigs Elevated Railway Company, other than their supposed interest in the Meigs inventions and the right to compensation for the use of such inventions, when, as was at first intended, the road should be built upon the Meigs system.</p> <p>“ As to the claim of the plaintiffs that they were associate incorporators under the act of 1894, I find that, being neither named in said act nor being associate subscribers to stock in said corporation before the date of said act, they had no standing as incorporators, and had no interest as such in the franchises and privileges granted to said corporation. I find, also, . that the Legislature had no intention to make the plaintiffs associate incorporators in the Boston Elevated Railway Company.</p> <p>“I therefore find that the incorporators of the Boston Elevated Railway Company who were named as such in said act took and held the charter thereof in their own right, and that the plaintiffs have established no claim thereto or to the proceeds of the transfer of the control thereof.”</p> <p>The following is a copy of agreement of October 9, 1890, referred to in the master’s reports and in the opinion:</p> <p>“ Memorandum of Agreement made and concluded this ninth day of October A. D., 1890, by and between the Meigs Elevated Railroad Company the Meigs Elevated Railway Construction Company, all of said Boston, and James L. Meigs trustee of the Meigs patents, parties of the first part, and George H. Towle and Willard Howland parties of the second part,</p> <p>“ Witnesseth</p> <p>“ That for and in consideration of one dollar and the covenants and agreements of each party with the other the parties of the second part, covenant and agree that of all the capital stock of any corporation organized by them to operate a railroad in the Commonwealth of Massachusetts under the Meigs system or in accordance with any part of said system there shall be issued and delivered to the order of the parties of the first part in writing an amount of such stock equal to twenty-five per cent, thereof, within ninety days after said corporation or either of them shall be organized or any stock thereof issued, and that the stock so delivered shall be fully paid up and non-assessable, which said stock shall be received by the parties of the first part for and in full payment of all claims for royalties for the use of the patents of said Meigs system and for its use, construction and operation within said Commonwealth. Provided However, that no stock or other compensation for such royalties shall be paid for or on account of the first five miles of said road constructed and operated by said parties of the second part within the territory of Massachusetts.</p> <p>“ And it is further covenanted and agreed by and between said parties that said party of the second part may make, build, maintain, equip and operate the Meigs system of said Elevated Railroads as the same now is or may hereafter at any time be secured by letters patent to said Meigs or his assigns or any person for his benefit or use for improvements thereon within said territory of the Commonwealth of Massachusetts provided said first five miles shall be equipped and put in operation within three years from the date hereof, which said provision is part of the consideration and the condition of this contract.</p> <p>Provided that this agreement shall be an exclusive license from said parties of the first part or any license thereof for building, maintaining or operating of any railroad within said limits for said three years, and if duly performed for the lifetime of said patents.</p> <p>“And it is further covenanted and agreed between said parties for the consideration aforesaid that said party of the second part are licensed to construct build and operate a railroad or railroads upon said system in any part of the United States other than the State of Massachusetts upon the same terms and conditions save as to building the first five miles, provided that the party of the first part may grant a license to any person or corporation to build said railroads according to said system outside of the State of Massachusetts, but in such case the parties of the second part shall have the right to build, maintain and operate said system upon the same terms and conditions as such license shall be given to the parties so licensed to build a railroad under said system in any other part of the United States.</p> <p>“ And said parties further covenant and agree for the consideration aforesaid that any railroad made and operated under said Meigs system with its rolling stock and appurtenances may be established and used within said territorial limit of the State of Massachusetts by a railroad or railroads built from a point beyond said territorial limits of Massachusetts and running into such termini within said limits as said party of the first part will authorize and license so to do, but that said railroad shall not take up or deliver or set down any passenger or freight at any point or station within said territorial limits except at such terminal depots as said railway so established may set up. But such railroad or railroads shall not be located either in their course or in their terminal depots as to obstruct or hinder the construction or operation of said Meigs Elevated Railroad within said territory of Massachusetts.</p> <p>“And it is further covenanted and agreed between said parties .that whenever any said parties are mentioned in this agreement the agreement shall read and be construed and read as if the words “ or their legal representatives or assigns ” had been written therein after the name of either of said parties.</p> <p>“ Witness the hands and seals of each of said parties of the first part and said parties of the second part respectively the day and year first above written.</p> <p>“Meigs Elevated Railway Co.</p> <p>By Joseph H. O’Neil,</p> <p>President [Seal]</p> <p>Noah A. Plympton,</p> <p>Treasurer [Seal]</p> <p>Willard Howland [Seal]</p> <p>Geo. H. Towle [Seal]</p> <p>James L. Meigs,</p> <p>Trustee [Seal]</p> <p>Meigs Elevated Construction Co. By Benj. F. Butler,</p> <p>President [Seal]</p> <p>Wm. S. Butler,</p> <p>Treasurer.” [Seal]</p> <p>Here followed the names of witnesses to the several signatures.</p>

<p>Bill in equity, inserted in a common law writ of the Superior Court dated July 10, 1900, against Frank H. Hamblin, William T. Russell and the Hamblin and Russell Manufacturing Company, a corporation, for an accounting for one half the net profits realized from the manufacture and sale by the defendants of certain improved wardrobe and other hooks invented and patented by the plaintiff under the terms of an agreement in writing between the plaintiff and the defendants Hamblin and Russell dated October 31, 1887.</p> <p>The contract referred to was as follows:</p> <p>“This agreement made the Thirty-first day of October 1887 between Charles H. Thurston now of Boston in the County of Suffolk and State of Massachusetts, party of the first part, and Frank H. Hamblin and William T. Russell doing business in the City of Worcester and State aforesaid, parties of the second part</p> <p>“ Witnesseth:</p> <p>“ That whereas the said party of the first part owns the exclusive right to manufacture improved wardrobe and other hooks, under letters patent of the United States dated October 11th 1875 and numbered 168,682, and October 7th 1884 numbered 306,294, and</p> <p>“Whereas said party of the first part has applied for other letters patent of the United States for certain improvements in wire suspension hooks said improvements relating to a direct brace and ‘hollow hemispherical or concave-convex enlargement’ which application is now pending.</p> <p>“Now therefore the said parties have agreed as follows: First the party of the first part hereby gives to the parties of the second part, their legal representatives, the sole and exclusive right to manufacture and sell to the ends of the terms of the letters patent aforesaid, also to the end of the term of the letters patent, if granted, application for which is now pending, as before specified, wardrobe and other hooks containing the patented and to be patented improvements, subject to the conditions hereinafter named.</p> <p>“ Second. The parties of the second part agree to employ the party of the first part and to pay him at the rate of not exceeding twenty dollars per week during the continuance of this agreement.</p> <p>“ Third. The parties of the second part agree to furnish the capital necessary to build six threaders and the requisite number of benders for making said improved hooks and to supply the material and labor required in commencing the business.</p> <p>“ Fourth. The parties of the second part agree to pay to the party of the first part his legal representatives one half of the net profits realized from the manufacture and sale of said improved wardrobe and other hooks made under this agreement, said profits to be computed and paid quarterly during the months of January, April, July and October of each year.</p> <p>“ Fifth. The said parties of the second part agree to keep separate books of account, and expenses of manufacture and sale of said improved hooks, including all expenses of the business, which books shall be at all reasonable times open for the inspection of said party of the first part and his legal representatives.</p> <p>“Sixth. In case the said parties of the second part desire to discontinue the manufacture and sale of the improved hooks herein contemplated, they may at their option terminate this agreement by paying to the said party of the first part whatever may be due him at the time as wages for his services and by reconveying to him whatever rights are held by them by virtue hereof.</p> <p>“ Seventh. The party of the first part agrees to execute and deliver to the parties of the second part any further instrument or instruments in writing deemed by them necessary to enable them to hold and to enjoy the exclusive right to manufacture and sell said improved hooks under the letters patent herein named and applied for according to the true intent and meaning of these presents.</p> <p>“ In Witness Whereof the said parties have hereunto set their hands and seals the day and year first above written.</p> <p>“ Frank H. Hamblin (Seal)</p> <p>W. T. Russell (Seal)</p> <p>Chas. H. Thurston” (Seal)</p> <p>The case was referred to Stephen H. Tyng, Esquire, as master. He filed a report in which he found that the defendants Hamblin and Russell owed the plaintiff $11,534.65.</p> <p>In the Superior Court the case was heard upon the defendants’ exceptions to the master’s report by Fox, J., who filed the following memorandum of decision:</p> <p>“ Oct. 31, 1887, the plaintiff, an inventor, made an agreement with the defendants who are manufacturers, under which the defendants were to manufacture and sell the plaintiff’s patented articles and give him half the profits arising from the manufacturc and sale. The clause relating to the division of profits is as follows: 6 Fourth. The parties of the second part agree to pay to the party of the first part one-half of the net profits realized from the manufacture and sale of said improved wardrobe and other hooks made under this agreement; said profits to be computed and paid quarterly during the months of January, April, July and October of each year.’ This agreement remained in force from 1887 to 1900. During all this time the plaintiff was in the defendants’ employ, drawing $20 a week as wages, but there was never any estimation or division of the profits, the defendants contending that none were earned. The master on page 12 of his report says that it is impossible for him to determine whether for the entire period the business was run at a loss or not. In spite of this declaration he awards to the plaintiff $11,534.65 as his share of the profits with interest earned during this period. I am unable to accept this conclusion for several reasons.</p> <p>“ 1. The master apparently proceeds upon the assumption that if the business for any single quarter was profitable, the plaintiff was entitled to a share of the profit of that quarter, even though that profit did not make good the losses of the preceding quarters. For example, if the business lost $500 in each of the first three quarters of the year and gained $500 in the last quarter, the plaintiff was entitled to have $250 as his share of the profit for that quarter, and leave the defendants to bear the entire loss of $1,500. I am of the opinion that the plaintiff was not entitled to any share of the profit until the business showed a profit, and that it could not show a profit until it showed a surplus above the investment. It may be true that the plaintiff’s 'right to a profit once earned could not be cut down by subsequent losses, but it does not appear that there was any time during the entire thirteen years when the receipts and stock and machinery on hand exceeded the outlay.</p> <p>“ 2. The master finds that there was a profit in sixteen quarters, scattered through the thirteen years, and he rests this finding upon an account submitted by the defendants’ experts and annexed to his report, ‘ Exhibit A.’ This has a column of expenses by quarters and a column of sales by quarters. In any quarter in which the sales exceed the expenses that excess is put down in a third column marked ‘ Surplus,’ and whenever the expenses exceed the sales, that excess is put in a column headed ‘ Deficit.’ The account, therefore, simply shows that during certain quarters the receipts exceeded the expenses, and during other quarters the expenses exceeded the receipts. For example, for the quarter ending Jan. 1, 1889, the receipts were $1,229.37 and were $549 less than the expenditures. For the quarter ending April 1, 1889, the receipts were $2,536.04 and exceeded the expenditures by $216.53. The only natural inference from these figures is that goods were manufactured in one quarter and sold in the next. It would clearly be impossible from this account to infer either that the concern lost money in one quarter or made it in the next quarter. No estimate of profits could be made without at least a stock-taking, and the report shows there was no stock-taking from the beginning to the end of the business.</p> <p>“3. The master finds that there was on hand at the close of the business machinery, tools and stock to the value of $8,994.95. From this sum he deducts $3,000 as capital advanced by the defendants, and finds that the plaintiff is entitled to one-half the remainder or $2,997.47, and this sum he includes in his award in the plaintiff’s favor. There is no evidence that the plaintiff ever put any money into the business, and there is no theory upon which the plaintiff can be entitled to a division of the property on hand at the close of the business unless that property represents undivided profits. In view of the statement of the master already referred to, that he is unable to say whether the business was run at a loss or not, even when the inventory is taken into account, it is difficult to see on what ground this award was made.</p> <p>“ The master, however, is right in holding that the defendants are not entitled to charge interest upon the capital advanced by them in carrying on the business. See Rishton v. Grissell, L. R. 5 Eq. 326. Apparently, even upon the account submitted by the defendants and annexed to the master’s report, if interest be deducted and if the inventory be taken into account (as it should be) a surplus would be shown, and although the exceptions to the master’s report, so far as they are covered by the foregoing memorandum, must be sustained, the case will be retained in order that the plaintiff may if he desires file a motion for the reopening of the case.</p> <p>“ The question whether the plaintiff is entitled to interest on profits need not be considered until it appears that there was a profit. The plaintiff, however, made no demand for an account until 1899. He had access to the books and knew that there had never been any stock-taking; that the books contained simply an account of moneys received and expended and no sufficient data for estimating the profit, if there was any. If upon recasting the account a profit is shown, it seems that interest upon that profit should be computed from 1900. Rishton v. Grissell, L. R. 10 Eq. 393.</p> <p>“The fourth, sixth and eleventh of the defendants’ exceptions are sustained. The rest are overruled except as above indicated.”</p> <p>The judge made a final decree that the master’s report be confirmed except as appeared by the memorandum filed in the case; that upon the facts found by the master it did not appear that the plaintiff was entitled to recover any sum of money from the defendants, and, since the plaintiff had filed no motion for a reopening of the case pursuant to leave granted, that the bill be dismissed. From this decree the plaintiff appealed.</p> <p>The defendants’ fourth, sixth and eleventh exceptions to the master’s report sustained by the judge were as follows:</p> <p>“ 4. (Based on objection numbered 4.) The defendants except to the ruling, because under the contract there could be no ‘ net profits ’ in any quarter until the expenses of that quarter and the unpaid debts of the business fat previous quarters were paid.”</p> <p>[“ Fourth: The defendants object to the last paragraph . . . as it is an erroneous construction of clause 4 of the contract, if the master intended to rule that the business of each quarter should be considered apart and distinct from the business of every other quarter and that ‘ at the expiration of each quarter when there was a profit the plaintiff became immediately entitled to one half thereof, and that his right thereto would not be divested by reason of any losses accruing in any ’ quarter or quarters immediately preceding that particular quarter, because ‘ net profits ’ mean the clear gains of the business as a whole up to that time when a computation is made to ascertain its condi- ■ tian, that is, there could be no * net profits ’ until the debts of the business had been paid or the deficit of the immediate preceding quarter or quarters had been wiped out.”]</p> <p>“ 6. (Based on objection numbered 7.) The defendants except to the finding, as erroneous, because the old ledger does not show a single instance of a quarterly accounting such as adopted by the master, but it does show that in every quarter where a balance was struck, there was also taken into consideration the balance whether debit or credit, of the immediately preceding period.”</p> <p>[“ Seventh: The defendants object to the first sentence of the last paragraph on page 5, ‘ I find that there was no such abandonment of quarterly accounting in the books of the company as to justify the finding that the parties adopted another or annual scheme in lieu thereof,’ as plainly wrong, if the master meant by the words ‘ quarterly accounting ’ such a method of accounting as he has adopted, for no such quarterly accountings are shown of the books, but on the other hand they do show that whatever quarterly balances were struck, that balance was carried forward into the next succeeding period and taken into account therein.”]</p> <p>“11. (Based on objection numbered 12.) The defendants except to the statement that ‘ the tabulation of the defendants’ expert shows profits in certain quarters,’ because the tabulation does not show any profits but only that the sales of goods made during certain quarters, regardless of when they were manufactured, exceeded the expenses of those quarters, thereby resulting in surpluses which were applied to the cancellation of the due and unpaid debts of the business.”</p> <p>[“Twelfth: The defendants object to the finding, ‘In said account rendered by defendants’ expert profits are shown in sixteen of the quarters accruing during the period from November 1,1887 to January 1st, 1900. These profits aggregated $7,879.73,” as the account rendered by the defendants’ expert does not show any ‘ net profits ’ in any quarter, but simply that the sales of goods made during that quarter, regardless of when they were manufactured, exceeded the expenses of that quarter, thereby resulting in surpluses in certain quarters.”]</p>

<p>Equity Pleading and Practice, Amendment. Equity Jurisdiction, Court will not aid to establish title acquired for unlawful purpose.</p> <p>A bill in equity, by a married man against a single woman, sought to establish the plaintiff’s title to household furniture used in an apartment in which the plaintiff and the defendant had been, living together, and a stipulation was made by the counsel for both parties that the title to the property should be tried in the suit. A master to whom the case was referred found for the defendant upon the issue of the title to the furniture. After this finding against him the plaintiff moved for leave to amend his bill by alleging a debt from the defendant to the plaintiff, and seeking under E. L. c. 159, § 3, cl. 7, to reach the furniture as the property of the defendant. The judge who heard the case denied the motion. Held, that, even apart from the fact that the property, so far as it was not exempt from attachment, apparently could have been reached at law, the motion to amend was denied rightly.</p> <p>In a suit in equity by a married man against a single woman to establish the plaintiff’s title to household furniture used in an apartment in which the plaintiff and the defendant had been living together, if it is found by a master, on evidence not reported, that the defendant bought the furniture with money supplied to her by the plaintiff for the purpose of inducing her to become and remain his mistress and that she did so become and remain, and that the furniture so bought was not bought or used for any lawful purpose but was intended and used by the parties to surround and guard their intercourse with a setting of safety, seclusion and ease, the court will not consider whether the plaintiff has any title to the furniture, as, even if he has, the court will not aid him to secure the title to or possession of property which was a part of the price of such unlawful conduct, but will leave the parties in the position in which they have placed themselves.</p>

<p>Bill in equity, filed in the Superior Court for the county of Norfolk, October 2, 1905.</p> <p>The bill alleged that the defendant McNeil had advanced money from time to time for the plaintiff to prevent foreclosure' of mortgages on properties of the plaintiff, among them being apartment house property numbered 266 to 276 on Bowdoin Street in that part of Boston called Dorchester, and had, as security, taken assignments of the mortgages; that he had purchased for the plaintiff at a foreclosure sale real estate at 269 St. Botolph Street in Boston, advancing the money therefor, and, by agreement with the plaintiff, had had the property conveyed to the defendant Campbell, who held it subject to the payment to McNeil of all indebtedness of the plaintiff to him; that, against the plaintiff’s objection, McNeil had foreclosed the mortgages which had been assigned to him, and had purchased the properties at the foreclosure sales, and afterwards had sold them, but that he still held the property on St. Botolph Street; that the accounts between the parties were complicated, and that the plaintiff believed that there was nothing due from him to McNeil. The plaintiff, however, offered in the bill to pay any amount that might be found to be due from him to McNeil, and prayed for an accounting and a reconveyance of the St. Botolph Street property, subject to a mortgage placed thereon, as stated in the opinion.</p> <p>The case was referred to a master, who filed a report containing the findings stated in the opinion, and the following findings, not set out, but referred to, in the opinion.</p> <p>“ On October 26,1904, [at which time McNeil was in possession of the Bowdoin Street property] McNeil received from the hoard- of health of Boston two notices, one ordering him to remove within six days ‘a nuisance, source of filth, and cause of sickness,’ namely, 6 defective drainage, need of garbage and ash barrels,’ on the premises numbered 270 Bowdoin Street; the other ordering him to remove a nuisance, namely, ‘dirty yards and need of ash and garbage barrels,’ on the premises numbered 266 to 276 Bowdoin Street. On January 30, 1905, he received a notice from the water department of Boston that certain water fixtures in the house No. 269 St. Botolph Street were out of order; and a further notice from the board of health, dated November 10, 1905, that unless the nuisance previously complained of was abated by November 15, a complaint would he made to the court.</p> <p>“ During the years 1904 and 1905, McNeil received numerous complaints, both oral and written, from the'tenants of the Bowdoin Street property, of insufficient heat in their apartments and of needed repairs. Thereupon he caused necessary repairs to be made from time to time, and, after a personal examination of the premises, he put new heating apparatus into two of the houses in November, 1904, substituting hot water for steam, against the plaintiff’s objection, at an expense of about $1,150. He also supplied the six houses with twelve boxes, two for each house, for garbage and ashes, at an expense of about $160, and further supplied the houses with new window screens at an expense of $127.20. These three expenditures above mentioned were contested by the plaintiff, but I find that they were necessary and proper. . . .</p> <p>“ On July 24,1905, McNeil wrote to the plaintiff as follows: ‘In the house, 269 St. Botolph Street, there has got to be a new heating apparatus put in before fall, as the old boiler gave us a great deal of trouble all last winter, and the repairs cost more than it is worth. Let us hear from you on this matter without delay.’ On July 25, the plaintiff replied to this letter as follows:</p> <p>‘ I will say, as I have always before, I cannot authorize you to make any repairs or contract any expense on my account.’ The boiler in question finally burst, and McNeil put in a new one during the month of December, 1905, at an expense of $173. . . .</p> <p>“ McNeil, without the plaintiff’s knowledge or consent, altered the front of [an] apartment [in the St. Botolph Street house] by changing the middle window into a door with steps, so that the front room could be used for a small store, upon the application of a person who hired the apartment thus altered at an advanced rent, and it has been so occupied since this alteration, which did not interfere with access to the upper stories. . . . The plaintiff contended that the cost, aggregating about $100, of [such alteration] . . . should be disallowed; and that he should be allowed the sum of $1,000 as damage caused to the property by such alteration. At the request of counsel, I took a view of the premises. The house stands on the corner of St. Botolph Street and Gainsborough Street, facing on the former street. The building occupied by the New England Conservatory of Music, which faces on Huntington Avenue, runs back to St. Botolph Street, with one of its sides on Gainsborough Street, opposite the side of the house in question. Diagonally across from the latter, on the corner of Gainsborough Street and St. Botolph Street, and facing on the former, is a long one story car-barn occupied by the Boston Elevated Railway Company for storing its structures used for repairing the overhead wires and also for storing voting booths belonging to the city. Directly opposite the house in question is a double three-story apartment house of the same class, and there are similar houses around the corner on Gainsborough Street. Next to the adjoining house, No. 267 St. Botolph Street, the land is vacant for some distance, and a similar condition exists on the opposite side of the street. The store in the house in question is a small grocery. Taking into consideration the appearance of the immediate neighborhood in its entirety, I find that the premises in question have not been damaged by the alteration made by McNeil.</p> <p>“ I rule that McNeil stands in the position of a mortgagee in possession, and the plaintiff in that of a mortgagor seeking to redeem; and that McNeil is entitled to charge against the plaintiff only for such repairs as have been beneficial to the several estates; and I find that the repairs which McNeil has made to the houses on Bowdoin Street and St. Botolph Street, respectively, were beneficial to those estates.”</p> <p>Other facts are stated in the opinion.</p> <p>Various exceptions to the master’s report were filed by the plaintiff, the substance of which are sufficiently indicated in the opinion. There was a hearing on the exceptions before Sherman, J., who overruled them all and made a decree that, on payment to McNeil of the sum of $1,395.24, the plaintiff should have the conveyance which he sought. The plaintiff appealed.</p>

