Volume 201 — Massachusetts Reports

<p>Contract, by one alleged to be the holder in due course of a check signed by the defendant, to recover the amount of the check. Writ in the Superior Court for the county of Suffolk dated April 24, 1907.</p> <p>At the trial in the Superior Court before Crosby, J., there was evidence tending to- show that the defendant had agreed to purchase two horses of one Leonard, that Leonard brought the horses to the defendant’s place of business, the defendant previously having made out and signed and left on his desk a check payable to Leonard’s order for the purchase price of the horses; that the defendant unexpectedly was called upon to leave Leonard and Ms office for about forty-five minutes, and that, in his absence, at Leonard’s request, the defendant’s bookkeeper delivered the check to him; that very shortly thereafter the defendant stopped payment of the check, but that, in the meantime, Leonard had negotiated the check for value to the plaintiff, who had no notice of the transaction between Leonard and the defendant. The defendant’s evidence tended to show that the bookkeeper had no authority to deliver the check to Leonard, and that the reason that he had stopped payment on the check was that he discovered that the horses were unsound.</p> <p>At the close of the evidence, the defendant requested the presiding judge to rule that the plaintiff could not recover. The request was refused and the jury returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Presumptions and burden of proof. Carrier. Street Railway.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries, there was evidence that, while the plaintiff was a passenger upon an open electric car managed and controlled by the defendant, the electric controller exploded with terrific violence, so that a hole was blown in its metallic covering and the whole car was lighted up with flame, that at the time the car was well filled with passengers, that all the passengers seemed to leap from the car at once and that only one passenger, who was restrained by the conductor, remained upon the car. Neither the plaintiff nor her husband, who was with her, was able to state how she left the car, but he found her unconscious upon the ground behind the car immediately after the accident. Held., that there was evidence for the jury on the question of the plaintiff’s due care.</p> <p>If the declaration in an action of tort against a street railway company by a passenger upon an open electric car to recover for personal injuries received by reason of an explosion of the electric controller on the car alleges that the explosion was caused by the fact that the electrical mechanism and equipment of the car were unfit, improper and out of repair, and at the trial of the case an electrical expert testifying for the plaintiff states “ that an explosion ” of the controller “ would not occur unless there were some sort of a defect in the electrical mechanism and equipment of the car, and that this defect could be readily discovered by inspection,” and the defendant introduces no evidence to explain the cause of the explosion, it is proper for the presiding judge to refuse to rule that the doctrine of res ipso loquitur did not apply to the case, or “ that the plaintiff has shown no facts from which negligence on the part of the defendant could be reasonably inferred as to matters alleged in any count of the declaration,” and to rule that “ the mere happening of the explosion was some evidence of negligence on the part of the defendant as to matters alleged in” the declaration.</p> <p>At the trial of an action of tort against a street railway company by one injured because of an explosion of the electric controller of an open electric car while he was a passenger thereon, which explosion is alleged in the declaration to have been caused by reason of a defective and unfit condition of the electrical mechanism on the car, if the evidence of the plaintiff tends to show that the explosion would not have occurred unless there had been some defect in the electrical mechanism and equipment of the car, and that such defect readily could have been discovered by proper inspection, a finding of negligence on the part of the defendant is warranted, although it is conceded by the plaintiff that the car was not the property of the defendant, but had been received by it from another street railway company for the purpose of continuing its journey over the defendant’s lines, it appearing that at the time of the accident the car was entirely in the control of the defendant who was acting as a .common carrier of passengers, and that the plaintiff was a passenger.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff in a collision between a butcher’s wagon, which he was driving, and an electric car of the defendant on East Main Street in Milford at five minutes past one o’clock in the afternoon of November 10,1906. Writ in the Superior Court for the county of Worcester dated February 18,1907.</p> <p>The case was tried in the Superior Court before King, J. The facts are stated in the opinion.</p> <p>At the close of the plaintiff’s evidence, the presiding judge ordered a verdict for the defendant on the ground that the plaintiff was not in the exercise of due care; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in September, 1908, before Knowlton, C. J., Morton, Loring, Sheldon, Sc Bwgg, JJ., and after-wards was submitted on briefs to all the justices.</p>

<p>Verdict. Superior Court. Jurisdiction. Damages, For property taken or injured by statutory authority. Practice, Civil. Interest.</p> <p>At the trial in the Superior Court of a petition for the assessment of damages resulting from the taking of an easement for sewerage purposes under St. 1897, c. 426, the evidence all related to the value of the'easement taken and nothing was said in the charge to the jury either as to the date as of which the petitioner might recover damages or as to the matter of interest. No exception was taken by either party to the charge, and a verdict was returned and recorded for the petitioner. The presiding judge heard no evidence after the verdict, but, more than three days after the verdict, the petitioner moved that he be allowed interest on the verdict from the date of the taking by the defendant, and the presiding judge made an order stating that, “it appearing . . . that the verdict . . . was for damages ... as of the date of the taking . . . and did not include any interest, . . . the clerk is . . . ordered, in entering up judgment upon said verdict, to reckon and include therein interest upon the verdict from the said date of taking.” Held, that the order was not within the power of the court and could not stand, either as an assessment of damages by the court or as an amendment to the verdict.</p> <p>Neither under the common law nor under R. L. c. 173, § 48, relating to amendments, is it within the power of the Superior Court to amend a verdict of a jury, after it has been returned and recorded and the jury has been discharged, by adding interest to an amount found by them, where it appears that the matter of interest was not mentioned to them by the presiding judge in his charge, since the verdict as amended does not express any idea which the jury had or anything which they intended to express.</p> <p>The.power of a trial court to amend a verdict after it has been rendered and re. corded and the jury has been-discharged, discussed by Hammond, J.</p>

Bill in equity, called a petition, filed in the Probate Court for the county of Middlesex on April 16, 1908, by Oscalena Arville Coe, of Bognor in the county of Sussex in England, wife of Frank Ernest Coe of Hampstead in the county of Middlesex in England, praying for the appointment of a guardian ad litem for the four minor children of the plaintiff and her said husband and for the termination of a trust for the benefit of the plaintiff created by the will of Timothy E.…

<p> Constitutional Law. Savings Bank. </p> <p>St. 1907, c. 340, now incorporated in St. 1908, c. 590, §§ 56, 67, providing that all amounts of money deposited with a savings bank or trust company remaining unclaimed for more than thirty years as therein described shall be paid to the treasurer and receiver general of the Commonwealth, to be held and used by him according to law, subject to be repaid to the person having and establishing a lawful right thereto, with interest at the rate of three per cent per annum, is constitutional, containing nothing in contravention of articles ten and twelve of the Declaration of Rights or of any other part of the Constitution of the Commonwealth and nothing in contravention of the Fourteenth Amendment or of any other part of the Constitution of the United States.</p>

<p>Two actions of contract against the same defendant, Margaret E. Lynch, the first by Abraham Kurinsky for the alleged breach of an agreement in writing to convey to the plaintiff certain real estate in that part of Boston called Dorchester free from incumbrances, and the second by Sarah R. Kurinsky and Mary Blue for a broker’s commission for effecting a sale of the same real estate. Writs in the Municipal Court of the City of Boston dated respectively June 19, 1906, and October 8, 1906.</p> <p>On appeal to the Superior Court the cases were tried together before White, J. There was evidence tending to show the following facts:</p> <p>About April 1, 1906, the defendant employed the plaintiff Blue to sell the real estate in question. At some time between April 10 and April 19, 1906, the plaintiff Blue reported to the defendant that she had a customer named Levy, who offered $18,000 for the property. She told the defendant that the plaintiff Sarah R. Kurinsky was going to bring the customer. The plaintiffs Sarah R. Kurinsky and Blue previously had agreed to divide a commission of two and one half per cent which the defendant agreed to pay if the sale actually went through. On April 21, 1906, an offer was made by Levy, which, upon being reported to the defendant, was refused by her; a few minutes later, the defendant’s daughter, Maiy E. Lynch, went to the house of the plaintiffs Kurinsky, where Levy, their relation, was staying, and said that her mother was willing to sell the property. A memorandum of sale then was written by the defendant’s daughter, at the dictation of Levy and Kurinsky, and was signed by the defendant’s daughter as agent for the defendant, although she had no written authority to act in that capacity. On the back of this paper, without the knowledge of the defendant or her daughter, at some time during the same day, there was written by Levy an assignment of his interest to the plaintiff Abraham Kurinsky. The only consideration given by Kurinsky to Levy for this assignment was repaying to Levy the $500 deposit which had been given by Levy to the defendant. On April 24, _ 1906, the defendant signed a ratification of the memorandum of April 21, the ratification having been typewritten by the plaintiffs’ attorney on another sheet of the same paper. In this ratification was inserted the word “ representatives,” which did not appear in the first memorandum.</p> <p>The memorandum of sale referred to above was as follows:</p> <p>“April 21,1906.</p> <p>“ Received of Morris Levy Five Hundred Dollars on account of purchase price for houses number 36 & 38 no. 40 and 42 Fowler Street and 90 and 92 Erie Street land and stable for the whole estate of Mrs. Margaret E. Lynch to be deeded free and clear of all incumbrances. Price to be $17,500. Five Hundred of which to be paid today, and the rest in cash, on or within the first of June 1906. Commission to be given Miss Blue and Mrs. Kurinsky.</p> <p>“ Margaret E. Lynch.</p> <p>By M. E. L.”</p> <p>“ Received the check of Mr. Levy for $500.</p> <p>“ Margaret E. Lynch.</p> <p>By M. E. L.”</p> <p>“ Witness</p> <p>“ Mary E. Blue.”</p> <p>The subsequent memorandum signed by the defendant personally was as follows:</p> <p>“I hereby acknowledge my two signatures above, and the receipt of said $500; and agree to convey said premises above mentioned, giving a good and clear title to the same, to said Levy or representatives, according to the above agreement, on or before June 1st, 1906, free and clear from all encumbrances. Witness my hand and seal this 24th April, 1906.</p> <p>“ Margaret E. Lynch.”</p> <p>Kurinsky employed a conveyancer to look up the title, who, finding it incumbered by building restrictions, reported that fact to the defendant and to Kurinsky, and had both of them in his office together for discussion of the matter. On June 1,1906, the defendant tendered a deed to Kurinsky, which on account of the incumbrances was refused. On June 7 she returned the $500 deposit to Kurinsky and accepted a receipt signed by him, reciting “ Received of Margaret Lynch $500, being amount of deposit under contract of sale, it being understood that I waive no rights under said contract and no rights to damage for its breach.”</p> <p>Kurinsky brought his action in the Municipal Court for breach of the contract to convey, setting forth a copy of the memorandum of the sale to Levy of April 21, the assignment of the contract by Levy to him dated April 21, and the memorandum of April 24 signed by Mrs. Lynch personally. Mrs. Kurinsky and Miss Blue brought their joint action in the same court to recover the commission. The answer in each case was a general denial. In the Municipal Court no defense resting on fraud had been made.</p> <p>In the Superior Court, at the close of the evidence, the plaintiffs’ counsel called the judge’s attention to the fact that no amendment to the answer setting up fraud had been offered, and that he did not know what fraud was relied upon.</p> <p>The plaintiffs asked the judge to make the following rulings:</p> <p>“ 8. There is no evidence that the identity of the purchaser was a material element in the contract and if it was it became immaterial by the instrument of April 24.</p> <p>“ 9. The defense of fraud, concealment or mistake is not open on the pleadings, and if it is, the burden of proof is on the defendant.”</p> <p>“ 3. An arrangement between brokers representing both sides respectively to share the commission is not unlawful.</p> <p>“ 4. If Mrs. Kurinsky is not entitled to half the commission from the defendant because she was acting for the purchaser Miss Blue is entitled to the whole of it on the evidence.</p> <p>“ 5. If the promise to pay Mrs. Kurinsky half the commission was without consideration Miss Blue is entitled to the whole commission. ”</p> <p>In his closing argument the defendant’s counsel did not contend that there had been a fraudulent conspiracy to induce the defendant to sign an agreement free of restrictions for the purpose of obtaining an unrighteous cause of action against her; but contended that there had been a fraudulent concealment of the real purchaser</p> <p>The judge refused to make any of the above rulings, and submitted the cases to the jury with other instructions.</p> <p>In each case the jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.</p> <p>After the verdict the defendant filed in each case the following motion:</p> <p>“ Now comes the defendant and moves to amend her answer by adding the following:</p> <p>“ And the defendant says that she was induced to enter into the agreement set out in the plaintiff’s declaration through the fraud and fraudulent representations of Levy and the plaintiff Abraham Kurinsky and their agents.”</p> <p>The verdict was returned on May 20, 1907. The motion to amend the answer was made later on the same day and was allowed by the judge as of May 17, 1907.</p>

<p>Corporation, By-Laws. Fraternal Beneficiary Corporation. Words, “Appropriate,” “Sum,” “Dollars.”</p> <p>A fraternal and charitable corporation, called a lodge, was incorporated for the purposes of assisting indigent sick or distressed members in the order, assisting in defraying the funeral expenses of the deceased members and similar works of charity in this Commonwealth, and, in doing its work through appropriate agencies, could be assumed to be accustomed to appropriate money in the hands of its treasurer. It was the owner of real estate worth about §60,000, and sums of money belonging to it amounting to $1,000 or more were deposited in banks from time to time, or were invested otherwise. A by-law of the corporation provided " that a four-fifths vote of the lodge shall be required to appropriate a sum exceeding $50.” Held, that this by-law related only to the appropriation of sums of money, and had no reference to the ordinary transactions of the corporation in which no money was appropriated to a particular use and no reference to contracts merely creating an obligation of the corporation, so that it did not relate to contracts to sell or purchase real estate or to exchange real estate for other real estate, and such contracts could be authorized by a majority of the members at a meeting regularly called and held.</p>

Tort under St. 1906, c. 463, Part I. § 63, by the administratrix of the estate of William H. Jackson, who died on October 17, 1906, from injuries received on September 28, 1906, in the defendant’s freight yard in the city of Fall River from being run into by a freight car of the defendant in the manner described in the opinion, with a first count alleging that the death of the plaintiff’s intestate was caused by reason of the gross negligence of the defendant’s servants and…

<p>Attachment, Dissolution. Executor and Administrator. Res Judicata. Equity Jurisdiction, Specific performance, Damages.</p> <p>Pub. Sts. c. 161, § 56, substantially re-enacted in R. L. c. 167, § 112, provides that where real estate of a debtor has been attached and he dies before it is seized on execution “ the attachment shall be dissolved, if administration of the estate of the deceased is granted in this Commonwealth within one year after his decease, or if application therefor is made within said year, and administration is after-wards granted upon such application.” A debtor whose real estate was attached having died, the persons named as executors filed within one year after his death a petition for the proof of his will. Also within the year a special administrator was appointed, the decree reciting that there was delay in granting letters testamentary by reason of a contest over the probate of the will. Four years after the death of the debtor a petition was filed in behalf of certain creditors, alleging that the executors named in the will had neglected to proceed with the matter of proving the will and that the entire estate would be needed for the payment of debts, and praying for the allowance of the will. Thereupon the will was admitted to probate, the decree reciting that it was made upon the petition filed in behalf of certain creditors, and, the executors having refused to Serve, another person was appointed administrator with the will annexed. On the question whether the attachments upon the real estate which were in force at the time of the death of the debtor were dissolved under the statute above quoted, it was contended that they were not dissolved because the appointment of the administrator with the will annexed was made upon the petition filed in behalf of certain creditors more than a year after the death of the debtor. Held, that this contention was not sound and that the attachments were dissolved under the statute, as, independently of the question whether the appointment of the special administrator within the year would have satisfied the statute, the appointment of the administrator with the will annexed was granted in effect upon the petition filed within the year by the persons named as executors, the supplemental petition in behalf of certain creditors being treated as praying for action on the petition already filed with the suggestion of a new candidate for appointment to administer the estate.</p> <p>In an action to recover damages for the alleged breach of an agreement in writing to purchase certain real estate from the plaintiflj the defendant set up the defense of res judicata, and in support of it put in evidence a decree dismissing a bill in equity brought by the plaintiff against the defendant to enforce the specific performance of the same contract. It appeared that the defendant refused to purchase the real estate on the ground that the plaintiS could not convey a good title to it. The reason for dismissing the bill in equity was not stated in the decree itself nor in any accompanying memorandum of the judge, and did not appear of record. It was agreed that at the trial of the suit in equity the defendant argued that the title of the plaintiff, even if good, was so involved in doubt that a decree for specific performance ought not to be ordered. The title of the plaintiff was in fact good and free from incumbrances. Held, that it could not be assumed as matter of law that the decree of dismissal was upon the ground that the plaintiff could not give a good title, as, if the court refused equitable relief on the ground that the title was involved in doubt, it was not bound to retain jurisdiction for the purpose of passing upon the question of damages, but might in its discretion leave the plaintiff to his remedy at law in case his title was good, therefore, that the defendant had not sustained his defense of res judicata, and, the plaintiff’s title being good, he was entitled to recover damages.</p>

<p>Contbact, by a trustee under an instrument in writing executed by Jane Lever of Boston during her lifetime, against the Boston Five Cents Savings Bank, for $1,017.50, the amount of a deposit standing in the name of Jane Lever, who died in April, 1902. Writ in the Municipal Court of the City of Boston, dated November 22, 1902.</p> <p>Andreas Blume was appointed administrator of the estate of Jane Lever, and thereafter was admitted as a claimant in the action.</p> <p>On appeal to the Superior' Court the case was tried before Aiken, C. J. The following facts appeared in evidence: On</p> <p>April 9, 1902, Jane Lever executed and delivered to the plaintiff the following two instruments in writing:</p> <p>“ Commonwealth of Massachusetts.</p> <p>“ I, Jane Lever of Boston in the County of Suffolk and Commonwealth of Massachusetts in consideration of the love and affection that I have for my relatives herein named hereby give, transfer and convey to John J. McEvoy all my personal property consisting of six hundred and fifty one dollars and seventy cents in the Elliott Five Cent Savings Bank of Boston two hundred and sixty dollars in the Institution for Savings of Roxbury, Boston one thousand and fifty three dollars and forty one cents in the Boston Five Cent Savings Bank of Boston in trust for the following uses:</p> <p>“ (1) Said trustee shall pay to me such moneys as I may demand of him at any time during my life until I have used the amount conveyed to him by me by this deed.</p> <p>“ (2) Upon my death said trustee shall pay my funeral expenses. And the sum of fifty dollars to my nurse Mary M. Wilson for services rendered as nurse.</p> <p>“ (3) After my death said trustee shall pay to my husband, Joseph Lever, if he survives me, the sum of three dollars per week during his life or as long as said trust funds shall last.</p> <p>“ (4) If upon the death of my husband and myself there are any funds remaining in the hands of said trustee said trustee shall divide said balance of said trustee funds in equal parts and give said parts to my second cousin, Jane Anne Harrison of Bolton, Lancastershire, England, to my second cousin Thomas Wilson, of Bolton, Lancastershire, England, to the two children of my second cousin, Edward Wilson late of Bolton, Lancaster-shire, England, to my second cousin Mary Wilson of Bolton, Lancastershire, England. I hereby reserve to myself the right to revoke this deed at any time during my life.</p> <p>“ Witness my hand and seal at Boston this ninth day of April, 1902.</p> <p>her</p> <p>Jane x Lever (Seal)</p> <p>“ Witnessed by mark.”</p> <p>“ William W. Clarke.</p> <p>Mary A. McTighe.</p> <p>Mary M. Wilson.”</p> <p>“ April 9, 1902.</p> <p>“ To the Treasurer of the Boston Five Cents Savings Bank.</p> <p>Boston, Mass.</p> <p>“Sir: — Please pay to John J. McEvoy all the moneys that have been and may be deposited, together with the interest that has and may become due on account of Book No. 17722.</p> <p>her</p> <p>“ William Burns. Jane x Lever</p> <p>mark.”</p> <p>Under the second of the instruments printed above, the plaintiff drew interest on the deposit in the defendant bank -during the lifetime of Jane Lever. Jane Lever died in the latter part of April, 1902. The plaintiff testified that the doctor who at-' tended Jane Lever in her last sickness had a bill for his services and the nurse had a bill; that there were funeral and other bills; that at the time of the execution of the trust deed and until the time of her death Jane Lever was living with her husband, Joseph Lever; that the plaintiff knew of no property which she possessed other than that which he had taken possession of under the instruments printed above; that he had one bank book of a bank in Roxbury transferred to him; that the amount was about two hundred and thirty or two hundred and forty dollars ; that he presented the assignment to the bank and got the book and put the money right back in his name; that there was also the bank account which is the subject of this action and also an account in the Eliot Five Cents Savings Bank that he had not transferred; that he was the executor of the will of Joseph Lever, the husband of Jane; that Joseph died twelve weeks after his wife and left $530 that was deposited in the defendant bank ; that the amount left by Jane Lever in the Eliot Five Cents Savings Bank was about $600 and the amount left by her in the defendant bank was about $1,000 ; that she left a little less than $2,000 all told; that during her lifetime the plaintiff drew'$70 in interest on the account in the defendant bank; that there were outstanding unpaid bills of the doctor for $30 and one or two other small bills; that she told him to pay all legitimate bills; that there was an undertaker’s bill; that part of it had been paid; that he also sent for a person in England that Mrs. Lever wanted to come over here; that he sent her $30 ; that he paid the minister and bought Mr. Lever a suit of clothes ; that he paid Mr. Lever $3 per week during his lifetime ; that he did not know of any bills other than the undertaker’s, the doctor’s and the nurse’s; that he paid out $125; that there were bills of $250 outstanding, the doctor’s, nurse’s and undertaker’s bills and a milk bill; and that what he paid out included what he paid the undertaker. He further testified as follows: “ Q. And you understood that she intended by this instrument to dispose of the property after she was dead as well as while she was living ? That is what you understood, was it not ? A. Yes, that is what she told me.—Q. You understood that was what she intended at the time ? A. Yes. — Q. That she intended this instrument in place of any will she might leave? A. She did.”</p> <p>The above was all the material evidence in the case. The plaintiff asked the judge to rule that upon all the evidence the claimant was not entitled to recover. The judge refused to make this ruling, and found for the claimant in the sum of $1,017.50, that being the amount represented by the book in the defendant bank, standing in the name of Jane Lever at the time of the service of the plaintiff’s writ, together with whatever interest might have accrued since on that account, less the costs of the defendant taxed at $34.55 and without costs to the claimant. The plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort, for injuries to one of the plaintiff’s hands from a car of • the defendant running over his fingers, when he was working in a trench in the employ of the Boston Gas Light Company and, having lost his footing on a slippery gas main, had clutched at one of the rails of the defendant’s track to save himself from falling into the trench, as described in the opinion. Writ dated June 2, 1905.</p> <p>In the Superior Court the case was tried before Be Couroy, J., who reported it for determination by this court as stated in the opinion.</p> <p>The case was argued at the bar in December, 1908, before Knowlton, C. J., Morton, Hammond, Braley, & B,ugg, J J., and afterwards was submitted on briefs to all the justices.-</p>

<p> Dower. Husband and Wife. </p> <p>Discussion by Knowlton, C. J. of the effect of the enactment of R. L. c. 132, § 1, and c. 140, § 3, upon the rights of a surviving husband after the death of his wife and of a surviving wife after the death of her husband.</p> <p>Under R. L. c. 132, § 1, a widow cannot have a common law dower right in land of which her deceased husband was seised during her coverture unless she files her election to claim such dower in the registry of probate within one year after the date of the approval of the bond of the executor or administrator of the will or estate of her deceased husband.</p>