<p>Good Will. Equity Jurisdiction, Accounting. Evidence, Foreign law, Presumptions and burden of proof.</p> <p>A corporation engaged in the United States in the manufacture of rubber goods made a contract in writing with one whom it appointed its del credere agent in England by which goods were sent to the agent on consignment only, the title to them to remain in the company until they were sold to a customer, and full knowledge of all the details of the agent’s operation, of his lists and of his customers was secured to the company. The agent acquired an extended knowledge of and large experience in the business of selling the company’s goods, and a wide acquaintance with travelling salesmen in the business and with probable purchasers of such goods. Becoming dissatisfied with the working out of the contract, the parties, agreed to terminate it, and the agent executed and delivered to the company an assignment in writing which was drawn up by the company’s solicitor and which stated that the agent “ as beneficial owner hereby assigns to ” a nominee of the company “ all the leasehold premises upon which the business is carried on . . . and all the goodwill of the said business and all the plant, materials, stock in trade, book debts, and assets whatsoever,” the company agreeing to account to the agent for the value of what was covered by the assignment. The company refused to account for the value of the good will, and the agent brought a suit in equity to compel it to do so, after a hearing in which the presiding justice found “ that the plaintiff was the owner of something which the parties called a good will,” which the defendant had agreed to pay for; and he ordered the accounting prayed for. The defendant appealed. Held, that the justice well might have found that the knowledge, experience, acquaintance and ability of the plaintiff constituted what the parties called a good will, which the plaintiff could not use after the assignment, and which might be found to be of value, and for which, therefore, in accordance with the agreement, the defendant should account to the plaintiff.</p> <p>Upon the question of fact what the law of England is upon a particular subject, this court can no more consider statements made in one of their previous opinions than it can consider decisions of the English courts not put in evidence at the hearing.</p> <p>In the absence of evidence, it cannot be presumed that the common or the commercial law of England differs from that of this Commonwealth.</p>

<p>Insurance, Life, Endowment, Accident, Statutory requirements as to substance and form of policy. Insurance Commissioner. Statute.</p> <p>Under St. 1907, c. 676, § 75, providing that no policy of life or endowment insurance shall be issued in this Commonwealth until a copy of its form has been filed at least thirty days with the insurance commissioner, or if the insurance commissioner notifies the company in writing within thirty days that in his opinion the form does not comply with the requirements of the laws of this Commonwealth, and that no such policy, except certain policies of industrial insurance, shall be issued unless it contains in substance certain provisions specified in the statute, it is the duty of the insurance commissioner to determine whether the policy contains the substantive provisions, called for by the statutes of this Commonwealth, in such a form as to give proper effect to the contract.</p> <p>If the form of a policy of life or endowment insurance submitted by an insurance company to the insurancé commissioner for his approval under St. 1907, c. 576, § 75, contains in substance the ten provisions specified in that section, and also contains the other prescribed parts of a policy, the form in which they are stated may be varied, and additional provisions beneficial to the insured may be inserted, provided the requirements of the statute are satisfied and are left undiminished by what is added.</p> <p>A policy of life or endowment insurance which on its first page states “ This contract is issued in "consideration of the application for this insurance which is made a part hereof and copied hereon,” and under the head “ General Conditions,” and the subhead “ Entire Contract,” on a subsequent page states, “ This instrument contains the entire contract between the parties hereto, and all the statements purporting to be made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall be used in defense of a claim under the contract unless it be contained in the application herefor,” does not satisfy the requirements of St. 1907, c. 576, § 76, cl. 3, that the policy shall contain “ a provision that the policy and the application therefor shall constitute the entire contract between the parties . . . and that no . . . statement [of the insured] shall be used in defense to a claim under the policy unless it is contained in a written application, and a copy of such application shall be endorsed upon or attached to the policy when issued ” ; but the words “and the application ” should be added after the words “This instrument,” at the beginning of the clause entitled “ Entire Contract,” and the words “ and the application is attached hereto ” should be added at the end.</p> <p>A life insurance company, which, under St. 1907, c. 676, § 34, cl. e, might also transact the business of insurance against bodily injury or death by accident, and upon the health of individuals, presented to the insurance commissioner, as required to do by § 75, a form of policy, which on its first page stated that the company agreed “ to pay for the surrender of the policy [a certain sum to the beneficiary] . . . upon receipt of due proof of the death of the insured,” and that the policy “ is issued . . . subject to all the conditions, benefits and privileges described on the subsequent pages ” thereof, which “ are hereby made a part of this contract.” On a subsequent page was a provision that, in case the company received proof that, “by reason of bodily injuries or disease originating after the issue of the policy, the insured has become wholly, continuously and permanently unable to perform any work ” for profit, or under certain circumstances had lost both eyes or either or both hands or feet, the company would keep the policy in force for twelve months and then pay the insured one twentieth of the sum insured and make the same payment annually until the whole insured amount was paid, or would pay a specified annuity for life. The insurance commissioner disapproved of the policy. Held, that the commissioner’s disapproval was warranted, since the form of policy presented violated the provisions of § 34 in that it contained in one'policy contracts for insurance of two of the classes therein named.</p> <p>A life insurance company, which, under St. 1907, c. 676, § 84, cl. e, also might transact the business of insurance against bodily injury or death by accident, and upon the health of individuals, presented to the insurance commissioner, as required to do by § 75, a form of policy, which on its first page stated that . the company agreed to pay a certain amount to the beneficiary on due proof of the death of the insured, and that “ this contract is subject to the privileges and conditions recited on the subsequent pages hereof.” On a subsequent page under the head “ Special Privileges ” was a provision that in case the insured should furnish satisfactory proof that he had become “ wholly disabled by bodily injuries or disease and will be permanently, continuously and wholly prevented thereby for life from pursuing any and all gainful occupation, the company ” would, “ by an indorsement in writing upon this contract,” agree to pay the premiums on the policy so long as the disability continued, without charging them against the contract, and that certain cash loans and other values elsewhere specified in the contract should increase in the same manner as if the premiums were paid by the insured; but that the insured might at any time cancel such premiums and be entitled to a reduction of twenty-five cents for each $1,000 of insurance upon his annual premiums. The insurance commissioner disapproved of the policy. Held, that the commissioner’s disapproval was warranted, since the form of policy presented violated the provisions of § 34 in that it contained in one policy contracts for insurance of two of the classes therein named.</p>

<p>Insurance, Life, Endowment, Statutory requirements as to substance and form of policy. Insurance Commissioner. Statute.. Constitutional Law. Practice, Civil, Amicus curiae.</p> <p>A policy of life or endowment insurance, which provides for a grace of one month for the payment of every premium after the first, does not satisfy the requirement of St. 1907, c. 676, § 75, cl. 1, that a grace of thirty days shall be provided.</p> <p>A provision in a policy that “ This policy constitutes the entire contract between the parties, and is free of conditions as to residence, occupation, habits of life, and manner, time or place of death,” is not a compliance with St. 1907, c. 676, § 75, cl. 3, requiring policies of life or endowment insurance to contain a provision “ that the policy and the application therefor shall constitute the entire contract between the parties and that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties and that no such statement shall be used in defense to a claim under the policy unless it is contained in a written application and a copy of such application shall be endorsed upon or attached to the policy when issued,”</p> <p>No departure from the exact requirements of St. 1907, c. 576, § 75, cl. 3, relating to the effect of statements in an application for life insurance, should be permitted in any policy unless it is too plain for doubt that the substitution is in every way as advantageous and as desirable to the insured as the prescribed provision.</p> <p>A provision in a policy of life or endowment insurance that it “ shall be incontestable, except for non-payment of premiums, from its date ” is not a compliance with the requirement of St. 1907, c. 676, § 75, cl. 2, that every such policy shall contain “a provision that the policy shall be incontestable after two years from its date . . . except for non-payment of premiums and for engaging in military or naval service in time of war without the consent in writing of an executive officer of the company,” and also is not in accordance with public policy.</p> <p>A policy of life insurance provided that, within one month from default in premium payments, the insured might surrender the policy for its cash surrender value (which was an amount computed according to certain tables, “less any indebtedness to the company herein ”) or surrender the policy for a “non-participating paid-up policy," or that, if he did not surrender the policy, the insurance would be automatically extended for a period equivalent to the extended insurance which the then cash surrender value of the policy would purchase. Its reinstatement clause provided that, in case of default in premium payments, the arrears might be paid in one month, or, if the insured within the month so requested, the arrears would be charged as an indebtedness against the policy, bearing interest, provided the entire indebtedness then outstanding would be within the cash surrender value, “ or this policy may be reinstated at any time after the said month, upon evidence of insurability satisfactory to the company and payment of all arrears with interest thereon, provided, in any case, the policy has not been surrendered to the company.” Held, that, although the provision as to reinstatement did not follow the exact language of St. 1907, c. 576, § 75, cl. 10, with regard to reinstatement requirements, and did not require before reinstatement the payment of “ any other indebtedness ” besides arrears of premiums, it nevertheless, in connection with the other provisions of the policy, secured to the insured all that was secured by the statute, and was not objectionable.</p> <p>The provision of St. 1907, c. 576, § 75, cl. 8, requiring in policies of life or endowment insurance a table “ showing in figures the loan values, if any,” is satisfied if the policy contains, after a statement under a heading in large type, “ Loans,” a statement that “At any time while this policy is in force, the company will loan up to the limit secured by the cash surrender value,” followed in a succeeding paragraph by a table headed “ Cash Surrender Value,” stating such values for each year of the policy.</p> <p>While it is a general rule that, in the consideration of a suit based upon a statute, this court will not consider the constitutionality of the statute upon an objection made by persons whose rights are not affected by it, and usually the parties to the suit are the only ones who are permitted to raise such a question, nevertheless, in a case where both the justification of the acts of the defendant and the power of the court to give the relief sought by the plaintiff depend entirely upon the validity of the statute, so that both of the parties to the suit are precluded from raising the question of the constitutionality of the statute, and the attention of the court is brought to that question by persons who are interested in the effect to be given to the statute although not interested in the precise case before the court, it is the duty of this court to consider whether it has jurisdiction before it takes affirmative action.</p> <p>St. 1907, c. 576, § 75, which provides that no policy of life or endowment insurance shall be issued or delivered in this Commonwealth until a copy of its form has been filed at least thirty days with the insurance commissioner, or if the commissioner notifies the insurance company in writing within such thirty days that in his opinion the form submitted does not comply with the requirements, specifying his reasons; and that the action of the commissioner shall be subject to review by “ the Supreme Court of the Commonwealth ”; and which prescribes certain substantive provisions that must be in all such policies, is a constitutional enactment regulating the business of insurance, being within both the police power of the Legislature and within its power as the creator of domestic and the controller of domestic and of foreign corporations doing business within the Commonwealth; nor does it improperly delegate power to the commissioner, since it merely appoints him as an administrative officer to pass upon whether the forms of policies submitted conform to the legislative requirements, his decisions being subject to review in original proceedings which the companies may bring before a court of law properly designated for the purpose.</p>

<p>Equity Pleading and Practice, Exceptions to master's report, Bill. Evidence, Remoteness, Presumptions and burden of proof, Circumstantial. Witness, Refreshing recollection. Bankruptcy, Preference. Corporation, Officers and agents. Fraud. Equity Jurisdiction.</p> <p>Upon a reservation by a single justice of this court for consideration by the full court of exceptions to findings of fact contained in the report of a master to whom a suit in equity was referred, the report containing all the evidence introduced before the master, such findings will not be revised unless they are plainly wrong, although upon some of the issues the full court might not have come to the same conclusions as were reached by the master.</p> <p>At the hearing before a master of a bill in equity by the trustee in bankrupcty of a corporation against one who was president, treasurer, general manager and a member of the board of directors of the corporation, to recover the value of property alleged to have been conveyed by the corporation to the defendant by way of preference, it appeared that an involuntary petition against the eorpo- ■ ration, seeking to have it adjudged bankrupt, was filed on March 16, 1904, and that appraisers appointed by the bankruptcy court appraised the assets of the corporation on April 11,1904. A material question was whether the corporation was insolvent on December 10,1903, and the plaintiff offered as evidence to prove such insolvency the testimony of the appraisers as to what was the value of the property which they had seen.and examined. The master admitted the evidence, and stated in his report that it was of slight probative value but vvas enough “ to turn the scale,” and the defendant excepted. Held, that the evidence might have been found by the master not to be too remote under the ■ circumstances, and that the exception therefore must be overruled.</p> <p>Two of three appraisers, who had been appointed by the bankruptcy court to appraise the estate of a bankrupt and had filed their report, were called by the plaintiff to testify at a hearing before a master of a bill in equity where such value was a material fact, as to the value of the property at the time of the appraisal. One of them, being handed a certified copy of the report of the appraisers, which the master. expressly said was to be used only to refresh the recollection of the witnesses, stated that the amounts in the copy were correct, and then stated what the amounts were. The other witness stated that he could not remember what the value was, but that it was as stated on the certified copy of the appraisers’ report. The certified copy then was offered in evidence and admitted “as being an attested copy of the appraisal of these men appointed by the court." The third appraiser was not called. The defendant excepted to the admission of the certified copy of the report of the appraisers in evidence. A single justice of this court, before whom the exception was heard, reserved the case for consideration by the full court. Held, that, while neither the original nor a certified copy of the appraisal was admissible as in itself evidence of the value of the property appraised, it did not in this instance appear to have been offered or admitted as such evidence, but merely as a statement of the evidence intended to be given by the second witness; and that therefore there was no error in its admission. ■ -</p> <p>A petition was filed on March 16, 1904, in the bankruptcy court against a corporation seeking to have it adjudged a bankrupt, and, because the petition was contested and the adjudication and the appointment of a trustee were thereby delayed, the court appointed a receiver to take charge of the assets in the meantime. The receiver, after reasonable efforts to get the highest price obtainable for the assets, sold them to one who had been the president, treasurer, general manager and a member of the board of directors of the corporation. At the hearing before a master of a bill in equity by a trustee in bankruptcy of the corporation, who was afterwards appointed, against him who bad been president, treasurer, general manager and a member of the board of directors of the corporation, to reeoverthe value of certain property conveyed to the defendant by way of preferences by the corporation before the filing of the petition, testimony as to the amount for which the assets were sold by the receiver to the defendant was admitted as evidence on the question of what the value of the assets was, and the defendant excepted. Held, that the evidence was not too remote, and was admissible.</p> <p>Exceptions to the rulings of a master, to whom a suit in equity has been referred, upon the admissibility of evidence not plainly affecting his conclusions upon the real merits of the suit, are not readily to be sustained.</p> <p>Both the intent of a debtor to make the preference referred to in §, 60, a, b, of the bankruptcy act of 1898, as amended by U. S. St. 1903, c. 487, and the reasonable cause on the part of the creditor to believe that such preference was intended, may be shown by circumstantial evidence in a suit brought by the trustee to recover the property so transferred or its value.</p> <p>From evidence before him at the hearing of a suit in equity by the trustee in bankruptcy of a corporation against one who had been president, treasurer, general manager and a member of the board of directors of the corporation, to recover the value of property alleged to have been conveyed to the defendant by the corporation as a preference under § 60, a, b, of the bankruptcy act of 1898, as amended by U. S. St. 1903, c. 487, a master to whom the suit had been referred found that, without evidence which was introduced before him of the value assigned to the corporation’s assets by appraisers appointed in the bankruptcy proceedings, and of the amount for which a receiver who was appointed in those proceedings had sold the assets to the defendant, the probative weight of which evidence he found was “light,” he would “ not have found that the corporation was insolvent" at the time the alleged preference was made, or that the defendant had reasonable cause to believe it to have been insolvent and that it intended to give him a preference ; but he also found that, at the time the conveyance was made, the defendant had reasonable cause to believe that the corporation was insolvent and intended to prefer him, since a state of things then existed and then was known by the defendant, which, if known by a business man of ordinary prudence and intelligence, would have caused him to believe that the corporation was insolvent and intended to give a preference. And he ruled that the defendant should return to the plaintiff the value of the property conveyed. Held, that, upon the facts found, there was no error in the ruling.</p> <p>One who was president, treasurer, general manager and a member of the board of directors of a corporation, and also was engaged in a business similar to that in which the corporation was engaged, was, at a time within four months of the filing of a petition to have the corporation adjudged bankrupt, (upon which an adjudication afterward was made,) an indorser upon notes of the corporation and knew that the corporation was insolvent, but, knowing that the corporation intended to prefer him, he accepted from the corporation a deed of certain of its property and of its book accounts, which purported to be in consideration of loans to be made in the future, but which was made in part at least to secure past indebtedness of the corporation to him. He also received in the same period and under the same circumstances payments of balances due him from the corporation in excess of what he owed it. In a suit in equity brought against him by the trustee in bankruptcy of the corporation to recover the value of the property thus conveyed, the amount collected on the book accounts, and the payments to him on his account with the corporation, it was held, that the transactions were preferences under § 60, a, of the bankruptcy act of 1898 as amended by U. S. St. 1903, c. 487, and that, under § 60, b, the trustee might avoid them, and recover from the defendant the value of the property of the corporation thus conveyed and paid to the defendant.</p> <p>One who was the president, treasurer, general manager and a member of the board of directors of a corporation, an indorser upon a promissory note of which it was the maker and a guarantor of certain of its bills payable, knowing that the corporation was insolvent and that it intended, in preference to other creditors, to relieve him from his liability as such indorser and guarantor, himself as treasurer of the corporation paid the note at its maturity and the account which he had guaranteed, at a time within four months of the filing in the bankruptcy court of a petition that the corporation be adjudged bankrupt, upon which an adjudication afterwards was made. Neither the payee of the note nor the creditor thus paid had reason to believe that a preference was intended by the payment. Held, that such payments were preferences within the meaning of § 60, a, of the bankruptcy act of 1898, as amended by U. S. St. 1903, c. 487, and that, under § 60, b, the trustee in bankruptcy could recover in a suit in equity against the indorser and guarantor, as one who was “ benefited thereby,” the amount of the payments.</p> <p>Upon a reservation by a single justice of this court for consideration by the full court of an exception to a ruling of a master, to whom a suit in equity had been referred, in which he refused to allow a certain claim of the plaintiff on the ground that the allegations of the bill were not broad enough to include the claim, such exception must be sustained if it appears that the defect in the allegation in the bill was one which might have been taken advantage of by demurrer or one that might have been cured by a merely formal amendment, and if, on the facts as found by the master, the plaintiff was entitled to relief.</p> <p>In a suit in equity by the trustee in bankruptcy of a corporation against one who had been its president, treasurer, general manager and a member of its board of directors, to recover the value of certain alleged preferences received and profits made by him in violation of his official duties, it appeared that, at a time within four months of the filing of the petition in bankruptcy, the defendant, knowing of the corporation’s insolvency, purchased a claim from a creditor at less than its face value, and then as treasurer paid himself its full face value. A master to whom the suit was referred ruled that the plaintiff could recover, but that his recovery was limited to the profits the defendant made on the transaction, and both the plaintiff and the defendant excepted. Held, that both exceptions must be overruled, since the master might have found that the defendant in purchasing the claim was acting as agent of the corporation; but, that, if the master had found that in making the purchase the plaintiff had been acting for himself and not on behalf of the corporation, the entire amount paid to him in settlement of the account might have been recovered by the plaintiff as a preference under § 60, a, b, of the bankruptcy act of 1898 as amended by U. S. St. 1903, c. 487.</p> <p>A master, to whom was referred a suit in equity brought by the trustee in bankruptcy of a corporation against one who was its president, treasurer, general manager and a member of its board of directors, to recover an amount of money alleged to have been paid to the defendant as salary in excess of the fair value of the services of the defendant to the corporation, found that, by a vote of the directors of the corporation shortly after its organization, the defendant was to receive annually as salary a sum equal to $5,000 and six per cent of the amount of capital invested by him, and that the other officers were to receive as their salaries certain amounts and like percentages of the capital invested by them ; that subsequently, as from time to time he acquired additional shares of the capital stock of the corporation, the directors voted to the defendant as additions to his salary amounts equal to six per cent of the par value of the stock thus acquired* by him; that a fair value of the services of the defendant to the cor- . poration was $6,000; that the corporation never had declared any dividend, eo nomine. Held, that the plaintiff was entitled to recover all sums in excess of $5,000 per year paid to the defendant as salary, but that it could not be ruled as a matter of ,law that such voting of salaries amounted to a declaration of a dividend.</p>

<p>Contract, Construction, Performance and breach. Interest. Damages. Practice, Civil, Auditor.</p> <p>In an action by a contractor against a street railway company, which was erecting on a wharf a large pocket for the storage of coal to be brought to the wharf in vessels, for a balance alleged to be due under a contract in writing to construct for the defendant in accordance with certain specifications two hoisting towers for hoisting coal from the vessels to the top of the pocket, it appeared that the contract contained the following provision: “ The contractor agrees that all material furnished and work done hereunder shall be subject to acceptance by the railway company and its vice president; that all apparatus furnished and work done shall be subject at all times to the inspection of said vice president or his authorized agents, and that any work performed or material furnished which may be deemed by said vice president to be not in accordance with the terms of this contract and accompanying specifications shall be immediately replaced by the contractor at his own expense.” The specifications provided that the work should be executed under the direction and supervision of the vice president of the railway company or his authorized representative, and that the vice president, “ without relieving the contractor from any responsibility therein ” reserved the right to direct the manner and order in which the work should be executed. The vice president executed the contract in behalf of the defendant and the correspondence which took place under the contract was conducted for the defendant by him. Held, that the vice president represented the defendant in the transaction and therefore was not in the position of a third person named as an arbitrator; consequently that the work was to be done to the satisfaction of the defendant, and, this being a business contract into which matters of personal preference did not enter, that, if the towers as built by the plaintiff were not satisfactory to the defendant’s vice president, the plaintiff still could recover the contract price on showing that the towers were so constructed that they ought to have satisfied any reasonable man as a performance of the contract.</p> <p>In an action by a contractor against a street railway company, which was erecting on a wharf a large pocket for the storage of coal to be brought to the wharf in vessels, for a balance alleged to be due under a contract in writing to construct for the plaintiff, by a certain date and in accordance with certain specifications, two hoisting towers for hoisting coal from the vessels to the top of the pocket, the contract required that the work should be done to the satisfaction of the defendant and its vice president acting as its representative. Six months after the first tower and five and a half months after the second tower should have been completed and in working order, the defendant’s vice president sent to the plaintiff a letter stating that “ Up to this time there is no indication that these towers are likely to prove in any degree adequate or satisfactory,” complaining that the plaintiff’s men had left the work and ending as follows: “ Unless you proceed without further delay to complete your contract we shall be compelled to install an efficient apparatus at your expense.” In answer the plaintiff wrote a letter asking the defendant to point out any feature of the contract not carried out. This resulted in interviews and correspondence in which the disputed matters were discussed under fourteen heads, until on the third day of a month, a month and a half after the beginning of the correspondence, the defendant’s vice president wrote to the plaintiff as follows: “ I now have your letter of 2nd inst. and am pleased to note that you now wish to immediately proceed with the completion of the towers in accordance with my letter of the 24th nit. We supposed you would do so immediately on receipt of that letter, nor was there anything in your subsequent letter of the 27th ult. which appeared to be in conflict with the work proposed to be done. We were therefore at a loss to understand your telegram of 1st inst. So far from holding up the work, we have demanded and do demand that you proceed forthwith to complete your contract. You mention a desire that we should, in acknowledging your letter, state that the work can proceed to completion without interruption. We have no desire whatever to interrupt the work, but we waive none of our rights under the contract to reject any or all of it if it proves unsatisfactory when completed.” Held, that the last sentence above quoted reserved the defendant’s right to accept or reject the work done under the contract as modified by the interviews and correspondence, and that defects which had not been pointed out and insisted upon at the time the last letter was written were waived.</p> <p>In an action by a street railway company, which was erecting on a wharf belonging , to it a large pocket for the storage of coal to be brought to the wharf in vessels, for alleged breaches of a contract in writing to construct for the plaintiff, by a date named and in accordance with certain specifications, two hoisting towers for hoisting coal from the vessels to the top of the pocket, one of the specifications was as follows : “ The contractor guarantees that the apparatus furnished by him shall be ample and suitable in design and construction to perform the work as hereinafter specified, and that it shall be free from all defects in workmanship or material. He also agrees to furnish free of charge to the railway company any part proving defective in the apparatus or any part thereof within two years after date of complete installation in working order of said apparatus.” Within two years after the date of installation, while hearings in the case were being had before an auditor, a crack appeared in the frame of the engine of each tower. The auditor found that these cracks came, not from a faulty design, but from some fault in the casting and that they constituted “ a serious defect.” It seemed that the plaintiff continued to use the engines after the cracks appeared. The engines were not in any way affixed to the land. Held, that, if the defect gave the plaintiff a right to reject the engines altogether, which was not passed upon, such right had been waived by the plaintiff’s continued use of the engines. Held, also, that the specification above quoted gave the plaintiff the right to elect whether, on the discovery of such a defect within two years, it would call for a new part or would claim damages, and that the right to call for a new part was not an exclusive remedy.</p> <p>The rule of Foote v. Blanchard, 6 Allen, 221, that a purchaser of goods for cash payable on delivery in case of non-payment is chargeable with- interest from the date of delivery, is not applicable to an action on an account annexed containing forty-five items amounting to about $3,000, of which two items amounting to over $700 are for work done, three items amounting to more than $160 are for part of a bill of a person named, the nature of which does not appear, and sixteen items amounting to more than $50 are for freight. In such a case, if the plaintiff recovers, interest is due from the date of the writ only.</p> <p>One who has been deprived of the use of his property contrary to the provisions of a contract, in suing for damages in an action of contract, is not precluded from recovering because the property in question commonly is not rented.</p> <p>An auditor in assessing damages for a breach of contract is not bound to accept the testimony of an expert because it is the only evidence on the subject, but he is not justified in refusing to award any damages because he considers the estimate of the expert “obviously absurd.” If he thinks the estimate too large, he can cut it down to the proper amount.</p> <p>In an action by a street railway company, which was erecting on a wharf belonging to it a large pocket for the storage of coal to be brought to the wharf in vessels, for alleged breaches of a contract in writing to construct for the plaintiff, by a date named and in accordance with certain specifications, two hoisting towers for hoisting coal from the vessels to the top of the pocket, it appeared that one of the towers was not completed until more than nine months after it was required by the contract to be “ completed and in working order ” and that the other tower was not completed until about a month and a half later. Of these two periods of delay an auditor found that seven months in each case was the “ inexcusable delay ” of the defendant. It further appeared that during a portion of the period of delay there was a coal famine at the port in which the plaintiff’s wharf was situated owing to a strike at the coal mines. The auditor did not find what portion of the period of delay was covered by the coal famine and the strike. The plaintiff had a power station at its wharf which used four thousand tons of coal a month, and had a storage capacity of three thousand tons, in addition to that of the coal packet. The auditor found that the damages “ were all attributable to the coal strike, which came without warning like a flood or tornado.” He found and ruled that the damages suffered by the plaintiff were attributable to the coal strike and not to the failure of the defendant to perform its contract, and ruled that the plaintiff was not entitled to recover any damages. Held, that the ruling of the auditor that the plaintiff was entitled to no damages was wrong, and that the case must be recommitted to him for further hearing on the damages suffered by the plaintiff from the defendant’s inexcusable delay of seven months; that the direct damage suffered by the plaintiff was the loss of the means of economical operation which the use of the towers would have furnished; that during the period of delay the plaintiff lost all return on the money previously paid by it in part payment for the towers, all use of its wharf and the adjoining dock and all use of its investment in the coal pocket and other structures erected by it for use in connection with the towers ; that the expense of demurrage, which had to be paid to get coal loaded during that portion of the seven months while there was a strike or the effects of the strike lasted, might have been incurred reasonably by the plaintiff in discharging coal at another wharf, instead of discharging it at the plaintiff’s wharf which had been rendered useless by the coal towers not being in working order through the inexcusable delay of the defendant; that the fact, that the delay was caused by a strike which came “ like a flood or a tornado ” in no way excused the defendant from paying the damages ensuing from his breach of contract,; and that the fact that the price which the plaintiff had to pay for the equivalent of its wharf during the time of the strike was exceedingly high because of the strike did not deprive the plaintiff of the right to recover it as damages.</p>

<p>Practice, Civil, Findings of trial judge. Statute, Extraterritoriality. Conflict of Laws. Contract, Validity. Wagering Contracts.</p> <p>The findings of fact made by a trial judge sitting without a jury are not open to revision if there is evidence on which they could have been made.</p> <p>R. L. c. 74, § 7, making void a contract for the sale of securities unless the person contracting to sell them is the owner or assignee or is authorized to sell by the owner or assignee or his agent, applies only to contracts made in this Common» wealth.</p> <p>E. L. c. 99, § 4, giving the right to recover money, paid on margins under the wagering contracts described in that section, does not apply to contracts made outside this Commonwealth.</p>

<p>Fixtures. Mortgage, Of real estate.</p> <p>As between the mortgagor and the mortgagee oí a dwelling house, gas fixtures attached to the building and used with it may or may not be personal property according to the facts and circumstances which tend to show that they do or do not belong to the building and were or were not intended to remain with the building as a part of it. And this also is true of steam radiators, a kitchen range and window screens and door screens.</p> <p>A gas stove and window shades, running on rollers, in an ordinary dwelling house for a single family, not peculiarly fitted for use in this house but of a standard pattern, loosely affixed and easily removed, put into the house by its owner and mortgagor, as matter of law are personal property, and do not pass as part of the realty on a foreclosure sale under the mortgage.</p>

<p>Four actions op tort por libel, the first two by different plaintiffs against the Post Publishing Company and the last two by the same plaintiffs against the Boston Transcript Company. Writs dated January 17, 1903, and January 12 and September 27,1904.</p> <p>In the Superior Court the cases were tried together before Bishop, J. The character of the charges contained in the publications complained of is stated and described in the opinion. The judge instructed the jury as follows:</p> <p>“ The questions upon which evidence has been taken before you are two: first, as to whether there was on the part of the defendants malice towards the plaintiff in these articles; and, secondly, whether the articles were or were not a fair statement of the meeting and of what they purport to state concerning the legal proceedings. And upon such consideration as I can give to this case I rule to you that there is no sufficient evidence of malice in this case, nor-that the articles in question are not fair accounts of the meeting and of what they purport to state of the bill in equity, to warrant a verdict for the plaintiff, and that independently of such evidence the publications are privileged and the plaintiff is not entitled to a verdict, and I direct you, gentlemen, to return verdicts for the defendants in these cases.”</p> <p>In accordance with this direction the jury returned verdicts for the defendants; and the plaintiffs alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action under B. L. c. 106, § 73, by the widow of a workman against a general contractor, for causing the instantaneous death of her husband, while he was < working as one of a gang of men in the employ of the defendant in attempting to erect a heavy pole, from the pole suddenly falling upon him, there was evidence that the plaintiff had been in this country about two months, that he did not speak or understand English, that before his employment by the defendant he had worked as a laborer in shovelling and picking, and that he went to work on the job the day before he was killed, having had previously no experience in this kind of work. There was nothing to show that he was not doing in the usual way the work which he had been set to do, and there was evidence that, if any warning was given by the defendant’s superintendent, the plaintiff’s husband failed to understand it, and that from want of experience he did not appreciate the danger of poles falling. There also was evidence warranting a finding that his failure to avoid the danger might have been due to confusion on his part resulting from the imminence of the peril and his want of experience. Held, that the plaintiff’s husband did not assume the risk of such an accident, and that the question of his due care was for the jury, upon which they might consider the fact that the other workmen escaped and that the plaintiff’s husband perhaps might have escaped also if he had been less confused or had moved more quickly, but that it could not be ruled as matter of law that he was wanting in due care because in a moment of sudden peril he failed to use the best means of escape.</p> <p>It is the duty of an employer toward his workmen to furnish a sufficient number of workmen to do the work required of them.</p> <p>In an action under R. L. c. 106, § 73, by the widow of a workman against a general contractor, for causing the instantaneous death of her husband, while he was working in the employ of the defendant as one of a gang of six men under a foreman in attempting to erect a heavy pole, thirty feet high above the ground and sixteen or eighteen inches in diameter at its base, from the pole suddenly falling upon him, there was evidence warranting the jury in finding that the defendant did not furnish a sufficient number of men to enable those engaged in erecting the pole to do so in safety and that such negligence was the proximate cause of the death of the plaintiff’s husband. Held, that the question of the defendant’s negligence was for the jury.</p>

<p>Tort for personal injuries received by the plaintiff on June 24, 1905, in Springfield through a collision of an open electric car of which the plaintiff was the conductor with an automobile owned and operated by the defendant. Writ dated October 4, 1905.</p> <p>In the Superior Court the case was tried before Pierce, J. At the time of the accident the plaintiff was standing upon the running board of his car collecting fares from the passengers. The automobile was at the time disabled. It was a Knox delivery van twelve feet long, seven and a half feet high and four feet wide, weighing three thousand pounds. Just before the accident the defendant had attempted to turn the automobile from Belmont Avenue into Leyfred Terrace. As he did so, the wheel of the automobile dropped into a depression or gutter which ran along the cross walk at the entrance to Leyfred Terrace, and so far threw the sprockets of the automobile out of alignment that the driving chain was thrown off from the rear sprocket. This left the automobile without motive power, and incapable of control by the ordinary brake. Owing to the declivity of the street at that point the automobile started backward and down Belmont Avenue. The defendant retained his seat in the automobile, and endeavored to stop it by running it against the curbstone. But, instead of stopping, the automobile was carried by its momentum over the curbstone, across the sidewalk and against a terrace or bank. It then recoiled from the bank and started forward very slowly across the sidewalk into the street and toward the street railway tracks. The defendant testified that as the street car of which the plaintiff was conductor was approaching he tried to stop the automobile by using the emergency brake but that it failed to work, for the reason that its friction device, upon which the chain had fallen when it was thrown off, had become smeared with the lubricant with which the chain was covered. The plaintiff contended that the defendant was negligent in his manner of driving his automobile and particularly in not using the emergency brake instantly when one wheel was in a deep gutter. The other questions in the case and the special findings of the jury are stated in the opinion. The judge refused to rule that the plaintiff was not entitled to recover and also refused to make the other rulings requested by the defendant. The jury returned a verdict for the plaintiff in the sum of $510; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, New trial, Memorandum of judge, Exceptions.</p> <p>If a judge, who presided at a trial and has made an order setting aside the verdict as against the evidence and the weight of evidence and granting anew trial, files a memorandum setting forth the grounds of his decision, such memorandum of the exercise of his discretion is not properly a part of the record, and there is nothing to prevent the judge from altering it, adding to it or even wholly withdrawing it at any time during the pendency of the proceedings before him, and he may make the alteration or addition in a certificate appended to a bill of exceptions which he disallows or in such other form as seems to him best, the matter being entirely within his discretion and control.</p> <p>An order of the judge who presided at a trial setting aside the verdict as against the evidence and the weight of evidence and granting a new trial is conclusive and is not the subject of exception.</p>

<p> Officer. Arrest. Assault and Battery. </p> <p>An officer making an arrest which he is authorized to make has a right to use such force as is reasonably necessary to overcome resistance, but if he uses unreasonable or excessive force he is liable in an action of tort for assault and battery, and in such an action, if it is shown that the force used by the defendant was excessive, it is no defense that he acted without malice and in the honest belief that the force which he used was necessary.</p>

<p>Insurance, Accident. Payment. Evidence, Presumptions and Burden of proof.</p> <p>In an action on a policy of accident insurance by the widow of the insured to recover the amount payable upon his death from injuries due to an accident of the kind covered by the policy, the terms of the policy required the plaintiff to show that the death of tlie insured was due to the accident alone. The physician who attended the insured after the accident testified that in his opinion the accident was the sole cause of death. There was testimony of the plaintiff and others as to the appearance and condition of the insured before and after the accident which the jury could find tended to support the same conclusion. There was testimony as to whether the insured had been suffering from diabetes, and an attending physician testified that he was unable to tell whether the accident was tlie sole cause of death or not. There also was in evidence an application by the insured to the defendant for a weekly indemnity under the policy made at a time when he supposed that he had recovered from his injuries. Held, that the question whether the accident was the sole cause of the death of the insured was one eminently for the jury and that a finding by them that such was the case was warranted by the evidence.</p> <p>In an action on a policy of accident insurance by the widow of the insured to recover the amount payable upon his death from injuries due to an accident of tlie kind covered by the policy, it appeared that the insured had applied to the defendant for a weekly indemnity for his loss of time resulting from the accident which caused his death, and in his application had agreed that the indemnity when paid should be in full discharge of any and all claims under his policy against the defendant on account of the injuries in question and should release and forever discharge the defendant from all liability under the policy on account of those injuries. There was evidence that a letter containing a check for the amount claimed by the insured as weekly indemnity, properly addressed to the insured with a return imprint on the envelope in which it was enclosed and witli postage prepaid, was mailed to the insured by the defendant’s treasurer a few days before the death of the insured and that it never had been returned to the defendant. The defendant admitted that the check never had been used by the insured, and the plaintiff testified that she never had seen it, and that after the death of the insured she examined his clothes and pocket book and looked through his effects and found no check of the defendant. Held, that on this evidence the jury would be warranted in finding that the check never liad been received by the insured and consequently that the weekly indemnity to which he made claim never had been paid to him.</p>

<p> Great Pond. Watercourse. Tide Mill. Damages. Interest. </p> <p>Although the Legislature have the power to take the waters of a great pond for a public purpose without making any compensation to owners on streams flowing from it, yet, in granting a right to use the waters of the pond for a public purpose, such as the water supply of a town, they may, if they please, require compensation to be made to private persons where no legal right has been interfered with.</p> <p>A brook which is an outlet of a great pond, through which water of the pond has flowed to the sea for more than two hundred years with the acquiescence of all persons, has acquired the character of a natural watercourse, although the outlet connecting the brook with the great pond originally may have been an artificial channel.</p> <p>The owner of a tide mill and mill dam making use of the waters of a natural watercourse, or of a stream which has acquired the character of a natural watercourse, has as much right to use the water in the way that he does as the owner of an ordinary mill lias to use the water of a flowing stream in the usual way, and the fact that his dam is below high water mark and that his mill accordingly is operated as a tide mill affects the manner of his use of the water but not his right to use it.</p> <p>Section 4 of St. 1894, c. 78, an act to supply the town of Rockport with water, provides that “ Said town shall pay all damages sustained by any person or corporation in property by the taking of any land, right of way, water source, water right or easement, or by any other thing done by said town under the authority of this act.” The town under the provisions of the act took the waters of Cape Pond, a great pond. The owner of a tide mill and mill dam on Mill River filed a petition for damages under the act. It appeared that a brook called Alewife Brook, one branch of which comes from Cape Pond, flows into Mill River above the petitioner’s dam, that the water of Alewife Brook thus flowed into the pond created by the petitioner’s dam, raising its level to a higher point and for a longer time than otherwise would be the case, and that this flow was diminished seriously by the taking of the waters of Cape Pond by the respondent. There was evidence that the present outlet of Cape Pond into Alewife Brook was the original and natural one, but there was other evidence that this outlet originally was merely an artificial channel dug before the year 1700, although it was not disputed that the waters had flowed in their present channel for more than two- hundred years. The presiding judge refused to instruct the jury that if they found that the brook connecting Cape Pond with Alewife Brook was not a natural watercourse but an artificial channel the petition could not be maintained, and submitted to the jury the question whether the brook would in the course of nature flow at low tide across the flats upon which the petitioner’s dam was constructed if no dam were there. Held, that the refusal of the instruction requested and the submission to the jury were correct; that as the brook had flowed in its present course for more than two hundred years and all persons had acquiesced in that condition it had acquired the character of a natural watercourse and it was immaterial whether the outlet from Cape Pond originally was natural or artificial; that the rights of the petitioner were as great as those of an ordinary riparian owner; that the fact that his dam was below high water mark and that his mill accordingly was operated as a tide mill, affected only the manner in which he made use of the water and not his right to use it; and that the damages caused by the diminution of the flow of water into the petitioner’s mill pond could be found to be the direct and proximate result of the taking and not too remote to be recovered.</p> <p>Upon a petition for damages for the taking of waters under St. 1894, c. 78, an act to supply the town of Rockport with water, § 4 of which provides that “no application for the assessment of damages shall be made for the taking of any water, water rieht, or any injury thereto, until the water is actually withdrawn or diverted by said town under the authority of this act,” interest must be computed upon the amount of damage, if any, from the time when the waters actually were diverted, and a delay in the trial of the case after the filing of the petition, when either party could have brought it up for trial, is no reason for computing the interest from any later date,</p>

<p>Evidence, Judicial notice, Admissions and confessions. Street Railway. Corporation. Statute. Estoppel. Municipal Corporations, Officers and agents. Words, “ Schools,” “Pupils.”</p> <p>This court takes judicial notice of the facts that a corporation, which was organized since 1864, and which owns and operates a street railway in this Commonwealth, must have been organized under the laws of this Commonwealth, and that its organization was not under a special charter.</p> <p>A street railway corporation was not organized under Pub. Sts. c. 118, §§ 2-8, until, under § 7, the locations for its tracks had been procured from the aldermen of the cities and the selectmen of the towns through which the railway was to pass, “ under such restrictions as they ” deemed “ the interests of the public ” might “ require.”</p> <p>A street railway company, which petitioned for, was granted and accepted from the selectmen of a town under Pub. Sts. c. 113, § 7, a location for its tracks subject to certain restrictions which at that time were lawful, and thereupon under § 8 became established as a corporation, having consented to come into being subject to such restrictions, cannot be heard to complain of them.</p> <p>It was within the powers of the selectmen of Clinton, on petition under Pub. Sts. c. 113, § 7, by those intending to organize the Worcester and Clinton Street Railway Company in 1877, for a grant of location for the company’s tracks, to impose, as a restriction under which the grant should be made, a provision that the company should “ provide to pupils in attendance upon the public schools, the State Normal School of Worcester, or any school in Worcester, transportation to such pupils at half price while going to and from school.” The franchise of the corporation, which came into being under § 8 after acceptance of the location as granted and before September 30,1898, was subject to the restriction; and such acceptance of the location and subsequent creation of the corporation must be taken to be an admission by the corporation that the restrictions imposed by the selectmen were reasonable and for the public interest.</p> <p>On petition of those intending to organize the Worcester and Clinton Street Railway Company, the selectmen of Clinton in 1897, under Pub. Sts. c. 113, § 7, granted a location for the company’s tracks, subject to a restriction which was in the following language: “ Said company further agrees to provide to pupils in attendance upon the public schools, the State Normal School of Worcester or any school in Worcester, transportation to such pupils at half price while going to and from school.” The grant was accepted and the corporation established under § 8 before September 30,1898. In accordance with St. 1897, c. 269, § 1, that company thereafter by deed sold all its property and franchises to the Leominster and Clinton Street Railway Company, and the latter to the Worcester Consolidated Street Railway Company, the grantee in each deed agreeing to assume and perform all obligations and contracts of the grantor. In 1906, the Worcester Consolidated Street Railway Company refused longer to carry upon its cars at a half fare rate students attending the State Normal School, Holy Cross College, and the Worcester Business Institute. Both of the latter institutions were supported by private funds, the former of the two being an institution for higher education, and the latter an institution for the teaching of such subjects as bookkeeping, shorthand, typewriting, commercial law, business and business methods. The selectmen of Clinton by a bill in equity sought a mandatory injunction commanding the company to transport students attending the three institutions from Clintpn to the institutions and return at a half fare rate. Held, that, as to pupils at the State Normal School at Worcester, the restriction was enforceable against the defendant, and accordingly the mandatory injunction sought with regard to such pupils should issue; but that no injunction should issue as to the transportation of students attending the other two institutions, since they did not.come within the description, “pupils ... in attendance upon any school in Worcester.”</p>

<p>Two petitions, filed in the Superior Court for the county of Suffolk on July 18, 1907, for damages alleged to have been sustained by the petitioners by reason of the abolition of the crossing at grade of Dudley Street in Boston by the New England Railroad.</p> <p>The substance of the petitions is stated in the opinion. Demurrers of the defendants were overruled by Richardson, J., who, at the request of the respondents, reported the cases for consideration by this court.</p>

<p>Tort by a tenant in a tenement house against the landlord to recover for injuries received by the plaintiff by reason of her tripping upon a mat alleged to have been negligently placed in the common passageway by the defendant. Writ in the Superior Court for the county of Suffolk dated December 17, 1903.</p> <p>There was a trial before Gaskill, J. The plaintiff testified that at the time of the accident she had been living in the tenement for nearly two years, that the building was arranged for stores on the ground floor and suites of rooms above; that the suite above the stores was occupied by the defendant and the suite above him was occupied by the plaintiff, while that above her was occupied by one Schwartz; that there was an outside door “which you enter from the street; that the first thing you come to after you enter the door is the stairs going up; that there is a long flight of stairs, then you turn and go up three or four stairs and come to a landing; that this landing is opposite the door of the defendant’s suite; that there is no other suite opening out from that landing; that you continue turning to the left and going up stairs and come to the apartments at the time occupied ” by the plaintiff; that “ there is glass in the outside door, thick, heavy, cloudy glass ”; that there was no glass through the door which led into the defendant’s suite; that a lamp was lit in the hallway between four and five o’clock in the afternoon, and was left burning until ten o’clock at night; that there was no gas light or gas jet in the hallway at the time of the accident; that on the day of the accident, July 8, the plaintiff had started to go to her work between five and half past five in the morning. “I was going down stairs . . . and I came down my flight of stairs all right. I let go the banisters like this (indicating), and there is a turn, and I hit my foot, my left foot, against the corner of something. I didn’t know what it was but I found out afterwards it was the mat. And I fell down. I went to reach for the banisters down and I couldn’t catch hold, it was too far down, I would have to stoop, and I fell over on this hand and I broke it.”</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence, the presiding judge directed a verdict for the defendant, and the plaintiff excepted.</p>

Contract to recover a balance alleged to be due to the plaintiff from the defendants, trustees of the Crescent Land Company, for the construction of two streets, as stated in the opinion. Writ in the Municipal Court of the City of Boston dated December 20,1905.