<p> Landlord and Tenant. Evidence. </p> <p>The proprietor of a tenement house, who maintains a pole back of the house with pulleys upon it, respectively opposite other pulleys attached to the piazzas at the rear of the tenements on the different floors, to be used by the tenants for rigging their clothes lines, and who has equipped the pole with iron pins driven into it alternately on opposite sides, to enable any one having occasion to do so to climb to any one of the pulleys upon the pole, invites his tenants, or any one employed by them in that behalf, to climb the pole for the purpose of readjusting a clothes line which has slipped off one of the pulleys on the pole, and accordingly such proprietor is liable to a neighbor of one of the tenants, who at the request of the tenant’s daughter climbs the pole for this purpose and is injured by the pole falling, after breaking at the surface of the ground, owing to rottenness which has existed for a long time.</p> <p>In an action against the proprietor of a tenement house for personal injuries caused by the falling of a pole maintained by the defendant for the purpose of holding pulleys to support clothes lines extending to other pulleys attached to the piazzas respectively at the rear of the tenements on the different floors, while the plaintiff, in behalf of one of the tenants, had climbed the pole by means of iron pins with which it had been equipped by the defendant, for the purpose, of readjusting the tenant’s clothes line, which had slipped off one of the pulleys on the pole, it was plain on the facts that the plaintiff had climbed the pole at the invitation of the defendant unless there was an agreement on the part of the defendant which contradicted such invitation. There was no evidence that an agreement was made at any time expressly on the subject of clothes lines or of climbing the pole. The plaintiff was allowed to prove that the tenant when he first moved into the tenement furnished and put up his own clothes line. The tenant testified that after he went into possession he had a talk with the defendant’s janitor or agent and was told that the janitor “ was to do the repairing” and that this referred to “ looking after the windows . . . something like that,” that “ he said repairs, he didn’t say what,” that “ when we needed anything done to ask L. [the janitor] to do it.” Against the defendant’s objection the plaintiff then was allowed to ask the tenant whether, so far as he knew, the janitor at any time did anything in the way of adjusting any tenant’s clothes line or putting up any tenant’s clothes line, and the tenant answered that he never had seen him do either. Held, that the admission of the evidence was proper, the fact that the tenant furnished and put up his own clothes line when he first moved into his tenement tending to prove that the tenement when let to him was not equipped by the landlord with a clothes line, and the conduct of the janitor in never adjusting or putting up any tenant’s clothes line being material to show that the rigging and readjusting of clothes lines for the tenants were not included in the loosely stated subsequent agreement by which the janitor of the building was to be called upon for repairs. Held, also, that, with this evidence, the jury were not bound as matter of law to find that there was an agreement negativing the invitation, which, but for such agreement, was given by the defendant to climb the pole in order to readjust the clothes line, and could find that no such agreement existed.</p>

<p>Two ACTIONS OF TORT, the first to recover for personal injuries received by the plaintiff therein (hereinafter called the plaintiff) by reason of alleged negligence on the part of the defendant, and the second by the husband of the plaintiff in the first case for consequential damages. Writs in the Superior Court for the county of Plymouth dated April 20, 1906.</p> <p>The cases were tried together before White, J. The plaintiff fell over a stone in her path as she was passing through private land while in the act of changing from one car of the defendant to another, at Hingham, in the night time of December 23, 1905. The change was not rendered necessary by reason of anything which the defendant had done or had omitted to do, but by work in the abolition of a grade creasing of the Old Colony Railroad Company, which temporarily interrupted the use by the defendant company of its franchise over that part o£ the street where the change in grade was taking place.</p> <p>There was evidence tending to show, besides the facts stated in the opinion, that the mail was carried on the trip in question, and that, as those who were passengers in the former car were going across the field to the second car, either the conductor or the motorman told them to hurry up because it was a mail trip.</p> <p>After the introduction by the plaintiff of evidence tending to show that there were incandescent electric lights along the path where the plaintiff was walking when injured, the plaintiff called one Bowker, who was the motorman of the car on the journey in question, and the following questions and answers were admitted in evidence, and the defendant excepted: “ Q. Where did those lights get electricity ? A. They got it from the power of the railroad. — Q. What was done with those lights on your last trip ? A. The lights were shut off. — Q. By whom? A. The conductor.”</p> <p>At the close of the evidence the defendant made various requests for rulings, the substance of which sufficiently appears in the opinion. The requests were refused, the jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Contract on a policy of insurance “ against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any person or persons while in the car of ” an elevator in a building of the plaintiff “ or in the elevator well or hoistway of same, or while entering upon or alighting from the car.” Writ in the Superior Court for the county of Suffolk dated March 3, 1908.</p> <p>The defendant demurred to the declaration. The demurrer was heard before Wait, J., who made an order sustaining it. Judgment was entered for the defendant; and the plaintiff appealed.</p> <p>The material allegations in the declaration are stated in the opinion.</p>

<p>Pleading, Civil, Declaration, Variance. Contract, Implied in law, Performance and breach; Building contracts. Waiver,</p> <p>In an action for the alleged breach of a contract in writing, with specifications, for repairing and remodelling the defendant’s house, if it appears that there was a substantial but not an exact performance of the contract by the plaintiff and that the defendant had accepted the work and materials furnished by the plaintiff as a substantial performance of his contract with a full knowledge that the contract had not been performed strictly, the plaintiff cannot recover on a count which alleges only a breach of the special contract but must declare on a count in indebitatus assumpsit.</p> <p>The acceptance hy a defendant of work performed by the plaintiff under a contract in writing, notwithstanding known omissions by the plaintiff to do what the terms of the contract required, includes a waiver, and cannot be proved under a mere averment of performance.</p>

<p>Negligence, Of gas company. Gas Company.</p> <p>At the trial of an action against a gas company for injuries alleged to have been received by the plaintiff, a woman, by reason of her having inhaled gas which had escaped from the defendant’s pipes through its negligence and had permeated through the soil into the house where the plaintiff lived, there was evidence tending to show that the plaintiff noticed a bad odor in her room in the morning when she awoke which kept growing worse during the day, that she never had used illuminating gas and did not know how it smelled, that she did not know what caused the odor which she smelled when she inhaled it, and that during the day she became nauseated and finally for a time unconscious and had to leave the house. The defendant was not notified of the escape pf gas until the return of the plaintiff’s husband in the evening. Held, that there was evidence from which the jury were warranted in finding that the plaintiff exercised due care.</p> <p>At the trial of an action against a gas company for injuries alleged to have been received by the plaintiff by reason of his having inhaled gas which had escaped from the defendant’s pipes because of negligence on its part and had permeated through the soil into the plaintiff’s house, there was evidence tending to show that the plaintiff noticed a bad smell in the morning and that the possibility of an escape of illuminating gas occurred to him, but that he did not think the smell was that of illuminating gas and did not pay much attention to it; that he was away from the house during the day, and that, when he returned at night he noticed that the odor was very much worse and immediately took steps to have the matter attended to. Held, that the question of the plaintiff’s due care was for the jury.</p> <p>It is the duty of a gas company which conducts its gas through underground pipes to see that the pipes are laid in the ground at a suitable depth and in a suitable manner and are kept in proper repair; and if, at the trial of an action against a gas company for injuries alleged to have been received by the plaintiff by reason of his having inhaled gas which had escaped from the defendant’s pipes because of negligence on its part and had permeated through the soil into the plaintiff’s house, there is evidence that the gas which caused the plaintiff’s injury had escaped from a break in a pipe twenty feet from the house, and that the pipe was "cracked all the way around sufficiently to admit a case knife,” that the pipe had been laid three feet and six inches deep in made land filled with dirt and ashes eight years before the alleged injury to the plaintiff, and that the weather was so cold that the frost was in the ground to the depth of three feet; and a foreman of the defendant, called by the plaintiff, testifies that in his opinion the pipe was caused to break by the contraction due to the cold weather and that he “ knew of no other cause why the pipe should break,” the questions, whether the defendant had performed its duty, and whether the breaking of the pipe was due to causes beyond its control or which could not reasonably have been anticipated by it, or was due to negligence on its part, were for the jury.</p>

<p>Indictment, returned and filed February 4,1908, charging the defendant with a violation of It. L. c. 210, § 7, in that, while he was a member of the water board of Lowell, he requested from one Lynch a gift or gratuity “ with an understanding,” or “ as a consideration ” that he, the defendant, should vote for the employment of Lynch by the board.</p> <p>The defendant was tried before Bell, J. At the close of the evidence, the defendant made the following requests for rulings :</p> <p>“1. On all the evidence there should be a verdict of ‘not guilty.’</p> <p>“ 2. The evidence is not sufficient to justify conviction.</p> <p>“ 3. There is no sufficient evidence of the existence at the time in question of the Lowell water board in the sense called for by the statute and the indictment.</p> <p>“ 4. No evidence that defendant at time involved was either chairman or president of the alleged Lowell water board.</p> <p>“5. There is no sufficient evidence that the defendant was ever elected a member of the so-called water board in the sense called for under the law and under the indictment.”</p> <p>The presiding judge refused the requests, the jury found the defendant guilty; and the defendant alleged exceptions.</p> <p>The facts are stated in the opinion.</p>

<p>Tort for injuries alleged to have been received on July 22, 1906, by reason of a defect in a sidewalk in front of the building numbered 129 on West Concord Street in Boston. Writ in the Superior Court for the county of Norfolk dated January 30, 1907.</p> <p>The case was tried before King, J. The main point in issue was whether the defect which was alleged to have caused the plaintiff’s injury was within the limits of the highway.</p> <p>It appeared that the line of the highway ran about twenty-six and a half inches from the wall of the building and two and a half inches outside of a grating in front of the building. Evidence for the plaintiff tended to show that the defect was somewhere between twenty-seven and thirty-six inches from the building; that of the defendant tended to show that the defect was about six or eight inches from the building and not within the limits of the highway.</p> <p>The testimony referred to in the second paragraph of the opinion was admitted subject to the plaintiff’s exception. The plaintiff had called a member of the street department of the defendant who had testified that repairs had been made in the sidewalk in front of the building in question on July 18, 1906, and that no other repairs had been made at that point before the date of the accident, July 22. On cross-examination, without objection, he was allowed to state that repairs had been made in front of the building in question on August 11,1906, by one O’Connor. O’Connor and his helper, testifying for the defendant and subject to objections and exceptions by the plaintiff, testified that while they were repairing for the defendant the sidewalk in front of a neighboring building on August 11,1906, the plaintiff called to them and asked them to repair a hole outside of the limits of the highway and six or eight inches from the building where she was, stating that a woman had been hurt there a few days before but not stating that the woman was herself ; and that the helper thereupon repaired the hole pointed out to him by the plaintiff. Police officers, testifying for the defendant, stated that, on investigating the alleged- defect, which was pointed out by the plaintiff, they discovered that it was off the line of the highway and called that fact to her attention, whereupon she stated that she “ did not know that was the case; that she was sweeping there and they gave way under her feet,” that “ somebody ought to pay for her injuries.”</p> <p>In his charge to the jury the presiding judge reviewed the testimony in detail, and stated the law elaborately; but he repeatedly urged upon the jury in substance, and at one time stated in terms, that “ it is absolutely of no importance to you what the court thinks of the facts, or what counsel think of the facts, but it is vital what you think of the facts.”</p> <p>One portion of the charge, to which the plaintiff excepted, was as follows: “ You may say, if you see fit, that you do not believe this or that person, if you are satisfied that they do not tell the truth. It is a principle of law that says false in one thing, false in others. If you find a person deliberately testifying to that which in your opinion is not true, you have the right to ignore all the testimony of that person because it is unreliable. That is a perfectly well settled question. You may ignore that if you think it does not apply, and you may apply it if you think it does apply.”</p> <p>Other facts are stated in the opinion.</p> <p>There was a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Of one controlling real estate, Due care of plaintiff, Violation of ordinance as evidence of negligence. Nuisance. Evidence. Practice, Civil, Verdict.</p> <p>One in control of a building, which is furnished with fire shutters, who has made a contract with a painter by which the painter agreed to paint all the shutters on the building for a price named, it being intended that the work should be done without removing the shutters from the building, is not liable to a traveller on the adjoining highway, who, while in the exercise of reasonable care, is injured by one of the shutters falling upon him, owing to the negligence of the workmen of the painter, while hoisting a ladder used as a staging, in allowing it unnecessarily to move upward so near the wall of the building as to lift the shutter off its hinges as it lay open against the wall, or in not temporarily closing such of the shutters as were in the way before drawing up the staging.</p> <p>One, who is walking in a narrow street in a city and, by reason of an obstruction of the sidewalk on one side, crosses to the other side, where there is no barrier or warning to indicate the presence of danger, but where above him there is a ladder staging of but little weight suspended on the side of a building by ropes and pulleys, with men in the street holding the ropes in their hands, is in no way negligent in failing to anticipate and avoid the falling of a shutter lifted off its hinges by the hoisting of the staging.</p> <p>In an action against a master painter for personal injuries from the falling of one of the shutters of a building by reason of its being lifted off its hinges by the hoisting of a ladder used as a staging on the side of the building by the workmen of the defendant, the plaintiff may show that the defendant’s permit from the superintendent of streets did not authorize the use of the street where the accident happened and that the defendant was occupying the street in violation of an ordinance, this being some evidence of negligence, which in connection with other facts may become of importance, but, if at the close of the evidence it is plain that the violation of the ordinance was not the direct and proximate cause of the accident, the defendant is entitled to have the jury instructed to that effect.</p> <p>Where a violation of a statute or of an ordinance is relied upon as evidence of negligence, the circumstances of the violation may be shown to diminish the effect which it otherwise would have as such evidence.</p> <p>In two actions by the same plaintiff, which were tried together, one against the person in control of a building for injuries from the falling of one of the shutters of the building by reason of its being lifted off its hinges by the hoisting of a ladder used by painters as a staging, and the other for the same injuries against the master painter whose workmen were hoisting the staging for their use, the judge erroneously instructed the jury that there was evidence of negligence on the part of the defendant in the first case, and then further instructed them that if they found against the defendant in the first case they also must find against the defendant in the second case. The jury returned a verdict for the plaintiff in each of the two cases, and both defendants excepted. Held, that under the instructions of the judge the jury might have returned the verdict against the defendant in the second case merely as a consequence of the verdict in the first case, without considering other and proper grounds on which the defendant in the second case might have been found liable, and therefore that the exceptions of the defendant in the second case must he sustained as well as those of the defendant in the first case.</p>

<p>Petition, filed in the Land Court on March 27,1906, against the city of Boston and the Boston Elevated Railway Company, under R. L. c. 182, §§ 11-14, and St. 1904, c. 448, § 1, cl. 3, to determine the validity or define the nature or extent of a possible license, privilege, easement or incumbrance claimed by the respondents in the land and building owned by the petitioners at the corner of Court Street and Cornhill in Boston. The respondent city is the owner and the respondent the Boston Elevated Railway Company is the lessee of certain land and buildings situated at the corner of Court Street and Brattle Street and adjoining the premises of the petitioners. The license, privilege, easement or incumbrance in question was an alleged right of passing and repassing through a certain passageway and stairway upon the premises of the petitioners to reach the premises of the respondents. This right of passing and re-passing was alleged to exist under a grant contained in certain deeds, by which the two premises in question were conveyed to their present owners, and also under a taking by the city of Boston, acting by the Boston Transit Commission.</p> <p>In the Land Court the case was heard by Davis, J., upon the petition, the answers and an agreed statement of facts. He ruled that the question of what easement, if any, was acquired under the taking by the city of Boston was not open in this proceeding, and that the easement in the building upon the land of the petitioners, which was created by deed, terminated upon the destruction of the building then standing upon the land now of the respondent city. He further ruled, if it was material, that the easement created by the deed was one limited in extent to the existence of the building then and now standing upon the land now of the petitioners, in which the passageway was constructed.</p> <p>He ordered that a decree be entered for the petitioners accordingly, and, at the request of all the parties, reported the case for determination by this court upon the petition, the answers and the agreed statement of facts.</p> <p>If, upon the pleadings and the agreed statement of facts, the rulings of the judge were correct, a decree was to be entered for the petitioners accordingly. If his rulings were not correct, such decree is to be entered as law and justice might require.</p> <p>The case was submitted on briefs.</p>

<p>Contract on a check for $20 dated March 16, 1903. Writ in the Municipal Court of the city of Boston dated June 29, 1904.</p> <p>The declaration was as follows:</p> <p>“And now comes the plaintiff and says that on or about the 16th day of March, 1903, that Edgar Harding and William Whitman, doing business as Harding, Whitman and Co., drew a check upon the National Union Bank of Boston, payable to the order of New England Freight Directory for the sum of $20.</p> <p>“ And your plaintiff avers and says that the said New England Freight Directory indorsed the said check and delivered the same to your plaintiff and that your plaintiff paid therefor the sum of $20.</p> <p>“ And your plaintiff avers and says that the said check was presented at the National Union Bank within a reasonable time and in the usual course of business and that the said National Union Bank refused to pay said check and assigned as cause therefor that the said defendants had requested them, the said National Union Bank, not to pay said check when presented.</p> <p>“ Wherefore your plaintiff says that the said defendants owe them the sum of $20. with interest thereon from March 16,1903.</p> <p>“A copy of said check is annexed hereto and marked Exhibit A.”</p> <p>“Exhibit A.</p> <p>o Q «3 § ¿3 t£ n c3 W</p> <p>.00 Boston, March 16,1903.</p> <p>National Union Bank.</p> <p>Pay to the order of New England Freight Directory Twenty and x/100 Dollars.</p> <p>Harding, Whitman & Co. No. 1801 By A. A. Hallett Jr.</p> <p>Attorney.”</p> <p>Back of check indorsed as follows:</p> <p>“ New England Freight Directory Agt. Thomas Chase</p> <p>Thomas J. Boles & Co.</p> <p>“ Pay only through Clearing House March 18,1903 Natl. Bank of Redemption Geo. S. McCausland Cashier Endorsement guaranteed ”</p> <p>The answer was as follows:</p> <p>“Now come the defendants in the above-entitled cause and answering deny each and every allegation, item, date and amount in the plaintiff’s writ and declaration contained; and further answering say that if they drew a check payable to the order of New England Freight Directory as in plaintiff’s declaration alleged, which they do not admit but deny, said alleged check was obtained fraudulently and without consideration, that they stopped payment on said check while it was still in the hands of the person or persons to whom it was by them delivered, and that if the plaintiff received said alleged check for value, he received it after payment had been stopped thereon as aforesaid, out of the usual course of business, and with knowledge of or reasonable cause to know of, the fraud by which said alleged check was obtained from the defendants and the lack of consideration therefor.</p> <p>“And further answering the defendants deny the genuineness of any and all signatures and indorsements on the alleged check an alleged copy of which is annexed to the plaintiff’s declaration and marked Exhibit A, and demand that said signatures and indorsements shall be proved at the trial.”</p> <p>On appeal to the Superior Court the case was tried before Raymond, J., without a jury, and the evidence showed the facts which are stated briefly in the opinion.</p> <p>At the close of the evidence the defendants asked the judge to make the following rulings:</p> <p>“1. The evidence shows that the instrument sued on was obtained from the makers by fraud; that the makers thought that they were making a check payable to an actual existing payee; that as a matter of fact the instrument was not payable to bearer in terms or under R. L. c. 73, § 26, or to any payee, and was not, therefore, a complete negotiable instrument under which the plaintiff can recover against the defendant.</p> <p>“ 2. The evidence shows that the instrument sued on was not payable to bearer or to the order of an actual existing person, and is not, therefore, a negotiable instrument upon which the makers can be held liable in this action.</p> <p>“ 3. The plaintiff’s declaration sets out that the New England Freight Directory indorsed the check and delivered the same to the plaintiff, and the plaintiff cannot, therefore, recover upon the instrument as payable to bearer.</p> <p>“ 4. There is no evidence in the case under which the makers of the instrument sued on are estopped to deny liability upon the instrument, and no evidence that they were negligent in making or issuing the instrument so as to be liable thereon.</p> <p>“ 5. The instrument is not payable to bearer under R. L. c. 73, § 26, and the plaintiff can recover only by proving a valid indorsement by the payee, if any, named in the check.</p> <p>“6. Under the pleadings the burden is on the plaintiff to prove the genuineness of the indorsement of the payee, if any, named in the instrument sued on. This burden has not been sustained, and the plaintiff cannot recover.</p> <p>“ 7. On all the evidence, the plaintiff cannot recover.”</p> <p>The' judge refused to rule as requested, and found for the plaintiff in the sum of $25.54., The defendant Whitman alleged exceptions.</p>

<p>Tax, Assessment. Municipal Corporations. Public Officer.</p> <p>An assessment of a tax by the two surviving assessors of a town, after the death of one of three assessors who were elected and qualified under St. 1898, c. 648, § 331, to serve during the year, is valid.</p>

<p>Contract upon an agreement in writing for the exchange of real estate and personal property. Writ in the Superior Court for the county of Suffolk dated July 29, 1905.</p> <p>The case was tried before Sherman, J. The evidence in regard to the “ pieces to be agreed upon,” mentioned in the opinion, was as follows: The plaintiff and one Merrill, a broker, both testified that the defendant went through his house with them and pointed out certain pieces of furniture. The plaintiff’s testimony was: “ There was an arm-chair in the parlor; he said he didn’t want to part with that; there were two little stands . . . and there were also two other wooden chairs, rather a peculiar make — he said he didn’t wish to dispose of those. Those were the only pieces of furniture. There were some vases and bric-abroc, such as there are around the mantels, that he said he didn’t want to dispose of.” Merrill testified: “ Mr. Nicholson said that everything in the house would go, with the exception of some bric-a-broc which he pointed out, his books which he reserved, and there was one chair in particular that was mentioned, that he should reserve ”; that “ if there were any little keepsakes, knick-knacks, bric-a-broc, or anything of that sort, which were his wife’s personal effects, that she should have the privilege of retaining them.”</p> <p>Other facts are stated in the opinion. The jury found for the plaintiff ; and the defendant alleged exceptions.</p>

<p>Street Railway. Carrier, Of passengers. Passenger. Negligence, Street railway.</p> <p>It is reasonable and within the power of a street railway company to make a rule with regard to passengers upon its cars that “ Persons riding on the platforms do so at their own risk.”</p> <p>One who, upon attempting to enter a vestibuled electric street car by the front door, finds the car so crowded that he cannot sit or stand inside and therefore remains upon the front platform where also are the motorman and three other passengers, and who temporarily steps from the car to the street to allow passengers from the interior of the car to alight, does not thereby cease to be a passenger on the car.</p> <p>A street railway company, which has posted upon the front window of its cars a rule that “ Persons riding on the platform do so at their own risk,” is not liable for personal injuries received by a passenger who, knowing of such rule, remained upon the front platform because of the crowded condition of the car, and who, having temporarily alighted to allow other passengers to leave the car, was injured by being thrown down when the car was started suddenly and with more than an ordinary jerk as he again was getting on.</p>

<p>Negligence, Employer’s liability. Evidence, Opinion: experts.</p> <p>In an action, under the employers’ liability act, against a telephone company by a workman injured while in its employ by the swinging of a telephone pole when it was being hoisted into place in being set, if there is evidence that a certain person employed by the defendant had charge of the work and directed the men how and where to set the poles, and was spoken of by the man who hired the plaintiff for the defendant as “ the boss,” the fact that such person performed some slight manual labor in fastening the chain and rope to the pole which caused the accident does not prevent a finding that his sole or principal duty was that of superintendence.</p> <p>In an action, under the employers’ liability act, against a telephone company by a workman injured while in its employ by the swinging of a telephone pole when it was being hoisted into place in being set, there was evidence warranting a finding that a person employed by the defendant, whose sole or principal duty was that of superintendence, did not exercise proper care in regard to setting the pole and that the accident was due to such negligence on his part, that in setting the pole which caused the accident no guy ropes were used to prevent it from swinging, although guy ropes were at hand and had been used in setting the poles previously set, and the jury could have found that the superintendent was negligent in attempting to set the pole without using them. The jury also could have found that there was negligence in giving the order to hoist. On cross-examination, the plaintiff testified “ that he knew when they were raising the pole that there were no guy ropes on it and no preparation to guard against the pole swinging . . . ; that he knew that if the pole was lifted off the pike without any guy ropes on it it would swing; . . . that he knew the only safe way to raise the pole and to prevent such an accident as happened was to have guy ropes on it or pikes.” When he was asked why he did not go and get the guy ropes, he replied, “M. [the superintendent] did not give us a chance.” Held, that, while the plaintiS knew of the risk, it could not be ruled as matter of law that he assumed it, and that the question, whether in the sudden exigency which confronted him the plaintiff voluntarily assumed the risk of injury from the pole being set without the use of guys, was for the jury.</p> <p>In an action, under the employers’ liability act, against a telephone company by a workman injured while in its employ by the swinging of a telephone pole when it was being hoisted into place in being set, the presiding judge may allow a witness, who has been a foreman in the business of setting poles and stringing wires for about fifteen years, to testify as an expert to his opinion as to the proper method of setting telephone poles, and in so testifying he may be allowed to take into account the capabilities of the men engaged in the work, of which he has formed his opinion by seeing them as witnesses on the stand.</p>

<p>Practice, Sivil, Ordering verdict.</p> <p>In an action of tort for personal injuries, where the testimony reported in the record shows a strong case for the defendant, yet if the jury, by taking tile view that all the evidence most strongly favorable to the plaintiff was entitled to belief, despite apparent contradictions of it, and by discrediting the evidence which supported the theory of the defendant, could have found facts which gave the plaintiff a right to recover, a refusal of the trial judge to order a verdict for the defendant must be sustained.</p>

<p>Set-off. Damages, Liquidated.</p> <p>Under B. L. c. 174, § 1, only liquidated damages are the subject of set-off.</p> <p>In an action for the price of goods sold and delivered, the defendant cannot set off a claim for damages caused by an alleged breach of the contract of sale by the plaintiff in failing to deliver the goods in accordance with its terms, such damages being unliquidated, and such damages are not made certain or capable of computation by stating the exact amount claimed and by adding a list of the prices paid by the defendant for goods to take the place of those which the plaintiff failed to deliver.</p>