<p>Contract upon the agreement in writing between the plaintiff’s testator, Henry G. Houghton, and the defendant, personally, which is described in the opinion. Writ in the Superior Court for the county of Middlesex dated April 27, 1906.</p> <p>The writ directed the sheriff to “ attach the goods and estate which were of . . . Hapgood and . . . Long, ... in the hands and custody of Charles H. Sprague . . . assignee for the benefit of creditors of said . . . Hapgood and . . . Long ” and to summon “the said Charles H. Sprague as he is assignee as aforesaid ” to appear at the next term of the court. The contract annexed to the declaration was between the plaintiff’s testator and the defendant acting in a personal capacity. There was no demurrer or plea in abatement.</p> <p>The defendant in his answer admitted the allegations of fact in the declaration (which are the facts stated in the opinion), but denied liability because the plaintiff’s testator never had tendered or delivered the note and mortgage therein mentioned to the defendant; and also alleged that the defendant was entitled to damages in recoupment because of the failure of the plaintiff to deliver the note and mortgage.</p> <p>There was a trial before Stevens, J., who, as stated in the opinion, directed a verdict for the plaintiff, and the defendant excepted.</p>

<p>Contract, Construction. Net Profits. Partnership.</p> <p>In an action to recover for the alleged breach of a contract in writing between the plaintiff and the defendant, a corporation, by which the defendant was to furnish the capital for establishing and conducting the business of manufacturing and selling wire rope and the plaintiff was to furnish his skill and devote all his time to the business, and the “ net profits ” were to be shared equally between the plaintiff and the defendant, it appeared that the defendant before the making of the contract was engaged in manufacturing wire cloth and that the new business of manufacturing and selling wire rope was to be carried on as a separate department of the defendant's business to be known as the wire rope department, that the amount of capital to be furnished by the defendant was $50,000 and no interest was to be paid on that sum. The contract provided as follows : “ The said capital to be represented by proper building or buildings suitable for making rope of various kinds and qualities from wire, with power and machinery sufficient to so manufacture such rope to the amount of $100,000 (present sales price) per annum, and by the amount of capital necessary to purchase or provide the wire necessary for the production of rope to the amount named per annum, meaning that the said party of the first part '[the defendant] is to provide all that is necessary for the equipment and establishment of the wire rope business to the extent above specified, together with the proper facilities for carrying on the same and the same is to be provided as soon as practicable.” Another provision of the contract was as follows: “ In ascertaining the net earnings the cost or expenses of the business shall be made up the same as if this department were a separate company allowing for taxes on the capital employed and other charges as usual.” In computing the “ net earnings ” to be shared with the plaintiff under the contract in a certain year the defendant charged against the gross earnings, a sum for depreciation of buildings and machinery, another for power furnished by it to the wire rope department, another for repairs, another for insurance, and another for a loss of finished product destroyed while in a warehouse “ hired maintained and managed ” by the wire rope department. The plaintiff objected to each of these charges, and rested his claim for damages upon his alleged'right to have them disallowed. Held, that each of these charges was a proper deduction in computing the “net profits" to be shared equally by the plaintiff and the defendant under the contract, and that for this purpose it did not matter whether the contract created a partnership, as, if it did not, the plaintiff was to be paid for his services in “ net profits ” on the same basis as if the plaintiff and the defendant had been partners; that, in computing the net profits of a business, depreciation, repairs and loss of finished product are proper charges against gross earnings; that insurance was a “ usual ” charge of a business within the meaning of the provision of the contract above quoted, and that, without such provision, the deduction was a proper one, if the plaintiff did not object to the buildings and machinery furnished by the defendant as capital being insured; and that the charge for “ power ” also was deducted properly, as the provision in the contract that the defendant should provide proper buildings “ with power and machinery sufficient to so manufacture such rope ” meant that the defendant should provide buildings equipped with power and not that the power should be furnished free of charge.</p>

<p>Bill in equity, filed in the Superior Court on October 24, 1905, as follows:</p> <p>“ And the plaintiffs say that:</p> <p>“ 1. The plaintiff Lipsky is the present owner of a certain parcel of land with the buildings thereon and appurtenances thereto numbered 59-61 Salem Street in said Boston, also of two parcels of land with the buildings thereon and appurtenances thereto situated in the rear of 59-61 on said Salem Street being lots marked ‘ C,’ * D’ and ‘ B ’ on a plan recorded with Suffolk Deeds Book 1083, page 314, a copy of which plan is hereto annexed, and the plaintiff Goldstein is the present owner of a parcel of land with the buildings thereon and appurtenances thereto numbered 65 on said Salem Street, being lot ‘A’ on said plan.</p> <p>“ 2. The defendant is the present owner of a parcel of land with the buildings thereon numbered 63 on said Salem Street being lot ‘ B ’ on said plan and that said lots A, C, D and E adjoin said lot B.</p> <p>“ 3. In the rear of said lot ‘ B ’ there is an open court and passage-ways, one of which passage-ways leads to said Salem Street, as shown in said plan; said court and passage-ways were laid out by one John F. Bassett who owned all of said parcels in 1871, granting the right of passage-way, drainage and other easements in and over said open court to be used and enjoyed as they now are used and enjoyed for the benefit of said adjoining estate and are a part of a common plan or design which has continued to have definite and fixed limits marked by buildings and fences, for upward of thirty (30) years and that all conveyances to date of the several parcels were made subject to said rights, privileges, easements and burdens in and over the open court of said lot ‘B.’</p> <p>“ 4. The defendant Heller, disregarding the rights, privileges and easements of the plaintiffs, as owners of the adjoining estates, in the said open court, is about to erect an addition to the rear of his building which addition will occupy a substantial part of said open court and is to be of the dimensions appearing in an application for permit for alterations made to the building commissioner of the said City of Boston, a copy of which application is hereto annexed marked 6 B.’</p> <p>“ 5. The plaintiffs believe and have reason to believe and say that the erection of this addition in said open court is in violation of the plaintiffs’ rights, privileges and easements and will greatly diminish in value the plaintiffs’ property and that they would suffer irreparable damage thereby.</p> <p>“ 6. [Added by amendment] That the said John F. Bassett, the plaintiffs’ predecessor in title, by the use of the words ‘ open court ’ in the several deeds of conveyances intended to convey and did thereby convey an easement appurtenant to their respective estates, and that said court should remain forever open and thereby be an easement of light and air for the benefit of the granted premises.</p> <p>“ Wherefore the plaintiffs pray</p> <p>“1. That the defendant, his agents, servants and his contractor, Nathan Fritz, be forever enjoined and restrained from erecting said proposed addition or any other building or structure in said open court, and that he be enjoined and restrained from interfering in any manner with the plaintiffs’ proper use of the rights, easements and privileges in and over said open court, and that the defendant be ordered to preserve and keep said court in the condition heretofore existing, till the further order of the court.</p> <p>“ 2. And for such other and further relief as the court may deem meet, in the premises.”</p> <p>On page 314 is a copy of the plan annexed to the bill.</p> <p>The case was referred to George W. Estabrook, Esquire, as master. The material facts found by the master are stated in the opinion. The plaintiffs filed objections and exceptions to the master’s report. The defendant Heller filed objections to the master’s report, but filed no exceptions founded thereon.</p> <p>The case was heard upon the plaintiffs’ exceptions to the master’s report by Richardson, J., who made a final decree that the exceptions be overruled and the master’s report be confirmed, and that the plaintiffs’ bill be dismissed with costs. The plaintiffs appealed.</p> <p>The case was argued at the bar in March, 1908, before Knowlton, C. J., Morton, Hammond, Loring, & Braley, JJ., and after-wards was submitted on briefs to all the justices.</p>

<p>Practice, Civil, Exceptions, Ordering verdict. Evidence, Extrinsic affecting writings. Contract, In writing.</p> <p>Where on motion of the defendant in an action the presiding judge has ordered a verdict for him, and the plaintiff has excepted, upon the argument of the exceptions the ruling of the judge may be sustained upon a ground which was not taken by the defendant at the trial in his argument of his motion to order the verdict.</p> <p>The rule that an agreement in writing cannot be varied or contradicted by oral testimony is not a mere rule of evidence but is one of substantive law, and rests on the principle that where the parties deliberately have put their agreement in writing they shall not be allowed to say that the agreement was something else. For this reason testimony at a trial showing an oral agreement which tends to vary the terms of a contemporaneous contract in writing between the same parties can have no effect to change the terms of the contract although it has been admitted without objection and has become a part of the evidence in the case.</p> <p>If the claim of the plaintiff in an action of contract is founded solely on an oral agreement between him and the defendant, which has been put in evidence but on which the plaintiff has no right to rely because it varies the terms of a contemporaneous contract in writing between them, which also is in evidence, the question of the plaintiff’s right to recover properly may be raised by a motion that a verdict be ordered for the defendant, and such a motion must be granted.</p> <p>In an action by an insurance agent against the general agent of an insurance company upon an alleged oral agreement that if the plaintiff should leave the company at any time the defendant would pay him commissions for two years thereafter on all renewal premiums paid on policies written by the plaintiff for the company, provided the defendant remained with the company, the plaintiff testified that at a certain time negotiations took place between him and the defendant in regard to the signing of a renewal contract of his employment as agent, that the defendant at first refused to renew the oral agreement in regard to commissions on renewal premiums, but that finally the defendant said, in substance, that if the plaintiff would sign the contract the defendant would allow him the commissions for two years in case he should leave the company at any time, that the plaintiff asked the defendant to put that into the contract, but that the defendant said that he could not do that as the company would not indorse the contract, but that he would agree orally to pay the commissions so long as he remained with the company, and that shortly after this conversation the renewal contract of the plaintiff’s employment as agent was signed by the plaintiff and the defendant, and continued in force until the plaintiff severed his connection with the company. No objection was made to the admission of the testimony in regard to the oral agreement. The contract in writing provided in detail what commissions on renewals and other premiums should be paid to the plaintiff, and also provided for the payment in certain contingencies of commissions on renewal premiums for two years after the plaintiff should have ceased to act as agent of the company. The contract also contained the following provision: “It is further understood and agreed that upon the discontinuance of this contract in any way, all interest of said agent in this contract in commission on premiums shall revert back to said general agent, except as above mentioned and upon the deferred semi-annual and quarterly premiums on new business, unless it is otherwise specially agreed.” The plaintiff contended that by the oral contract sued upon by him it was “ otherwise specially agreed” within the meaning of the phrase last quoted. Held, that the phrase relied upon by the plaintiff referred only to future special agreements and did not mean that the contract in writing could be rendered nugatory by contemporaneous oral agreements; therefore, that, without considering certain other provisions of the contract in writing which appeared to be fatal to the plaintiff’s contention, and without considering whether the alleged agreement was within the statute of frauds as one not to be performed within a year, or other matters of defense, the plaintiff could not be allowed to recover on the oral agreement which by his own testimony varied the terms of the agreement in writing between him and the defendant, and that a verdict properly was ordered for the defendant.</p>

<p>Bill in equity, filed in the Superior Court on December 18, 1907, by the assignees and trustees under a common law assignment for the benefit of assenting creditors of the Crown Dyeing Company, a corporation, the plaintiffs being engaged in carrying on in part the business formerly carried on by that corporation at its factory in Medford, to enjoin the Malden and Melrose Gas Light Company from refusing or neglecting to supply the plaintiffs with a suitable supply of gas so long as they should continue to pay the regular gas rates and should comply with all other reasonable and usual regulations of the defendant excepting any requirement by virtue of which the defendant should demand payment of the indebtedness of the Crown Dyeing Company or any previous occupant of the premises.</p> <p>In the Superior Court the case came on to be heard before JFox, J., who at the request of the parties reserved it for determination by this court, such decree to be entered as law and justice might require.</p>

<p>Equity Jurisdiction, Fraud. Insurance, Life.</p> <p>In a suit in equity by the daughter of -a man, who had died leaving life insurance under a policy which originally had been payable to the plaintiff as beneficiary, against the executor of the will of the widow of the insured, alleging that the defendant’s testatrix had falsely represented to the plaintiff’s father that she was an unmarried woman and thereby had induced him to marry her and to make the policy of insurance payable to her instead of to the plaintiff, the judge who heard the case ordered that the bill be dismissed, and, the case coming before this court on appeal without any ruling of law or findings of facts having been asked for, it was held, that, as the facts disclosed by the record warranted a finding by the judge that there was no fraud on the part of the defendant’s testatrix, it was unnecessary to consider whether, if the substitution had been brought about, as alleged, by fraud on the part of the defendant’s testatrix, the plaintiff would have had any such vested right as beneficiary under the policy as to entitle her to maintain the bill.</p>

<p>Contract, Consideration, What constitutes, Construction, Performance and breach. Estoppel. Attorney at Law. Equity Jurisdiction, Specific performance.</p> <p>At tlie hearing upon a bill in equity brought by the daughter of a testatrix against the testatrix’s son, who was her only other heir or next of kin, to enforce an agreement in writing with regard to the disposition of the estate, it appeared that the defendant, who lived in a distant city, arrived in the city, where his mother had lived, on the afternoon of the day on which she died, that the next morning he told the plaintiff, who had been estranged from her mother for ten years, that “ there was a will leaving him everything and her nothing,” which was the only knowledge that the plaintiff then had of such a will, that the plaintiff thereupon in good faith stated to the defendant that she would contest the will on the ground of undue influence and want of sanity, and on the even-</p> <p>' ing of that day the plaintiff and the defendant signed the following agreement: “In settlement of the estate of [the mother], it is agreed between [the defendant] and [the plaintiff] that [the plaintiff] will have one third of the estate and [the defendant] will have two thirds,” and the plaintiff, in consideration of the defendant’s agreement thus to share the estate with her, promised not to make any contest. The funeral of the mother occurred the next day, and, thereafter, the defendant stated that he would not keep the agreement. Held, that at the time of the signing of the agreement a contract was made for a valid consideration, from which the defendant could not withdraw.</p> <p>An agreement by an intending litigant to forbear from litigating a claim, which he in good faith at the time of his agreement thinks is valid, is a good consideration for a contract, although by the state of the law and of the facts as they ultimately are discovered to be, the claim, the prosecution of which is forborne, is neither valid nor enforceable.</p> <p>At the hearing of a bill in equity to enforce an agreement in writing made between the plaintiff and the defendant, the only heirs at law and next of kin of their mother, lately deceased, as to the disposition of the mother’s estate in a manner different from the way in which it was disposed of by a will left by her, it appeared that the agreement was made in consideration of a promise by the plaintiff not to oppose the probate of the will, which gave practically the entire estate to the defendant. On the day before a petition for the probate of the will was filed, the plaintiff employed a lawyer “ to enforce the agreement,” and gave him no other authority. The lawyer entered his appearance on the probate petition, and the hearing on the petition was continued. The counsel for the person named as executor in the will thereupon prepared for a contest, but, before the date set for a hearing, the plaintiff’s lawyer, concluding that the entry of his appearance was a mistake, withdrew it, and the will was proved without opposition. The judge who presided at the hearing upon the bill in equity found “ that the plaintiff did not contest the will, and that he was not estopped by the entry of appearance by ” the lawyer “ or by any acts done in consequence of that appearance from contending or proving that he did not contest the will.” Held, that the findings and rulings of the presiding judge were warranted.</p> <p>At the hearing upon a bill in equity by the daughter of a testatrix against the testatrix’s son, who was her only other heir or next of kin, to enforce an agreement in writing with regard to the disposition of the estate, it appeared that the defendant had announced to the plaintiff, after the mother’s death and before her funeral, that she had made a will leaving everything to him and nothing to the plaintiff, which was the only knowledge that the plaintiff then had of . such a will, that, after some discussion, the plaintiff and the defendant, in consideration of the plaintiff’s forbearing to contest the probate of the will, as she in good faith had intended to do if the compromise had not been made, agreed in writing as follows : “ In settlement of the estate of [the mother], it is agreed between [the defendant] and [the plaintiff] that [the plaintiff] will have one third of the estate and [the defendant] will have two thirds.” The agreement was written by the plaintiff and both parties acted without legal advice, and in ignorance of their legal duties as to producing and proving the will, but they believed that they could settle the estate without proving the will, which neither of them had seen. The will contained several specific legacies to other persons than the plaintiff or the defendant. The judge who heard the case found that “ the belief of the parties that they could settle the estate without probating the will and any understanding based upon that belief were merely incidental to the written agreement, and connected with it as a condition. . . . The agreement, fairly construed in the light of all the surrounding facts, means that such property as might remain in the estate after all lawful claims were paid should be divided in the proportions named, and does not require that the legacies shall not be paid or that the will shall not be probated.” Held, that the conclusion of the judge was warranted.</p> <p>A widow, who for ten years had been estranged from her daughter, died, leaving a will which gave specific legacies of small amounts to various persons, $5 to the daughter, and the residue of the estate to a son, who was the only other heir at law or next of kin. The estate was personalty. Upon the daughter’s stating in good faith that she intended to contest the probate of the will, the son and she, before the will was examined by either and before it was offered for probate, agreed in writing “ in settlement . . . that [the daughter] will have one third of the estate and [the son] will have two thirds.” The will thereupon was-proved without a contest and a third person named therein appointed executor, and, the son refusing to carry out the agreement, the daughter, by a bill in equity against the son and the executor, sought to compel its performance. Held, that the bill might be maintained and the agreement specifically enforced; and, also, that such a suit was not an interference with the settlement of the estate in the Probate Court.</p>

<p> Devise and Legacy. Executor and Administrator. </p> <p>. A testatrix, who at the time of her death was sixty-eight years of age and never had been married, owned but one piece of real estate, upon which were two tenement houses so built that a line which would divide the land through the middle from front to rear would lie wholly between the houses. This real estate was subject to a mortgage which, together with the other debts of testatrix, her personal property was insufficient to pay. The will bequeathed to two nephews $100 each, to a niece C. a diamond ring, to a niece E. a gold watch and chain, to two brothers all money which she had after the legacies were paid and to one of such two brothers “ all the rest and residue of my personal property of every description.” She devised to her niece C. “ one undivided half of all the real estate of which I am now or of which I may hereafter die seised or possessed or be in any manner entitled at the time of my decease,” and devised “ the rest residue and remainder of my real estate of which I am now, or of which I may hereafter die seised or possessed, or be in any manner entitled at the time of my decease ” to trustees for the benefit of her niece E. Held, that the will exhibited no intention on the part of the testatrix to make the devise to C. subject to the mortgage, and that therefore it should not be so subjected until after the personal property and the other half of the real estate, which had been devised in trust for E. by the residuary clause, had been exhausted.</p>

<p>Trust. Mortgage, Discharge, Assignment. Payment. Equity Pleading and Practice, Appeal.</p> <p>At the hearing upon a bill in equity by a trustee under a will seeking to have an alleged assignment by a former trustee to the defendant of a part of the principal of the trust, consisting of a mortgage note for $6,000 and the mortgage securing it, set aside, it appeared that the will gave the trustee no power to change the form of an investment without an order of the Probate Court, that, before the time of the alleged assignment, the mortgage note in question being overdue, the trustee demanded payment from one to whom the mortgagor had conveyed the equity of redemption and agreed with the owner’s agent that, if the agent would procure funds and pay the mortgage, he would allow him $50. There was evidence tending to show that the owner of the equity through his agent thereupon applied to the defendant for a loan upon the real estate of $6,000, that he finally was allowed a loan of $5,500, that the defendant consented to accept the verification of the title by the owner’s conveyancer, who reported that it was subject to two mortgages, the one held by the trustee being the first; that thereupon the defendant delivered to the owner’s conveyancer a check payable to the conveyancer’s order for $5,500, the conveyancer indorsed the check to the trustee, the agent of the owner paid the trustee $450, and the trustee indorsed the note to the defendant without recourse and delivered it to him, and executed and delivered to the defendant, without having procured any order from the Probate Court; the assignment of the note and mortgage in question and afterwards misappropriated the $5,950 received by him; that, at the time of the passing of papers, the defendant received no note or written acknowledgment of a debt from the owner, but that afterwards the owner signed and gave to the defendant a receipt for the $5,500 paid by it and an extension of the mortgage, which contained an agreement by him to pay the mortgage debt at the end of the extended period and the interest thereon meanwhile; that the entries on the books of the defendant purported to show a loan to the owner. The single justice found as a fact that the defendant attempted to purchase the note and mortgage from the trustee, and, since the trustee had no power to sell it, made a decree for the plaintiff. The defendant appealed, and, on consideration of all the evidence, which was reported by a commissioner, it was held, that the transaction was not a sale of the mortgage to the defendant, but that in effect the trustee merely received from the owner payment of the mortgage debt, which was within his power.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk July 15, 1907, as stated in the opinion.</p> <p>The case was referred to a master, who filed a report to which the plaintiffs excepted. The exceptions were heard before Morton, J., who reserved the case for consideration by the full court.</p>

<p> Gift. </p> <p>If the owner of negotiable coupon bonds about four months before his death places them, together with all the coupons not then due, in the custody of his sister with the intention that they shall remain his property during his life and on his death shall become the property of his sister, and tells her that this is his intention and she accepts the custody of the bonds on those terms, and thereafter the coupons are collected by the owner until his death as his property, a part of them being cut off and brought to him by his sister at his request, there is no gift of the bonds, and on the death of the owner they pass to the administrator of his estate.</p>

<p> Equity Jurisdiction. Attorney at Law. Lien. </p> <p>A client, for whom an attorney at law has recovered money which he retains in his hands, may maintain a suit in equity against the attorney to enjoin him from using the money in paying more than the plaintiff thinks is due in settling physicians’ bills against the plaintiff.</p> <p>In a suit in equity against an attorney at law, who has recovered money for the plaintiff which he retains in his hands, to enjoin him from using the money in paying more than the plaintiff thinks is due in settling physicians’ bills against the plaintiff, if it appears that the defendant was given an opportunity by the judge who heard the case to have the physicians summoned into court in order that he might establish the amount of his lien on the money in his hands for personal liability incurred for their bills, and did not elect to have them made parties, he cannot rely on such lien in defense, as he has no right to retain the plaintiff’s money in his hands indefinitely for the purpose of settling these bills, and has lost his lien through his own fault in not taking the proper steps to enforce it.</p>

<p>Evidence, Of notice, Presumptions and burden of proof. Equity Pleading and Practice, Master’s report.</p> <p>In a suit in equity which has been referred to a master, where it is material to show that a certain notice was given to a corporation, if the party wishing to prove the notice shows that a letter containing the notice properly addressed to the treasurer of the corporation, who had full charge of its business, was delivered by a messenger at the office of the treasurer which also was the office of the corporation, and that in the ordinary course of business he should have received it, and the treasurer of the corporation testifies that he never received the letter and did not know of its existence until a copy was shown to him while he was testifying, this warrants a finding by the master that the notice was given and received, as the master is at liberty to disbelieve the testimony of the treasurer, and the fact that the letter ought to have been received warrants the inference that it was received.</p> <p>In a suit in equity which has been referred to a master, where the plaintiff to establish his right to relief must show that he furnished certain proof within sixty days after notice in writing had been given by the defendant to a certain corporation, if the defendant at the hearing before the master shows that, more than sixty da3's before any proof was offered by the plaintiff, such notice was contained in a letter sent by him to the corporation, which ought to have been received by the corporation, warranting the inference that the letter was received, if the master does not state expressly that he has drawn that inference, but makes a special finding that no proof was furnished by the plaintiff until a period of more than sixty days had elapsed after the receipt of the notice, this finding includes the drawing of the inference.</p>

<p>Petition, filed in the Land Court on August 1, 1906, to register the title to three lots of land in Needham, one of which abutted upon a town way in Needham known as High Street.</p> <p>The case was heard by Davis, J., and the only question at issue was whether an attempted taking of land for the purpose of widening High Street, made by the town of Needham on or about September 5, 1901, of which neither the petitioner nor the holder of the record' title at the time of the attempted taking had any actual knowledge, was invalid by reason of the failure of the town authorities to file, within sixty days after the passage of the vote of the town accepting the relocation, a description and plan in the registry of deeds in accordance with R. L. c. 48, § 97. The judge ruled that the taking was a valid one, notwithstanding the town of Needham did not file a description and plan in the registry of deeds for the county of Norfolk, in accordance with the provision of the statute.</p> <p>The judge made a decree determining the street line to be the new line as shown by plans filed in the case; and the petitioner alleged exceptions.</p>

<p>Corporation, By-laws, Consolidation. Words, “ Sale.’’</p> <p>One of the by-laws of a manufacturing corporation organized under the laws of this Commonwealth was as follows: “ No sale of any shares of the capital stock of this corporation shall be valid unless the same shall have been offered in writing through the treasurer to the' corporation at the lowest price at which the holder thereof will sell the same and five days shall be allowed the treasurer to purchase or decline the same.” Certain shares of the corporation were held by a corporation organized under the laws of the State of New York. The last named corporation was consolidated with another New York corporation to form a new corporation, under the business corporation law of New York, which, as amended by St. of New York, 1902, c. 457, provides that, upon the consolidation of two corporations thereunder, “ all the property, real, personal and mixed ... as well as all stock subscriptions and other things in action belonging to either of them, shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed.” The new corporation demanded from the Massachusetts manufacturing corporation a new certificate of shares in its own name, upon the surrender of the old certificate in the name of one of the consolidating companies, without first offering the shares to the manufacturing corporation through its treasurer in compliance with the terms of the by-law quoted above. The manufacturing corporation refused to make the transfer without a previous compliance with its by-law. In a suit in equity by the consolidated company against the manufacturing corporation to compel it to make such transfer and issue a certificate for the shares to the plaintiff, it was held, that the defendant should be ordered to issue a new certificate to the plaintiff, the title to the shares having been transmitted to the plaintiff by the operation of the statute of New York proved in the case, and not by a “ sale ” within the .meaning of the by-law, so that the provision of the by-law had no application.</p>

<p>Land Registration. Way, Private. Estoppel.</p> <p>At the hearing on a petition for registration of the title to land bounding on a private way which had been laid out according to a plan by a company which was the common grantor of the petitioner and of the respondent, and which was used in common by all whose land was bounded thereon, it appeared that the respondent owned land abutting on the way and opposite to that of the petitioner, that the respondent was the successor of the company which laid out the way and owned the original plan and all the data regarding it, that a like petition previously had been filed by one S., who was the owner of other land bounding, on the same way, of which both the petitioner and the respondent in this case were given notice, but that, after he had examined such petition, the respondent, finding that the plan submitted with it purported to be in accordance with his plan so far as the way was concerned, entered no appearance in that case, that the judge of the Land Court was not satisfied with the location of the way as shown on the plan filed by S. with his petition, and advised S. to secure the original data, which were in the possession of the respondent’s engineer, that such engineer refused to give such data and thereupon S. procured data elsewhere from which a new plan was made, and the Land Court granted S.’s petition, locating the way so far as it bounded on his lots according to S.’s new plan. The location was erroneous, but, if the Land Court had had the data which were in the possession of the respondent’s engineer, no mistake would have been made. It did not appear that the respondent ever was asked for or refused to give such data. The petitioner in this case sought to have the way located as it had been decided to be in S.’s case. The respondent contended that it should be located as it actually was laid out, namely, as it was on the original plan. Held, that the decision in S.'s case applied only to S.’s lots and the part of the way on which they bounded ; and, that there was nothing in the circumstances to prevent the respondent’s insisting upon having the way properly located where it bounded on his land.</p>

<p>Petition, filed October 3, 1904, in receivership proceedings concerning the Atlas Mutual Insurance Company in the Supreme Judicial Court for the county of Suffolk, to establish a claim under a fire insurance policy of that company.</p> <p>, There was a hearing before Morton, J., upon the pleadings and an agreed statement of facts, and he reserved the case for consideration by the full court.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk May 23, 1905, to redeem certain real estate alleged to have been conveyed by the plaintiff to the defendant Adelaide L. S. Gilman (hereinafter called the defendant) by a deed absolute in form, but in fact as security merely for the payment of sums due her from the plaintiff. Gorham D. Gilman, the defendant’s husband, is joined as a defendant.</p> <p>The case was referred to a master who filed a report, and, upon various recommittals, two supplementary reports. The substance of the original and supplementary reports is as follows:*</p> <p>“I find the facts to be as follows: The plaintiff and the defendant are brother and sister. Their uncle, Richard Crease, died in 1866, leaving a large amount of real and personal property, and a will devising the residue of his estate among his seven nephews and nieces, the nephews to take outright and the nieces on certain trusts, which were declared void for remoteness by the Supreme Judicial Court in June, 1869 (Sears v. Putnam, 102 Mass. 5), with the result that each residuary legatee took one seventh of the estate in fee. . . . The plaintiff was appointed administrator with the will annexed on October 8,1866. He was at that time engaged in the real estate and shipping business with his brother, Richard W. Sears, as his only partner. The defendant, who was then twenty-six years old and unmarried, lived with one of her sisters. She had some property of her own, which was held by trustees. She was not familiar with business affairs, and all the matters connected with the management of her property she left to the plaintiff, in whom she had implicit faith, and whose advice she followed without question. Shortly after his appointment as administrator of the will of Richard Crease, the plaintiff began to mingle the funds of the estate with his own funds. The plaintiff testified that ‘ it was largely a matter of policy for all interested for me to do so.’ The plaintiff introduced no evidence of any agreement to this effect among the parties except what appears in this report and any inferences that may be drawn from the accounts. ... I find that the plaintiff never has paid the defendant anything out of the personal estate. He has settled with the other heirs for their share of the personalty. On February 19, 1867, Richard W. Sears, who was heavily indebted to the plaintiff, conveyed to him all his interest as an heir in the real estate of Richard Crease, so that the plaintiff became the owner of two undivided sevenths of that real estate.</p> <p>“ On July 7,1868, the plaintiff prepared and executed a warranty deed in the form annexed to the bill, conveying to the defendant (then Adelaide L. Sears), all the plaintiff’s interest (then two sevenths) in the real estate of Richard Crease, and on July 24,1868, the plaintiff acknowledged and recorded it. This is the conveyance from which the plaintiff now seeks to redeem. The plaintiff did not consult his sister at this time nor inform her of his intention, but prepared, executed, and recorded the deed without her knowledge, and she did not know anything about it for a considerable period of time afterwards'. The value of the property conveyed was about equal to the one seventh interest of the defendant in the personal estate of Richard Crease. The consideration stated in this deed was $12,000. I find that no actual consideration passed between the parties unless the deed was made and accepted as payment towards the defendant’s share of the personal estate of Richard Crease. ... In 1873 a suit was brought against the plaintiff and defendant by creditors of Richard W. Sears, who sought to reach his interest in the Crease real estate which had been conveyed through the plaintiff to the defendant. Giddings v. Sears, 115 Mass. 505. The validity of the conveyance of July 7, 1868, was a material issue. . . . [At the hearing of the suit before a master] the plaintiff testified ‘ that he made this conveyance to his sister and had it recorded and kept it for her, acting for her as her agent as he did in regard to her other property.’ . . .</p> <p>[After a statement of evidence, the report continued:] “ I find that the plaintiff made the conveyance of July 7,1868, to the defendant without her knowledge, at a time when he was in financial difficulties and had not in his possession, intact, sufficient of the personal estate of Richard Crease to pay to the beneficiaries, other than his brother and himself, their shares in full, for the purpose of making sure that the defendant would get her share of the estate of Richard Crease, and of preventing any other creditors from reaching this property to her injury, and intending, in case he should subsequently be able to settle the Crease estate and distribute the personal property, to have a settlement with his sister, and upon adjusting his account as administrator with her to have the real estate reconveyed to him if he so desired, and intending, if unable so to adjust his account, to have a settlement with his sister based on an equitable valuation of the real estate. I find that he did not communicate his intention to her at the time of making the conveyance. . . .</p> <p>“ After [a certain] conveyance to [other heirs] the defendant held title to . . . five parcels of land all in Boston. ... If the plaintiff’s position is correct, the defendant owned one third of this property in her own right, and held two thirds as security for his indebtedness to her.</p> <p>“ All of the Richard Crease real estate was managed from 1866 to the time of division by the plaintiff, acting for all the heirs, and he continued in charge of the five parcels above-described after the division [with other heirs above referred to] until some day about July 1, 1874, when their management was undertaken by the defendant Gorham D. Gilman, who had married Adelaide L. Sears upon May 6,1874, and since then the plaintiff has not had the management of any of this property, except as hereinafter stated. Gorham D. Gilman took charge of this property, as representing his wife and acting for her, and thereafter the plaintiff had no further dealings or communications (prior to 1903) directly with his sister in relation thereto, but all dealings and communications with this property were had between the plaintiff and Gorham D. Gilman, representing the other defendant, who thereafter obtained all knowledge in relation to the property through Gorham D. Gilman.</p> <p>“ The plaintiff has rendered three accounts to the defendant. . . . The first account covered the period from 1866 to January 1,1874, and the second from January 1, 1874, to January 1, 1875. Both were rendered to G. D. Gilman at his request after his marriage to the defendant, and both were made up on the same general principle. They contain no reference to the conveyance of July 7, 1868, but the plaintiff charges himself with owing his sister one seventh of the personalty of the Crease estate. In the first account the plaintiff credited his sister with one seventh of the rents collected from the Crease real estate, and in the second account with one fifth of these rents collected after the settlement with [the two heirs previously referred to]. These are the proportions of the rents which the defendant would be entitled to if the plaintiff’s claim is correct, and the plaintiff claims that the rendering to G. D. Gilman of these accounts made up on this basis was notice to him and to the defendant that the plaintiff claimed that the conveyance of July 7, 1868, was by way of security only. The balance due from him by the first account was $17,407.38 and by the second account was $19,436.85. The third account was dated September 18, 1876. It was made up on an entirely different principle from the two preceding accounts in that it treated the plaintiff’s indebtedness to his sister as extinguished by the real estate conveyed by the deed of July 7, 1868. The plaintiff charges himself with the balance of his previous accounts and credits himself with the property conveyed to his sister at the valuation put upon it by Willard Sears, leaving a balance due from him to the defendant of $1,492.27. This account was signed 6 Boston, September 18, 1876. E. Sears,’ in the plaintiff’s handwriting. The plaintiff admitted his signature, but denied all recollection of how the account came to be made out in this manner. I find that the account was prepared in the plaintiff’s office by his son, signed by the plaintiff, and sent to G. D. Gilman, and that the immediate cause of its preparation was the intention of the plaintiff to go into bankruptcy. . . .</p> <p>“ On November 15,1876, the plaintiff filed a petition in bankruptcy. His schedules were signed and sworn to by him, and contained separate lists of secured and unsecured creditors of real estate owned by him, and of all real estate held in trust or in which he had any interest in reversion, remainder, or expectancy. The petition contained the printed statement that schedule B ‘ verified by your petitioner’s oath contains an accurate inventory of all his estate both real and personal assignable under the provisions of said acts.’ A. L. Gilman was scheduled as an unsecured creditor on open account for $1,492.27, the balance as stated in the account of September 18,1876. She does not appear in the list of secured creditors. The schedules of real estate owned by the bankrupt, or held in trust for him, or in which he had any interest in reversion, etc., contained no mention of any interest in the real estate conveyed to the defendant by the deed of July 7, 1868. A proof of claim for $1,492.27 was made out by the bankrupt’s attorney and sent to the defendant, with a request for a power of attorney to vote for assignee. These were signed by the defendant and sent to the plaintiff, who subsequently sent word to the defendant that they were incorrect, and the papers were never used. The plaintiff made no attempt to amend his schedules or inform the defendant in what respect they were incorrect. The plaintiff testified that he had little to do with making out his schedules which were prepared by clerks in his office; that they were ‘ wrong in every way ’; that he swore to them ‘ in a general pro forma way,’ and that he did not consider the real estate held by his sister an asset because he did not consider it worth anything over and above what he owed her. The plaintiff was an experienced man of business, and I find that he knew that his sister held this real estate; that it.was his duty to schedule it if she held it as security, and that it was not scheduled. I find further that he intended, throughout his bankruptcy proceedings, to treat the amount he owed his sister, and did treat it, as paid pro tanto by the conveyance of July 7,1868. . . . The plaintiff received his discharge in bankruptcy January 21, 1879.</p> <p>[After a statement of evidence, the report stated that, after assuming the management of the property, and before 1897, G. D. Gilman sold all but one parcel; and continued:] “ I find, upon all the evidence, that the defendant Gorham D. Gilman, on taking possession of this property, in July, 1874, was not acquainted with the circumstances under which it was conveyed to his wife, but supposed it to belong to her outright, and so treated it thereafter ; and that he first actually knew of the plaintiff’s claim in the fall of 1903, when the plaintiff, to whom he had frequently made small loans, applied for a loan, which was refused, whereupon the plaintiff claimed an interest in the Harrison Avenue property, and proposed to raise money by mortgaging it. I find that during this period Gorham D. Gilman had no reasonable cause to believe that the plaintiff claimed any interest in this property. In making this finding I have considered the fact that the accounts submitted to G. D. Gilman, on his taking possession of the property, credited his wife with only a part of the rents collected by the plaintiff. I also find that during this period the plaintiff never asked for an accounting from either defendant, and that no attempt was made by the defendant Adelaide L. Gilman to enforce any indebtedness of the plaintiff to her. . . .</p> <p>. “ I have reported all the facts which, in my opinion, have any bearing on the question of loches. So far as it is a question of fact, I find that the plaintiff, by conveying this property to his sister and by his subsequent dealings with her, had, by the time of his bankruptcy proceedings in 1876, if not before, put himself in a position where it was possible for him to make either of two claims: (1) that the conveyance was by way of security; or (2) that it was by way of and had been accepted as payment; and that he left the property in his sister’s possession for nearly thirty years without demanding any accounting or asserting his right to redeem in an unmistakable manner; and so far as it is a question of fact I find that he has been guilty of loches.”</p> <p>The case was heard on the master’s reports and exceptions thereto by Loring, J., who made the following memorandum of findings:</p> <p>“ Up to the time of the plaintiff’s bankruptcy I think that on the findings of the master the plaintiff intended the status of the two sevenths interest which he had conveyed to his sister to be vague. He conveyed this property to her because he had used some of the estate belonging to her and he did not want her to lose her share. But whether this conveyance was to be as security or whether it was to be taken as payment of the amount which he owed to her, it was not then decided. Then he went into bankruptcy — or rather, just before he went into bankruptcy, his sister was married. I find as an inference from what the master had found, if the master hasn’t found it himself — I think he has found it, and I think it is conclusion of law from his report, — but if there is any doubt about that, I find it to be a fact that at the time of his sister’s marriage, and in connection with his own bankruptcy, he determined that this conveyance of the two sevenths should thereafter be treated as a final adjustment and payment of the amount which he owed her so far as it went to pay it, adopting the1 valuation which had been put upon it. Now plaintiff’s counsel says there is no offer and no acceptance. Well, the parties have acquiesced in that as a matter of fact for thirty years, and whether by reason of that fact he is guilty of loches, or whether, as I should prefer to say, the acquiescence is an agreement of itself, that is the end of it. The plaintiff at this time cannot come in and undertake to say that it has been nothing but security during all this period, during which the parties acquiesced and agreed that it should be a payment pro tanto. It can no longer be regarded as an open question whether it was security or payment, after a period of thirty years of acquiescence by both in the idea of final payment pro tanto. I can see no difficulty in law in such an arrangement being made by paroi. All that there was was an absolute conveyance, which, if it had been intended by both parties as security, could have been shown to have been so intended, and such intent in the conveyance could have been made out by word of mouth. That is all there was. Now if under those circumstances they come together and by word of mouth agree that it is not to be taken as security, there is no rule of law which prevents that being done.”</p> <p>The case was thereupon reported by the single justice for consideration by the full court.</p>

<p>Street Railway, Wrongful discontinuance of use of track. Statute.</p> <p>St. 1906, c. 463, Part III. § 76, providing that, “ if a street railway company without right or lawful excuse discontinues the use of any track and when requested . . . refuses to operate the same,” the mayor of the city or the selectmen of the town in which the track is located may compel such company to resume the use of the track by petition to the Supreme Judicial Court, was intended to and does give redress for such a wrongful discontinuance happening before the passage of the statute.</p> <p>Where by its original charter the right of a certain street railway company to lay its tracks upon the public streets was made subject to the determination of the authorities of the respective municipalities in which such streets lay, and such authorities, after one year from the opening of the tracks for use, might at their pleasure revoke such location, upon which revocation the tracks must be taken up, and where, as to the location granted by the authorities of a certain town, there was no agreement or statutory enactment requiring such company to continue the use of its tracks in the town as a condition of the grant of location therein, a discontinuance of such use is not “ without right or lawful excuse" and gives to such town no right by petition to the Supremq Judicial Court under St. 1906, c. 463, Part III. § 76, to compel a resumption of the use of the track.</p>

<p>Evidence, Opinion: expert. Damages. Practice, Civil, Exceptions.</p> <p>At the trial before a jury of an action of tort to recover for the alleged conversion of shop furniture of such a nature that its value is not to be presumed to be within the knowledge of all the jurors, a witness who is acquainted with similar property and its value and has the requisite knowledge and experience may be examined by hypothetical questions, although he has not seen the particular furniture to which the trial relates.</p> <p>Where, by a bill of exceptions which contained an exception to a refusal by the judge presiding at a trial to allow a question to be put to a witness, it did not specifically appear what the answer expected by the excepting party was, nor that he expected that the answer would be favorable to him, nevertheless, if it does appear that the ruling was made irrespective of what the answer might be and upon the assumption that the answer would have been helpful to the excepting party, the exception must be sustained if the ruling was wrong.</p>

<p>Tort to recover for damages resulting to the plaintiff from a fire in its foundry alleged to have been caused by a spark from a locomotive of the defendant. Writ in the Superior Court for the county of Suffolk dated October 18, 1899.</p> <p>There was a trial before Pierce, J., and a verdict for the plaintiff in the sum of $12,173. The defendant alleged exceptions.</p> <p>The facts are stated in the opinion.</p>

<p> Negligence. </p> <p>If the duties of a freight brakeman, who is riding upon the side of a freight car moving slowly in a yard crowded with piles of merchandise, require him to turn his back toward the direction in which the car is moving, this does not relieve him from the duty of exercising care for his own protection, even if under these conditions he is not required to give more attention than usual to his personal safety.</p>

<p>Landlord and Tenant, Liability of landlord to third person. Covenant of Lessee. Nuisance. Practice, Civil, Issues for jury.</p> <p>If the owner of real estate leases it with a nuisance upon it, of which he knows or ought to know, and takes no agreement from the tenant to abate the nuisance, he is liable to a third person who when exercising due care suffers injury from the nuisance.</p> <p>In an action against the owner of a building leased to a tenant, for personal injuries caused by the defective condition of the cover of a coal hole in the sidewalk adjoining the defendant’s building and used in connection with it, where it is material for the plaintiff to show that the defect existed at the time the lease was made, and no one testifies from actual observation made at that time as to the condition of the coal hole then, the plaintiff can show its defective condition before the time of the letting and that this condition was substantially the same up to the time of the accident.</p> <p>If the owner pf a house leases it when the coal hole in the adjoining sidewalk used in connection with the house is in such a condition as to constitute a nuisance, and there is no way to make the coal hole proper and safe for'travellers except by putting in a new casting or covering or a new pin, and the owner through his agent, having been notified of the defective condition of the coal hole, makes an attempt to have it repaired but does not furnish' a new cover or a new pin and leaves it in a condition dangerous for public travel, and the lease contains no provision requiring the tenant during the term to put or keep the premises in any condition other than that in which they were at the beginning of the term, the owner is liable to a traveller who in the exercise of due care is injured from falling into the coal hole by reason of the defective cover.</p> <p>Where a lease contains a covenant by the lessee that he will keep the premises in as good condition as they are in at the commencement of the term or may be put in by the lessor during the continuance thereof, and also covenants that he will at the expiration of the term “ yield up ” the premises to the lessor “ in good tenantable repair in all respects, reasonable wear and use thereof and damage by fire and other casualties excepted,” the last named covenant does not impose upon the lessee the duty of keeping the premises in good tenantable repair during the term. It is fulfilled if they are yielded up in that condition at the end of the term, and, if there is a nuisance on the premises at the time the lease is made, this covenant does not require the lessee to abate it until at least just before the end of his occupancy.</p> <p>It is within the discretion of a presiding judge to submit proper special questions . to the jury.</p>

<p>Pleading, Civil, Answer. Limitations, Statute of. Employers’ Liability Act. Negligence, Employer’s liability.</p> <p>A defense which affects only the remedy, such as a statute of limitation, must be pleaded as a matter of avoidance, and is waived by an answer containing only a general denial.</p> <p>Under our practice act a general denial puts in issue all facts which the plaintiff must prove to establish his right to recover, whether such facts are alleged in the declaration or not.</p> <p>The provision of R. L. c. 106, § 76, that an action under the employers’ liability act must be brought within one year after the accident which causes the injury or death, is not a mere statute of limitation, but states a condition precedent to a right of action under the act, and accordingly the defense that such an action was brought more than a year after the accident is open to a defendant whose answer contains only a general denial.</p>

<p>Tort by a carpenter against his employers for personal injuries incurred on March 23, 1904, by reason of some small stones and mortar from part of an old wall falling upon him while he was working beneath the bottom of this wall in shoring up the earthen sides of a cellar which was being excavated preparatory to the construction of a large office building, called the John Hancock Building, on Federal Street in Boston, with a first count at common law alleging a failure of the defendants to supply the plaintiff with a reasonably safe place in which to work and a failure properly and safely to support a wall and to shore up and brace the sides of it, and a second count under the employers’ liability act alleging a defect in the ways, works or machinery of the defendants; Writ dated June 14, 1904.</p> <p>After more than a year had expired from the date of the plaintiff’s injuries, but some months before the trial of the case, the plaintiff filed a motion to amend his declaration by adding a third count alleging negligence of the defendant’s superintendent under the employers’ liability act. The defendants contended that the motion, as matter of law, should be disallowed and that the plaintiff was confined to causes of action alleged in his notice, but the judge allowed the amendment, and the defendants excepted.</p> <p>At the trial in the Superior Court before Bell, J., the defendants objected to the admission of any evidence under the third count thus added by amendment. The judge admitted evidence under this count, and the defendant excepted.</p> <p>The facts which appeared in evidence, or the finding of which was warranted by the evidence, are stated in the opinion. At the close of the evidence the defendants asked the judge to direct a verdict for them. This the judge refused to do, and submitted the case to the jury. The jury found for the defendants on the second count. On the first and third counts they returned a verdict for the plaintiff in the sum of $1,700; and the defendants alleged exceptions.</p>