<p>Tort for injuries received while in the employ of the defendants and alleged to have been due to the defective condition of a wheelbarrow which the plaintiff was directed to use. Writ in the Superior Court for the county of Middlesex dated March 17, 1905.</p> <p>The case was tried before Hardy, J. It appeared that, when injured, the plaintiff was standing on a platform between the handles of a wheelbarrow and was loading the barrow, when, because of defects described in the opinion, the wheelbarrow tipped over, the handle struck the plaintiff and he was thrown to the ground. There was no railing on the platform. The plaintiff testified that, although he had been employed for several years by the defendants, he never before had used a wheelbarrow in wheeling bricks for them, and at the time of the accident had been doing so for only about twenty minutes ; that he was directed to use the identical wheelbarrow that he was using; that, after he had used it to wheel one load, he called the attention of the sub-foreman, under whose direction he had been placed by the,foreman, to the shakiness of the barrow, and that the sub-foreman told him “ they were using it all the day and before that,” to “ go ahead and wheel with it ”; that, when loading the barrow, he stood between the handles, which was the position he had been directed to take by the sub-foreman, and in which he had noticed “ the rest of the men ” stood when they were loading barrows.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence, the defendants made thirty-two requests for rulings, the substance of, and the rulings of the presiding judge with regard to all but the last two, of which are stated in the opinion.</p> <p>The bill of exceptions states that, with regard to the thirty-first and thirty-second requests the presiding judge stated as follows:</p> <p>“ Request number 31: ‘ If the plaintiff knew before the accident that the wheelbarrow was shaky, and thereby was dangerous to use, he assumed the risk of injury from its use notwithstanding he may not have known the extent of the danger to which he was exposed in its use.’ I give that to you. Of course with the slight modification that the person knows an implement he is working with is dangerous and obviously unsafe, that must apply to the use to which he is going to use it, and it is unnecessary for him to know every danger he would be exposed to in connection with using it. It is only in the exercise of due care and using his reason and good judgment he could see it was obviously unsafe for him to use it. The question of how far it is not necessary for him to gouge his action, and if you find he assumed the risk of using something obviously unsafe to use when he was injured, even if he didn’t know how dangerous it was, and the extent he would be injured, then he is not entitled to recover.</p> <p>“Request number 32: ‘If the plaintiff knew before the accident the wheelbarrow was shaky, and there was consequently some danger in its use, he assumed the risk from injury resulting from said shaky condition notwithstanding the fact that he could not tell the exact degree of the danger.’ I have already instructed you as to what risk there was there in its being shaky. Was it while in motion or at a place of rest? Did he from all the facts in his knowledge and in the exercise of reasonable care, did he know that it was so shaky that it would tumble down when in a place of rest ? If you find he did know that, no matter whether he knew it would tip him off the platform or not, then it is for you to say he would assume the obvious risk of working with an implement in that condition, and he could not recover.”</p> <p>There was a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Contract. Writ in the Superior Court for the county of Norfolk dated July 22, 1905.</p> <p>The case was tried before Schofield, J. The facts are stated in the opinion. The presiding judge ordered a verdict for the defendant and reported the case for determination by this court, it being agreed that, if the ruling of the trial judge was wrong, a verdict should be entered for the plaintiff for $2,150, but if the ruling was right, judgment was to be entered on the verdict.</p>

<p>Equity Pleading and Practice, Demurrer. Equity Jurisdiction, For a partition, For an accounting, Laches, Statute of limitations. Partition. Devise and Legacy, What estate. Joint Tenants and Tenants in Common. Limitations, Statute of. Words, “ Desire.”</p> <p>While it is true that a demurrer to a hill in equity which seeks only a partition of real estate between tenants in common will be sustained, nevertheless if the bill contains also allegations showing that the defendant for many years has received on behalf of himself and the plaintiff the rents and profits of the common estate, that the accounts in regard thereto are complicated, and that the proportions in which a division of the estate and of its proceeds should he made are to be determined by the construction of a clause of doubtful meaning in a will of a former owner thereof, the bill may be maintained.</p> <p>Where the plaintiff and the defendant in a suit in equity begun in December, 1901, are tenants in common of certain real estate, which was devised to them by a testator who died in 1887, and the plaintiff is seeking an accounting from tlie defendant, who lias managed the real estate, if it appears that divisions had been made between the parties pro tanto, and that so late as October, 1900, it was agreed between them to correct any inequality which existed in a partial division of real estate that then was made upon any future divisions being made in the lifetime of one of them, the plaintiff is not barred from maintaining the bill either by his own loches or by the statute of limitations, R. L. c. 202, § 6.</p> <p>The residuary clause in the will of one who at the time of his death owned much personal property of various descriptions and a number of parcels of improved real estate read as follows: “ All the rest and residue of my estate in whatsoever it may consist and wheresoever situated, I give bequeath and devise to my son O. and my daughters P. and M. as follows to my son O. one undivided half part and I desire that my real estate in Needham County of Norfolk & Commonwealth of Massachusetts shall be held by my son O. in the division of my estate, together with the farm stock utensils and other personal property on said estate in Needham, to my said daughter P. one undivided quarter part and to my daughter M. one undivided quarter part.” Held, that such expression of the testator’s “ desire ” was an operative disposition of his property, and that the clause must be interpreted as giving to the son O. the Needham property and to the three children as tenants in common the rest of the property in such proportions that, taking into account the value of the Needham property, the son’s total share of the estate would be one half and the share of each of the daughters would be one fourth of the whole.</p> <p>Where, by the provisions of a will, a son of the testator received certain specified real estate, and the residue of the real and personal property of the testator is to be divided among the son and two daughters in such proportions that, taking into account the Value of the specified real estate devised to the son, the son will receive one half of the whole and each of the daughters one quarter, and on the father’s death the son at once enters into enjoyment of the specified real estate and receives all the income thereof and profits therefrom, the income from all the rest of the estate should be divided in the same proportions as the principal should be; and, in a suit in equity between the parties for an accounting, during the pendency of which a receiver has been in charge of the common property and has been receiving the rents and profits therefrom, if it is found that the son should receive of the estate other than the specified real estate a proportion which is represented by the decimal .4587, and each of the daughters a proportion represented by the decimal .27065, but that, in divisions of tile income and profits made by the parties pro tanto, the son has received one half and each of the daughters one quarter, the error thus made may be corrected by a proper application of funds in the hands of the receiver as income.</p>

<p> Gift. Donatio Causa Mortis. </p> <p>A person whose death is expected and impending may make a delivery of a draft on a bank in a foreign country, which he has deposited in a savings bank here for collection, by indorsing and delivering into the hand of a donee the instrument in writing given to him by the savings bank acknowledging the receipt of the draft for collection, and, where there also is shown an intention to make an immediate gift, followed by death without revocation, the transaction can be found to constitute a valid gift as a donatio causa mortis.</p> <p>The owner of a draft on a bank in a foreign country, who has deposited it in a bank here for collection, taking from the bank an instrument in writing acknowledging the receipt of the draft for collection, has an interest in the draft or its proceeds which is capable of delivery by means of the receipt and therefore can be made the subject of a donatio causa mortis.</p>

<p>Land Court, Decree. Deed, Reservation, Restriction.</p> <p>A decree of the Land Court on a petition under R. L. c. 182, § 11, to determine the validity of a right of way claimed by the respondent over the land of the petitioner, was in the following terms : “It is ordered, adjudged and decreed that it appearing that the land . . . appears of record to be affected by a possible reservation by virtue of the following clause in . . . [a certain deed, quoting it,] ... it is now determined that said language did not create a valid reservation, condition, restriction, stipulation, or agreement affecting said land.” Held, that this was a decree that the terms in the grant were not sufficient to create a reservation, condition, restriction or agreement affecting the land.</p> <p>The following language was contained in a grant to an individual from the Proprietors of the Common and Undivided Lands in Sudbury in 1715: “Only the Proprietors reserve forever convenient driftways to the above said Lowance meadows and gravel to mend the mill dam and highways, as there shall be occasion.” Held, that this language was sufficient, so far as the terms used were concerned, to create a reservation, condition, restriction or agreement affecting the land granted.</p>

<p>Contract, Validity, Implied in law- Lowell. Municipal Corporations, Officers and agents. Agency, Ratification. Public Officer.</p> <p>The superintendent of streets of Lowell has no authority to make a contract with the owner of real estate whereby such owner agrees to sell gravel from his land to the city for use in repairing the city streets and the city agrees to fill in all depressions on the same piece of land with street sweepings so as to bring the whole surface of the land up to a specified grade, since such contract provides for a purchase by the city of the gravel and for a disposition by the city of the sweepings, and the head of the department of supplies alone has authority, under § 3 of the charter of the city, St. 1896, c. 415, to make such sale, or, under § 3 of St. 1897, c. 95, to make such disposal; and if such a contract is made by the superintendent, it is invalid.</p> <p>The mayor of Lowell has no power, under §§ 3, 7 of the city charter, St. 1896, c. 415, and St. 1897, c. 95, § 3, to make a contract either for the purchase of supplies for the city or for the sale or disposition of any of the personal property of the city, and therefore he cannot ratify a contract made without authority for such purposes by the superintendent of streets.</p> <p>Where a person enters into a contract with a public officer, who undertakes to act for and to bind a municipal corporation, he is chargeable with knowledge of the extent of or lack of authority of the public officer to make such a contract.</p> <p>Where one enters into a contract with the superintendent of streets of a city for the purchase hy the city of gravel to be used on its public streets and the sale by the city to him of street sweepings to be used in filling his land, knowing that the provisions of the city charter give to the superintendent of streets no power to make such a contract, he cannot, after the city has used the gravel in mending its streets and has been benefited thereby and has refused to furnish the street sweepings to him, recover from the city in an action of contract the reasonable value of the gravel.</p> <p>Where one delivers gravel to a city, knowing that there is no valid contract with the city to pay therefor, he cannot, after the city has used the gravel in mending its streets, recover its reasonable value in an action of contract.</p>

<p>Tort for personal injuries from being struck by an electric car operated by the defendant, on October 22,1904, at about half past seven o’clock in the morning, as the plaintiff was crossing Chelsea Street in that part of Boston called Charlestown. Writ dated April 20, 1907.</p> <p>At the trial in the Superior Court before Stevens, J., the plaintiff’s testimony was in substance as follows:</p> <p>The plaintiff was employed in the Navy Yard at Charlestown. On the morning of the accident he took a car running west to go to his work. When he reached the Navy Yard gate he found that it was 7.85 o’clock. If he did not report for work at 7.30 o’clock he had to wait until 8.30. For this reason he testified that what he did he did not do in a hurry. There were two railway tracks in the street in question, and the Navy Yard lies to the south side of the street. The cars run on the right, and consequently the plaintiff had to cross the east bound track to get to the Navy Yard on alighting from his car.</p> <p>His story was that on alighting from his car he passed around the rear end of it and looked up before stepping on the rails of the other track; that he saw a car coming on the other track, to quote his own words, “ so rapidly that I didn’t have a chance to stop or step back, and the only thing I could do in my judgment at that time to save myself, I had to make a leap for the other side of the track.” He did not succeed in getting across “ clear of the other car,” and was struck on the right leg by the fender. The plaintiff testified that he had been familiar with the tracks for six or seven years. The plaintiff testified that he looked up before stepping upon the other track.</p> <p>In addition the plaintiff testified to a “ sign about the crosswalk,” on which were the words “ Go slowly.”</p> <p>The plaintiff also testified, and made an offer of proof in corroboration of that testimony, that the £< custom of cars ” running east is to “ slow up ” considerably or to come to a standstill in approaching a west bound car from which passengers are in the act of alighting.</p> <p>Upon the plaintiff’s testimony and his offer of proof mentioned above, the judge directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Land Court, Appeal, Jurisdiction.</p> <p>After one petitioning in the Land Court for the registration of the title to certain land has appealed to the Superior Court from findings of fact by the judge of the Land Court, and such appeal has been dismissed by the Superior Court aiid an exception to such dismissal has been overruled by this court and thereupon a decree has been entered in the Land Court in accordance with the finding, the petitioner cannot appeal from such decree to the Superior Court to try issues as to whether the land described in the decree was that described in the finding, or as to what a boundary described in the finding was, since, after the dismissal of the appeal from the finding, it became final, and the only question remaining was as to the form of the decree which should be entered thereon, and, such question being one of law, no appeal lies to the Superior Court from the action of the Land Court thereon.</p> <p>It seems, that the Land Court has no" power to allow a motion of the respondent named in a petition for the registration of the title to certain land to amend the petition by substituting his name as the petitioner for the registration of the title to a part of the land described in the original petition.</p> <p>It seems, that, if the respondent in a petition in the Land Court for the registration of the title to land contends that he owns a part of the land described in the petition and desires to have his title thereto registered, he either should file a separate petition for that purpose or file a cross-petition to the petition in which he is a respondent; and that, if he adopts the latter course, his cross-petition will be dismissed if the original petitioner has been allowed to withdraw his petition under R. L. c. 128, § 36.</p>

<p>Contract upon an alleged guaranty by the defendant to pay to the plaintiff bills contracted by one Wainwright. Writ in the Municipal Court of the City of Boston dated March 17, 1904.</p> <p>On appeal to the Superior Court, the case was heard by Raymond, J., without a jury, upon the following agreed statement of facts:</p> <p>The material part of the alleged guaranty was as follows: “ Messrs. Jordan, Marsh & Company, Gentlemen:—In reply to the above I hereby agree to pay all bills of whatever amount which may hereafter be contracted at your house by Mrs. A. D. •Wain wright upon a proper assignment of the same being made to me. John W. Beals.” This was signed between October 22 and 26, 1898. Between September 30 and November 26, 1902, Mrs. Wain wright contracted bills at the plaintiff’s store amounting to 1115.18, which the defendant refused to pay, although the plaintiff offered and was willing to make proper assignment as stated in the guaranty.</p> <p>In 1898, Jordan, Marsh and Company was a copartnership. In 1901 the plaintiff company, a corporation, was formed, which took over all the assets and liabilities of the copartnership and which is composed of the same persons that made up the co-partnership and carries on the same business at the same place and in the same manner as the copartnership.</p> <p>The bill in question was contracted subsequent to the date of the forming of the corporation. The only question involved is whether or not the above wording of the guaranty, written to Jordan, Marsh and Company, the partnership, makes the guarantor liable to Jordan Marsh Company, the corporation.</p> <p>The presiding judge found for the defendant; and the plaintiff appealed.</p> <p>The case was submitted on briefs.</p>

<p>Agency, Existence of relation. Wagering Contracts. Pleading, Civil, Declaration, Variance. Evidence, Relevancy and materiality. Release. Words, “Payment.”</p> <p>At the trial of an action under R. L. c. 99, § 4, for the recovery of money alleged to have been paid by the plaintiff to the defendant, a stockbroker, upon wagering contracts, it appeared that the payments were made to one G., who the plaintiff contended was an agent of the defendant. There was evidence tending to show that Gr. maintained a stockbroker’s office in Salem, where the plaintiff lived, and a private wire to the defendant’s office, which was in Boston, that G. had signs upon liis place of business and an advertisement in a Salem newspaper which declared him to be “ correspondent of ” the defendant, that a market letter, of which the plaintiff received a copy each week, was “ put out ” by the defendant, and had on it “ G., correspondent of ” the defendant, as did also a memorandum book given to the plaintiff by G., and that G. “had authority to use” both "as correspondent.” The same words appeared upon the bought and sold orders given by the plaintiff to G. and upon all the stationery which G. used. What meaning attached to the word “ correspondent ” as thus used did not appear, but there was evidence that it had no special meaning in the stock brokerage business.- B also appeared that for some reason the defendant did not carry out one order given to G. by the plaintiff, that the defendant received all the profits from the transactions with the plaintiff, G. receiving only a commission, that on one occasion in the course of the transactions between them G. gave the plaintiff a check signed by himself as “ attorney,” that in deposit slips given to the plaintiff by G. and signed by him personally G. used the word “ we,” not referring in any way to the plaintiff. Held, that there was evidence tending to show that G. acted as an agent for the defendant in his transactions with the plaintiff. .</p> <p>In an action under R. L. c. 99, § 4, for money paid on wagering contracts, evidence tending to show that the plaintiff paid the money to one who acted as an agent of the defendant in the transactions, that the plaintiff intended that no actual purchase or sale of stocks should be made and that the agent had reasonable cause to believe that such intention existed, will warrant a finding for the plaintiff.</p> <p>In an action for money had and received, with an account annexed stating merely amounts alleged to have been so paid and received, with dates, the plaintiff offered evidence tending to show that, preceding each date in the account am nexed, the plaintiff, intending not to make any purchase or sale of things of the kind specified in R. L. c. 99, § 4, made a deposit of money with an agent of the defendant who knew or had reasonable cause to know of his intention, and who gave him a receipt stating that the payment so made was to be held as security for or applied in part payment of all transactions between the parties, that it orally was agreed between the plaintiff and the agent that such money was to be held by the defendant until there was a loss on the transaction, when payment was to be made of the loss from the amount deposited, that losses occurred on the dates and in the amounts stated in the account annexed, and that the funds previously deposited by the plaintiff with the agent were applied to make them good. Held, that upon such application by the defendant of the funds previously deposited with the agent by the plaintiff, a “ payment ” was made by the plaintiff within the terms of R. L. c. 99, § 4, and that therefore there was no variance between the declaration and the proof.</p> <p>In an action under R. L. c. 99, § 4, to recover money paid on wagering contracts, evidence as to where the plaintiff procured the money which he used in the transactions is immaterial.</p> <p>One who has paid money to an agent of a stockbroker under circumstances sufficient, under B. L. c. 99, § 4, to make the stockbroker liable for the amounts so paid, does.not release the stockbroker by releasing the agent personally.</p>

<p>Practice, Civil, Report. Bills and Notes, Construction, Validity. Contract.'</p> <p>A judge of the Superior Court by a report made under R. L. c. 173, § 105, cannot bring before this court for determination as to their correctness rulings made by another judge of the Superior Court at a previous stage of the case.</p> <p>An instrument signed “ G., Special Agent," directed to the L. Insurance Company and containing blanks for the signature of a “manager” and the countersignature of a “ cashier,” read as follows : “ Draft . . . to be paid on acct of the L. Insurance Co. . .'. Upon acceptance the C. Trust Co. will pay to the order of Y. $360 which payment evidenced by proper endorsement hereof constitutes full satisfaction of all claims and demands for loss and damage by [a certain] fire . . . to property described in [a certain] policy . . . and said policy is hereby can-celled and surrendered to the Company.” Held, that, until acceptance by the insurance company, there was no negotiable instrument and no chose in action which the payee effectually could transfer to another either by indorsement or assignment.</p>

<p>Negligence, Employer’s liability.</p> <p>An employer, who directs an employee to use a vise and wrench in fitting a piece of small gas pipe to an elbow, need not instruct the employee how to use the vise and wrench if the employee is thirty-nine years of age, has been in his employ for four years as a machinist, has been a machinist for sixteen years, and has used a vise “nearly every day of his life ” and a wrench “ off and on ” during that time, although as a machinist he never had been called upon to use a pipe wrench on small pipe.</p> <p>A hole twelve inches long, nine inches wide and five inches deep, in the floor at the end of a work bench and near the door of entrance and exit in a machine shop, which is eighty feet long and thirty feet wide with many windows, but the light in which is somewhat obscured by the presence of machinery and by dirt upon the window glass, the floor, which consists of planks laid on the ground without any fastening, having inequalities in its surface, is an obvious risk which is assumed by one employed in the shop, and if a machinist who has been employed in the shop for four years, in working with a wrench and vise at the bench, stumbles in the hole and is injured, he cannot recover from his employer either at common law or under R. L. c. 106, § 71.</p>

<p> Negligence. Street Railway. </p> <p>In an action, against a corporation operating a street railway, for injuries to the plaintiff and his horse and wagon from being run into by an electric car .of the defendant a little before midnight on a bright, clear night in a street which was perfectly straight and nearly level for more than a quarter of a mile in each direction from the place of the accident, with electric lights near the place and no other vehicles in the vicinity except another electric car which had passed a short time before, there was evidence that the plaintiff was on the right hand side of the street and that, after the other car had passed him going in the same directian, he turned to the left to cross the tracks diagonally, driving slowly, that he saw a car coming from the opposite direction a long distance away and thought that he had sufficient time to cross until it was close upon him, when he shouted to the motorman and turned his horse sharply to the left to escape a collision, but that, before the hind wheels of his wagon had passed the outer rail of the second track, the forward right hand corner of the car came in collision with the back of his wagon. Two passengers, who were standing with the motorman on the front platform of the approaching car, testified that they saw the plaintiff’s horse and wagon when the car was from three hundred to five hundred feet away and that the motorman did not seem to notice the plaintiff until he was very near him, that the car was running very fast and that its speed was increasing until the motorman put on the brake just as the collision occurred. Held, that there was ample evidence to warrant a finding that the motorman was negligent, and that there also was evidence to submit to the jury that the plaintiff was in the exercise of due care.</p>

<p>Two ACTIONS OF TORT, against the Boston Elevated Railway-Company, the first by a married woman for personal injuries from the sliding door at the end of a car of the defendant, on which she was being transported as a passenger, shutting upon her fingers when the car gave a lurch in passing around a curve of the elevated railway between the North Station and City Square in that part of Boston called Charlestown and she had grasped the casing of the door for support, and the second by the husband of the plaintiff in the first case for loss of her services by reason of such injuries and expenses of medical attendance and nursing. Writs dated October 14,1905.</p> <p>In the Superior Court the cases were tried together before White, J. At the close of the plaintiffs’ evidence the judge ordered a verdict for the defendant in each case ; and the plaintiff in each case alleged exceptions, it being agreed by the parties that if the judge’s ruling was right, judgment should be entered for the defendant in both cases, but that, if the judge’s ruling on the question of liability was wrong, judgment should be entered for the plaintiff in the first case in the sum of $750 and costs, and for the plaintiff in the second case in the sum of $250 and costs.</p>

<p>Practice, Civil, Waiver of exceptions, New trial, Conduct of trial. Witness, Cross-examination. ^Evidence, Exhibits. Negligence.</p> <p>In an action of tort for personal injuries, in which the jury returned a verdict for the plaintiff, the presiding judge made an order setting aside the verdict as against the evidence on the issues of the plaintiff’s due care and of the defendant’s negligence, but ordered that the verdict as to the assessment of damages should stand to await a future trial on the question of liability. The plaintiff filed a bill of exceptions to this order, but it never was allowed by the judge and no attempt was made to establish the exceptions. Later the plaintiff filed in writing a waiver of his exceptions. Afterwards there was a new trial at which the presiding judge, following the order granting the new trial, confined the trial to the question of liability, and refused to allow the plaintiff to introduce evidence upon the question of damages or to argue it to the jury. Held, that, whether the order confining the new trial to the question of liability was right or wrong, the plaintiff had waived his right to contest its validity, and it had become the law of the case for the new trial.</p> <p>When the cross-examination of a witness has been conducted on a certain line for some time, the presiding judge may exclude another question on the same subject if he concludes that the answer to the question, whether it should be in the affirmative or the negative, would add nothing to what already has been elicited and could be of no assistance to the jury. No exception to such an exclusion can be sustained which fails to show that the action of the judge was prejudicial to the excepting party.</p> <p>Exhibits, which were made part of a deposition when called for by cross-interrogatories, and which were shown to the jury at the time the deposition was read, without any objection being made, may be detached from the deposition and allowed to go to the jury.</p> <p>In an action against a street railway corporation for personal injuries from being run into from behind by an electric car of the defendant while driving in a wagon, the plaintiffs asked the judge to make the following ruling: “ If the team was driven upon the track in front of the car, and the motorman could have stopped the car in time to avoid the collision, and did not stop it, then he was not in the exercise of due care, and the verdict must be for the plaintiffs.” The judge refused to make the ruling. The jury found for the.defendant, and the plaintiff alleged exceptions. Held, that the request for the ruling was refused rightly, as it entirely excluded the question of the due care of the plaintiffs, and also entirely excluded the distinction between negligence and a mere error of judgment on the part of the motorman.</p>

<p>Tax, Collection. Assignment, For benefit of creditors. Bankruptcy. . Trust. Equity Jurisdiction, To enforce trust for payment of taxes. Words, “Creditor,” “ Tax,” “ Action.”</p> <p>In a common law assignment for the benefit of such creditors as execute it and accept its provisions, the word “creditors” implies a contractual obligation and does not include a city to which a tax is due nor the public officer to whom it is payable.</p> <p>A common law assignment, for the benefit of such creditors as should execute it and accept its provisions, declared that one of the purposes of the trust was “ to pay in full such claims against the parties of the first part [the assignors] as are entitled to a priority in law, including herein such claims as would be entitled to priority under the United States bankrupt law of 1898 as now in force.” The collector of taxes of a city to which a tax was due from the assignors demanded from the assignee payment of the tax and brought a suit in equity to enforce such payment. Held, that the provision quoted above created a trust for the benefit of the plaintiff as collector of taxes, the tax being a preferred claim under § 64a of the bankruptcy act of 1898, and that the demand upon the defendant and the bringing of the suit were sufficient acts of assent to the trust, to entitle the plaintiff to enforce the trust, if any acts of assent were required.</p> <p>Tiie right of a collector of taxes to maintain a suit in equity, in which the person assessed for a tax is made a defendant, to enforce a trust established for the purpose, among other things, of paying taxes, even if such right did not exist under general equity jurisdiction, would be and is conferred by R. L. c. 13, § 32, which gives a collector of taxes authority to “maintain an action in his own name against the person assessed ” for a tax which has remained unpaid for three months after it has been committed to the collector, the word “ action ” being used in this section in a comprehensive sense which includes a suit in equity as well as an action at law.</p> <p>Whether under the authority given to him by R. L. c. 13, § 32, a collector of taxes in this Commonwealth can prove a claim for taxes in proceedings in bankruptcy, it here was not necessary to determine, but it was intimated that he probably has the right to do so.</p> <p>In this Commonwealth the remedies given by statute to the collectors of taxes to enforce the payment of taxes are cumulative and no one remedy is exclusive, thus the proof, or attempted proof, of a claim for taxes in proceedings in bankruptcy is not a waiver of the right of the collector to maintain a suit in equity to enforce a trust for the payment of taxes contained in a common law assignment made by the bankrupt for the benefit of creditors.</p>

<p>Bill in equity, filed in the Superior Court on March 1, 1906, seeking the relief described in the opinion.</p> <p>The case was heard by DeCourcy, J., who made a final decree for the plaintiff granting the relief prayed for, and dismissing a cross-bill, which had been filed by the defendant corporation. The defendants appealed from the decree, and the defendant corporation appealed from the decree dismissing the cross-bill. The judge filed a memorandum of findings of fact, the substance of which is stated in the opinion. There was a deposition of the plaintiff, taken in his behalf in England in answer to interrogatories and cross-interrogatories propounded to him, and there also was a report of the evidence by a commissioner.</p>

<p>Bill in equity under R. L. c. 101, § 8, filed in the Superior Court for the county of Middlesex July 15, 1908, by ten legal voters of the town of Maynard, seeking to restrain the use of certain described premises for the alleged illegal keeping and sale of intoxicating liquors. The defendants were Bartholomew J. Coughlin, the owner of the premises, and Harry A. Clark, the occupant of them, whose application for licenses the selectmen had granted, as stated in the opinion.</p> <p>The case was heard before Wait, J., who found the facts to be as stated in the opinion. His rulings in substance were as follows:</p> <p>“ Upon these facts I find that the innholder’s license issued on May 22, 1908, to Harry A. Clark is valid. I rule that the description in the application filed March 25, 1908, for inn-holders and for first and fourth class liquor licenses was insufficient, and no valid license could be issued upon that application; that no valid license as an inn-holder could be issued to Clark before May 22, 1908, and none was so granted or issued ; that for these reasons the first and fourth class liquor licenses were never valid. An innholder’s license may be granted at any time during the year. ... I rule that the authority of licensing boards to grant liquor licenses of the first and fourth classes can be exercised only in the month of April in each year. ... I rule that the innholder’s license granted to Harry A. Clark is valid; that innholders’ licenses may be granted at other times than in the month of April; that all sales of intoxicating liquors made by him on the premises mentioned in the petition since May 23, 1908, have been unlawful.”</p> <p>A decree accordingly was entered enjoining the defendants “ from using the premises for the illegal beeping and sale of intoxicating liquor ”; and the presiding judge at the request of the parties reported the case for determination by this court under the following terms: “ If upon the facts found and the pleadings the rulings were right, the decree is to be entered. Otherwise the rulings and decree are to be set aside and such decree entered as justice and equity may require.”</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on February 13, 1908.</p> <p>The case was heard on bill and answer by Hammond' J., who reserved it for determination by the full court, it being agreed that “the question of proper parties defendant is included in the reservation.” The facts are stated in the opinion.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on January 9, 1907, seeking to restrain the defendants from maintaining a flower stand in a passageway in which the plaintiffs claimed a right of way under a deed from the common predecessor in title of the plaintiffs and the defendants.</p> <p>The case was heard by Sotmmond, J., who made a decree for the plaintiffs. The defendants appealed. The facts are stated in the opinion.</p>

<p>Devise and Legacy, Eight heirs. Husband and Wife. Words, “Eight heirs.”</p> <p>Whether in this Commonwealth the phrase “ right heirs ” when used in a will always is equivalent to statutory heirs, or whether sometimes it may have the meaning of heirs by the blood or possibly some other significance, it here was not necessary to determine, because a reference to the statutes of Massachusetts regulating the descent and distribution of intestate estates, contained in the will which was being construed, made it plain that the words were used in the sense of statutory heirs.</p> <p>R. L. c. 140, § 8, cl. 8, creates a widow a statutory heir of her deceased husband.</p> <p>Where, by the terms of a will, real and personal property are given to one to hold in trust to pay the income to one W. during his life and on his death leaving his wife, F., surviving, to F. during her life, and on the death of the survivor of W. and F. to convey and distribute the property “ to and among the right heirs at law of W., agreeably to the statutes of Massachusetts regulating the descent and distribution of intestate estates, the issue of any deceased child taking its parent’s share,” if, upon E.’s dying before W., W. marries H. and dies leaving issue, H. is entitled to one third of the property to be distributed by the trustee, she being as widow one of the “ right heirs ” of W. “ agreeably to the statutes of Massachusetts.”</p>

<p>Landlord and Tenant, Eviction.</p> <p>In an action for rent alleged to be due under a lease of the entire fourth floor of a building on Washington Street in Boston to a life insurance company, to be used for the transaction of life insurance business, it appeared that the lessor covenanted that he would “at his own expense, cause the elevators in said building to be kept in repair and to be operated daily during reasonable business hours except on Sundays and legal holidays, and when the same may be stopped by inevitable accident or for necessary repairs.” At the trial the defendant introduced evidence tending to show that the use of the elevator was necessary to the lessee, that the elevator service was so imperfect as to make the premises leased practically unfit for the transaction of the business for which they were hired, that the power used to run the elevator also was used to run two printing presses and the electric lights in the building, and that the defective elevator service was due to abstraction of the power from the elevator for the other uses, which abstraction was done wilfully, and notwithstanding complaints by the lessee was persisted in by the lessor, and that, in consequence of the condition of the elevator service, the lessee quit the premises, having paid all rent due at the time it left. The defendant contended that it was evicted by the acts of the lessor, but the presiding judge refused to allow the jury to consider that defense, and ordered them to find for the plaintiff, and the defendant excepted. Held, that the exceptions must be sustained, as the jury would have been warranted in finding that the defendant was evicted.</p> <p>A lessee, who has been evicted from the leased premises by acts of the landlord which make it impossible for the tenant to use the premises as they were intended to be used according to the lease, is not obliged to return even if the cause of the eviction afterward is removed, and, if he does not return voluntarily, the landlord has no right to recover rent under the lease after the eviction.</p>

<p>Negligence, Employer’s liability, Causing death. Practice, Civil, New trial.</p> <p>In an action at common law by the administrator of the estate of a workman for conscious suffering of the plaintiff’s intestate caused by the alleged negligence of the defendant, an asphalt paving company, while the plaintiff’s intestate was in its employ, there was evidence from which it could be found that, the night before the accident, the plaintiff’s intestate, who theretofore had been employed in another branch of the work in a different place, was set at work by the defendant’s superintendent at the asphalt tanks, of which there were three, under each of which was a furnace, each tank containing asphalt and other materials and being fitted with a lid or cover, that the superintendent directed the intestate to keep the covers open on a clear night, and on a rainy night to put a barrel stave under each cover, which would hold them four or five inches up, that the superintendent also gave him directions as to keeping fires under the tanks and handed him a thermometer about five feet in length, for the purpose of taking the temperature of the materials in the tanks, and a lantern, that in order to take the temperature it was necessary for the intestate to climb by a ladder to the top of each tank and examine the thermometer by means of a lighted lantern, that no instruction was given him as to what should be done if the covers w'ere found down, and it did not appear that anything was said as to how often the temperature should be taken, that on the night of the accident when the intestate went to work the covers were down, although it did not appear that he knew of this until he went up the ladder two hours or more later for the purpose of taking the temperature of the materials in one of the tanks, that the materials heated in the tanks generated an explosive gas which when heated or in contact with flame would be likely to cause an explosion, and that on the intestate’s opening one of the lids, with the lantern in his hand, an explosion occurred, which caused the injuries from which he afterwards died. There was evidence of a declaration, made by the intestate shortly after the accident, that he had no knowledge, experience or appreciation of the danger to which he was subjected. Held, that there was evidence for the jury of negligence on the part of the defendant in failing to take precautions to provide for the harmless dissipation of the explosive gases likely to be generated in the tanks or to prevent their accumulation in dangerous quantities; also, that there was evidence of due care on the part of the plaintiff’s intestate, and that he did not assume the risk of such an injury.</p> <p>In an action by an administrator for personal injuries to the plaintiff’s intestate by the explosion of dangerous gases in a tank of heated asphalt, to which the plaintiff’s intestate had been sent by the defendant’s superintendent with a long thermometer and a lighted lantern for the purpose of taking the temperature of the materials in the tank, the presiding judge refused to make certain rulings requested by the defendant, which were based on the proposition that, if such an explosion as that which caused the injury was so infrequent an occurrence as to be unknown to men engaged in the business for a period of years, the defendant was not responsible for it. Held, that the requests for rulings were refused rightly, as the absence of previous explosions might have been due to the taking of reasonable precautions to avoid such a calamity, and, moreover, the infrequency of such accidents was not the test of the defendant’s liability, as the defendant would be liable for injuries arising from conditions which resulted in an extraordinary or even unprecedented accident, if they were such that no reasonably prudent proprietor would have suffered them to exist.</p> <p>In an action by an administrator under R. L. c. 106, § 72, for the loss of life of the plaintiff’s intestate by reason of the negligence of a superintendent of the defendant, resulting in fatal injuries to the plaintiff’s intestate from the explosion of dangerous gases in a tank of heated asphalt, to which, without previous experience, the plaintiff’s intestate had been sent by the superintendent with a long thermometer and a lighted lantern for the purpose of taking the temperature of the materials in the tank and brought about the explosion by lifting the cover of the tank which he found closed, as bearing upon the question whether the superintendent had or ought to have had knowledge that fire was likely to occur from the tanks if the explosive gases were not given a harmless means of escape, evidence that only a few days before the accident one of the tanks had given forth fire may be admitted, within the discretion of the presiding judge, to show that a superintendent in the exercise of reasonable care would have discovered that an explosive compound was generated in the tanks, and the jury could find that the superintendent should have instructed the plaintiff’s intestate how he should conduct himself with reference to the use of a lighted lantern if he should find the covers of the tanks down instead of open as they ought to be, and that a failure to give such instruction was negligence.</p> <p>In an action of tort by an administrator, with two counts joined under St. 1906, c. 370, the first under R. L. c. 106, § 72, for the loss of life of the plaintiff’s intestate by reason of the negligence of a superintendent of the defendant, and the second at common law for conscious suffering of the plaintiff’s intestate by reason of the defendant’s negligence, the presiding judge subject to an exception by the plaintiff ordered a verdict for the defendant on the first count, and subject to an exception by the defendant submitted the case to the jury on the second count. They returned a verdict for the plaintiff on that count, and both the . plaintiff and the defendant alleged exceptions. This court overruled the exceptions of the defendant, and ordered that the verdict for the plaintiff on the second count should stand. The court sustained the exceptions of the plaintiff and ordered a new trial on the first count. The plaintiff contended that this new trial should be limited to the question of damages alone, but the court refused to make such a limitation, leaving the question of the defendant’s liability under the employers’ liability act for the alleged negligence of its superintendent open for trial.</p>

<p>Practice, Civil, Conduct of trial, Exceptions. Evidence, Opinion.</p> <p>A presiding judge may exclude evidence which he regards as too remote in its bearing upon the issues on trial and thinks would lead to too many collateral issues.</p> <p>Where an answer or a part of an answer of a witness was unresponsive, the presiding judge may order that it be stricken out, although after the answer other questions liave been put to the witness and have been answered by him before the motion to strike out the answer or a part of it is made.</p> <p>Where a witness is asked whether he made a certain statement as a matter of memory, and answers, “ I say that as a matter of opinion,” it is proper for the presiding judge to order that the answer be stricken out.</p> <p>No exception lies to the admission of a preliminary question asking a witness whether he was present at a certain trial, for the purpose of forming the basis for a line of inquiry which is cut off by the answer of the witness that he was not present.</p>

<p>Writ op entry, dated February 16, 1906, for a certain parcel of land in Watertown, brought in the Land Court by a judgment creditor under a special attachment, he having obtained judgment and execution and become the purchaser of the land at the execution sale, and having taken all steps and proved all facts, in pursuing his remedies under his special attachment, necessary to maintain an action under the provisions of R. L. c. 178, § 47, as against the person who at the date of such special attachment was the holder of the record title to the premises specially attached.</p> <p>The tenants claimed title under an overdue mortgage from one Ruggles to the East Cambridge Savings Bank, of which there had been a breach of condition before the bringing of the writ although subsequent to their taking possession.</p> <p>The case was tried before Davis, J., who ruled as matter of law that both the non-payment of interest on December 1, 1899, and the non-payment of the taxes for 1899 constituted defaults under the terms of the mortgage from Ruggles to the East Cambridge Savings Bank, under foreclosure of which the tenants claimed title. He also ruled as matter of law, although in view of his other rulings he did not deem it necessary to the case, that the tenants being in possession of the premises, claiming title under an overdue mortgage of which there had been a breach of condition before the bringing of this writ, although subsequent to such taking of possession, the action could not be maintained. He therefore found for the tenants, and ordered judgment accordingly.</p> <p>The demandant appealed to the Superior Court.</p> <p>In the Superior Court the issues framed by the judge of the Land Court were tried before Lawton, J., who refused to make certain rulings requested by the demandant, and ordered the jury to answer the questions contained in the issues as follows:</p> <p>“ 1. Did the mortgagor comply with the terms of the mortgage from Ruggles to the East Cambridge Savings Bank?” The jury answered, “ No.”</p> <p>“ 2. In what particular did he fail to comply ? ” The jury answered, “ He did not pay the first instalment of interest according to rthe tenor of the note B. He did not pay the taxes of 1899 when they became due.”</p> <p>“ 3. Was he relieved from such compliance, so that the mortgage could not be foreclosed by the bank’s foreclosure proceedings ? ” The jury answered, “ No.”</p> <p>The demandant alleged exceptions.</p>

<p> Release. Fraud. Deceit. Evidence. </p> <p>In an action for personal injuries, where the defense relied upon is a release executed by the plaintiff, if it appears that the plaintiff had been hurt grievously and was confined to his bed at the time that the release was presented to him for signature by an agent of the defendant, and the evidence justifies a finding that the plaintiff was told by such agent that the plaintiff’s counsel said that it was all right for him to sign the release, it is error for the presiding judge to exclude the testimony of one of the members of the firm who were counsel for the plaintiff, which is offered by the plaintiff to show that the statement shown to have been made by the defendant’s agent was not true, and it also is error to exclude the plaintiff’s own testimony, which is offered by him to show that he relied upon the representation of the defendant’s agent that the plaintiff’s counsel said that it was all right for him to sign the release.</p>

<p>Tort for the conversion of certain goods and chattels on or about September 1, 1892, by the defendant acting by her husband, Edwin Jaquith, as her agent. Writ dated December 19, 1906.</p> <p>The defendant’s answer contained a general denial and an allegation that the cause of action did not accrue within six years before the date of the plaintiff’s writ.</p> <p>In the Superior Court the case was tried before Ailcen, C. J., without a jury. He found for the plaintiff and assessed damages in the sum of $807.18. The defendant alleged exceptions, raising the questions which are stated in the opinion.</p>

<p>Landlord and Tenant, Landlord’s liability to third persons. Nuisance. Coal Hole. Negligence, Of one owning or controlling real estate.</p> <p>At the trial of an action against the owner of premises to recover for injuries alleged to have been received from falling into a coal hole in the sidewalk in front of the premises, it appeared that the defendant had leased the premises to one who covenanted to keep them in the same repair as they were in at the commencement of the term of the lease. There was evidence that at the commencement of the term of the lease the cover of the coal hole was not fastened down at all, that a few weeks before the plaintiff was injured the defendant supplied a fastening which the jury might'have found to be insufficient, which insufficiency the defendant might have known of had he used due diligence, and that because of the insufficient fastening the cover slipped when the plaintiff stepped upon it, and she fell into the hole. Held, that the question of the defendant’s liability was for the jury.</p>

<p> Libel and Slander. </p> <p>In order to recover in an action of tort for slander, in which the plaintiff alleges that the defendant said of him in the presence of others that he was a “ thief and a robber,” it is not necessary for the plaintiff to prove that the persons before whom such words were spoken believed them to be true, the plaintiff being entitled to recover for his mental suffering as well as for the injury to his reputation.</p>

<p>Contract upon a- bond in the sum of $50,000 conditioned upon the performance by the defendant National Contracting Company of a certain contract, the other defendant, the National Surety Company, being the surety on the bond. Writ dated December 8, 1908.</p> <p>The case was tried before DeQourcy, J., who, after submitting a question to the jury and receiving their answer, ordered a verdict for the plaintiff. The defendants alleged exceptions, which were sustained by this court in a decision reported in 198 Mass. 554.</p> <p>After that decision and the issuing of the rescript in accordanee therewith, the plaintiff moved to amend its declaration, which consisted of a single count, by adding four additional counts, each alleging a breach of the bond declared upon. An affidavit of Henry H. Sprague, Esquire, the chairman of the metropolitan water and sewerage board of the Commonwealth, was filed in support of the motion to amend, stating that the cause of action relied on by the affiant and the other members of the board in behalf of the Commonwealth when the action was commenced consisted of all the breaches of the contract and of the bond by the National Contracting Company and the National Surety Company, including certain breaches described in the affidavit. The defendants also presented certain affidavits.</p> <p>The motion to amend was heard by Richardson, J., who allowed it, reserving the question of costs, but, being of opinion that the question of allowing the plaintiff’s motion to amend its declaration ought to be determined by the full court before further proceedings in the Superior Court, at the request of the defendants and with the consent of the plaintiff, he reported the question of allowing the amendment for determination by this court.</p>

<p>Equity Jurisdiction, To set aside mortgage and notes alleged to be illegal, Plaintiff must have clean hands. Assignment, Por benefit of creditors. Intoxicating Liquors.</p> <p>An assignee for the benefit of creditors cannot maintain a suit in equity to enjoin the foreclosure of a mortgage given to secure notes which the plaintiff’s assignor gave in payment for intoxicating liquors purchased and received by him in violation of R. L. c. 100, §§ 1, 52.</p> <p>An assignee for the benefit of creditors has no greater right than his assignor to ask to be relieved in equity from an illegal contract made by his assignor, who received the fruits of it and is incapable of coming into court with clean hands to have it set aside.</p> <p>An equal participant in a violatidn of law by the making of an illegal contract will be given no assistance by the courts at law or in equity either in enforcing the contract or in avoiding its consequences.</p> <p>The decision in Gargano v. Pope, 184 Mass. 671, that the participation of the plaintiff in the making of a champertous contract was not a bar to her application for relief, is an exception to the general rule, the parties there not being considered in pari delicto, but the doctrine of the exception ought not to be enlarged, and it does not include the case of one who has participated as purchaser in an illegal contract for the sale of intoxicating liquors and seeks to avoid payment for the property thus acquired.</p>

Writ of entry, in the Land Court dated August 12,1907, by Reuben A. Richards and Sarah G. Buttrick for certain land in Needham, which was owned by Jeremiah F. Richards at the time of his death in 1852, and was disposed of by his will which was dated May 12, 1851.

<p>Contract by the second assistant clerk of courts for Norfolk County, who was appointed by the clerk under R. L. c, 165, §§ 7, 38, to recover the expense of travelling from his home in Weymouth to Dedham, where the courts are held for that county. Writ dated March 23, 1908.</p> <p>In the Superior Court the case was heard by Lawton, J., without a jury.</p> <p>The parties agreed that no question was to be raised as to the form of the action, that the bill for travelling expenses was correct and that it should have been audited and allowed by the county commissioners, if under the law the plaintiff was entitled to have it paid.</p> <p>The plaintiff had been in attendance at the court house only on those days when the court was in session, and had been on duty in the court room taking the place of the clerk in his temporary absences from the court room, or sitting with him and assisting him there. When the Supreme Judicial Court and Superior Court or two sessions of the Superior Court had been in session at the same time, he had not been assigned to duty in one of them especially, but acted in either as occasion required.</p> <p>The plaintiff’s compensation was fixed in advance by an oral agreement with the county commissioners, but without any vote of the commissioners, at $5 a day, and afterwards, on or about June, 1907, at $7 a day for such days as he actually was on duty. The plaintiff presented his bills for services monthly, and they always were allowed in writing by the commissioners or a majority of them, and then were paid by the treasurer. They always were expressed to be “ for services.” The plaintiff’s travelling expenses for the whole period amounted to $92.50. For the seventeen days while the Supreme Judicial Court and the Superior Court or two sessions of the Superior Court were in session at the same time his expenses were $10.54. The clerk of courts for Norfolk County brought an action simultaneously with this one, for his travelling expenses during the same period, to substantially the same amount and under the same circumstances as hereinbefore set forth, in which he recovered judgment for the full amount sued for, which judgment had been satisfied.</p> <p>On the above facts the judge ruled that the plaintiff could recover his travelling expenses only for the seventeen days during which there were two sessions of the court, and found for the plaintiff in the sum of $10.54.</p> <p>He reported the case as above for determination by this court. If the ruling and finding were correct, judgment was to be entered for $10.54; otherwise, such judgment was to be entered as the law and the facts required.</p> <p>The case was submitted on briefs.</p>

<p>Extortion of Illegal Fees. Public Officer. Marriage and Divorce. Justice of the Peace. Evidence, Presumptions and burden o£ proof.</p> <p>Under R. L. c. 210, § 39, imposing a penalty upon any person who wilfully and corruptly demands and receives for the performance of an official duty or service, for which a fee or compensation is allowed and provided by law, a greater fee or compensation than is so allowed and provided, a justice of the peace, who has demanded and received for solemnizing and certifying a marriage a greater sum of money than the fee of §1.25 prescribed by R. L. c. 204, § 26, is not subject to the penalty for doing this with a wilfully corrupt purpose unless he knew of the statutory provision for compensation.</p> <p>There is no conclusive presumption that a justice of the peace knows the provision of R. L. c. 204, § 26, prescribing §1.25 as the legal fee for solemnizing and certifying a marriage, and, although a trial judge, in deciding a case on an agreed statement of facts, might be justified in inferring such knowledge from the fact of the holding of the office, such an inference would be one of fact which he is at liberty not to draw.</p> <p>A justice of the peace, who upon request goes from his office to a private house to perform a marriage and also upon request makes and delivers a marriage certificate different from and in addition to the return that he is required to make to the city or town clerk, lawfully can demand and receive compensation for these services in addition to the statutory fee of §1.25 prescribed by R. L. c. 204, § 26.</p>

<p>Negligence, Res ipsa'loquitur. Street Railway. Evidence, Presumptions and burden of proof, Eelevaucy, Of statements of agent. Agency. Attorney at Law.</p> <p>The fact, that an electric street car transporting passengers left the track near the end of a bridge and turned around almost at right angles to the track, is in itself evidence of some kind of negligence for which the corporation operating the car is responsible.</p> <p>In an action against a corporation operating a street railway for personal injuries, if it appears that a car of the defendant in which the plaintiff was a passenger left the track near the end of a bridge and turned around so as to stand almost at right angles to the track, and there is evidence of an irregularity in the track at a joint between two rails at the point where the car left the track, there is nothing in these facts to show any defect or want of repair in the car, and it is error for the presiding judge to refuse to instruct the jury that there is no evidence to warrant a verdict for the plaintiff on a count in which the only negligence alleged is in suffering the car to be in an improper and unsafe condition.</p> <p>In an action by a woman against a corporation operating a street railway for personal injuries received while being transported as a passenger in a car of the defendant, if the plaintiff claims damages for suffering from hysteria which she imputes to the accident, and the defendant offers the testimony of a physician to show the condition in which he found the plaintiff’s mother when making an examination of her, there being previous evidence that heredity is a common cause of hysteria, the presiding judge properly may exclude the evidence, if the defendant does not make an offer of proof to connect it with the plaintiff’s hysterical condition by showing that such condition was inherited wholly or in part from her mother instead of being caused by the accident.</p> <p>In an action by a woman against a corporation operating a street railway for personal injuries alleged to have been received while being transported as a passenger in a car of the defendant, the defendant should be allowed to show, as evidence of the plaintiff’s physical condition before the accident, that an attorney at law, who was employed by the plaintiff to prosecute a claim for her a short time before the accident, when called upon to state the claim to the attorney of the man on whom the claim was made, said that she claimed damages because of her physical condition produced by this man to her detriment, the statement of the claim being within the scope of the employment of her attorney employed to make it.</p>