<p>Evidence, Best and secondary. Witness, Contradiction.</p> <p>In an action upon a contract guaranteeing sales made by the plaintiff to a certain corporation, of which at the time the guaranty was executed the defendant owned substantially all the stock, the defendant testified that before the sales to the plaintiff were made he had withdrawn from the corporation, had transferred all his shares to a person who was the treasurer of the corporation, and in an interview with the plaintiff had informed him of his withdrawal. and had notified the plaintiff that he no longer would guarantee the debts of tile corporation, to which the plaintiff had assented, saying that a formal notice revoking the defendant’s guaranty would be unnecessary. All of this was denied by the plaintiff, who testified that he never had received any notice of a revocation of the guaranty or of the defendant’s disposing of his interest in the corporation. The plaintiff called as a witness the person to whom the defendant testified that he transferred his shares in the corporation, and who was its treasurer. This witness testified that all the books of the corporation had been lost or destroyed and could not be produced. He also testified that he could not remember liow many sliares of stock the defendant had, nor how many he himself had, nor what other persons held stock, nor whether or not the defendant had transferred his shares. The corporation was organized in another State. The plaintiff offered in evidence a certificate of the secretary of state of that State certifying to a copy of a record of a return, purporting to be made by the witness as treasurer of the corporation. The return purporting to be signed by the witness was dated one year after the time when the defendant had testified that lie had transferred all his shares to the witness, and contained a list of the stockholders, in which the defendant was put down as the holder of a large number of shares. The witness was shown the certificate and was asked whether he made the return of which the certificate purported to be a copy. He answered that he did not remember, but that he was required to make such a return once a year, and that if he made that return he thought it was correct. Subject to the exception of the defendant the judge admitted the certificate in evidence for the purpose of showing that the witness “ made such a report, and for no other purpose.” Held, that the plaintiff was entitled to show that one year after the time when the defendant testified that he had transferred his shares they still stood in his own name, that, in view of the loss of the books of the corporation and the inability to produce them and of the want of recollection of the treasurer as to who were the stockholders or whether the defendant had transferred his shares, a copy of the record of a return purporting to be signed by a person bearing his name and occupying the office which it was shown that he occupied was admissible as some evidence to show that the witness was the same person who filed the return, and that this evidence, taken in connection with the testimony of the witness that if he made the return it was correct, had a tendency to show the truth of the statements contained in it; also, that this evidence did not contradict the testimony of the witness called by the plaintiff, as it was not inconsistent with his statement that he did not remember; also, that tile matter on which the statements in the return tended to contradict the defendant was not an immaterial one, as the truth of the defendant’s statements as to his ownership of the stock hada material bearing upon the probability of the ground of defense set up by him.</p>

<p>Contract for failure to transport the plaintiff’s baggage safely and deliver it to her at the end of her journey. Writ in the Superior Court for the county of Suffolk dated November 12, 1906.</p> <p>At the trial, which was before Wait, J., it appeared that the plaintiff had purchased a ticket for transportation by rail from Jacksonville, Florida, to. Savannah, Georgia, and over the defendant’s steamship lines from Savannah to Boston, via Baltimore, Maryland, and that the ticket contained the following printed provision: “ The company shall not be liable for delay, loss, default, injury, or damage to passenger or baggage, money or effects, arising from fire, robbers, thieves, perils of the sea, rivers, or navigation, deviation, collisions or accidents to or of machinery, boilers or steam, or from any causes beyond its control. Negligence shall not be presumed.”</p> <p>The plaintiff’s evidence tended to show that, upon her arrival at Baltimore on June 4, she asked the steward of the boat upon which she was if she could have her trunk rechecked to Boston, and, upon examining her ticket and her trunk check, he said, “ You keep this check and I will put a tag on your trunk for Boston.” The plaintiff kept the check, and the trunk stayed in Baltimore, where it was burned upon a wharf of the defendant on June 13, the plaintiff in the meantime having sailed for Boston on June 5 and arrived there on June 8.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence, the presiding judge directed a verdict for the defendant, and the plaintiff excepted.</p>

<p>Assignment, For the benefit of creditors. Trust.</p> <p>The plaintiff in a suit in equity, brought by one, who had assigned a distillery plant to assignees for the benefit of his creditors, against the assignees for an accounting, contended that the assignees had not conducted the business in a prudent and businesslike manner, had wrongfully employed one C. to manage it, and had wrongfully sold it to a corporation for less than it was worth, receiving in payment shares of the capital stock of the purchasing corporation instead of cash. One of the terms of the assignment was that the assignees should carry on the business if they could do so at a profit, and at the end of a year could sell it and convert it into money if at that time they found the condition of the estate to be such that the assignor’s debts could not be paid without a sale. A master to whom the case was referred found that there was no actual fraud on the part of the defendants in any respect and that they had not attempted to profit in any improper way at the expense of the estate; that the appointment of C. was agreed to by the plaintiff, and that, in making it, the defendants had acted wisely and for the best interests of the estate, and that C. had acted honestly; that at no time after the assignment was made had the assets been enough to pay the claims of the creditors who had become parties to the assignment, that at the end of a year a fair value of the estate did not exceed $20,000, that thereupon the defendants sold the entire business to a distilling company, taking in payment two hundred shares of the capital stock of the company which was worth from $76 to $100 per share, that 'the creditors who had become parties to the assignment had consented to the sale, and had agreed to take proportional parts of the shares of stock reserved from the sale in payment of their claims. Held, that the bill must be dismissed, since it did not appear that any of the acts of the defendants were wrongful or that their conduct of the business was unbusinesslike; and since, as to the receipt of shares of stock instead of cash for the sale of the business, the facts, that the proceeds of the sale were insufficient to pay the creditors, that therefore no balance could have been paid to the plaintiff, and that the creditors were content with the stock in lieu of cash, made the sale in effect one for cash so far as the creditors, who were the only parties in fact interested in its proceeds, were concerned.</p> <p>The owner of a distilling business assigned it for the benefit of his creditors to three persons, two of whom were presidents of two banks who were creditors, and the third the cashier of a third creditor bank. Among the terms of the assignment were provisions that the assignees should carry on the business if they could show a profit, and that, if after a certain time no profit was shown, they might sell it. The assignees, acting with prudence, gave one C. a power of attorney to conduct the business for them, and, the business not showing a profit in the specified time, sold it for a fair price to another distilling company, the purchase price being paid in shares of the capital stock of the purchasing company. At the time the sale was made, C. was a stockholder in the purchasing company and, to carry out the sale, an increase of §5,000 in its capital stock was voted by the purchasing company and its by-laws were changed by making its board of directors nine instead of seven. C. and one of the assignees, before the execution of the deed of sale, subscribed for §5,000 of the new stock and were elected directors of the purchasing company. The assignor brought a bill in equity against the assignees and the purchaser to set aside the sale, and a master to whom the suit was referred found that the assignees had acted honestly and had gained no advantage from the transaction, and that the assets in their hands never were sufficient to pay the claims of the creditors who had assented to the assignment. It did not appear that the purchase of stock by, and the election as directors of the purchasing company of, C. and one of the assignees was a part of the contract of sale to that company, but it did appear that all of the creditors who had assented to the assignment acquiesced in the sale as made and in the purchase of stock by, and the selection as directors of, C. and the assignee. Held, that, although the general rule is well settled that a trustee cannot directly or indirectly himself be a purchaser of the trust property or derive any personal advantage or profit from its management, the facts did not bring this case within such rule, and the bill must be dismissed.</p>

<p>Equity Jurisdiction, Contempt in violation of injunction. Labor Union. Unlawfu Interference.</p> <p>At the hearing on a petition for an attachment for contempt in the violation of a temporary injunction issued in a suit brought by a firm of contractors against the members of various labor organizations to restrain them from interfering with the plaintiff’s business by intimidating or interfering with any person in his employment, it appeared that the respondents were respectively the president and business agent of a district council made up of delegates of several local unions, and that they were named in, and had had served upon them the injunction alleged to have been violated; that one P., the "business agent” of one of • the local unions whose delegates composed the district council, interviewed one of the petitioner’s workmen and told him to leave the work because the petitioner was an “ unfair ” firm, that thereafter the workman received a notice signed by one W., the secretary of the district council, stating that charges had been made against him for violating an article of the council’s constitution in working for an “ unfair ” firm after having been told by a business agent to leave the work, which article subjected the workman to a fine for so doing. The notice further directed the workman to attend a meeting of the council. At that meeting, one respondent presided and the other acted as temporary secretary. Neither P. nor W. was present. The judge who heard the case found from the foregoing facts that the respondents were responsible for the notice sent to the petitioner’s workman, adjudged them in contempt for that offense and imposed fines. Held, that the fines should be returned to the respondents, since there was no evidence that would warrant a finding that they took any part directly or indirectly in the issuing of the notice.</p>

<p> Negligence. Street Railway. </p> <p>It is no evidence of negligence on the part of a street railway company toward a passenger who was being transported in one of its cars, that, when the car was between two hundred and fifty and three hundred feet from the stopping place where the passenger had signalled to have it stop and had begun to “slow down,” it started ahead quickly " with a sudden jerk or jump,” and that the passenger, who had gone to the platform to get off when the car reached the stopping place, was thrown off and injured.</p> <p>The possibility of an electric car giving a jerk is an incident of travel which every traveller must expect. To make out a case of negligence on the part of the corporation operating the car it is necessary to show that the jerk was due to a defect in the track or to negligence in the operation of the car.</p>

<p>Bill in equity, filed in the Probate Court for the county of Suffolk, December 8, 1906, by two children of a daughter of Mary E. Wilbur, deceased, testate, against the executor of and trustee under the will of the testatrix, and Nathan S. and Ivory B. Wilbur, sons of the testatrix, and their wives. The principal allegations in the bill are stated in the opinion. Others were that the testatrix made her will in 1900, when she was seventy years old, that she died in 1903, and that the will was probated in 1905.</p> <p>The prayer of the bill was in the following words: “ Wherefore your petitioners pray that said article ten be remoulded and corrected in that the words 6 their three children ’ be construed as and for the words ‘ my three grandchildren,’ in order to carry out the purpose and intent of the testatrix, and that the language in said article be made to conform to the facts existing at the making of the will as hereinbefore set forth; and for such further relief as may appear necessary.”</p> <p>The defendants demurred upon the following, among other grounds:</p> <p>1. That the bill did not set forth or present any cause or matter within the equity jurisdiction of this court.</p> <p>2. That the plaintiffs had not in and by their said bill stated such a case as entitled them to the relief prayed for, or any relief against these respondents or any of them.</p> <p>3. That the bill did not set forth or specify any uncertainty, ambiguity or manifest error appearing upon the face of said will.</p> <p>4. That the bill in effect asked the court to amend the will of said deceased, after it had been duly admitted to probate, and so as to effect a different disposition of said one hundred shares of the stock of the Boston Wharf Company, than was provided by will and the laws of this Commonwealth.</p> <p>5. That the bill was not, in substance and effect, a petition for construction of said will, or of any provisions thereof, but a petition to this court to amend said will, and to insert testamentary provisions therein which are distinctly averred in said petition to have been omitted therefrom.</p> <p>6. That the plaintiffs were not the proper parties to present any bill for construction of said will, but that, if any provision of said will were ambiguous, or any doubt existed as to the meaning thereof, the executor would be the proper party, and the only party, to apply to this court for its instructions.</p> <p>7. That this court has no power to remould the will of said deceased, as prayed for in said petition, if by “ remould ” is meant or intended any change or alteration in the terms or language of said will, or in any testamentary intention therein expressed.</p> <p>8. That no occasion had arisen requiring any judicial interpretation or construction of said will, or any action thereon by the court.</p> <p>There was a hearing before Grant, J., who sustained the demurrer. On appeal to this court, the case was heard by Braley, J., who reserved it for consideration by the full court.</p> <p>Other facts are stated in the opinion.</p> <p>The case was submitted on briefs at the sitting of the court in December, 1907, and afterwards was submitted on briefs to all the justices.</p>

<p>Unlawful Interference. Pleading, Civil, Declaration. Words, “ Maliciously.”</p> <p>The doctrine of May v. Wood, 172 Mass. 11, and of Rice v. Albee, 164 Mass. 88, that a declaration alleging that the defendant by false and malicious statements induced a third person to discharge the plaintiff or not to employ him must set out the statements in substance, is not to be extended beyond cases brought for slander or libel, and does not apply to an action for maliciously inducing a third person to break his contract with the plaintiff.</p> <p>In an action for maliciously inducing a third person to break his contract with the plaintiff, it is not necessary that the declaration should set out the contract in full or by copy. A statement of its effect so far as material to the case is sufficient.</p> <p>In an action for maliciously inducing a corporation to break its contract with the plaintiff, the declaration need not allege that the defendant was a stranger to the contract and was not an officer or a person in authority representing the corporation, as in either of those cases the defendant would be liable if the charges in the declaration were proved.</p> <p>In an action for maliciously inducing a corporation to break its contract with the plaintiff under which he was employed as its sales manager, if a count of the declaration, after describing the contract, alleges that at a certain date “ the defendant maliciously induced and persuaded said company to break said agreement and discharge the plaintiff from its employ thereunder,” this with the preceding allegations states a cause of action, and the count will not be held to be bad for the lack of a direct averment that the corporation discharged the plaintiff in consequence of what the defendant did, where this is not stated as one • of the grounds of demurrer. If the defendant regards the averments of the count as too meagre he has the right to ask for a bill of particulars under B. L. c. 173, §68.</p> <p>In order to maintain an action for purposely and maliciously preventing the performance of a contract, where this is the sole cause of action relied on, it is necessary to aver and prove that the defendant knew of the contract.</p> <p>In a civil case where the defendant’s knowledge of specific facts is essential to the plaintiff’s right of action, an averment in the declaration that the act complained of was done “ maliciously ” does not include an- averment of the defendant’s knowledge of such facts.</p> <p>A declaration alleging, that the plaintiff was employed by a corporation as its sales manager under an agreement in writing, and that the defendant “ wrongfully without cause and maliciously prevented the plaintiff from further performing his obligation under ” such contract of employment, and thus “ brought about the discharge of the plaintiff” and caused the plaintiff great damage, states no cause of action, for want of an averment that the defendant knew of the ex- . istence of the agreement. Such an averment is not supplied by the use of the word “ maliciously ” which signifies only that the defendant’s act was done intentionally without just cause or excuse and does not aver by necessary implication a knowledge of the agreement.</p>

<p>Bill in equity, filed at first in the Superior Court on July 3, 1903, removed to and filed in the Supreme Judicial Court on October 25, 1906, and amended by leave of that court on November 24, 1906, against the Home Insurance Company, a corporation organized under the laws of the State of New York and having a usual place of business in Boston, and the Boston and Maine Railroad, a corporation organized under the laws of this Commonwealth, to compel the defendant insurance company to pay to the plaintiff the value of six hundred and eighty-six sacks of flour which belonged to the plaintiff and were destroyed by fire on July 5, 1904, while in a warehouse of the defendant railroad company on Mystic Wharf in that part of Boston called Charlestown, and which were alleged to have been insured for the benefit of the plaintiff by a policy of insurance described in the bill issued by the defendant insurance company to the defendant railroad company.</p> <p>The answers of the two defendants denied that the policy referred to in the bill covered any interest of the plaintiff in the property destroyed by fire, and alleged that the fire which destroyed the property was caused by lightning and was not due to any negligence of the defendant railroad company, which held the property in its custody as warehouseman and was not liable for its loss. The defendant insurance company filed a cross-bill alleging that it was not the intention or the agreement of the insurance company and the railroad company to insure the interest of the plaintiff in any merchandise or property, or the interest of any person other than the railroad company, but to insure only the interest and liability of the railroad company, with its charges, and that such was always believed and understood by the two companies to be the true meaning, construction and effect of the policy as written, but that, if the true construction and effect of the policy was alleged by the plaintiff, that the policy had not been written in accordance with the agreement and intention of the parties to it, and should be corrected and reformed so as to express such agreement and to cover only the interest of the railroad company and its liability, with its charges, and praying that the mistake might be corrected and the policy be reformed so as to carry out the intent and agreement of the parties thereto.</p> <p>The policy was in the Massachusetts standard form. The material portions of it are quoted or described in the opinion.</p> <p>The case was heard by Sheldon, J., who found “ that the insurance mentioned in the bill was not intended to cover the interest of the plaintiff, or of other owners of property in the warehouse,” and made a final decree that the plaintiff’s bill be dismissed, and that the cross-bill of the defendant insurance' company for reformation of the contract of insurance also be dismissed, but without prejudice to the further prosecution of the cross bill in case the decree dismissing the original bill should be reversed.</p> <p>The plaintiff appealed. The evidence, taken by a commissioner appointed under Chancery Rule 35, was reported to the full court.</p>

<p>Tort by a minor, through his next friend, against the owner of a students’ dormitory in Cambridge called Ridgely Hall, owned by the defendant, for personal injuries caused by the sudden starting of an elevator as the plaintiff was about to enter it from the fourth floor of that building, in the manner stated in the opinion. Writ dated June 27, 1906.</p> <p>In the Superior Court the case was tried before Hardy, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Negligence, Street railway. Practice, Civil, Exceptions. Witness. Evidence, Relevancy.</p> <p>At the argument in this court of an exception by the plaintiff to a ruling of the presiding judge directing a verdict for the defendant at the trial of an action against a street railway company to recover for personal injuries alleged to have been received by the plaintiff from his being thrown from a car of the defendant by its sudden starting as he was standing on the step about to alight, while the car was moving slowly, at a place which was not a regular stopping place for the defendant’s cars, the plaintiff contended that he had been invited by the defendant to prepare to alight before he reached the regular stopping place, and that the defendant had waived the rule, implied from the establishing of stopping places, that passengers were to alight at stopping places only. The plaintiff had made no requests for rulings at the close of the evidence at the trial, and the presiding judge had directed a verdict for the defendant. The only evidence appearing in the bill of exceptions to support the contentions of the plaintiff in this court was testimony of the plaintiff “ that he thought the car was coming to a stop on the [side of the . street before the stopping place], and, if it was to let passengers off, he would get off there, the same as they do in hundreds of places at every hour of the day,” and evidence that the plaintiff had arisen from his seat and proceeded to the step from which he was thrown because the car had lessened its speed just before reaching a point where the track was intersected by another track from a cross street. Held, that the bill showed no error made by the trial judge, since it did not sufficiently appear from the bill that the plaintiff had tried his case upon the contention that the defendant had waived the rule as to stopping places, and, without such waiver, there was no evidence of the invitation upon which he relied.</p> <p>At the trial of an action against a street railway company to recover for personal injuries alleged to have been received by the plaintiff from his being thrown from a car of the defendant by its sudden starting as he was standing on the step about to alight, while the car was moving slowly, at a place which was not a regular stopping place for the defendant’s cars, the plaintiff contended that the defendant, by lessening the speed of the car, waived the rule, implied from the establishment of regular stopping places, that passengers should alight at such stopping places only ; and a witness for the plaintiff was asked “ What, if anything, do you know with regard to the practice of cars stopping [where the plaintiff attempted to alight] for the purpose of letting off passengers 1 ” He answered, “ I have on more than one occasion left the car there when the car has been stopped.” Held, that the answer, not being responsive to the question, must be taken to have been intended to stand by itself, and that it did not amount to a statement that cars were stopped at the place mentioned for the purpose of letting off passengers.</p> <p>At the trial of an action against a street railway company to recover for personal injuries alleged to have been received by the plaintiff from his being thrown from a car of the defendant by its sudden and negligent starting as he was on the step about to alight, it appeared that the car was approaching a point where the track was intersected by another track from a cross street, and had lessened its speed, and the plaintiff testified that the car started up with such “ terrific ” force that, holding on to the handle beside the step, he was swung around against the body of the car, and a witness for the plaintiff testified that, when the plaintiff got upon the lower step, “almost immediately the car shot across the street,” dragging the plaintiff three or four feet before his hold was broken. The car stopped at its regular stopping place one hundred and twenty feet from where the plaintiff was thrown. Held, that there was no evidence which would warrant a finding that the car was started up negligently.</p> <p>At the trial of an action against a street railway company to recover for personal injuries alleged to have been received by the plaintiff from his being thrown frbm a street car of the defendant as he was about to alight, at a place which was not a regular stopping place, the presiding judge excluded the following question asked of a witness other than the plaintiff: “ At the time when the plaintiff stepped from the platform down on to the step and was on the step, what do you say with regard to where you expected the car was going to make the stop 1 ” Held, that the exclusion was proper, since it was irrelevant what inference the witness might draw from the facts before his mind.</p>

<p>Negligence, Employer’s liability, Railroad.</p> <p>At the trial of an action against a railroad company by an engine driver in its employ, to recover for personal injuries received by him because of the derailment of the engine which he was driving, alleged to be due to a defective condition of the engine, the following facts were testified to by the plaintiff: He not only was experienced as an engine driver, but also was experienced in and familiar with the mechanical construction of engines. Three to five days before the accident he reported to the defendant the defective condition of the engine, which was that the breast beam had sunk so low that the forward “ truck frame was down on the boxes.” He noticed then that the flanges of the front wheels had cut into the breast beam, and realized that the result of such a condition was that the front wheels were likely to become fixed and unable to turn in rounding a curve. The accident happened on a trip from Plymouth to Boston. He had examined the engine before starting from Plymouth and had observed that it had not been repaired. At the time of the derailment he was running at the rate of from forty-four to forty-eight miles an hour around a three degree curve. He also testified that he did not appreciate that there was any danger in running the engine in such a condition at such a rate around such a curve. Held, that the plaintiff’s injuries were as much due to his own as to the defendant’s negligence, and that as a matter of law the plaintiff, with his knowledge and experience, was not in the exercise of due care if he did not appreciate the danger of his running the engine under the circumstances as he did.</p>

Two PETITIONS, filed in the Superior Court for the county of Suffolk March 22, 1901, and April 17, 1901, respectively, for the establishment of mechanics! liens on property at the corner of Bowdoin'and Greenbrier Streets in that part of Boston called Dorchester. An intervening petition was filed in the first case on June 1, 1901.

Petition, filed in the Supreme Judicial Court for the county of Worcester June 12,1908, for a writ of certiorari to set aside the action of the respondent, judge of the Police Court of Fitch-burg, in revoking a license, which had been granted to the petitioners by the board of license commissioners of that city, to sell intoxicating liquors to be drunk on the premises. There was a hearing before Rugg, J., who reserved the case for consideration by the full court.