<p>Tort by the administrator of the estate of Arabella C. Jones under R. L. c. 48, §§ 98, 99, for personal injuries received by the plaintiff’s intestate by reason of a defect in the sidewalk of Audubon Road in Boston. Writ dated May 19, 1905.</p> <p>In the Superior Court the case was heard by Raymond, J., upon an agreed statement of facts, the substance of which is stated in the opinion.</p> <p>At the close of the evidence, the judge ordered a verdict for the defendant, and by agreement of the parties submitted two questions to the jury.</p> <p>These questions, with the answers of the jury, were as follows:</p> <p>“ 1. Whether Audubon road was of such appearance as to lead an ordinarily observant traveller to suppose it was a public highway and not a parkway ? ” The jury answered, “ Yes.”</p> <p>“2. What damages did the plaintiff suffer?” The jury answered, “ $1,060.”</p> <p>The judge reported the case for determination by this court. If his ordering of the verdict for the defendant was correct, judgment was to be entered for the defendant; if the ruling was erroneous, judgment was to be ordered for the plaintiff in the sum of $1,060.</p>

Tort for personal injuries sustained by the original plaintiff, John Henahan, while in the employ of the defendant from a wall falling upon him on August 12,1903, with two counts, the first at common law alleging a failure to furnish the plaintiff with a safe place in which to work and a failure to warn or instruct him concerning the danger to which he was exposed, and the second under the employers’ liability act alleging the negligence of a person in the service of the…

<p>Negligence, Employer’s liability, Evidence of. Evidence, Competency-</p> <p>A workman in a tannery, who has been employed there for seventeen months, assumes the risk of injury from falling through a hole in the floor, which is plainly visible to any one who looks at the floor, and which is one of a number of openings made in all the floors of the tannery by a former proprietor for the purpose of passing rolls of leather from one floor to another before an elevator was put in, and afterwards left there for ventilation and to dry leather by the passing of currents of hot air from the lower floor to the upper ones.</p> <p>In an action by a workman employed in a tannery against his employer, for injuries from falling through a hole in the floor, which was one of a number of openings left in all the floors of the tannery for the purpose of drying leather by the passing of currents of hot air from the lower floor to the upper ones, evidence that after the accident the defendant adopted another method of carrying the steam heat from one room to another to dry the stock is incompetent.</p>

<p>Tout for personal injuries sustained by reason of an alleged defect in a sidewalk of Boylston Street, a public highway in Boston, on November 27, 1905. Writ dated February 24, 1906.</p> <p>In the Superior Court the case was tried before Lawton, J. There was evidence tending to show that the sidewalk at the place of the alleged defect was about seven feet wide and was made of brick with the usual curbstone next to the roadway; that a part of the sidewalk adjoining the curbstone was torn up for a width of about eighteen inches, leaving the width of the part of the sidewalk bricked over about five and one half feet; that there was no rope or barrier at the time of the accident and nothing to protect the public from falling into, or stumbling over, the open space, and that the street had not been closed to public travel.</p> <p>It appeared in evidence that the plaintiff left her home at Winter Hill in Somerville at about one o’clock; that she left the elevated railway at-the Boylston Street station, crossed Tremont Street and went down Boylston Street on the left hand side; that, as she came to Head Place, she noticed that the sidewalk was out of its normal condition; that she said to her daughter, who accompanied her, “You have got to look out here and not meet with any accident ”; that she saw that the street was in confusion, and that the sidewalk at the corner of Head Place and Boylston Street was not all built out; that, when she turned into Boylston Street from Tremont Street, she noticed that they were repairing Boylston Street; that she did not notice what they were doing in the street; that she smelled tar; that she had crossed Head Place and had taken not more than two steps when her foot caught on some bricks there, and as she stepped on the bricks they turned over and she went down before her daughter could get hold of her.</p> <p>On cross-examination, the plaintiff, among other things, testified that after the accident she was taken into a store in front of which she had fallen, and a girl there helped take care of her; that she told the girl how the accident happened; that she fell into that little place outside there, and the girl said, “Well, that was all roped off Saturday and Sunday,” and that the girl also said that they had “ taken the ropes down only about an hour ago.” It did not appear that the defendant objected to this answer.</p> <p>Other material evidence is described or referred to in the opinion. At the close of the evidence, the judge ruled that the plaintiff could not recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Negligence, Causing death, In use of electricity. Electric Light Corporation. Electricity.</p> <p>In an action under R. L. c. 171, § 2, as amended by St. 1907, c. 375, by an administrator for causing the death of the plaintiff’s intestate by reason of the negligence of the defendant’s agents or servants, it is not always necessary to show any positive act of care on the part of the plaintiff’s intestate. Due care on his part may be inferred from the absence of fault when sufficient circumstances are shown to exclude negligence on his part.</p> <p>In an action by an administrator against an electric light corporation for causing the death of the plaintiff’s intestate by a shock of electricity from contact with a live wire of the defendant which had become broken by reason of the negligence of the defendant’s agents or servants, if there is evidence on which it could be found that the plaintiff’s intestate, on discovering that the live wire had broken in front of his house, went into the highway to follow up the wire to the cross arm of the pole to which it was attached, in order to read on the cross arm the name of the corporation maintaining the wire and thus be able to notify it to remove the live wire, and that while he was doing so the end of the broken wire, swaying above his bead in the wind, fell striking him on the nose, causing him to fall, and in some way after his fall touching his finger, there is evidence of due care on his part to be submitted to the jury.</p>

<p> Nuisance. </p> <p>In an action against the owner of a building on a city street, for personal injuries from stepping into an open ventilator in the floor at the side of the vestibule entrance to an office on the street floor of the building, which was about on a level with the sidewalk, it appeared that the defendant had leased the office and the basement under it to a tenant who had the entire care and management of the premises, and that the defendant only could be liable for the accident if the mode of construction of the vestibule made it a nuisance by reason of the use for which it was intended and to which it was put by the tenant in accordance with the plan and purpose of the defendant when he gave the lease, that the opening into which the plaintiff fell had a cover on hinges, which was raised at the time, but which, when closed, formed a part of the level floor of the vestibule, which was made of translucent glass laid in cement to light the basement below, that the opening did not lie in the line of travel to the doorway of the office or to any other point which persons had occasion to approach and was in a corner where no one needed to go, and, moreover, when the cover was raised, or possibly laid back, the opening was in a well lighted place where a person using due care hardly could fail to see it. Held, that there was no evidence of the maintenance of a nuisance on the part of the defendant; and that the defendant had no reason to expect such a use of the premises by the tenant as would make the opening and cover a nuisance or expose to danger persons lawfully resorting to the premises.</p>

<p>Street Railway. Nuisance. Negligence. Way, Defect in highway.</p> <p>If a corporation operating a street railway agrees with a city that it will guard an open trench dug in a public street by the water department of the city, which crosses the track of the railway, in order that the water department may not place at the sides of the trench wooden barriers which it will be necessary to remove and replace as each car goes by, the corporation by this agreement assumes the duty of protecting travellers from the danger of the open trench, and is liable to a traveller who in the exercise of due care is injured by falling into the trench by reason of the negligence of a servant of the corporation who was sent to guard the trench and failed to do so.</p>

<p>•Evidence, Of handwriting, Relevancy. Estoppel.</p> <p>In this Commonwealth a standard of handwriting cannot be proved by the opinions of witnesses, but it may be established, not only by the testimony of a person- who saw the words written, but also by other evidence direct or circumstantial.</p> <p>Upon the issue of the genuineness of a signature, under ordinary circumstances signatures which are not the subject of litigation in other suits and about which there is no dispute can be procured as standards, and under such circumstances it is within the discretionary power of a presiding judge to refuse to receive evidence as to signatures offered as standards, which are in litigation or in dispute, and to require the party seeking to establish the standard to produce signatures not open to these objections, but where a plaintiff suing on a promissory note contends that the signature of the indorsement, although not the usual signature of the defendant, is a signature which was adopted by the defendant in a certain series of transactions of which this was one, and it appears that all of the rest of these transactions are subjects of litigation in other actions, it is necessary to the plaintiff’s case to allow him to prove as a standard a signature of the defendant which is one of the series in litigation, and a refusal to allow him to do so is error, an exception to which must be sustained.</p> <p>In an action against a married woman on a promissory note, in which she denied the genuineness of the signature on the note purporting to be hers and contended that it was written by her husband without her authority, it was admitted that the signature in question was not in the defendant’s usual handwriting, but the plaintiff contended that the signature was one adopted by the defendant in a series of transactions relating to borrowing money, which she and her husband wished to conceal from her father, and the plaintiff offered to show that the indorsee of the note, who sold it to the plaintiff, before the plaintiff bought the note, sent his clerk to the defendant with other instruments which were parts of the same transaction and bore similar signatures, and that the defendant told the clerk of the indorsee that the signatures on these other instruments were hers, whereupon the plaintiff, relying on the genuineness of these other signatures of the defendant and on the statement of the clerk of the indorsee, bought the note in suit from the indorsee. The evidence was excluded. The plaintiff contended that on the facts which he thus offered to prove the defendant was estopped to deny that the signature on the note in suit was hers. Held, that, there being no offer to prove that the statement made by the defendant to the clerk of the indorsee, acknowledging her signature on the other instruments, was intended by her to be acted upon by the plaintiff in purchasing the note in suit from the indorsee, the evidence offered was not sufficient to establish an estoppel.</p> <p>In an action against a married woman on a promissory note, in which she denied the genuineness of the signature on the note purporting to be hers and contended that it was written by her husband without her authority, the plaintiff contended that the signature was one adopted by the defendant in a series of transactions relating to borrowing money, which she and her husband wished to conceal from her father. As evidence that the defendant’s husband was her general agent with authority to sign the note in suit, the plaintiff offered to prove that the defendant’s father had arranged to have the dividends on certain shares of stock owned by the defendant come to him to make sure that she had not sold the shares, that she did sell them and that she and her husband, to prevent the discovery of this by her father, just before each dividend was declared bought on margin the number of shares of this stock formerly owned by her and sold them immediately afterwards, giving instructions to have the dividends sent to her father who then handed them to her. This evidence was excluded. Held, that its exclusion was proper, as it did not tend to show that the defendant’s husband was authorized to sign in her name the note sued upon.</p>

<p>Negligence, Employer’s liability.</p> <p>A workman in a tannery, in which leather is transported from one part of the building to another by means of a truck suspended from an overhead rail, assumes the risk of injury, when he is pushing the truck loaded with leather, from its falling upon him by reason of a defect in the working of a switch in the rail, which he has turned himself, if the mechanism of the switch not only is simple and easily understood but also is plainly visible.</p>

<p>Way, Defect in highway. Nuisance.</p> <p>Under R. L. c. 61, § 19, a city or town is not liable for an accident caused solely by the existence of snow or ice in a street, although by the hand of man it has been built into a very dangerous form in the travelled part of the way, and constitutes a nuisance for which the person who created it probably is liable.</p>

<p>Bill ir equity, filed in the Supreme Judicial Court on January 18, 1906, and amended by the filing of a substituted bill on July 18,1906, to rescind a sale of shares of the capital stock of the Gillette Safety Razor Company, a corporation organized under the laws of the State of Maine, made by the plaintiff to the defendant Heilborn, alleged to have been acting for himself and the other defendants, on or about August 1, 1904, at $1 a share, when the fair value was alleged to have been $10 a share, such sale being alleged to have been induced by false and fraudulent representations made to the plaintiff by the defendants.</p> <p>The case was referred to Eliot N. Jones, Esquire, as special master. The findings contained in his report are described in the opinion.</p> <p>The defendants filed the following exceptions to the master’s report:</p> <p>1. In the above entitled case each defendant severally objects and excepts to the ruling of the master that the representation in substance that Heilborn was intending to buy for himself was a material representation.</p> <p>2. Each defendant severally objects and excepts to the construction by the master of the term “ quick assets ” appearing in the letter of June 23, 1904, and requests the master to rule that the balance remaining to be advanced under the contract with Joyce on June 23, 1904, upon the facts set out in the report, .was not a quick asset within the natural meaning of the words “ quick assets ” as used in the letter of June 23,1904.</p> <p>The plaintiff filed the following exceptions to the master’s report:</p> <p>1. That the master found that it is not shown that the comparatively good results of the business in May, 1904, could, on the 1st of June, reasonably be expected to endure, whereas he should have found, from the other findings of fact bearing upon this matter, that those results should, at that date, reasonably have been expected to endure.</p> <p>2. That the master found that the statement in the June 23 letter, to wit, “ it is necessary to provide a substantial sum of money in order that all this may be done and the company placed upon a satisfactory financial footing,” so far as it is one of opinion, is not shown to be such as might not reasonably have been held by the directors on June 22 and 23, and that he cannot find that such was not the opinion actually held by Holloway, Joyce and Heilborn, whereas he should have found and concluded to the contrary, in view of his other findings of fact bearing upon these questions.</p> <p>3. That the master ruled that Heilborn’s representations to Stewart that he (Heilborn) had not paid over eighty cents a share for stock and had bought as low as forty cents (which representation the master found to have been false) was not material, whereas he should have ruled that it was material.</p> <p>4. That the master found that Heilborn’s stock purchases had nothing to do with his official capacity, and that in regard to his representations, quoted in the last exception, he stood in the position of an ordinary purchaser, whereas he should have found and ruled to the contrary in both particulars.</p> <p>5. That the master found “ as a matter of fact ” that Heilborn had no authority from any of the defendants to make representations, whereas he should have ruled, first, that this was a matter of law, or, second, a mixed question of law and fact, and, third, as a matter of law should have ruled from the other facts found by him that the defendants (except Gillette) were bound by Heilborn’s representations to Stewart because of his agency, and, fourth, should have found as a matter of fact that Heilborn was authorized, directly or impliedly, to make the representations.</p> <p>6. That the master found that it is not proved that there was any conspiracy or plan among the defendants, or any of them, on or before July 8, 1904, to obtain the plaintiff’s stock by fraud, or any conspiracy or-plan in pursuance of which the June 23 letter was sent, or in pursuance of which Heilborn made representations to Stewart, or obtained the option from him, whereas he should have found to the contrary in all these particulars in view of his other findings of fact bearing thereon.</p> <p>7. That the master found that on June-17 the defendants Holloway, Joyce and Heilborn were genuinely disturbed at the immediate conditions of the business, whereas he should have found to the contrary, in view of his other findings of fact bearing upon this question.</p> <p>8. That the master found that the misstatement and omissions in the letter of June 23 are attributable not to bad faith, but to indifference and incompetence, whereas he should have found that they were attributable to bad faith as well as indifference and incompetence, in view of the law relative to directors and of his other findings of fact bearing thereon.</p> <p>9. That the master found that there was no intent to deceive in sending the June 23 letter and that the motive of Holloway, Joyce and Heilborn in sending it was a perfunctory desire to discharge a duty to stockholders, and that it was not sent for the purpose of influencing Stewart to sell his stock or for the general purpose of influencing the price of stock, whereas he should have found, as a matter of fact, an intent to deceive the stockholders and influence the sale of stock, and should have ruled, as a matter of law, that the letter, under the findings of fact made by him, was a fraud upon the plaintiff and the other stockholders, and legally, as well as in fact, a deception by the directors.</p> <p>10. That the master found that Stewart did not rely upon the oral misrepresentations of Heilborn, whereas he should have found that he did rely on them, at least in part, and that they were material inducements toward making the sale.</p> <p>11. That the master found that in bargaining for and in taking Stewart’s option Heilborn was not acting as agent for any other defendant, whereas he should have found, as a matter of fact, and should have ruled, as a matter of law, that Heilborn was the agent for Joyce and Holloway in this matter.</p> <p>12. That the master ruled that Heilborn bought of Stewart on his own account and not as agent for any other defendant, whereas he should have ruled, from the facts found by him, that Heilborn bought as agent for Joyce and Holloway.</p> <p>13. That the master failed to rule whether or not on the facts found by him the plaintiff was entitled to relief, whereas he should have ruled that the plaintiff was entitled to the relief prayed for in his bill.</p> <p>14. That the master failed to rule that the plaintiff’s rights were not barred by loches, and failed to find that no loches existed, whereas he should have found and ruled that no loches existed and that it was not a bar.</p> <p>15. That the master found that the value of the plaintiff’s stock at the time of his sale was $1.50 per share, whereas he should have found that it was a much higher amount.</p> <p>16. That the master refused, at the plaintiff’s request, to report the evidence or the facts relative to the sales made from April to September, 1904, by twelve other stockholders to Heilborn (who at once transferred all this stock to Joyce and Holloway and purchased in each case with their money and by a previous arrangement with them under circumstances similar to the sale of the plaintiff), whereas he should have reported the evidence or facts, and his conclusions therefrom, as to the truth or falsity of the representations made by Heilborn to induce these sales.</p> <p>17. That the master refused, at the plaintiff’s request, to report the record of the meeting of the directors on "March 18, 1904, whereas he should have included this record in his report, inasmuch as it contained important evidence bearing upon the questions at issue.</p> <p>18. That the master refused, at the plaintiff’s request,' -to add a finding as to the value of the stock at the time of the filing of this bill, whereas he should have found and reported that value, if he also included a finding as to its value at the time of the sale in question.</p> <p>19. That the master refused to rule, as requested by the plaintiff, that loches was not open to the defendants as a defense under the pleadings and admitted evidence bearing thereon, whereas he should have excluded such evidence and should have ruled that it was not admissible under the pleadings.</p> <p>20. That the master refused, at the plaintiff’s request, to report the evidence or facts that Belcher and Sachs each warned Heilborn, previous to the June 23 letter, that the sending of such a letter would have the effect of alarming the stockholders and depreciating the value of their stock, whereas he should have included the evidence or facts as a part of his report.</p> <p>21. That the master refused, though requested by the plaintiff, to report the evidence or facts showing the failure and neglect of Heilborn to inform Sachs, upon the request of the latter, as to the output of the business during the spring and summer of 1904.</p> <p>After certain other proceedings, not now material, the case came on to be heard before Loring, J., who reserved it upon the pleadings, the master’s report and the exceptions thereto for determination by the full court, such decree to be entered therein as equity and justice required.</p>

<p>Contract, Construction. Evidence, Extrinsic affecting writings, Materiality. Agency, Commission. Practice, Civil, Ordering verdict.</p> <p>The owner of a building asked a person to procure a tenant for the building and signed an agreement in writing as follows: “ All you get above $2,000 per year you may have as your commission.” The person thus employed procured a tenant who was accepted by the owner and took a lease of the building for five years at an annual rent of $2,200. Held, that the agreement meant that the compensation for procuring a tenant should be the excess over $2,000 a year during the whole term of the lease and not merely the excess over the amount paid annually, so that the person who procured the lease for five years was entitled to a compensation of $1,000 and not merely of $200.</p> <p>One, who hastily signs an agreement in writing, in the absence of fraud is bound by its legal meaning although he understood it differently.</p> <p>In an action against the owner of a building on a special agreement for a stipulated compensation for procuring for the defendant a tenant for the building under a lease for five years at an annual rent of $2,200, if the agreement signed by the defendant and delivered to the plaintiff is, “ All you get above $2,000 per year you may have for your commission,” the defendant cannot be allowed to show what is the usual commission for such services, nor can he be allowed to show that shortly after the making of the lease the plaintiff effected a sale of the property to the tenant.</p> <p>Where the liability of a defendant depends entirely upon the construction of a contract in writing and no material fact is in dispute, if the presiding judge adopts an interpretation of the contract which makes the defendant liable for the amount claimed by the plaintiff, it is his duty to order a verdict for the plaintiff in that amount.</p>

<p>Contract. Writ dated February 18,1908.</p> <p>The declaration, as twice amended, alleged that in the summer of 1907 the defendant made a contract with one Crockwell by which Crockwell agreed to build a house for the defendant, and that Crockwell made a contract with the plaintiffs to supply him with inside finish and flooring for the house at a contract price of $480 as agreed upon; that on or about the twelfth day of November the defendant, being informed that the plaintiffs desired greater security for their account than the credit of Crockwell, and being desirous that the plaintiffs should make prompt delivery of the materials at the house, made an oral agreement with the plaintiffs that in consideration of the plaintiffs obtaining and sending to him a written order or orders payable to the plaintiffs signed by Crockwell on the defendant for the amount of the bill for inside finish and flooring, to wit, $480, the defendant would accept and pay the written order or orders according to their terms; that the plaintiffs did obtain written orders signed by Crockwell on the defendant payable to the plaintiffs in the sum of $480, and mailed them postpaid to the defendant who received them, and that in reliance upon the agreement of the defendant the plaintiffs made prompt delivery of the inside finish and flooring, but that the defendant neglected and refused to accept or pay the orders, although requested to do so, and that the plaintiffs received no payment on account of the inside finish and flooring from any other person. Copies of the orders were annexed to the declaration by the second amendment.</p> <p>The defendant demurred to the amended declaration, and alleged as causes of demurrer the following:</p> <p>“1. The declaration sets forth an oral promise on the part of the defendant to pay the debt of another, contrary to R. L. c. 74, § 1.</p> <p>“ 2. The declaration sets forth an oral promise by this defendant to accept a bill or order, contrary to R. L. c. 73, § 149.”</p> <p>In the Superior Court the case was heard by De Courey, J., who sustained the demurrer. Judgment was entered for the defendant; and the plaintiffs appealed.</p> <p>The case was submitted on briefs.</p>

<p>Charity. Tax, Exemption. Public Officer. Practice, Civil, Report, Agreed statement of facts. Evidence, Presumptions and burden of proof.</p> <p>A bequest of a fund to a grand lodge of masons for the benefit of indigent and needy masons within a designated territory, making provision for their relief and comfortable support at a home to be erected when the fund with its accumulations shall be sufficient, creates a public charity.</p> <p>In an action by a charitable corporation against a city for the amount of a tax paid by the plaintiff under protest, if the case is submitted upon an agreed statement of facts authorizing the drawing of inferences, and the statement contains no mention of the fact that the assessors gave to the plaintiff seasonable notice under R. L. c. 12, § 41, to bring in a true list of all real and personal estate held by it for charitable purposes, it must be assumed that the assessors, being public officers, complied with the statute by giving the proper notice.</p> <p>If a charitable corporation omits after notice from the assessors to bring in the list and statement of all real and personal estate held by it for charitable purposes required by R. L. c. 12, § 41, the corporation under § 5, cl. 8, of the same chapter still is exempt from taxation for that year unless such omission was wilful, and, in an action brought by it against a city to recover the amount of a tax paid under protest, the burden of proving that such an omission was wilful is on the defendant.</p> <p>Where a case comes before this court upon a report of the trial judge, who has made a finding upon an agreed statement of facts which authorized him to draw inferences, his finding will not be disturbed if an inference which supports it was warranted.</p>

<p>Widow. Husband and Wife. Mortgage, Of real estate.</p> <p>Where a married man dies intestate, leaving a widow but no issue, and his estate consists of one parcel of land worth if unincumbered $8,500, but subject to a mortgage for $4,100, there being no personal property of any value and no assets other than the land from which the mortgage debt can be paid, the value of the land must be ascertained by deducting from its unincumbered value the amount of the mortgage debt at the time of the death of the intestate, with the result that the land is less than §5,000 in value, and, when governed by Pub. Sts. c. 124, § 3, belongs wholly to the widow in fee.</p>

<p>Municipal Corporations. Public Officer. Easement, By prescription. Sewers.</p> <p>Superintendents of highways, elected under a city charter providing for the election of such officers to perform the duties of surveyors of highways, where no provision by ordinance has been made to the contrary, are in legal contemplation surveyors of highways.</p> <p>If a superintendent of highways of a city, having the powers of a surveyor of highways, without authority lays a line of pipe from a catch basin in a street through a ditch crossing private land, and thus causes injury by flooding the cellar of a house on the land, he has committed a tort and is liable personally to the landowner for the injury thus caused, but the city is not liable.</p> <p>If a superintendent of highways of a city, who in legal contemplation is a surveyor of highways, causes injury to land abutting on a street of the city by his negligence in not keeping free from obstructions a ditch into which a line of pipe leads from a catch basin, and thus flooding the cellar of a house on private land through which the ditch passes, the city is not liable.</p> <p>If a superintendent of highways of a city, who in legal contemplation is a surveyor of highways, without authority constructs a catch basin in a street of the city and lays a line of pipe from it connecting with a ditch which crosses private land, and if the city never takes any action with respect to the catch basin, the pipe line or the ditch, but for more than twenty years water runs from the catch basin through the pipe into the ditch, this may subject the land to an easement, but, if so, the easement is in the public and not in the city, and does not make the city liable for injury to the private land through which the ditch passes caused by the unlawful construction of the catch basin and pipe line or by negligence in failing to keep the ditch clear from obstructions.</p> <p>Discussion by Loring, J., of the character of “ main drains or common sewers ” provided for in R. L. c. 49, § 1.</p> <p>If a superintendent of highways of a city, who in legal contemplation is a surveyor of highways, without authority constructs a catch basin in a street of the city and lays a line of pipe from it connecting with a ditch which crosses private land, and if the city never takes any action with respect to the catch basin, the pipe line or the ditch, and, although for more than twenty years water runs from the catch basin through the pipe into the ditch, no drain or sewer pipe of any kind ever has discharged into the ditch, and the ditch, which originally was a natural watercourse, never has discharged into a city sewer or drain, any easement, which the public may have acquired to have water run through the ditch, is confined to such use, and the ditch cannot be found to have become a main drain or common sewer within the meaning of R. L. c. 49, § 1.</p>

<p>Practice, Civil, Exceptions.</p> <p>Where all that is involved in a case is the application of well settled principles of law to facts which are neither complicated nor obscure, and after a fair trial the facts have been found adversely to the excepting party, it would seem that there is no reasonable ground to hope for a successful issue in carrying the case further, and that the only result of prosecuting a bill of exceptions must be to subject the defeated party to still greater expense.</p>

<p>Tort, by the administratrix of the estate of Patrick J. McDonald, for personal injuries to the plaintiff’s intestate from his being run into by a horse driven in a farm wagon by a servant of the defendant on August 12, 1905, at about noon on Call Street near Everett Street in that part of Boston called Jamaica Plain. Writ dated January 6, 1906.</p> <p>In the Superior Court the case was tried before White, J. The material parts of the evidence are described in the opinion.</p> <p>At the close of the evidence, the defendant asked the judge to rule that on all the evidence the plaintiff could not recover, and that there was not sufficient evidence of due care on the part of the deceased and consequently that this action could not be maintained. The judge refused so to rule, and left to the jury the questions of the negligence of the defendant’s servant and of the care of the plaintiff’s intestate. The jury returned a verdict for the plaintiff in the sum of $2,000; and the defendant alleged exceptions.</p>

<p>Practice, Civil, Parties, Abatement. Bills and Notes. Notary Public. Bankruptcy. Partnership. Evidence, Presumptions and burden of proof, Bes inter . alios.</p> <p>In an action against a member of a firm as an indorser of a promissory note by reason of an indorsement made by the defendant’s partner in the firm name, where the partner who made the indorsement is not joined as a defendant, such nonjoinder can be taken advantage of only by an answer in abatement, and is not available as a defense at a trial of the case on the merits.</p> <p>At the trial of an action on a promissory note against the second indorser, the certificate of a notary public, who protested the note, stating the maker’s failure to pay it at maturity and notice to the indorser of the dishonor, under R. L. c. 73,</p> <p>§ 13, is prima facie evidence of the facts thus stated.</p> <p>Where the indorsement on a promissory note is in the name of a copartnership, by the express provision of R. L. c. 73, § 116, notice to one of the partners of the dishonor of the note “ is notice to the firm,- even though there has been a dissolution.”</p> <p>Under the bankruptcy act of 1898, § 11, a court in which an action of contract against a bankrupt is pending need not stay proceedings after the defendant’s adjudication in bankruptcy, and may in its discretion enter judgment against him, while the bankruptcy proceedings still are pending as to his obtaining a discharge.</p> <p>The fact that a promissory note signed by an individual, who is a member of a partnership, is made payable to his own order and is indorsed by him first in his own name and then jn the name of the firm, does not give notice to a person who takes the note for value that the indorsement in the name of the firm was for the accommodation of the maker or that the maker is to receive the proceeds of the note for his private use.</p> <p>A member of a commercial partnership, unless there are express limitations upon his authority, may borrow money for use in the business of the firm and issue in payment a promissory note of the partnership which will be binding upon his copartners although issued without their knowledge; and, even where there are limitations upon his authority, such limitations cannot affect a holder in due course who has no knowledge of them.</p> <p>If a promissory note is made by one of two partners payable to his own order and is indorsed by him personally and in the name of the firm, and then without the authority or knowledge of his partner the maker of the note negotiates it and uses the proceeds for his individual purposes, and if his partner, after he has full knowledge of this transaction, agrees in the settlement of the affairs of the partnership to assume and pay the note, and subsequently on going into bankruptcy includes this note in his schedule and makes oath that it is an indebtedness due to the holder, this is a ratification of the note as an outstanding obligation of the firm.</p> <p>In an action against one of two partners as the indorser of a promissory note made by the other partner and indorsed by him in the name of the firm, the defendant cannot be allowed to show that by an oral agreement between the defendant and his partner, made after the dissolution of the firm, the defendant’s partner who made the note agreed to pay it because he had received commissions on sales of goods to the firm for which he had failed to account, as this agreement cannot affect the rights of the plaintiff who was not a party to it.</p>

<p>Tort under R. L. c. 51, § 18, for personal injuries due to a defect in Ruggles Street in Boston. Writ in the Superior Court for the county of Suffolk dated December 12, 1904.</p> <p>The case was tried before Bishop, J. The facts are stated in the opinion. The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract upon a policy of fire insurance as stated in the opinion. Writ in the Superior Court for the county of Suffolk dated November 1,1906.</p> <p>The case was heard by Fierce, J., without a jury, upon an agreed statement of facts. He found for the defendant; and the plaintiff appealed. The facts are stated in the opinion.</p>

<p>Tobt for personal injuries received by the plaintiff while he was in the defendant’s employ as a trimmer of electric lights due to the breaking in the plaintiff’s grasp of one of the pins on a crossarm of an electric light pole which he was climbing, whereby the plaintiff was caused to fall to the ground. Writ in the Superior Court for the county of Middlesex dated July 18, 1902.</p> <p>The case was tried before Schofield, J. The facts are stated in the opinion. At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Railroad, Elevator.</p> <p>At the trial of an action by a woman against a railroad company to recover for injuries received from her hand being caught in the door of an ele valor which the defendant maintained in its station for use by passengers going from the waiting room to the trains on a lower level, there was evidence tending to show that when the plaintiff entered the elevator she was in a hurry to catch a train and told the operator of the elevator so, that consequently he hastened to close the sliding door, that other persons in the elevator jostled the plaintiff and she reached out to save herself from falling and caught hold of the door jamb and the door closed upon her hand. Held, that there was no evidence of negligence on the part of the operator of the elevator.</p>

<p>Negligence, Employer’s liability. Evidence, Relevancy. Proximate Cause.</p> <p>At the trial of an action by the father of an employee of the defendant to recover for loss of the services of the son, who was a minor, due to his being injured by a knife on a wire cutting press falling upon his hand without his having pressed upon the treadle, such pressing being the only method in which the knife could have been caused to fall if the press had been in proper condition, the plaintiff offered in evidence testimony by a former employee of the defendant, who was familiar with the operation of the press, that the press was defective two months before the accident to the plaintiff’s son, that, without the treadle being pressed down, the knife had fallen several times before the accident, and that the attention of the defendant’s foreman had been called to that fact, but that the press still remained in the same condition when the accident to the plaintiff’s son occurred. The evidence was admitted and the defendant alleged exceptions. Held, that the exceptions must be overruled, since the evidence was relevant to show negligence on the part of the defendant.</p> <p>At the trial of an action by the father of an employee of the defendant to recover for loss of the services of his son, a minor, due to bis being injured by the knife of a wire cutting press at which he had been set at work falling upon his hand, if there is evidence tending to show that the knife should not have fallen unless a treadle had been pressed down, but that on this occasion it fell without the treadle’s being pressed down, that the press had been out of repair for two months previous to the accident and that during that time the knife had fallen several times without the treadle being pressed down, that, although the condition of the press had been called to the attention of the defendant’s foreman, the press remained in the same condition at the time of the accident to the plaintiff’s son, and that the son was set at work on the machine without being warned of its defective condition, a finding of negligence on the part of the defendant is warranted.</p> <p>At the trial of an action by the father of an employee of the defendant to recover for loss of the services of his son, a minor, due to his hand being injured by the knife of a wire cutting press falling upon it, there was evidence tending to show that the falling of the knife was due to a defect in the press 'of which the defendant knew or in the exercise of proper care should have known, that the employee was sixteen years of age, that he had been working for the defendant for a week and had been set at work upon the press the day before he was injured, that he had not been given any warning or instruction with regard to the defective condition of the press, that, although before he was injured the knife had come down several times without his pressing down the treadle, he had believed that such occurrences were incident to a proper operation of the machine and had continued with his work according to the instructions previously given to him. Held, that the employee could not as matter of law be said to have assumed the risk of the injury, and that a finding that he was in the exercise of due care was warranted.</p> <p>The fact, that wire, which was being fed into a wire cutting press from a reel, did not unwind freely because of a faulty condition of the reel due to negligence of a fellow servant of the pressman, does not as matter of law preclude recovery from the employer for an injury to the pressman due to the knife of the machine falling, because of a defective condition of the machine, without the treadle being pushed down, and striking the pressman’s hand which he had put under the knife in an effort to make the wire come from the reel properly, since the defective condition of the part of the press which should have prevented the knife’s falling, and not the defective condition of the reel, might be found to have been the proximate cause of the injury.</p>

<p>Equitable Restrictions. Equity Jurisdiction, To enforce negative covenant, Injunction, Laches. Deed, Construction. Covenant.</p> <p>The release of a right of entry upon real estate in case of a breach of a condition subsequent, which was believed by the parties to be in force, is a good consideration for a negative covenant creating an equitable restriction, although by the construction of the deed imposing the supposed condition it is doubtful whether the right of entry really was in existence then or not.</p> <p>A covenant, signed by the different owners of five adjoining lots of land on a city street, the owners of one of the lots being four trustees, by which the owners of the five lots as one of the parties to an indenture “ do severally and not jointly nor one for any other, for themselves and their respective successors, heirs and assigns, covenant with and to the ” owners of two adjoining lots of land on the same street, agreeing that none of the five houses now standing on the lots and no building or buildings thereafter erected instead of them or any of them shall extend beyond the then existing front line of the houses, does not mean that the four trustees who jointly own one of the lots covenant severally as individual owners and not jointly, but means that the owners of the five lots covenant severally as the owners of each lot in regard to their respective holdings and do not covenant jointly with the owners of the other lots. In such a case it does not matter that the owners of the two adjoining lots with whom the covenant is made have different interests in the two lots.</p> <p>The owners of two lots of land on a city street had rights of entry upon five adjoining lots on the same street in case of a breach of a condition contained in the deeds of such five adjoining lots, requiring that the houses on the lots should be erected “ on a right line ” and should be set back two feet and nine inches at least from the boundary of the lots on the street. Thereupon the owners of the two lots made an indenture with the owners of the five lots by which the owners of the two lots released their rights of entry and freed the five lots from the conditions contained in the deeds, and the indenture then proceeded as follows : “ And, in consideration of the premises the . . . [the owners of the five lots] do severally and not jointly nor one for any other, for themselves and their respective successors, heirs and assigns, covenant with and to the . . . [owners of the two lots] and their heirs and assigns, that none of the five houses now standing on the lots aforesaid shall be extended in any part beyond the present front line of said houses, and that no other building or buildings which may be hereafter erected instead of them or any of them shall in any part extend or project beyond said front line, unless all the then owners of said five lots shall consent in writing to such extension or projection, and unless all the then owners of . . . [the two lots] shall also consent in writing thereunto.” Held, that the indenture created a right enforceable in equity against all persons taking with notice of it, and that the intention of the parties creating the restriction was that their respective promises should be for the benefit of the promisees as owners of the neighboring lots and of subsequent owners of those lots, and consequently that the restriction could be enforced in equity by and against owners who were not the original parties.</p> <p>In a suit in equity to enforce a restriction on land on a city street requiring that all buildings on the land shall be set back two feet and nine inches from the boundary on the street, it does not constitute loches on the part of the plaintiff that he failed to bring his bill until after the defendant had erected his building in violation of the restriction, if it appears that during the construction of the building the lower part of it was hidden from public view by the erection of a very high board fence which enclosed the premises along the sidewalk, and that the plaintiff brought his bill as soon as he discovered that a portion of the building was outside the line fixed by the restriction.</p> <p>In a suit in equity to enforce a restriction on land on a city street requiring that all buildings on the land shall be set back two feet and nine inches from the boundary on the street, where the violation complained of is a stone arqh projecting from the front of the building, no waiver of the right of the plaintiffs to enforce the restriction is shown by their failure to prosecute other owners of lots subject to the same restriction who have built out certain projections in some of the higher stories of their buildings.</p> <p>The right to enforce a restriction on land on a city street requiring that all buildings on the land shall be set back two feet and nine inches from the boundary on the street is not affected by the fact that the buildings in the neighborhood of the restricted land which were used for dwelling houses when the restriction was imposed have been replaced by buildings used for business purposes.</p> <p>In a suit in equity to enforce a restriction on land on a city street, imposed by a covenant in a deed requiring that all buildings on the land should be set back two feet and nine inches from the boundary on the street, where the violation alleged and proved was the erection of a stone arch projecting from the front of the building and,, owing to a very high board fence which had enclosed the premises along the sidewalk during the progress of the work, the plaintiff did not discover the violation of the restriction until the building was erected, it was held, that the plaintiff was entitled to a mandatory injunction and should not be forced to accept a payment in damages for a violation of the covenant.</p>

<p>Equity Pleading and Practice, Decree, Appeal. Railroad. Corporation.</p> <p>On an appeal from a formal decree entered upon the order of a single justice in pursuance of a rescript from the full court, the only question open is whether the decree conforms to the rescript.</p> <p>A rescript sent out by the full court on May 8 of a certain year ordered a decree for the Attorney General upon an information filed by him at the relation of the commissioner of corporations under St. 1906, c. 372, § 1, against a railroad corporation to enjoin it from assuming or exercising any franchise or privilege not authorized by its charter or the laws of the Commonwealth, and alleging, among other things, that without such authority the defendant held the stock and operated the roads and properties of certain street railway companies incorporated under the laws of this Commonwealth. On June 9 the defendant filed a motion setting forth that it had “ parted with whatever interest in or control of the shares of the capital stock of any of the street railway corporations mentioned in the information it may have had,” except its interest in the shares of two corporations named, and moved “ that it be allowed to prove these facts upon the hearing of any motion by the Attorney General for a final decree.” This motion of the defendant was denied, and on June 23 upon the order of a single justice a decree was entered as of May 8, the date of the rescript, enjoining the defendant, among other things, from holding the capital stock of the street railway companies named in the information, whose names also were enumerated in the decree, after the first day in July in that year. The defendant appealed from this decree. Held, that the denial of the defendant’s motion was a matter within the discretion of the single justice who heard it; that the decree applied to the facts as they appeared of record on May 8, and that the defendant could show a compliance with the decree as well by proving that it parted with all its interest in the stock of the street railways before June 23, when the decree was entered, as by proving that it parted with it afterwards.</p> <p>A decree in equity always is to be construed in reference to the facts stated in the bill and proved or admitted at the hearing, and has no relation to matters not included in the litigation.</p> <p>Upon an information in equity by the Attorney General at the relation of the commissioner of corporations, under St. 1906, c. 372, § 1, against a railroad corporation to enjoin it from assuming or exercising a franchise or privilege not authorized by its charter or the laws of the Commonwealth, in violating the prohibition contained in St. 1906, c. 463, Part II. § 67, that a railroad corporation, unless authorized by statute, “ shall not directly or indirectly subscribe for, take or hold the stock or bonds or guarantee the bonds or dividends of any other corporation,” if a final decree for the Attorney General follows the general language of the statute, so that it may seem to include forms of prohibited action which the defendant was not in a position to take in reference to stocks of certain corporations which it is forbidden to hold, this does not make the decree objectionable.</p>

<p>Devise and Legacy. Words, “Living.”</p> <p>A testator by his will, after giving his wife the use, income and improvement of all his estate during her life, with the right to expend any part of the capital, if she found it necessary for her welfare, devised and bequeathed, upon the death of his wife, all the rest and residue of his estate, including the proceeds of any estate sold by his executors and not expended by his wife, as follows: To each of four of his sisters named the sum of $5,000 and to a fifth sister, also •named, who was a widow, the sum of $8,000, and then added “the balance thereof to be distributed and divided equally among my living sisters and the brothers of my said wife," naming the three brothers of his wife. At the time the will was made and also at the time of the testator’s death all the five sisters of the testator named in the will and all of the three brothers of the testator’s wife were living. The testator had had another sister, who had died many years before, when she-was about four years of age. After the testator’s death and before the death of his widow three of the five sisters of the testator named in the will died and also one of the three brothers of the wife of the testator died. Held, that the pecuniary legacies in fixed amounts left to the testator’s sisters by name vested on the death of the testator subject to the contingency that, if all the capital of the estate was expended by the testator’s widow for her welfare, there would be no rest and residue from which they could be paid; and that such of these legacies as were left to the three sisters of the testator who died before his widow passed to their respective executors or administrators. Held, also, that the word “ living ” in the following clause qualified only the word “ sisters ” and not also the word “ brothers,” and that the " living sisters ’’ of the testator meant those sisters who were living at the time of the making of the will or the time of the testator’s death, and not those sisters who were living at the time of the death of the testator’s widow.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Exceptions.</p> <p>The usual statement that an employee assumes the risk of the obvious conditions of the building in which he accepts employment can be put more accurately by stating that an employer is under no duty to an employee to change the obvious conditions of the building in which the employee accepts employment. Explanation of the underlying principle of this rule by Loring, J.</p> <p>It seems that an employee in a factory does not assume the risk of an accident caused by the leaking of oil from a defective drip pan, if the oil does not drip from the pan continuously and the employee never has seen it drip, such a defect not being obvious at all times.</p> <p>An employee in a factory assumes the risk of an accident caused by slipping on an obvious oil spot coated with dust on the floor of a loft used as a shipping room which was there when lie went to work and has been there continuously ever since.</p> <p>In an action by a workman in a boiler factory against his employer, for personal injuries caused by slipping on an oil spot on a trap door covering the well of a freight elevator in the floor of a loft of the factory, by reason of which the plaintiff, after having started the elevator by pulling the shipper rope, fell on the trap door and as it rose his leg was caught between the door and one of the uprights on whicli the elevator ran, if it appears that boilers were piled up on all of the four sides of the elevator, well, and had remained so piled for three or four days, leaving a passageway two feet wide as the only means of access to the shipper rope and on the opposite side from this rope, so that an employee had to cross the trap doors to get at it, and that the top of the trap door on which the plaintiff fell was slippery from oil, this is evidence for the jury of negligence on the part of the defendant.</p> <p>Although an employee in a factory assumes the risk of an accident caused by slipping on an obvious oil spot on the trap door covering an elevator well in the floor of a loft of the factory in which he is working, yet, if he slips on the oil spot, after starting the elevator, and in consequence is unable to get off the trap door before the elevator rises and the door jams his leg against one of the uprights on which the elevator runs, his assumption of the risk of the oil spot as an obvious condition of his employment does not show that he was negligent, and, if in fact he did not know that the trap door was slippery and knew that the elevator moved very slowly, and if also his only means of access to the shipping rope by which the elevator was operated was by crossing the trap door, there is evidence that he was in the exercise of due care.</p> <p>An employee in a boiler factory does not assume the risk, although existing when he- first went to work in the place, of boilers being stacked on all four sides of a pair of trap doors covering an elevator well in the floor of a loft of the factory, so as to leave a passageway only two feet wide on the opposite side from the shipper rope by which the elevator is operated as the only means of access to that rope, making it necessary for an employee, in order to start the elevator*, to cross the trap doors, whicli are slippery with oil, and, after having pulled the rope to start the elevator, to return over the trap doors before the rising elevator throws them open.</p> <p>The rule that an employee assumes the risk of what is obvious in the building in which he voluntarily consents to work does not apply to a dangerous condition caused by carrying on the work in a negligent way.</p> <p>Where at the trial of an action the defendant at the close of the evidence asks for a ruling that the plaintiff is not entitled to recover, and the presiding judge refuses to make this ruling and submits the case to the jury, who return a verdict for the plaintiff, at the argument of an exception by the defendant to the refusal of the ruling, no question of pleading is open, and, if the plaintiff was entitled to go to the jury on any ground, it is not necessary to consider whether that ground was covered by the count on which the case was submitted to the jury.</p>

<p> Poor Debtor. Name. Notice. </p> <p>A notice under R. L. c. 168, § 33, issued at the request of a defendant arrested in a civil action and released on recognizance, and given to the plaintiff before the return day of the writ, in which the defendant is named as William Clarke Jewell, that “Clarke Jewell, defendant,” desires to take the oath for the relief of poor debtors, is a good notice although the defendant’s name is William Clarke Jewell, if the defendant frequently is called Clarke Jewell and “is accustomed to give an answer to that name.”</p> <p>Where a person is known by two names, either of them can be used in legal proceedings to which he is a party. It is not necessary that he should be known equally well by both names.</p> <p>Where a recognizance by a defendant arrested in a civil action is upon the condition “that the defendant named in said writ” will within fourteen days deliver himself up for examination before a magistrate, giving notice of the time and place thereof to the creditor, as provided in R. L. c. 168, if the writ has been returned into court and in it the defendant is named as William Clarke Jewell, which is his true name, whether a notice under R. L. c. 168, § 33, issued at the request of the defendant, that “ Clarke Jewell, defendant,” desires to take the oath for the relief of poor debtors, Clarke Jewell being a name by which the defendant also is known, would be a good notice, here was not considered, because the notice was given before the return day of the writ and when the writ was presumed to be in the hands of the officer.</p>

<p>Writ of entry, filed in the Superior Court for the county of Barnstable on May 20, 1903.</p> <p>The tenant filed an “ answer in abatement,” which was heard and overruled by Fessenden, J., and the tenant appealed. Without the filing of any further answer the case was heard upon an agreed statement of facto by Fessenden, J., who ordered judgment for the demandants; and the tenant appealed. The facts are stated in the opinion.</p>

<p>Equity Jurisdiction, To enjoin action at law, To reform contract in writing, Mistake. Agency. Equity Pleading and Practice, Appeal, Costs.</p> <p>At the hearing upon a bill in equity seeking to reform, and to enjoin the defendant from proceeding with, an action at law for the breach of a contract in writing for the sale by the plaintiff and the purchase by the defendant of a gas engine which was to satisfy certain requirements, which contract was signed by the plaintiff in his own name and by the defendant, but which the plaintiff alleged that he signed in liis own name by mistake and that it was understood between the parties to the contract that he signed as agent for a third party, the evidence consisted of the oral testimony of one witness and of various exhibits, and there was evidence from which a finding was warranted that the plaintiff treated the transaction between himself and the third party as one between buyer and seller rather than one between agent and principal, paying the third party for the engine before he was paid for it by the defendant, and himself paying to an agent a commission for procuring the sale. There also was evidence that the defendant did not intend the contract to be between himself and the third party, but to be as it was written. The judge dismissed the bill and the plaintiff appealed. Held, that the appeal should be dismissed with double costs to the defendant.</p>