<p>Equity Pleading and Practice, Amendment, Decree. Res Judicata.</p>

<p>Complaint, signed and sworn to in the Municipal Court of the Brighton District of the city of Boston November 21,1907, charging the defendant with driving an automobile at a rate of speed not permitted by the rules and regulations of the park commissioners of the city of Boston.</p> <p>On entry of the case after appeal to the Superior Court, the defendant filed a motion to quash the complaint, which was heard and denied by De Courcy, J.; and the defendant appealed.</p> <p>The case was submitted on briefs..</p>

<p>Bill in EQUITY filed in the Supreme Judicial Court on March 14, 1872, by a former partner of the firm of D. G. Rawson and Company, engaged in manufacturing boots and shoes in Worcester and selling them at a store on Pearl Street in Boston, who on December 20, 1871, had been forced out of the firm by his copartners under a dissolution of the partnership in accordance with a provision of the articles of copartnership, for an accounting.</p> <p>A summary of the history of this case, which was begun more than thirty-six years ago, will be found in the opinion of Braley, J., at pages 268, 273, 274 and 275 in the report of the case in 185 Mass. 264. The following statement of some of the facts in the case is taken from the same opinion:</p> <p>“ After the dissolution by the enforced withdrawal of Moore, no change was made, but the defendants continued the business as before, until December 31,1872,' when a new partnership was formed, consisting of four persons; three of whom were the retiring partners of the old firm and the defendants in this case. No change, however, was then made either in the firm name, which continued to be that of ‘ D. G. Rawson & Co.,’ or in the place where the business was located, and the defendants took over the assets of the old firm, not for the purpose of liquidation, but for use in their business. And the customers who had patronized the first, continued to trade with them and the second partnership.</p> <p>“ The plaintiff retired, not only from the firm, but also from the business that it carried on, while the defendants retained the old place of business, and conducted it under the old firm name.</p> <p>“ In other words, no change apparent or real was made in an .enterprise which was transferred bodily from the old partnership to the new, except that one partner was obliged to retire under the terms of the old contract, and after a short period, by a new agreement, another was taken in his place.”</p> <p>“ As the trial proceeded before the different masters, at some stage of the proceedings it appeared that the defendants had used the share of the plaintiff, including not only the first amount found by the master, but that amount increased by the value of his interest in the good will in their business, ...”</p> <p>“ When the plaintiff demanded an accounting, and that his share of the assets should be ascertained and paid to him, the demand was met with a denial of such a right, and a refusal to grant his request. He wás obliged to resort to a bill in equity to compel the defendants to do what by implication under their contract, which contained no provisions for a settlement of the partnership on its termination, they had agreed to perform upon a dissolution of the firm at their option ; and after which, with the plaintiff’s assent, they became bound within a reasonable time to wind up and settle the affairs of the partnership, and pay him his proportionate part.</p> <p>“ No pretense was made by them that in good faith they had taken the partnership property at a fair valuation, and were ready to state the account on that basis, but they refused to pay anything, absolutely ignored him, and treated the property as their own.”</p> <p>It was held that the defendants must account to the plaintiff for his share of the good will as well as in all the other assets which they took over for use in their own business, and also for his share in all actual profits derived from the property, or must pay him interest on his share of the capital, if he should so elect. It also was held that the court in its discretion might allow the defendants in accounting for the actual profits to deduct from the net profits such a sum as should be found to be attributable solely to their skill and services in conducting the business. It was ordered that the case should be recommitted to the master to make the necessary computations and findings, and state the result in a final report.</p> <p>On January 3, 1908, the case came on to be heard, upon the master’s second report and the exceptions thereto, before Morton, J., who, by agreement of the counsel for the parties, reserved and reported it for determination by the full court, such decree to be entered as justice and equity might require.</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, To enjoin public officer. Public Officer. Sealers of Weights and Measures. Constitutional Law, Police power, Executive and judicial functions.</p> <p>A suit in equity cannot be maintained to enjoin a public officer from deciding a question committed by statute to his decision on the ground that he threatens to come to a wrong conclusion. If in deciding the question he should proceed on erroneous principles of law, his decision could be quashed on certiorari, or in some cases a writ of mandamus might issue directing him to take specific action, but this court has no jurisdiction to take from him the duty of deciding the question.</p> <p>A bill in equity will lie to enjoin a public officer from taking action injurious to the plaintiff’s rights of property under a statute which is unconstitutional.</p> <p>It would be a proper exercise of the police power for the Legislature to forbid the sale of incorrect tables of value to be used by dealers as correct tables of value in making sales of articles by pounds and ounces, and equally so to prohibit the sale of such a table when it is made a part of an automatic self-computing scale.</p> <p>The act of a sealer of weights and measures in determining the correctness of a table of weights and values which is required to be arithmetically correct is ministerial in character.</p> <p>A statute, which should require the sealers of weights and measures to pass upon the commercial correctness of self-computing scales or other devices and to determine finally the question how great a departure from mathematical accuracy is permissible in fixing the values of small articles sold by weight without making the transactions commercially and therefore legally incorrect, and also to determine the question whether a table of values, which are only commercially correct because they disregard fractions of a cent, is a proper basis for finding the true weight of articles sold by the cent’s worth, would be unconstitutional, these being judicial questions which cannot be left to the final determination of an executive officer.</p> <p>St. 1907, c. 535, providing that all scales, balances, computing scales and other devices having a device for indicating or registering the price as well as the weight of the commodity offered for sale, shall be tested by the sealers of weights and measures as to the correctness of both weights and values indicated by them, requires that the values thus indicated shall be correct arithmetically and shall not disregard fractions of a cent.</p> <p>Under St. 1907, c. 535, providing that all scales, balances, computing scales and other devices having a device for indicating or registering the price as well as the weight of the commodity'offered for sale, shall be tested by the sealers of weights and measures as to the correctness of both weights and values indicated by them, the correctness to be passed upon is purely 'arithmetical and the statute for that reason is constitutional.</p>

Bill in EQUITY, filed in the Supreme Judicial Court on September 29, 1903, under R. L. c. 159, § 3, cl. 7, to establish, and have paid from equitable assets, an alleged debt of the defendants to the plaintiff of 150,000 for services in procuring a loan of $500,000 under an agreement in writing, which is quoted in full in the opinion, or to recover the sum of $50,000 as damages for preventing the plaintiff from obtaining the loan by breaking the. contract in taking a loan…

<p>Negligence, Employer’s liability. Statute. Practice, Civil, Discretion of judge, Exceptions.</p> <p>In actions by the administratrix and the widow of one who had been employed by the defendant, a manufacturing corporation, in which recovery was sought for conscious suffering and death of such employee, the declaration alleged that the accident was due to the employee’s having been run over by a switching engine owned and operated by the defendant in its factory yard, and contained counts alleging in substance that the injury was caused by a defect in the ways, works and machinery of the defendant, by negligence on the part of the superintendent, by negligence of the defendant in failing to give the employee suitable warning and instructions and in failing to employ a sufficient number of workmen to operate the railroad tracks, switches and appliances, and also a count under R. L. e. 106, § 71, cl. 3, alleging that the accident was due to the negligence of a person employed by the defendant who was in charge of a locomotive engine and train in its yard. At the trial, the plaintiff’s evidence tended to show that, there were various tracks in the yard in question, but no turn tables and no “ Y,” that the engine which ran over the plaintiff’s intestate was owned by the defendant and operated by a person in its employ, that it was customary, whenever the engine was moved, to ring its bell, and that the engineer had been instructed to ring the bell when passing over a crossing; that the plaintiS’s intestate was the caretaker of the yard, and it was his duty to gather up rubbish and keep the drains open “all over the yard,” that, just before he was run over, he was engaged in clearing out a culvert which was behind the engine as it stood still, partly on a crossing, and that he was bending over, astride of one of the railroad rails, with his back to the engine, that the engine started without the bell being rung and without any warning to the plaintiS’s intestate; and he was run over. The presiding judge, at the close of the plaintiS’s evidence, directed a verdict for the defendant; and the plaintiff excepted. Held, that the exception should be sustained, since there was evidence from which the jury would have been warranted in finding that the plaintiff was in the exercise of due care, and since, although there was no evidence which would warrant submitting the case to the jury on the other counts, there was evidence warranting a finding that the plaintiff’s intestate was run over and killed by reason of the negligence of a person in the defendant’s employ who was in charge of a locomotive engine or train upon a railroad.</p> <p>Under R. L. c. 106, § 71, cl. 3, a manufacturing corporation, which owns and operates as its.private property in its factory yard switching tracks and an engine, is liable for personal injury caused to one of its employees and due to negligence on the part of a person in its employ who is in charge or control of such engine upon such tracks.</p> <p>It seems, that determination of the questions whether a plaintiff in an action of tort should or should not be ordered to furnish further particulars than those set out in his declaration, and whether, after he has furnished further particulars, lie lias furnished all that he should, is wholly within the discretion of the judge before whom the questions are raised, and his rulings thereon are not subject to exception.</p>

<p>Municipal Corporations, Officers and agents. Overseers of the Poor. Statute, Construction. Words, “Prosecute,” “Preceding sections.”</p> <p>The word “prosecute,” as used in R. L. c. 81, § 38, directing that in certain actions and prosecutions “ the overseers of the poor of any place . . . shall appear and prosecute ... in behalf of such place,” includes the bringing as well as the carrying on of such an action.</p> <p>Where it does not otherwise appear that any change in the law was intended in the revision of a statute, mere verbal changes made in such revision do not alter the meaning of the statute.</p> <p>The overseers of the poor of a town were given power, under St. 1793, c. 69, § 14, to prosecute in the name of the town certain actions described "in the preceding sections of tills chapter.” Like phraseology was used in the codifications of the law in Rev. Sts. c. 46, § 26, and Gen. Sts. c. 70, § 22, but in the revisions in Pub. Sts. c. 84, § 33, and R. L. c. 81, § 38, the words “of this chapter” were omitted, and among the “ preceding sections ” was Pub. Sts. c. 84, § 25, R. L. c. 81, § 29, providing for criminal prosecutions against the overseers themselves. Held, that it did not appear that by the last two revisions any lessening of the powers of the overseers to bring the ac'ions specified in the chapters named was intended by the Legislature.</p> <p>Under R. L. c. 81, § 38, the overseers of the poor of a town have power to bring in behalf of the town a bill in equity under § 11 of that chapter to compel a grandfather who has sufficient ability to contribute toward the support of his grandchildren who are paupers and are being supported by the town.</p>

<p>Statute, Acceptance. Pittsfield. Eminent Domain. Damages, For property taken or injured under statutory authority. Water Supply. Watercourse.</p> <p>St. 1892, c. 185, by which an additional water supply for the city of Pittsfield was authorized, provided that it should not take effect “ until accepted by a two-thirds vote of all the members of each branch of the city council of said city, taken by yeas and nays and approved by its mayor.” In an action, in which it was material to show that this statute was accepted by the city, the records of the board of aldermen and of the common council showed that the statute was “ adopted . . .. by a two-tliirds aye vote.” Held, that the language of such a record of a legislative body is to be construed favorably to the validity of the action if it is fairly susceptible of such a construction* and accordingly that, although the records here were not so explicit as they ought to have been, they, would be interpreted to mean that the act was accepted in accordance with its terms.</p> <p>It is within the power of the Legislature to authorize a taking of property under « the right of eminent domain without the use of any writing by an act in pais which purports to be done under the authority of the statute and which clearly indicates an intention permanently to appropriate the designated property to a public use.</p> <p>Under St. 1892, c. 185, authorizing an additional water supply for the city of Pitts-field, which is silent as to the manner of taking the waters named, and contains no requirement in terms that any certificate or other writing should be filed in the registry of deeds, and, after making provision for taking the waters of certain brooks for a water supply, authorizes the city “ for this purpose to take, by purchase or otherwise, any lands on or around any of said brooks, and any water and water rights connected therewith,” the taking by the city of a deed of land ■ on one of the brooks named in the statute, with the right to lay a pipe and construct an aqueduct, the erection of a dam across the brook and the construction of a reservoir there, the diversion of the water of the brook into a ten inch main and conducting it for use by the inhabitants of the city, all these things being done professedly under the authority of the statute, constitute a taking of the water of the brook within the meaning of the statute.</p> <p>In an action of tort against a city for an alleged unlawful diversion of the water of a brook, the plaintiff cannot recover the compensation to which he is entitled under a statute authorizing the defendant to take the water of the brook for a water supply.</p>

<p>Agency. Insurance, Fire. Contract, Validity. Lord's Day.</p> <p>If one takes out a policy of fire insurance in response to the solicitation of an insurance agent this in no way makes the insurance agent the agent of the insured in afterwards procuring the signature of the insured to an agreement in writing purporting to cancel the policy, especially when the agent is acting wholly in the interest of the insurer and against the interest of the assured.</p> <p>A contract made in violation of law cannot be enforced by setting it up as a defense to a cause of action otherwise well grounded. The parties to such a contract are left by the law where their own acts have placed them.</p> <p>Signing and delivering on the Lord’s day an agreement dated on a secular day to cancel an insurance policy and receiving in exchange a check for the return premium is a penal offense under St. 1904, c. 460, § 2, and the agreement of cancellation procured by such illegal transaction is no defense to an action on the policy to which it relates.</p>

<p>Probate Court, Appeal, Jurisdiction. Conservator.</p> <p>On the hearing before a single justice of an appeal to this court from a decree of the Probate Court dismissing a petition to have a conservator, who previously had been appointed to take charge of the petitioner’s property because of the petitioner’s mental weakness, removed and the property restored to the petitioner, tlie appeal was dismissed, and the petitioner appealed to the full court. ■The petition alleged and the answer denied that the petitioner had become able to take care of his property. The record before the full court contained no report of the evidence and no statement of the reasons why the single justice dismissed the appeal. Held, that there was nothing in the record to show that the appeal was not dismissed properly.</p> <p>A petition which sought the appointment of a conservator of the property of one, who was alleged to be mentally weak and unable properly to care for his property, purported to be brought by a mayor and the overseers of the poor and one citizen of the city where the respondent lived, but contained no allegation that any of the petitioners were friends of the respondent. After the petition was filed, the Probate Court allowed it to be amended by adding after the petitioners* names the words “all of them being friends” of the respondent, and, after a hearing, granted the petition. Held, that the Probate Court had jurisdiction to allow the amendment and afterwards to grant the petition.</p>

<p>Complaint, received and sworn to before the District Court of Franklin on September 20,1907, charging the defendant with operating an automobile on September 15,1907, upon a highway from which automobiles were excluded by vote of the selectmen of the town of Ashfield under St. 1907, c. 203.</p> <p>On appeal to the Superior Court, the case was tried before Stevens, J., upon an agreed statement of facts, from which it appeared that on the occasion in question the defendant was driving his automobile on a highway from which automobiles had been excluded by the selectmen, as alleged in the complaint, intending to go to the house of one William Howes, which was located on the highway in question; that the purpose of the defendant’s trip was to carry a relative who was visiting him to the house of Howes in order that said relative might visit his sister, who was the wife of Howes; that there were three roads which the defendant could have taken which would have led him to the house of Howes, all three of which, or the parts of the same which lie in the town of Ashfield, were posted as provided by St. 1907, c. 203, excluding automobiles therefrom; that the defendant could not have reached the house of Howes without passing over some portion of a highway from which automobiles were excluded; that on the occasion in question the defendant operated his automobile over a distance of about one half mile of posted highway; that, had the defendant passed over either of the other two roads, he would have travelled over a distance of between two and three miles of highway in Ash-field so posted; that the highway which was so posted, over which the defendant did pass, was an ordinary country road, the travelled part of which is about twelve feet in width; that on the road was a public schoolhouse and several farm houses, one of which was the farm of Howes; that the automobile was the ordinary type of touring car; that it was licensed and that in all other respects the defendant had complied with the law relative to the use of automobiles.</p> <p>The defendant was convicted, and alleged exceptions, as stated' in the opinion.</p>

<p>Bill in equity, filed in the Superior Court for the county of Franklin on October 28,1905, seeking to compel the defendant corporation to assign to the plaintiff United States letters patent numbered 725,349, alleging that the defendant Frank J. Marshall had assigned to the plaintiff all his “ right title and interest in and to ” United States letters patent numbered 342,802, for an improvement in engines, “ and all further improvements thereon and renewals of the aforesaid patent, that the letters patent numbered 725,349, which were granted to Marshall after the assignment to the plaintiff, but upon an application pending at the time of such assignment, were upon an improvement on the engine on which the letters patent 342,802 were granted, and that Marshall had assigned the letters patent numbered 725,349 to the defendant corporation; and seeking also that the defendants be enjoined from manufacturing or selling any engines covered by the last named patent.</p> <p>The cause was referred to a master, who filed a report on February 18, 1907, to which the defendants filed objections but no exceptions. On April 6, 1907, Fessenden, J., ordered the master’s report confirmed.</p> <p>On April 13, 1907, the defendants filed a motion that the bill be dismissed on the ground that it presented “ a question involving an inquiry as to the construction and scope of the patents therein mentioned, of which question the federal courts have exclusive jurisdiction.” This motion was denied on April 25,1907, and the defendants appealed.</p> <p>A final decree granting the prayers of the bill was entered thereafter and the defendants appealed.</p>

<p>Deed, Construction. Use. Shifting Use. Words, “ Remainder.”</p> <p>A deed made by one L. S-. recited that it was in consideration of 11,000 paid by C. S., the son of the grantor, and remised, released and forever quitclaimed unto the said C. S. his heirs and assigns certain parcels of land with the buildings thereon. After the description the deed proceeded as follows: “ Reserving to myself the right at any and all times to cut and remove from any and all said tracts so much of the wood and timber growing thereon as I shall from time to ■ time see fit and' retain the same to my own use. To have and to hold the aforegranted premises to the said C. S. during the term of his natural life remainder to such of the children of said C. S. as shall arrive at the age of twenty-one years their heirs and assigns, to their use and behoof forever. So that neither I the said L. S. nor my heirs, nor any person or persons claiming from or under me or in the name, right or stead of me or them by any way or means, have any estate, right title or interest of in and to the aforesaid premises with the appurtenances except as aforesaid.” C. S. died leaving five children, of whom two were of age and three were minors. Held, that the deed did not create a contingent remainder in such children of C. S. as should arrive at the age of twenty-one years, but expressly declared the intention of the grantor to part with all his interest in the property except the reservation of the right to cut wood, and that the intention' of the grantor would be carried into effect by treating the deed, as a conveyance to uses, that the fee vested in O. S. and his heirs, first for the use of himself during his life, and then for the use of such of his children as should attain the age of twenty-one years, and that, when all of this class had been determined finally, the use would shift to them in fee and be executed by the statute of uses.. Held, also, that the word "remainder " in the habendum clause did not prevent this construction of the deed, the whole clause taken together showing that the word was not used in its technical sense.</p>

<p>Practice, Criminal, Exceptions. Physicians and Surgeons. Constitutional Law. Statute. Words, “Practice of medicine.”</p> <p>Exceptions at the close of the charge of the judge presiding at the trial of a complaint against the defendant for the commission of a crime, which merely state that they are to the judge’s “ rulings and refusals to rule,” do not give the excepting party the right to object to the charge as a whole, or to statements therein regarding matters to which he did not call the judge’s attention.</p> <p>The science of medicine includes a knowledge, not only of the functions of the organs of the human body, but also of the diseases to which such organs are subject and of the laws of health and the mode of living which tend to avert or overcome disease, as well as of the specific methods of treatment that are most effective in promoting cures, and is not limited to that department of knowledge which relates to the administration of medicinal substances.</p> <p>One, who is not lawfully authorized and registered to practise medicine within this Commonwealth, may “ practise medicine ” and thus violate the provisions of R. L. c. 76, § 8, which impose a penalty in case a person so unauthorized and unregistered practises medicine, although he assumes to practise as a member of one of the schools, members of which by § 9 are excepted from the provisions of § 8 “ if they do not violate any of the provisions ” of that section, and although he does not prescribe or deal out a substance to be used as a medicine.</p> <p>At the trial of one charged under R. L. c. 76, § 8, with practising medicine although not lawfully authorized or registered so to do, there was evidence tending to show that the defendant, who did not contend that he had any knowledge of drugs or of disease in the ordinary sense, at times made diagnoses of his patients, and prescribed medicines for them. Held, that there was evidence warranting a conviction.</p> <p>R. L. c. 76, § 8, imposing a penalty for the unauthorized practice of medicine by persons not properly registered in accordance with the statute, is constitutional.</p>

■ Contract upon an alleged agreement of the defendant with the plaintiff to transport peaches from Hyde’s Crossing in New York to Springfield and Boston in cars which should be iced, and to maintain in the cars used to carry the peaches “ a proper temperature for preserving said peaches during their transportation,” the declaration alleging that a proper preserving temperature was not maintained, due to the cars not being properly iced.