<p>Negligence, Employer’s liability, In moving safe. Agency.</p> <p>At the trial of an action under R. L. c. 106, § 71, cl. 2, against an expressman by an employee to recover for personal injuries alleged to have been received by reason of negligence of a superintendent of the defendant, there was evidence tending to show that, under the general direction of one N., the plaintiff and four other employees of the defendant were assisting to move a safe weighing from twelve to fifteen hundred pounds up some steep stairs to the attic of a dwelling house, that boards were laid upon the stairs, the safe was wrapped in burlap and laid on its side upon the boards, a block and tackle were fastened to a board, which was placed three feet from the floor across an open doorway which stood hack eight feet from the top of the stairs, and then to a half inch rope which was wrapped three or four times around the safe; that thus the safe was being slid over the boards up the stairs when it stuck, and, without examining to see what caused it to do so, N. directed all the men to pull upon the rope together and himself took hold of the rope; that thereupon the rope around the safe broke and the safe fell upon the plaintiff. The presiding judge refused to order a verdict for the defendant. Held, that such refusal was correct, since there was evidence from which the jury were warranted in finding that the cause of the injury to the plaintiff was a negligent act of superintendence on the part of N.</p> <p>Where one, who has been in the employ of an expressman for six years but never has helped to move a safe upstairs except by hand, is assisting a superintendent and four other employees of an expressman in moving a safe of twelve to fifteen hundred pounds weight up some steep stairs in a dwelling house, has seen a half inch rope wound three or four times around the safe and the hook of a hoisting block and tackle fastened into the rope under the superintendent’s direction and, in response to his directions, has taken a position directly below the safe on the stairs and, the safe becoming stuck, with the other employees and the superintendent at the latter’s command has pulled upon the rope of the hoisting apparatus “ all together,” whereupon the rope around the safe breaks and the safe falls upon him, he cannot be said as matter of law either to have failed to exercise due care or to have assumed the risk of his injury.</p> <p>Where an employee is able to maintain an action against his employer under B. L. c.' 106, § 71, cl. 2, for injuries due to negligence of a superintendent of the employer, he also may maintain an action against the superintendent personally.</p>

<p>Banks. Clearing House. Bills and Notes, Rights of payor of check fraudulently procured from maker, Fictitious payee, Negligence of maker. Negligence. Proximate Cause.</p> <p>It is the duty of a bank, in making payment of a check of a depositor to an indorsee of the payee from funds of the depositor in its possession, to see that the signature of the payee of the check is genuine, and this duty is not affected by the bank’s adopting the conveniences of a clearing house system and making payments on the guaranty by another bank of the indorsement of the payee’s name.</p> <p>A depositor cannot recover from a bank money paid by the bank to the payee • named.in a check of the depositor, although the check was made without consideration and was procured from the depositor by the fraud of a third person, if the bank did not know of the fraud.</p> <p>An employee of a corporation conducting a large department store of eighty departments, by making use of a faulty system in vogue in the store and of the carelessness of the other employees and by numerous forgeries and misrepresentations on his part, procured from the proper officer of the corporation checks upon a bank where the funds of the corporation were deposited, some of the checks being payable to a person who was in existence but who was not one to whom the corporation owed anything or one who knew anything of the transaction, and others being payable to persons wholly fictitious. There were one hundred and seventy of such operations, extending over a period of about five years and involving about §50,000. The employee forged the names of the payees upon the checks and they were presented through a clearing house to the bank upon which they were drawn with the indorsement of the payee guaranteed by another bank, and "were paid by it from funds of the corporation there deposited. The initial perpetration and the continuance of the fraud and crime were made possible by violations of rules of the store by, and by negligence of, the store employees. The corporation conducting the store brought an action of contract against the bank for the amounts paid upon such checks. The bank contended that it was induced to pay the checks through negligence of the plaintiff. Held, that the negligence of the plaintiff was not the proximate cause of the checks being paid upon fraudulent indorsements, and that, the defendant having failed in its duty to see that the indorsements upon the checks were genuine, the action might be maintained.</p>

<p>Contract or tort, with a declaration in six counts. The case was submitted to the jury only upon the second, fourth and sixth counts. Writ in the Superior Court for the county of Essex dated February 6, 1906.</p> <p>The second count alleged a breach of the contract of June 4, 1903, set out below, and sought a return to the plaintiff of the sum of $15,000 therein mentioned, with interest from July 1, 1903.</p> <p>The fourth count alleged a breach of the contract of July 2, 1903, set out below, and sought a repayment to the plaintiff in accordance with its terms.</p> <p>The sixth count alleged that on June 4, 1903, “ there was in full force and effect a certain written contract entered into by and between the plaintiff and the defendant; that by the terms of said contract there was due to the plaintiff the sum of $15,000; that on July 2, 1903, the defendant induced the plaintiff to enter into an agreement which purported to be a modification of said contract of June 4,1903, by misrepresentations as to additional advantages which would accrue to the plaintiff if he would sign such modification of said contract of June 4,1903, and purported as a consideration to the plaintiff to give him an interest in certain foreign patents for an invention for folding collars, cuffs, etc., which the defendant then claimed to own; that the plaintiff, believing that the defendant did own said foreign patents, was induced to sign such modification of the contract of June 4, 1903, and did sign the same ; that the consideration of said modification of said contract was an interest in said foreign patents; that the defendant did not own any interest in such foreign patents, which he well knew and the said modification was without consideration, and not binding on this plaintiff, and the plaintiff is entitled to recover the sum of-$15,000 under the contract of June 4, 1903, and interest thereon since July 2, 1903.”</p> <p>At the trial, which was before Schofield, J., there was evidence tending to show that, previous to June 4, 1903, the plaintiff had been upon friendly business terms with the defendant; that the defendant had become interested in a machine designed for the folding of collars and cuffs, and had purchased at a receiver’s sale the assets of the .Fenwick Machine Company; that the plaintiff’s attention was called to this folding machine by the defendant, and he had certain conversations with the defendant in which the defendant made various representations to him. The result of their interview was the making of a contract, which was introduced in evidence and the substance of which is as follows :</p> <p>“This agreement made the fourth day of June, A. D. 1903, by and between George 0. Vaughn of Salem in the County of Essex and the Commonwealth of Massachusetts, party of the first part, and Thomas H. O’Shea of Peabody in the said County and the said Commonwealth, party of the second part, witnesseth: —</p> <p>“ That the party of the first part having . . . purchased at a Receiver’s sale duly authorized by the Court the entire rights in all Patents formerly owned by the A. D. Fenwick Machine Company, and also all Patent Applications, etc., etc., relating to machines for Folding Collars, Cuffs, etc., . . . and having since that date pushed forward to completion the improved Folding Machine, which machine has now been tested and found to be perfect in all its parts, and practical in its operation, and which machine is now being put into condition for shipment to Troy, N. Y., where it is to be put into practical operation, does hereby agree to sell to said party of the second part one-quarter of the amount of stock coming to him by virtue of the above named agreement by and between the party of the first part and A. D. Fenwick, which amount of stock is $297,500 of the capital stock of the Company which the party of the first part is to form under the said agreement between himself and A. D. Fenwick for $350,000 —for the sum of $15,000 paid to me this day, the receipt whereof is hereby acknowledged.</p> <p>“The party of the first part still further agrees that in case said machine fails to work satisfactorily after put in operation in Troy, New York, he will not form the Company above mentioned, and he agrees hereby if such is the case and he does not form the company, to refund to the party of the second part the said sum of $15,000.”</p> <p>The contract was signed and sealed by both parties and was witnessed by one Streamburg.</p> <p>Subsequent to the making of this contract, the plaintiff contended and introduced evidence tending to show that the defendant solicited him to go with him, the defendant, to Troy, New York; that on June 29, 1903, he went to Troy, but that the defendant did not go, but sent one Rood and one Perkins, who accompanied the plaintiff; that the plaintiff arrived at Troy on the morning of June 30 and examined the folding machine then set up and in operation, that he found that the machine was not a perfected machine, and was not a machine that could be put into practical operation and thereupon telegraphed to the defendant as follows : “ Don’t form company until I see you ” ; that he arrived in Salem on the morning of July 2, having left Troy on the afternoon of July 1; that he immediately called upon the defendant and asked him if he had received his telegram ; that the defendant admitted having received the telegram, but stated that he had formed a corporation ; that the plaintiff asked him why he had done so, and the defendant gave his reasons; that the plaintiff thereupon demanded the return of his money, and the defendant stated that if the plaintiff would remain in the company for three months more he would give him a half interest in foreign patents on folding machines. The defendant’s testimony as to this interview differed from the plaintiff’s, but that of the plaintiff tended to show that the defendant told him that if he would remain in the company, the defendant would give him an interest in his foreign patents, and that he had been informed previous to this time by the defendant that the defendant owned foreign patents. Thereupon the plaintiff and the defendant signed a contract, which was introduced in evidence, and was substantially as follows:</p> <p>“ In consideration of the contract entered into by and between Thomas H. O’Shea and George C. Vaughn on June 4, 1903, whereby Thomas H. O’Shea paid to George C. Vaughn, $15,000 "or 743% shares of the stock of the American Folding Machine Company to be delivered to him upon the formation of said company, ... it is now understood by and between the said Thomas H. O’Shea and the said George 0. Vaughn that the folding machine must still have some improvements to make it a commercial success.</p> <p>“ It is now agreed that if the machine is improved and perfected so it is a commercial success, and if the American Folding Machine Company, of which Mr. O’Shea is to be elected treasurer, is formed, the contract made between Thomas H. O’Shea and George C. Vaughn on June 4, 1903, stands good, and Mr. O’Shea is to receive the above mentioned number of shares as per contract referred to for the $15,000, cash paid in. But it is also understood that if, after experimenting, it is found that the machine can not be made a commercial success, said George C. Vaughn is to refund to Thomas H. O’Shea any portion of the $15,000 which is in excess of one-fourth of the amount that has already or will be expended by the said George C. Vaughn up to October 1, 1903, said amount to be according to the private books of George C. Vaughn, which books show the moneys actually expended in promoting the interests of the American Folding Machine Company.</p> <p>“ It is the intent of this agreement that on October 1, 1903, Thomas H. O’Shea has the option of either surrendering his stock in the American Folding Machine Company according to this agreement, and all agreements to become null and void, or of keeping the stock as per the contract made on June 4, 1903.</p> <p>“ The above agreement in regard to ‘ expenses ’ mentioned has nothing whatever to do with the plant which is being erected in Peabody.”</p> <p>This contract was not under seal. At the time of the making of it, the defendant wrote and delivered to the plaintiff on a separate piece of paper the following agreement, which was introduced in evidence:</p> <p>“Salem, Mass., July 2, 1903.</p> <p>“ The contracts made between Thomas H. O’Shea and myself cover any and all interest I have, or which I may obtain on all foreign patents on folding machines.</p> <p>“ George C. Vaughn.</p> <p>“ Witness: B. H. Streamburg.”</p> <p>It further appeared that, when the defendant received the telegram from the plaintiff on June 30, he had not yet formed the corporation, but that he did so before he saw the plaintiff on July 2, because he felt obliged to under the terms of a contract he had made with one Fenwick, which was referred to in his contract with the plaintiff.</p> <p>Other facts and such portions of the judge’s charge as are material are stated in the opinion. The jury found for the plaintiff on the second and the sixth counts; and the defendant alleged exceptions.</p> <p>' The case was submitted on briefs.</p>

<p>Damages, In tort.</p> <p>In an action against a corporation operating a street railway, for personal injuries from a collision of a car of the defendant, in which the plaintiff was being transported as a passenger, with another car of the defendant, from the evidence upon the question of damages, it appeared that the plaintiff was a young woman, who before the accident was healthy both in body and mind and cheerful in temperament and after the accident had become an invalid and morose and was subject to fits or spasms, during which she was more or less unconscious. There was evidence which would have warranted a finding that, by a proper and reasonable use of such will power as she had, the plaintiff could lessen the fits or spasms by improving her general tone, and that, if she resisted the impulse and did not “ let go of her feelings,” she could control the fits or spasms to a certain extent. The defendant asked the judge to instruct the jury that they “ must eliminate from consideration such of the plaintiff’s symptoms or demonstrations, if any, as could have been prevented by the exercise of such control as the plaintiff was capable of at the time of such symptoms or demonstrations,” and also to instruct them as follows : “If the jury believes that the plaintiff has had fits, spasms, or spells, since the accident, and if the jury also believes that the coming on of such fits, spasms or spells was always or sometimes under the plaintiff’s control in the sense that she could by the exercise of the will power or self control of which she was capable have always or sometimes prevented them from happening, had she wished to do so, then so far as that was the case she cannot recover for fits, spasms, or spells so preventable, or for their consequences.” The judge refused to give these instructions, and the jury returned a verdict for the plaintiff, assessing the damages in a large sum. On exceptions alleged by the defendant, it was held, that these instructions should have been given, and that there should be a new trial on the question of damages only.</p>

<p>Bill in equity, filed in the Superior Court on April 7, 1903, and amended on January 24, 1907, to restrain the defendant from manufacturing, selling or offering for sale, directly or indirectly, any parts for stoves or ranges manufactured by it or any person other than the plaintiff under the denomination of “ Sunshine” or “ Othello” parts for stoves and ranges, or marked with the letters “ S ” or “ SS,” used on such stove parts singly or in conjunction with various names to designate the variety of “ Sunshine ” or “ Othello ” stoves of which such stove parts are a portion, also for an accounting by the defendant for the profits made by it from the sale of fraudulent imitations of the plaintiff’s goods, and for further relief.</p> <p>-In the Superior Court the case was heard by Lawton, J., and the evidence was taken by a commissioner. It appeared that in 1876 the word “ Sunshine ” was registered by the plaintiff as a trademark under the laws of the United States. At the request of the plaintiff the judge made findings that the plaintiff had adopted and acquired a trademark in the word “ Sunshine,” that the plaintiff had adopted and acquired as a trade name the word “ Sunshine ” to designate as of its manufacture the goods made by it, and that the stove parts made and sold by the defendant in imitation of the plaintiff’s were not sold accompanied by any designation or statement plainly showing that the defendant’s stove parts were not of the plaintiff’s manufacture.</p> <p>The judge refused to find that the plaintiff had adopted or acquired a trademark or a trade name in the letters “ S ” or “ SS,” and refused to find that “ the defendants’ legitimate business can be properly conducted without giving their stove parts the distinctive misleading designation and appearance which they have.” He also refused to make other rulings or findings requested by the plaintiff. He refused to find that the defendant had been guilty of unfair competition, and made a final decree that the bill be dismissed with costs. The plaintiff appealed.</p>

<p>Undue Influence. Fraud. Probate Court. Evidence, Competency, Declarations of deceased persons, Privileged communications, Admissions by conduct. Attorney at Law. Practice, Civil, Conduct of trial.</p> <p>Upon issues as to the undue influence on the part of the respondent, framed for the jury at the trial of an appeal from a decree of the Probate Court upon a petition to that court to set aside a former decree whereby the son of the respondent by a former wife was adopted by the woman then the respondent’s wife, since deceased, the petitioners, being the heirs and next of kin of such wife last deceased, introduced evidence to show that the deceased was the beneficiary of a large amount of property, most of which was held in trust for her benefit and on her death for her heirs at law exclusive of her husband, that she was a nervous invalid and that the respondent was her physician, -that the respondent wished to get possession of her money and to use it for his own purposes, that he undertook to accomplish this by inducing her to marry him and to adopt his son, that he first induced her to marry him and then exerted a dominating and controlling influence over her, exercised when necessary with severity and cruelty, and continued to exert this influence until the time of her death, thereby compelling her to adopt his son and thereafter preventing her from taking steps to avoid the adoption. On exceptions to the admission of evidence during the trial against the objections of the respondent, it was held, that the conduct of the respondent toward his wife from the time of his first acquaintance with her, which was four or five years before the adoption, and his conduct afterwards through their whole married life were competent for the consideration of the jury, also that the oral declarations of his wife and her writings relating to the matters in dispute were admissible under R. L. c. 175, §§ 66, 67.</p> <p>Where circumstantial evidence largely is relied upon to establish a contention, many matters properly may be allowed to be introduced in evidence which alone would be immaterial but which in connection with other evidence may be helpful in disclosing the truth.</p> <p>Upon the issue whether the husband of a woman, since deceased, exercised undue influence in inducing her to adopt as her child his son by a former wife and afterwards prevented her from taking steps to avoid the adoption, an attorney at law may be allowed to testify that the deceased asked him to tell her brothers after her death that the adoption was not her free act and deed, that it was brought about by ill treatment, coercion and duress on the part of her husband, and that she did not want it to stand, and to testify that the witness prepared an affidavit for her which she signed and swore to before a notary, and a will in which she said, “ I now declare that said adoption was not made by me of my free will and choice but was forced upon me by my husband by threats of abandonment and I believe it was so forced upon me in order that said . . . [the husband’s son] might claim as my heir the residue under a certain trust set. tlement,” and also to testify that the affidavit contained in substance the same statement, because, it seems, that in such a case the reason for excluding private communications from a client to an attorney does not exist, and, at any rate, the request of the deceased that the statement made by her should be communicated to her brothers after her death contains an implied waiver of any privilege.</p> <p>It is within the discretionary power of a trial judge to allow a document, which has been admitted properly as competent evidence, to be taken to the jury room.</p> <p>The fact that a party to a suit causes relevant and material evidence to be excluded by insisting on his privilege to have it excluded as a private communication made to an attorney at law by a person under whom he claims, instead of waiving that privilege and allowing the evidence to be admitted, may be commented on by the" counsel for the opposing party in addressing the jury as being an admission by conduct.</p>

<p>Tort, against Albert M. Kanrich and Mary Kanrich jointly,, to recover for an alleged joint assault on the plaintiff, a minor,, who brought the action by her next friend. Writ in the Municipal Court of the City of Boston dated October 22,1907.</p> <p>In the Municipal Court the judge found for the plaintiff against the defendant Mary Kanrich in the sum of $350, and found for the defendant Albert M. Kanrich. Judgment Was entered for the plaintiff against the defendant Mary Kanrich for $350 damages and $23.55 costs.</p> <p>On the same day judgment was entered for the defendant Albert M. Kanrich with costs to him of $22.87, From this last named judgment the plaintiff appealed to the Superior Court.</p> <p>In the Superior Court the defendant Albert M. Kanrich made a motion to dismiss the appeal, which was denied by Be Oourcy, J., and the defendant Albert M. Kanrich appealed from the order of the judge denying his motion. At the request of the defendant Albert M. Kanrich the judge reported the case for determination by this court. If the denial of the motion to dismiss the appeal was correct, the case was to be remanded to the Superior Court for further proceedings; if it was incorrect, judgment was to be entered for the defendant Albert M. Kanrich.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 13, 1908, by more than ten taxable inhabitants of the town of Revere under R. L. c. 25, § 100, against the Revere Water Company, a corporation, the town of Revere, the treasurer of that town, the members of the board of water commissioners of that town, and such holders of the water loan bonds of the town of Revere as might thereafter become parties. The prayers of the bill were as follows:</p> <p>1. That the contract of sale and purchase of all the property of the Revere Water Company dated April 15,1904, between that company and the committee on water supply, purporting to act for the town of Revere, and the deed of conveyance dated April 1, 1905, from the Revere Water Company to the town of Revere be declared null and void.</p> <p>2. That the town of Revere water loan bonds issued April 1, 1905, by the town of Revere, as voted by said town in the adjourned meeting assembled on January 2, 1905, be declared null and void.</p> <p>3. That the defendant the Revere Water Company be ordered to repay to the town of Revere the amount of money received by the defendant company from the town in payment of interest and in redemption of certain of said bonds.</p> <p>4. That the defendants the town of Revere and G. Arthur Tapley, the town treasurer of Revere, and his successors, be forever enjoined and restrained from making further payments of interest or principal of said bonds, and from further issue of said bonds under authority of St. 1904, c. '457.</p> <p>5. That the defendants the Revere Water Company, the town of Revere, and Lemuel K. Washburn, Alfred S. Hall, and Arthur B. Curtis, water commissioners of the town of Revere, and their successors, be enjoined and restrained from any further action in reference to the contracts and deeds relating to this property except as ordered by the court, or from in any way interfering with reference thereto.</p> <p>6. That the defendant the Revere Water Company, its officers, agents and attorneys, be enjoined and restrained from negotiating any of said bonds now in its or their possession.</p> <p>7. That a temporary injunction be granted.</p> <p>8. That a receiver be appointed to take possession of the plant, pipes and distributing apparatus of the defendant the Revere Water Company described in the deed to the town of Revere, and to maintain and operate the same, collect water rates and do all other necessary acts in the premises for the benefit of all the parties as their interests may subsequently be adjudicated, or until the further order of the court.</p> <p>The several defendants demurred to the bill for want of equity and on the ground of loches.</p> <p>The case was heard upon the demurrers by Rugg, J., who made a final decree ordering that the demurrers of the several defendants be sustained and that the plaintiffs’ bill be dismissed without costs. The plaintiffs appealed. The character of the allegations of the bill appears sufficiently in the opinion.</p>

<p>Complaint, received and sworn to in the Municipal Court of the City of Boston on March 21,1908, alleging that the defendant, “ not having been admitted to practise as an attorney and counsellor at law in accordance with ” R. L. c. 165, “ did, by means of a certain letter-head, represent himself to be an attorney and counsellor at law, and lawfully qualified to practise in the courts of said Commonwealth; which said letter-bead is of the tenor following, that is to say:</p> <p>“ Law, Collections & Adjustments.</p> <p>Claims Collected by Suit or Demand Everywhere. Special Attention Given to Accident Claims and all Other Causes for Civil Damages.</p> <p>A Lawj-er Retained in every City and Town in the United States and Canada to Prosecute and Adjust Claims in and out of Court.</p> <p>G. Osborne-Grant, LL. B., Late First Assistant Attorney in the Office of The Hon. Judge Harvey D. Hadlock, Attorney and Counsellor at Law,</p> <p>Boston, U. S. A.</p> <p>Formerly Attorney General-elect of the Principality of Trinidad, South America, Under Baron Harden-Hickey, the Founder of the Principality.</p> <p>Legal Counsel in the United States for the Guianese Junta.</p> <p>Cable Address: “ Guiana, — Boston ”</p> <p>z'Watkin’s Code. A. B. C. Code 4th & 5th Edition. Lieber’s Code. Western Union Code. VA1 Code.</p> <p>Telephone Connection.”</p> <p>Codes:</p> <p>The bill of exceptions states: “ The evidence introduced in behalf of the Government was as follows: A letter-head used in his business correspondence by the defendant, identical with the letter-head set forth in the complaint, excepting the omission of a comma after the surname Hadlock. It was admitted by the defendant that he was not an attorney at law duly qualified to practise in the Commonwealth of Massachusetts. The defendant introduced no evidence in his behalf, but pleaded not guilty.”</p> <p>At the close of the evidence, the defendant asked the presiding judge to direct a verdict for the defendant, assigning the following reasons therefor: (1) that the Commonwealth had not produced sufficient evidence to support the offense charged in the complaint as a matter of law; (2) that there was a variance between the alleged letter-head set forth in the complaint and the letter-head in evidence, in that there was a comma inserted after the word or name “ Hadlock ” in the complaint which did not appear in the letter-head in evidence, and that the defendant was prejudiced thereby ; (3) that the Commonwealth had not shown in evidence a letter-head in which the defendant held himself out as an attorney at law qualified to practise in the courts of the Commonwealth.</p> <p>The presiding judge refused to rule as requested and, in the language of the bill of exceptions, “ after proper instructions by the court to the jury, the evidence was given to the jury.” The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>In an employment where mere manual labor is required and there is no occasion for the exercise of discretion by the workmen nor any expectation of their cooperation with one another, it is no evidence of negligence on the part of the employer that he employs laborers of divers tongues, who cannot understand one another’s speech, to work in company with one another, distinguishing Beers V. Isaac Prouty Co. 200 Mass. 19.</p> <p>At the trial of an action by an experienced workman against his employer, an iron and steel company, for personal injuries received by him while assisting in forming a piece of lead and alleged to be due to the incompetence of a fellow workman, there was evidence tending to show that the plaintiff was holding with tongs a piece of lead for three fellow workmen to strike with sledge hammers, that one of the fellow workmen could not understand English, that the plaintiff held up his hand for the others to stop striking and said in English “ Hold on a minute,” and proceeded to take hold of the lead with his hands to change its position, that two of the fellow workmen ceased striking as directed, but that the one who did not understand English did not stop, and struck the plaintiff’s hand with the sledge. There also was evidence tending to show that the fellow workman who struck the plaintiff had been hired by the defendant a week before the accident “ to help painting, and carry iron, and striking, and acting as helper.” Held, that inability on the part of such fellow workman to understand English did not under the circumstances constitute such incompetence as to render the defendant as a matter of law negligent in employing him with knowledge of that fact for the work which he was doing.</p>