<p>Nuisance. Municipal Corporations, By-laws and ordinances. Evidence, Violation of ordinance as evidence of maintenance of nuisance, Of experiments, Photographs.</p> <p>In an action against one in control of a house for personal injuries alleged to have been incurred while travelling on a public sidewalk by reason of a nuisance maintained by the defendant, if there is evidence that from two spouts on the defendant’s house, one about eleven feet from the street line and the other a number of feet nearer, water was conducted from the roof and turned upon a concrete walk of the defendant, from whence by reason of the natural grade of the walk it flowed to the sidewalk, where it froze in a ridge about three inches in thickness in the middle, this is sufficient to warrant a finding that the defendant collected the surface water in an artificial course and poured it upon the public way in such a manner as to create a nuisance.</p> <p>In an action against one in control of a house for personal injuries alleged to have been incurred while travelling on a public sidewalk by reason of a nuisance maintained by the defendant, if there is evidence warranting a finding that the defendant collected the surface water from his roof in an artificial course and poured it upon the sidewalk in such a manner as to create a nuisance by freezing in a ridge, it is no defense for him to show that there was a depression or gully in the sidewalk, into which the water from his spout flowed and froze, and that but for this defect in the sidewalk the water would have run off before it froze, as a landowner in turning water upon a public way is bound to take into account its actual condition and to determine at his peril whether his act in conjunction with the condition of the way will create a nuisance.</p> <p>One in control of a house maintaining spouts which collect surface water from his roof and pour it upon the sidewalk of a public way in such a manner as to cause a nuisance in freezing weather, is liable for an injury thus caused if by the exercise of ordinary care he would have known that the storm water from his house in conjunction with a depression or gully in the sidewalk produced a dangerous condition.</p> <p>A by-law of a town, providing that “ No person shall permit water from the eaves or leader pipes of any building owned or cared for by him to be discharged upon the sidewalk — or make or permit any drain, sluice, gulley or conduit upon his land to discharge water upon the sidewalk — ” not only prohibits a direct and immediate discharge of water upon a sidewalk without any intervening agency, but includes as well cases where a house standing back from the street is so fitted with eaves and leader pipes that the collected water flows down an inclined concrete walk on the land of the householder to the sidewalk of a highway.</p> <p>In an action against one in control of a house for personal injuries alleged to have been incurred while travelling on a public sidewalk by reason of a nuisance maintained by the defendant, where there is evidence warranting a finding that the defendant collected the surface water from his roof by spouts which poured it upon tile sidewalk in such a manner as to create a nuisance by freezing in a ridge, it is proper to admit in evidence a by-law of the town in which the house is situated prohibiting the discharge of water upon a sidewalk from the eaves or leader pipes of any building, of which the acts of the defendant were a violation, such violation of the by-law being competent evidence to be considered with all the other circumstances as bearing upon the question of the maintenance of a nuisance by the defendant, although not conclusive upon that issue.</p> <p>In an action against one in control of a house for personal injuries alleged to have been incurred while travelling on a public sidewalk by reason of a nuisance maintained by the defendant, where there was evidence warranting a finding that the defendant collected the surface water from his roof by spouts which poured it upon an inclined concrete walk on the land of the defendant, down which it flowed to the sidewalk of a public way in such a manner as to create a nuisance by freezing in a ridge, the defendant offered evidence to show that since the accident there had been no changes in the grade, the ground or the laying out of the defendant’s premises, the walk or the eaves spouts, and then offered a photograph taken while the trial was in progress during a rain storm of much greater severity than any occurring near the time of the accident, for the purpose of showing the directions taken by water thrown from the spouts and after it reached the defendant’s walk, and that such water did not and could not flow to the public sidewalk. The judge excluded the photograph. The defendant excepted to its exclusion. The ground of the judge’s ruling was not stated. A photograph of the place when there was no storm was admitted in evidence. Held, that the photograph excluded was at the best a photograph of an experiment, and that it was the duty of the judge to determine, as a matter of discretion, the preliminary question whether the conditions were sufficiently similar to make the observation recorded in the photograph of any value in aiding the jury to pass upon the issue to be submitted to them, that the exercise of this discretion could not be interfered with unless plainly wrong, and that there was nothing in the present case to show that the exclusion of the photograph was error.</p>

<p> Negligence. Street Railway. </p> <p>In an action by a woman against a street railway company for personal injuries incurred, when being driven as a guest in an automobile, from being run into by a car of the defendant on a narrow bridge over a railroad, there was evidence on which it could be found that the plaintiff was inexperienced in regard to automobiles and that the driver, whose guest she was, was skilful and experienced in that regard, that the automobile was following behind a street car of the defendant which was moving very slowly on the bridge, that there was not room to pass this car on the right, that the driver turned to the left upon the parallel track to pass the car, that when the automobile got on the track its occupants saw another car of the defendant approaching at a high rate of speed from the opposite direction, that the driver brought the automobile to a full stop, but that the car in spite of the efforts of the motorman could not be stopped in time to avoid a collision, and struck the automobile with violence, causing the injuries sued for. Held, that the jury well might have found that the plaintiff took a wise course in not attempting to interfere with the driver’s management of the automobile, that there was no relation of agency between her and the driver to affect her with negligence on his part and no mutuality in a common enterprise between them, so that the question of the plaintiff’s due care was for the jury, and it was not necessary to consider whether the driver was negligent or not.</p> <p>In an action by a woman against a street railway company for personal injuries incurred, when being driven as a guest in an automobile, from being run into by a car of the defendant on a narrow bridge over a railroad, there was evidence on which it might have been found that the motorman of the car which ran into the automobile was driving it at the rate of about fifteen miles an hour to and upon the bridge, that the approaches to the bridge were at so sharp a grade that a car coming from either side could not be seen by the motorman of a car coming from the other side until both cars were substantially on the bridge, that the automobile had been following behind another car of the defendant which was moving very slowly, that there was not room on the narrow bridge for the automobile to pass the car on the right and there was room to pass it on the left only by travelling wholly or in part upon the parallel track of the defendant, that the driver turned to the left to pass the car, that after the defendant’s approaching car and the automobile had become visible from each other, the automobile came to a full stop, but the car in spite of the proper effort then made by the motorman could not be brought to a standstill in time to avoid a collision, and struck the automobile with such force as to move it a considerable distance, causing the plaintiff’s injuries. The bill of exceptions contained the following statement: “ On the day of the accident there was in force a rule or order of the defendant, with which all its employees running over the bridge were familiar, that two double truck cars should not be on the bridge simultaneously. This rule was made pending the strengthening of the bridge, which was done after the date of the accident.” Both of the defendant’s cars on the bridge at the time of the accident were double truck cars. Held, that the statement that the rule of the defendant above quoted “ was made pending the strengthening of the bridge, which was done after the date of the accident,” did not overcome the express statement that it was in force at the time of the accident, nor show that it was so far intended merely to protect the defendant’s passengers that its infraction could not be regarded as negligence toward others, and, if so, the mere fact of the violation of the rule was some evidence of negligence in running the car, but that, even in the absence of such an express rule, the jury might find that the defendant’s cars should not be allowed to obstruct and endanger travellers in other vehicles by passing each other upon so narrow a bridge approached at so steep a grade, and that, in view of all the circumstances, the court could not say that the jury had not a right to find that it was negligent to take the car upon the bridge while another car was upon it at such a rate of speed as might make a collision with another vehicle unavoidable after knowledge of such a danger; consequently, that the question of the defendant’s negligence was for the jury.</p>

<p>Contract upon an account annexed for the price of one hundred and ten railroad sleepers alleged to have been sold and delivered to the defendant by the plaintiff. Writ in the Superior Court for the county of Hampden dated November 15, 1905.</p> <p>The defendant filed a declaration in set-off containing the following account:</p> <p>“ 1904</p> <p>April 4 To cash paid Eastman & Maxwell, for cutting logs on Stowe lot, $205.26</p> <p>Nov. 29 To cash paid to Smith & Hunter, for drawing logs on Stowe, 307.76</p> <p>To costs and expenses incurred at the plaintiff’s request, 70.04</p> <p>Total, $583.06</p> <p>1901 Credits.</p> <p>Dec. 5 By check for labor on Stowe lot, $189.64 1902</p> <p>Dec. 17 By cash for labor on Stowe lot, 5.27</p> <p>Dec. 19 By cash for labor on Stowe lot, 29.03 Total, $223.94</p> <p>Balance due, $359.12 ”</p> <p>There was a trial before Hitchcock, J. There was evidence that the defendant admitted that he owed the plaintiff the amount claimed in the declaration. The presiding judge ruled, without exception by the defendant, that there was no evidence tending to prove the first two items charged against the plaintiff in the declaration in set-off. As to the third item of charge, the defendant introduced evidence tending to show that, the defendant having been threatened with a suit by Eastman and Maxwell and having conferred with the plaintiff about it, the latter had said to the defendant, “ Let them sue. I will back you up in it,” and, after such suit was brought, had gone with the defendant to the latter’s attorney, had helped to prepare the defense, and at his own expense had brought witnesses and his sawyer with him to help the defense of the suit.</p> <p>There was a verdict for the defendant in set-off, and the plaintiff excepted.</p> <p>The grounds for the motion for a new trial, referred to in the opinion, were as follows : (1) That the verdict was against the evidence and the weight of evidence; (2) “ that since verdict was rendered new and important evidence has been discovered by the plaintiff, to wit: That Arthur S. Kneil, of Westfield, who was the attorney of this defendant, George W. Loomis, in the suit of Eastman and Maxwell against said Loomis, asked this plaintiff, at the request of the said Loomis, if this plaintiff would pay the expenses of the said Loomis in defending himself in said suit of Eastman and Maxwell v. Loomis, and this plaintiff answered that he would not.” The motion was denied, and the plaintiff appealed.</p> <p>Other facts are stated in the opinion.</p>

<p>Pleading, Criminal, Indictment, Motion to quash. Uttering Forged Instrument.</p> <p>Under R. L. c. 218, § 67, setting forth sufficient forms of indictment, an indictment charging, that the defendant on a certain day “ with intent to injure and defraud did utter and publish as true a certain forged instrument purporting to be a promissory note well knowing the same to be forged,” sufficiently informs the defendant of the nature of the offense with which he is charged. If he needs further particulars to enable him to prepare his defense, R. L. c. 218, § 39, gives him a right to them.</p> <p>Where it appears by the bill of exceptions in a criminal case, that the defendant entered a plea of not guilty, and, before the empanelling of the jury, filed a motion to quash the indictment, if no objection appears to have been made to the filing of the motion after the defendant had pleaded to the indictment, the motion will be regarded as having been filed properly by leave of court.</p>

<p>Tort with a first count for the alleged conversion of a pedler’s pack belonging to the plaintiff, and a second and a third count each alleging the defendant’s receipt of the pack as a common carrier and its failure to deliver the pack. Writ dated August 7, 1907.</p> <p>In the Superior Court the case was tried before Gaskill, J. The evidence tended to show that the plaintiff’s agent, one Assam, bought a ticket at Jefferson, Massachusetts, for Cold-brook, Massachusetts, on the defendant’s road in the afternoon of June 20,1907, and had with him a pedler’s pack containing merchandise belonging to the plaintiff which was to be delivered at a small village near Coldbrook. Assam boarded the train at Jefferson and was told by the defendant’s servants that the pack would have to be carried in the baggage car. There was a notice posted at the station at Jefferson that pedlers’ packs would be subject to a charge of fifteen cents excess baggage charge. The train reached Coldbrook and stopped for a period not exceeding two minutes. Assam alighted from the car and asked for his pack, and the defendant’s agent told him that he could have it when he paid fifteen cents for it. The pack was not taken from the train. The plaintiff did not offer to pay the fifteen cents. The pack then was carried to Barre, a station a mile and a half farther on, and the plaintiff’s agent was not then notified where it had gone. The pack never was brought to Coldbrook station but was kept at Barre for a long time and storage charges at the rate of ten cents per day, after the first day, were assessed on it. The class of goods to which the pack belonged was classified by the defendant as baggage on which an excess rate was charged. There was a rule of the defendant that there would be no charge for storage on baggage of this kind for the first twenty-four hours after the arrival at its destination. There was a baggage room used to deposit and keep baggage at Coldbrook station.</p> <p>The plaintiff’s agent, Assam, testified in part as follows: That he returned to Coldbrook station the next morning, demanded his pack and offered to the defendant’s agent the fifteen cents claimed to be due; that the defendant’s agent told him that he did not know where the pack was and that he would have to write to Boston for it; that the witness did not see the pack again for some weeks and then saw it at the Barre station where the agent told him that there was the sum of $2 due on it.</p> <p>The defendant’s agent, the station master at Coldbrook, testified that the plaintiff’s agent, Assam, when he got off the train demanded his baggage but absolutely refused to pay the fifteen cents; that the baggage was carried away and that Assam returned to the station the next afternoon, within twenty-four hours, and after inquiring for his baggage was asked if he was willing to pay the fifteen cents; that he then again absolutely refused to pay the fifteen cents; that the agent told him that the pack was at Barre and that he could have it later if he would pay the fifteen cents, as he would have it brought to him by the next train from Barre, but Assam said that he would not pay the fifteen cents.</p> <p>Another agent of the defendant, the station master at Barre, testified in part, that the plaintiff’s agent, Assam, called at Barre about sixteen days after June 20, and asked about the pack, that he showed it to him and told him that he would have to pay about $1.60 to get it; that he asked him if he wanted it and that Assam said “ ISTo.”</p> <p>At the close of all the evidence the plaintiff asked the judge to direct a verdict for the plaintiff. This the judge refused to do, and the plaintiff excepted.</p> <p>The judge instructed the jury as follows: “ Mr. Foreman and gentlemen of the jury: The plaintiff in three different ways in his declaration alleges that he has a cause of action against the defendant. Each one of those ways- relates to the same subject matter. It is not three suits but three ways of stating, one cause of action. Practically it comes down to this: that the- plaintiff delivered to the defendant certain goods to be transported from Jefferson to Coldbrook; vthat there was a charge due as excess baggage upon that baggage and that at Coldbrook the plaintiff’s agent at first refused to pay any of this excess baggage charge, but that at a later time at various times he tendered to the defendant the amount due for carrying, the baggage and demanded it of the carrier, but it utterly refused to- deliver the same to the plaintiff.</p> <p>“ As I take it the law is plain and easily stated. First, there is no dispute that these goods were delivered by the plaintiff to the defendant company to be transported; that they were not technically personal baggage, but by the rules of the company this being a pedler’s pack was regarded as excess baggage, and in the station at Coldbrook in plain view a notice to that effect was posted.</p> <p>“ I instruct you as a matter of law that the defendant company had the right to charge as excess baggage the rate which it had fixed at fifteen cents, no question being made but that that was a reasonable sum. So far, then, practically there is no dispute. What next? Well, the next thing is, the defendant having taken those goods for something to be paid for transporting them, it was the duty of the defendant to deliver those goods at the place to which the passenger was going upon the request of the plaintiff’s agent and payment of the amount due. Now, you are on the line to Coldbrook, and what is the situation there ? And that is as you may find upon the evidence. Upon one side it is contended in behalf of the plaintiff that he there asked for the goods to be delivered, that the defendant’s agent stated that there was fifteen cents due, and that he refused to pay that fifteen cents. So far there is* no dispute. So up to that time and with that refusal the company was justified, up to that point. Now a rule of the company has been put in, or custom of the company, testified to by one of its agents, that for twenty-four hours after the receipt of goods where there is a charge for excess baggage, they retain those goods without additional charge.</p> <p>“ Now, dealing with that problem; up to this time there is nothing that the defendant has done that is not justifiable. Now, what is the next step ? What was done within the next twenty-four hours? Well, at the beginning of that twenty-four hours those goods were not delivered at the station at Coldbrook but were carried on to Barre. That in and of itself was an unjustifiable 'act on the part of the defendant, but that does not mean that with that alone the plaintiff can recover.</p> <p>“ Now, what was done upon the following day ? If there was a refusal at all times on the part of this plaintiff to pay reasonable charges, then it is practically immaterial where these goods were, whether with the agent at Coldbrook or whether they were at Barre, because there was no obligation to deliver unless upon payment or offer of payment, so that eliminates that for the time being. Now, the only way in which the plaintiff can recover here is that you must be satisfied by a fair preponderance of the evidence of one of two things, either that within twenty-form hours after the arrival of the plaintiff’s pack at Coldbrook he tendered or offered to pay to the station agent there fifteen cents, and it is admitted of course the goods were not at the station. Now, unless that is so, then there is no ground whatever, because it is admitted by the plaintiff that at Barre when the plaintiff’s agent went there he simply asked how much the charges were, and as he said $2.80, but as the agent says $1.60, and the plaintiff’s agent refused to pay it. So that that becomes immaterial in a way.</p> <p>“ Now, if the plaintiff’s agent within twenty-four hours after about six P. M. of that evening came to the agent at Coldbrook and offered to pay fifteen cents then it was the duty of the defendant to deliver, at Coldbrook or at any other place which the plaintiff might require if the defendant consented, those goods.</p> <p>“Well, the goods were not at Coldbrook. That is admitted. The station agent testifies that he said to the plaintiff’s agent as long as you are going back if you prefer I will have those goods at Jefferson for you or I will deliver them to you here if you prefer. If that was what was said then even though the offer was made, of course as I have told you there can be no recovery unless you are satisfied the plaintiff’s agent did offer to pay within twenty-four hours thereafter of six p. M. of that day the fifteen cents.</p> <p>“ If he did offer to pay it then if there was the offer made by the defendant’s agent to have those goods at Ooldbrook or if the plaintiff’s agent preferred at Jefferson, and there was a refusal on the part of the plaintiff then no recovery can be had.</p> <p>“ To put it perhaps in a little more simple way, and in a sentence, practically this is the only way in which the plaintiff can recover, for you to be satisfied that within twenty-four hours after six p. M. of that given day the plaintiff’s agent offered to pay the station agent at Coldbrook fifteen cents, and the station agent at Coldbrook did not have the goods and could not deliver the goods, and did not know where the goods were and so refused. If that is the situation the plaintiff may recover, otherwise not.</p> <p>“ If you come to question of damages, the plaintiff has testified that he paid fifty dollars for this property, and that he expected to make twenty or twenty-five per cent, and as I recall the plaintiff’s testimony upon the stand he said that in his judgment these goods were worth from seventy to seventy-five dollars.</p> <p>“ You are to take the evidence, gentlemen, and if you find for the plaintiff for the value of the goods you will add interest from the date of the writ at six per cent. The date of the writ was the seventh day of last August.”</p> <p>The plaintiff excepted to that portion of the charge beginning “If he did offer to pay” and ending with words “otherwise not.”</p> <p>The judge added, “ If the testimony of the agent was that he offered to have the goods back on the next train, if that was what was done, that was reasonable time.” The plaintiff excepted to this last instruction.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>The proprietor of a factory or machine shop owes no duty to a laborer employed to work there to change or improve any of the obvious conditions of his workshop or machinery. The laborer accepts them as they are at the time of his employment.</p> <p>If a laborer employed in a workshop, where there is a steam trip hammer which is set in motion by pressing down a pedal extending in front of and around two sides of the base, on the second day of his employment, being ignorant of the existence of the pedal, is told by a person, who may be acting as a superintendent, to go witli a loaded wheelbarrow between the trip hammer and a pile of dies two or three feet high, where there is a space “ just wide enough to wiggle the harrow through,” and if in attempting to do this the 'laborer strikes the pile of dies and is thrown down, and in some way his foot comes down on the pedal and sets the machine in motion and the hammer comes down and cuts off one of his fingers, he cannot recover from his employer for this injury, which happened by a pure mischance for which no one was liable and which could not reasonably have been anticipated either by the employer or his superintendent^ who therefore were guilty of no negligence in failing to warn or instruct the laborer in regard to such a danger.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Exceptions, Order of evidence. Evidence, Opinion: experts.</p> <p>If a journeyman carpenter of twenty years’ experience applies for work to a contractor who is engaged in tearing down the roof of an old building to make room for a new structure, the carpenter having never before worked at tearing down a roof but this fact being unknown to the contractor, and is set to work at once on the roof, being given an iron bar and told to rip off the boards and throw them in a certain place and then to take down the rafters, and if while proceeding about this work in his own way he steps on a rafter which proves to be rotten and breaks, and he falls through the roof and is injured, and if it appears that , the rafters were painted on the sides and bottom so that the natural wood could be seen only as the boards were taken off the top, and that the place where the rafter broke was exposed by other workmen who had preceded this carpenter in the work and was open to sight, the carpenter cannot recover from his employer for his injuries, he having assumed the risk of such an accident when lie entered the employ of the contractor to assist in tearing down the old roof.</p> <p>An exception to the exclusion of a question to a witness cannot be sustained unless it appears by the bill of exceptions that the answer to the question would have been material and that the excepting party has suffered injury by its exclusion.</p> <p>The order in which the evidence at a trial shall be admitted is within the discretion of the presiding judge and a ruling in regard to it is not the subject of exception.</p> <p>The exclusion of a question to a witness is not the subject of exception if the next question put to the witness was in substance the same and was allowed to be answered.</p> <p>In an action by a carpenter employed by a contractor to assist in tearing down an old roof, for personal injuries from a fall caused by the plaintiff stepping on one of the rafters of the old roof which proved to be rotten, an expert witness, who has described the building and the roof, cannot be asked whether he “ would have reason to expect that there may have been leaks in that roof or some part of it,” it being a matter of common knowledge that old roofs are likely to leak and that the natural result of water leaking through a roof is to produce decay.</p> <p>In an action by a carpenter employed by a contractor to assist in tearing down an old roof, for personal injuries from a fall caused by the plaintiff stepping on one of the rafters of the old roof which proved to be rotten, an expert witness, after the attendant conditions of the accident have been shown, cannot be asked whether in his opinion the plaintiff “ was proceeding in the usual and ordinary way to do ” his work, this, in the case of work so simple in its character, being a question for the jury, who are to pass upon the issue whether the plaintiff was using ordinary care, and in doing so are to determine what common prudence required under the circumstances.</p>

<p>Trust, Resulting. Equity Pleading and Practice, Memorandum of judge, Parties, Costs. Frauds, Statute of. Evidence, Admissions by conduct. Equity Jurisdiction, Laches, Estoppel.</p> <p>A bill in equity by an executrix, seeking to establish a resulting trust in certain real estate in favor of the plaintiff’s testator, averred that at the time of the purchase of the real estate in question the entire purchase money was paid by the plaintiff’s testator, who thereafter until his death occupied the real estate and received all the rents and profits, that the conveyance was made to one M., who never occupied or used the premises or received any benefit therefrom and who held the title for the benefit of the plaintiff’s testator and thereafter at his request conveyed the real estate to one W. H. without consideration, it being understood and agreed between the plaintiff’s testator and W. H. that the latter was holding the title for the benefit of the former, and that later, at the request, of the plaintiff’s testator, W. H. conveyed the premises without consideration to the defendant, the son of the plaintiffs testator, who never occupied the premises or received any income or rent from them but held the legal title for the use and benefit of his father; the plaintiff’s testator, as M. and W. H. had done previously. Held, that these allegations sufficiently stated a resulting trust.</p> <p>Where one buys and pays for real estate but the title is conveyed to another, a trust results in favor of him who pays the purchase money, even if he has borrowed the money for the purpose from the grantee.</p> <p>On an appeal to this court from a decree in equity a memorandum of decision of the judge who made the decree, although filed by the judge voluntarily without the request of either party, stands on the same footing as a report of findings of fact made under R. L. c. 159, § 23, and the decision reported in such a memorandum will not be set aside unless plainly wrong.</p> <p>Where a resulting trust is created by the payment of the purchase money for real estate, the title to which is taken in the name of another, the trust does not lose its character by the transfer of the title by the trustee to another person who takes with notice of the trust. Such a conveyance, which merely substitutes one trustee for another, requires no consideration to support ifc</p> <p>The statute of frauds does not prevent the establishment of a resulting trust by proving by oral evidence that the purchase money for real estate was paid by a person other than the one in whose name the title was taken. Nor is there anything in the statute of frauds which requires any writing to continue the existence of such a trust when a new trustee is selected to whom the property is conveyed with notice of the trust.</p> <p>In a suit in equity where it is incumbent on the plaintiff to show that the defendant accepted a certain conveyance of real estate with notice of a resulting trust in favor of the plaintiff’s testator, where there is testimony tending to show a recognition of the obligation of the trust on the part of the defendant, which however is to be treated with caution and discrimination on account of the interest of the witnesses, if the defendant is in court and fails to testify personally or to call any witnesses in his behalf, such omission to offer evidence within his reach to control or explain the evidence for the plaintiff on this issue may be regarded as conduct in the nature of an admission which may be given consideration.</p> <p>If a conveyance of real estate, already subject to a resulting trust, made without consideration to the son of the beneficial owner, creates any presumption that it was made as a gift to the son in token of parental affection, and was not conveyed to him to hold as trustee for his father, the inference is merely one which the law permits to be drawn from unexplained facts, and may be overcome by evidence showing the real situation to be otherwise; and where the son to whom the conveyance is made is of middle age and is in business on his own account, and the beneficial owner also has a wife and other sons, one of them barely of age, the presumption is very weak, even when not rebutted, as in the present case, by evidence tending to show that the son took title with express notice of the trust and for the purpose of holding the property for the benefit of his father.</p> <p>The beneficiary of a resulting trust in real estate, determinable at his pleasure, who has enjoyed the benefits of the trust during his life without exercising his right to bring the trust to an end, is guilty of no loches in failing to terminate the trust, and the executor of his will is free to bring a suit in equity to establish the trust.</p> <p>One who received a conveyance of real estate subject to a resulting trust, and after acting for a time as trustee conveyed the real estate to a new trustee to act in his stead, and who afterwards upon the death of the beneficiary became himself one of the beneficiaries of the trust, is in no way estopped from joining as one of the plaintiffs in a suit in equity to establish the resulting trust against the person to whom he conveyed the property as trustee.</p> <p>On affirming a decree of the Superior Court on appeal, it was ordered that the decree should be modified to include the costs of the appeal to this court and as modified should be affirmed.</p>