<p>Tort for personal injuries received by the plaintiff while in the defendant’s employ, as stated in the opinion. Writ in the Superior Court for the county of Norfolk dated January 1, 1906.</p> <p>There was a trial before Crosby, J. The material facts are stated in the opinion. At the close of the evidence, the defendant asked the presiding judge to rule, (1) that upon all the evidence in the case the plaintiff could not recover; (2) that the plaintiff could not recover on the first count of the declaration [which was the only count upon which the case was submitted to the jury]; (6) that the danger of pieces of metal flying from the chisel was one of the ordinary risks of the employment which the plaintiff assumed; (8) that, if the jury find that the incompetence of Handy [a fellow workman] was the cause of the accident, the plaintiff assumed the risk of his incompetence and could not recover. The judge refused to rule as requested, the jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, for services as an architect. Writ in the Superior Court for the county of Suffolk dated November 30, 1897.</p> <p>The case was referred to George L. Huntress, Esquire, under the following rule:</p> <p>“ Rule to Referee.</p> <p>“ And now the Parties appear and agree to refer this action to the determination of George L. Huntress, Esq.</p> <p>“ Report to be filed on or before September 30, 1906, judgment thereon to be final and execution to issue accordingly; and if either party neglects to appear on due notice, then the referee-to proceed ex parte.”</p> <p>In his report, the referee found in substance that the defendant, having in view the purchase of certain land and having the intention to build thereon, requested the plaintiff, an architect, to prepare a sketch of such buildings as the defendant desired. The plaintiff thereupon made sketches which were approved by the defendant. During the progress of the sketches the defendant told the plaintiff that one Bassett was to become the owner of the land and the builder of the houses. Upon the plaintiff’s objecting to making plans for Bassett, of whose financial responsibility he felt uncertain, the defendant said to the plaintiff, “ I will arrange for your payment,” and told the plaintiff to arrange the price of the plans with Bassett. Later the plaintiff arranged the price with Bassett, but in the meantime the defendant had received a conveyance of the land. After the arrangements between Bassett and the plaintiff had been made, the defendant conveyed the land to one Thomas instead of to Bassett, the plaintiff not knowing of the change of the defendant’s arrangement but proceeding with his work on the plans.</p> <p>Upon learning of the fact that the title to the land was in Thomas, the plaintiff prepared in writing a statement of the times when he should be paid instalments of the price for his plans as arranged for between him and Bassett and handed it to the defendant in Bassett’s presence. A week later in the plaintiff’s presence the defendant handed the statement to Bassett and asked him if the terms named for the payments were satisfactory. Bassett said they were, and thereupon in the presence of the defendant and of the plaintiff wrote below the" statement and signed the following order :</p> <p>“ Mr. Braman, Dear Sir: Please pay the above payments to Mr. Darrow on the 8 houses on Beacon St. Wm. Bassett.</p> <p>“ Boston, May 25th.”</p> <p>The plaintiff thereupon handed the completed paper to the defendant, who read it, said “ All right ” and put it in a pigeonhole in his desk.</p> <p>The report continued: “I find that the defendant by what he said at the time this order was presented to him, and by what he did subsequently with the order, accepted the order and became responsible for the payments as enumerated,” and he found that the defendant owed the plaintiff the amount claimed in the declaration.</p> <p>A passage in the report referred to in the opinion was as follows: “ Under the terms of the reference, my findings are to be final, but this I understand to mean that my findings are not to be final if upon the facts reported they are manifestly erroneous, and therefore I deem it only fair to the defendant to go more fully into the defendant’s contention than I should do if I were submitting my report as auditor.” Following this passage, there was a detailed statement of the contention made by the defendant before the referee as to what conclusions of fact should be reached upon the evidence, and a statement by the referee of his reasons for not being controlled by the contention. It did not appear that the defendant in his argument raised any question as to the promise of the defendant being within the statute of frauds.</p> <p>After the report was filed, the defendant moved for leave to amend his answer by adding an allegation that the contract “ was a special promise to answer for the debt, default or misdoings of another, that said contract was not in writing, and that no memorandum or note thereof was made in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized, such as is required by B. L. c. 74.” The motion was denied by LeQourey, J.: and the defendant appealed.</p> <p>A motion of the defendant for judgment also was denied by the same judge; and the defendant appealed.</p> <p>A motion of the plaintiff for judgment was allowed by Richardson, J.; and the defendant appealed.</p>

<p>Contract on an accident certificate insuring against disability caused by certain specified accidents. Writ in the Municipal Court of the City of Boston dated April 16, 1906.</p> <p>On appeal to the Superior Court the case was tried before Lawton, J. At the trial the following facts appeared:</p> <p>One of the conditions on which the defendant agreed to pay the sums specified in the certificate was stated in these words: “ Unless notice of said disability shall be given in writing to the Home office of the company at Boston, Mass., within two weeks of the commencement of the disability or death, together with full particulars thereof, all claim under this certificate shall be forfeited.”</p> <p>On December 26,1905, the company received at its office in Boston a letter from the plaintiff, written at San Francisco, dated December 20, notifying it of “ an accident at Lundy, California, on the 6th inst.” On the receipt of this letter the company mailed to the plaintiff a blank form for a preliminary statement unaccompanied by any letter. This blank began in these words:</p> <p>“Mr. A. Everard McCord.</p> <p>“Dear Sir: — Having received notice of your intention to claim compensation under your certificate for injuries just received, we enclose herewith forms, requesting that you attend to the execution of the same with as little delay as possible, returning these papers to this office within seven days from this date at the latest. The furnishing of these forms must not be construed as the admission of any claim.</p> <p>“ No claim can be entertained without the certificate of a duly qualified and registered surgical practitioner.</p> <p>“ Yours respectfully,</p> <p>“ William H. Knapp, Secretary.</p> <p>“ Note. — This blank is not intended for final proof, and where the disability is likely to continue for a considerable time, a blank will be mailed to enable the claimant to make final proofs, unless settlement shall be made on receipt of this blank.”</p> <p>This blank was filled out by the plaintiff and mailed to the defendant. It was received on January 8. On the next day the defendant, by its secretary, wrote to the plaintiff a letter in which it set forth the above provisions and then continued in these words: “ You state that your accident occurred Dec. 6, 1905, whereas, notice was received by the company Dec. 26, 1905, therefore, we can only say that we see no way in which we can possibly allow your claim much as we regret that you did not come within the provisions of your certificate.”</p> <p>It was admitted at the trial, if material, “ that notice of an accident is received from any source, formal or informal, by postal, telephone, telegraph or letter from the injured party or from a third person indifferently. That upon any such notification, whether within the stated period of two weeks or later, it is the invariable custom of the company to send out the blank form for 6 preliminary statement.’ ”</p> <p>The judge refused to rule that notice was not given within the time limited in the certificate. He found as a fact that the defendant waived the requirement as to the time of giving notice, and reported the case for determination by this court. If on the facts the plaintiff was entitled to recover, judgment was to be entered for him in the sum of $140, with interest from the date of the writ; otherwise, judgment was to be entered for the defendant.</p>

<p>Tort for personal injuries received in the afternoon of September 26,1906, while the plaintiff was at work doing certain painting under a contract with the defendant in an unfinished gymnasium in the basement of the Fessenden Schoolhouse in Hewtonville. Writ dated August 14, 1907.</p> <p>In the Superior Court the case was tried before Fox, J. At the close of the plaintiff’s evidence the defendant asked the judge to order a verdict for the defendant. This the judge refused to do, and submitted the case to the jury, but, at the request of the parties, he instructed the jury to return a verdict for the plaintiff in the sum of $5,000, and reported the case for determination by this court. It was agreed that, if it should be found that the judge was wrong in' submitting the case to the jury, judgment was to be entered for the defendant; otherwise, judgment was to be entered upon the verdict for the plaintiff.</p>

Bill in equity, filed in the Superior Court on July 28,1908, alleging that the individual defendants, Henry J. Bigelow, Lewis H. Bigelow and Samuel B. Bigelow, were indebted to the plaintiffs in the sum of $3,488.21, for the balance due upon a promissory note, of which a copy was attached to the bill, that the individual defendants were the children and only heirs at law of Jonathan Bigelow, late of Lexington, deceased, who during his lifetime was a member of the defendant…

<p>Petition, filed on January 20, 1906, to enforce a mechanic’s lien for lumber furnished by the petitioner and used in the construction of a dwelling house of the respondent in that part of Chicopee called Chicopee Falls.</p> <p>In the Superior Court the case was referred to James L. Doherty, Esquire, as auditor, who filed a report, in which appeared the material facts which are stated in the opinion. Later the case was heard by Wait, J., upon the auditor’s report. The respondent asked the judge to make the following rulings:</p> <p>1. That no notice in writing was given to the owner of the premises sought to be charged, as required by R. L. c. 197, § 3, and. that the petitioner is not entitled to maintain its petition.</p> <p>2. That a written notice to John D. Sullivan [the husband of the respondent] did not create a lien in favor of the petitioner against the property of the respondent.</p> <p>The judge refused to make these rulings. He sustained the lien for the amount found due by the auditor and ordered a sale of the premises in.order to satisfy the lien, subject to a mortgage of the Chicopee Falls Savings Bank. The respondent alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a woman employed in a laundry against the proprietors of the laundry, two copartners, one of whom acted as superintendent, for personal injuries incurred while in their employ, if there is evidence that the plaintiff sometimes had been put at work npon a machine, which then was out of order and was not in operation, and that the plaintiff was pointing out to the defendant who acted as superintendent what she regarded as defects in this machine, in order that he might have them remedied, and for this purpose had placed her hands near or upon the rollers, when the machine in some way was started by the defendant superintendent allowing some portion of his body or clothing to hit against the shipper by which the belt was shifted, and the rollers thus were set in motion, causing the plaintiff’s hand to be drawn in and lacerated, the questions of the negligence of the defendants and of the due care of the plaintiff are for the jury.</p> <p>A woman employed in a laundry who is calling the attention of her employer, while he is exercising superintendence, .to alleged defects in a machine, which then is not in operation, and in doing so puts her hands near and upon the rollers in order to point out what should be done to them and their coverings, does not assume the risk of an injury caused by her employer negligently starting the machine so that one of her hands is caught and drawn in by the rollers.</p>

<p>Negligence, Street railway, In use of highway, Automobile, Wanton negligence of defendant.</p> <p>At the trial of an action against a street railway company for damage alleged to have been caused to an automobile of the plaintiff by an electric car of the defendant running into it on account of the negligence of the motorman of the car, it appeared that at the time of the collision the automobile was stalled on the street railway track which was at the side of, and outside the travelled part of, the highway, that the collision occurred on a dark night; and there was evidence tending to show that both the rear and the front lights of the automobile were lighted, that the motorman of the electric car could have seen the automobile while still five hundred feet distant from it, that the car was being run from twenty-five to thirty miles an hour and that its speed was not noticeably lessened until the time of the collision. Held, that it could not be said as matter of law that the motorman was not negligent, since the jury were warranted in finding that he either saw or in the exercise of proper diligence ought to have seen the automobile when he was far enough from it to have avoided the collision. Held, also, that there was no evidence of such wanton negligence on the part of the motorman as would enable the plaintiff to recover for personal injuries sustained in the collision to which his own negligence contributed.</p> <p>At the trial of an action against a street railway company for personal injuries received by the plaintiff, a woman, and alleged to have been caused by an auto, mobile, in which the plaintiff was, being negligently run into on a dark night by an electric car of the defendant, it appeared that the automobile was the property of the plaintiff’s husband, that it had become stalled upon the street railway track without fault of the plaintiff or of her husband and that just before the collision the husband was “ cranking ” it and trying to cause it to run while the plaintiff remained seated in it, and that both the front and rear lights of the automobile were lighted; that, when the car was seven hundred feet distant, the plaintiff saw the car coming and that it was being run at a negligently high rate of speed and called her husband’s attention to those facts, but continued in her seat until the car was about a hundred feet away, when she stood up and waved her hand to the motorman but did not leave the automobile. The plaintiff in her testimony assigned as her sole reason for not leaving the automobile her expectation that the car would stop. Held, that the plaintiff could not recover, since as a matter of law she was not in the exercise of due care, it being impossible to avoid the conclusion that she chose to put all the responsibility for her personal safety upon the defendant’s motorman, which under the circumstances she was not warranted in doing.</p>

<p>Petition, filed in the Land Court on May 11, 1908, for the registration of the title to land bounded by Chambers and Barton Streets in Boston.</p> <p>The petition was heard by Davis, J. It appeared that the land in question formerly was owned by one John L. Jenks, who had died and by whose will, which was dated March 15,1887, it was devised to his widow for her life or as long as she remained his widow. Further disposition of the land was made in the following clause of the will:</p> <p>“ But in case of the death of my said wife, I then give devise and bequeath to my niece, Sarah Elizabeth Jenks, daughter of my brother, Thomas L. Jenks, all of my estate of every kind and character to hold and enjoy during her natural life, and to her progeny if any, but in case she dies without issue, then I give, devise, and bequeath the same to my heirs at law. Provided however, if my said wife declines to accept the provisions made for her support in this my last will and testament, but seeks recourse in the courts for allowance and dower, and the same shall have been set apart by a decree of said court, the balance of said estate shall go to my said niece, Sarah Eliza — Jenks, as provided above.”</p> <p>Sarah Elizabeth Jenks conveyed the land described in the petition to one who conveyed it to the petitioner.</p> <p>The petitioner contended that under the will Sarah Elizabeth Jenks had an estate tail, which was barred by her deed; but the judge ruled that she “ took a life estate only and not a fee, and that therefore the petitioner has not a title proper for registration,” and dismissed the petition. The petitioner alleged exceptions.</p> <p>The case was submitted on briefs.</p>

Tort for personal injuries alleged to have been caused by the defendant’s negligently driving a horse and buggy into collision with a buggy in which the plaintiff was. Writ in the Superior Court for the county of Middlesex dated September 18, 1906.

<p>Negligence, Of driver of and of postal clerk upon mail wagon.</p> <p>At the trial of an action by a mail clerk against one, who was under contract with the United States to carry mail from the post office in Boston to a railroad station, for injuries alleged to have been received by the plaintiff while, in the performance of his duties, he was on the seat of a mail wagon, and to have been caused by the negligence of the driver of the wagon, an employee of the defendant, there was evidence tending to show that the mail was to be delivered at the railroad station under a shed with a roof supported by horizontal beams so low that one could not sit up straight on the wagon seat and pass under them, that the plaintiff was familiar with this state of affairs, that on former occasions the driver had stopped before entering the shed for the plaintiff to get down from the wagon and then had backed the wagon into the shed, but that on the occasion of the accident to the plaintiff he told the plaintiff to stoop down, which the plaintiff did, and then drove ahead under the beams without backing and stopped, that, after the wagon had stopped, the plaintiff raised his head to get down, when the team started forward and the plaintiff’s head came in contact with a beam, causing the injuries complained of. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the driver.</p>

<p> Statute of Limitations. Deceit. </p> <p>Where a prospective purchaser of land, by falsely and fraudulently representing to the owner that no broker had brought the matter to his attention and that therefore the owner would not have to pay a broker’s commission if he purchased the land, induced the owner to agree in writing to sell the land to him for a price less than that for which it would have been sold if the owner had had to pay a broker’s commission, and the agreement was carried out, the owner had a cause of action against the purchaser which became complete upon the making and carrying out of such agreement, and which, under R. L. c. 202, § 2, cl. 2, became barred in six years from that time, although the owner was not compelled to pay a judgment in an action against him by the broker for his commission until three years after the sale of the land had been consummated.</p> <p>The facts that, shortly after the owner of land has been induced to sell it at a price which was a reduction from the price for which he formerly had offered it, caused by false and fraudulent representations by the purchaser to the effect that no broker had been concerned in the matter in any way, a broker in whose hands the owner had placed the land for sale demands his commission and informs the owner that he procured the purchaser, but, upon the owner’s stating that fact to the purchaser, the latter repeated his false statement and, in an action by the broker against the owner for a commission, testified to the same effect, will not warrant a finding that the purchaser fraudulently concealed from the owner the owner’s right of action in deceit against the purchaser, or under R. L. e. 202, § 11, allow such action to be brought more than six years after the time when the cause of action became complete.</p> <p>Under R. L. c. 202, § 11, providing that, if a person who is liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person who is entitled to bring it, the period previous to the discovery of his cause of action by the person who is so entitled shall be excluded in determining the time limited for the commencement of the action, full means of detecting the fraud by which the cause of action is concealed under circumstances calling for an inquiry is equivalent to knowledge of the cause of action.</p>

<p>Two PETITIONS, filed on January 9, 1909, respectively by Samuel C. Logan and John J. Sullivan, both against the mayor and aldermen of the city of Lawrence, and also respectively against one Charles R. Yose and one William A. Schenck, for writs of mandamus commanding the respondent mayor and aider-men to restore the respective petitioners to the office and duties of assistant marshal of Lawrence, a position of rank in the police force of that city, and commanding the respondents Yose and Schenck respectively to surrender such office to the respective petitioners and to refrain from interfering with the discharge of the duties of such office by them respectively.</p> <p>The cases were submitted together upon an agreed statement of facts to Sheldon, J., who reserved the questions of law arising on the petitions, the answers and the agreed statement of facts for determination by the full court.</p>

<p>Contract, Making, Rescission. Trust, Termination, Removal of trustee.</p> <p>Three women owning eighty-four out of the total of one hundred of the common shares of the capital stock of a corporation, one of whom held fifty-two shares, conveyed seventy-five of the shares to a trustee, to hold for three years, in order that he might negotiate the sale of preferred stock of the corporation, without voting power, the issuing of which had been authorized. The trustee was unsuccessful in disposing of the preferred stock, and was asked by the holder of the fifty-two shares to give up the trust. He stated that he would do so, if a writing requesting him to resign signed by all three of the women who had conveyed the shares to him was presented to him. Such a writing was prepared and was signed by all three of them and this was presented to the trustee, but before its presentation one of the signers telephoned to the trustee “ to do nothing about the paper until he heard from her,” and had written to him a note retracting her signature and stating that she had signed “ under a misapprehension and a misrepresentation.” It appeared afterwards that her signature had not been obtained by misrepresentation and that she had signed the writing with a full knowledge of the facts. In a suit in equity by the holder of the fifty-two shares of the stock praying for the termination of the trust, the plaintiff contended that she was entitled to a decree for the cancellation of the indenture of trust on the ground that there was a completed agreement of rescission. Held, that the trustee’s offer to resign, if a writing requesting him to do so signed by the three shareholders was presented to him, never was accepted, one of the three signers having withdrawn her request before the writing was presented to the trustee, although physically she had not removed her signature.</p> <p>In a suit in equity by a woman holding fifty-two out of the total of one hundred of the common shares of the capital stock of a corporation, seeking the cancellation of an indenture of trust by which she and her two sisters, holding together eighty-four common shares of the corporation, conveyed to the principal defendant as trustee seventy-five of the shares, to hold for three years, in order that the principal defendant as such trustee, under a contract which he had made with the corporation, might negotiate the sale of preferred stock of the corporation, without voting power, it appeared that the defendant was unsuccessful in his attempt to sell the preferred stock and admitted his inability to do so, but that no action had been taken by the corporation or by the directors in its behalf rescinding its contract with the defendant, and that the plaintiff had discontinued her suit as against the corporation, which originally had been made a defendant, and did not seek to have the contract between the corporation and the principal defendant rescinded on the ground that that defendant had control of the corporation and that the directors or a majority of them were acting with him. It further appeared that the plaintiff’s sisters did not join with her in asking for a cancellation of the indenture. By an amendment to her bill the plaintiff had added her two sisters as parties defendant and had alleged misconduct of the principal defendant as trustee and prayed for his removal. Upon this branch of the case it appeared that the defendant, by means of holding as trustee seventy-five out of the one hundred shares entitled to vote, had elected himself president and had continued himself in that office and had voted and caused to be paid to himself an unearned salary of $5,000 a year. Held, that there was no ground for the cancellation of the indenture of trust, even if the plaintiff’s sisters had joined in asking for it, but that the plaintiff was entitled to a decree removing the principal defendant from his position of trustee for misuse of his control of the corporation, and ordering him to assign the shares held by him as trustee to their original owners; and that the fact that, the trust being a personal one, the incidental effect of the removal of the trustee would be to terminate it, was not inconsistent with the decision that there was no ground for cancelling the indenture of trust.</p>

<p>Tort, against James R. Baxter, a contractor, and Warren Brothers Company, a corporation, also a contractor, for personal injuries as stated in the opinion. Writ in the Superior Court for the county of Suffolk dated November 18, 1905.</p> <p>The case was tried before Aiken, C. J. There was evidence tending to show that the defendant Baxter had been a contractor for about eleven years, that he did the work described in the opinion under an agreement with the defendant Warren Brothers Company by the terms of which the latter paid him by the square foot for work done, that he paid and directed his own men, and that a superintendent of Warren Brothers Company occasionally would visit the work to ascertain whether Baxter was performing it according to specifications.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the defendants respectively requested that verdicts be ordered in their favor, but the presiding judge, subject to the defendants’ exceptions to his ruling, refused to do so, and submitted the case to the jury under instructions not otherwise excepted to. The jury found for the plaintiff against both the defendants; and the defendants severally alleged exceptions.</p> <p>The case was argued at the bar in November, 1908, before Knowlton, C. J., Morton, Hammond, Braley, & Bragg, JJ„ and afterwards was submitted on briefs to all the justices. ¡</p>

<p>Negligence,'Causing death, Liability under law of another State. Conflict of Laws. New York.</p> <p>An administrator, appointed in this State, whose intestate while domiciled here was instantly killed in New York by reason of the negligence of a railroad corporation, may maintain an action here against such corporation under statutes of the State of New York which provide that the administrator of one, who has died leaving a husband, wife or next of kin surviving him, may maintain an action to recover damages for a wrongful act, neglect or default of a person or corporation by which the decedent’s death was caused in any case where such person or corporation would have been liable for the injury if the decedent had survived, that the damages to be recovered are “ exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when . . . collected, . . . must be distributed ... as if they were unbequeathed assets, left . . . after payment of all debts, and expenses of administration. But the plaintiff may deduct . . . expenses of the action, and his commissions . . . which must be allowed by the surrogate, upon notice ”; that “ the damages awarded . . . may be such a sum as the jury, on a writ of inquiry, or upon a trial, or, where issues of fact are tried without a jury, the court or the referee deems to be a fair and just compensation for the pecuniary injuries, resulting from the decedent’s death, to the person or persons, for whose benefit the action is brought ”; that interest shall be awarded upon the damages so assessed from the decedent’s death, and that "the inquisition, verdict, report, or decision, may specify the day from which interest is to be computed.”</p>

<p>Equity Pleading and Practice, Bill, Decree. Equity Jurisdiction, Regarding internal affairs of corporation. Corporation, Jurisdiction of court of equity to control internal affairs, By-laws, Religious corporation. Religious Society. Mandamus. ,</p> <p>A bill in equity by seven members of a religious corporation, who allege that they bring the suit in behalf of themselves and of other members and of the corporation, against twenty-three individuals, the prayers of which are that one of the plaintiffs, who is alleged to have been expelled from the corporation illegally, be restored to membership, that others of the defendants, who are alleged to have been elected to membership illegally, be restrained from exercising rights as members, that some of the defendants, who are alleged to have usurped certain corporate offices, be restrained from interfering with the corporate prop- ■ erty, that others of the defendants, who are alleged to have interfered with the plaintiff in carrying on in a building owned by the corporation a form of worship which the plaintiff's contended was the only form allowed under the by-laws of the corporation, be restrained from further interference, and that one of the defendants, who is alleged to have had charge of certain financial transactions for the corporation and to have refused to account with it, be ordered to account, and that a mortgage of the land of the corporation held by him be redeemed, is multifarious.</p> <p>The remedy to test the validity of the expulsion of a member of a religious corporation from the use of the privileges and the exercise of the rights of a member is by mandamus, and not by a bill in equity.</p> <p>The remedy to test the validity of the election to and acceptance of membership in a religious corporation is by mandamus and not by a bill in equity.</p> <p>The remedy to test the title of officers of a religious corporation, who are alleged to have usurped authority, is by mandamus and not by a bill in equity.</p> <p>A by-law adopted by a religious corporation organized under the provisions of R. L. c. 125, and of c. 36, § 5, for the establishment of a synagogue for the public worship of God in accordance with the principles and doctrine of the Hebraic religion, which provided that the divine services of the congregation should be strictly in accordance with the ritual of one sect of Hebrews and that the by-law should not be changed except by unanimous vote at a special meeting of the corporation, is unreasonable and inconsistent with the legal right of the members of the corporation to control its affairs, and a bill in equity cannot be maintained to enforce such a by-law by enjoining members other than the plaintiffs from interfering with services in accordance with the ritual which it specifies, if it appears that a majority of the members of the corporation, at a regular meeting of the members and also at a special meeting subsequently called to “ finally pass ” upon the matter, by a proper vote changed the form of worship of the corporation.</p> <p>Although in a bill in equity against twenty-three individuals, the subject matter of which relates to the internal affairs and polity of a religious corporation, a prayer for an accounting by one of the defendants and for the redemption of a mortgage held by him was improperly included, nevertheless, if, after a long hearing of the bill on the merits before a master, by whom by agreement of parties a demurrer to the bill on the ground of multifariousness also had been ruled upon, and who in his report has ruled that the demurrer should be overruled and also has stated the account with the single defendant and has ruled that, on the payment of a certain sum, the mortgage should be redeemed, the parties agree that redemption may be ordered against the single defendant in accordance with the terms of the report, a decree ordering such redemption but dismissing the bill in all other respects will not be disturbed although the demurrer should have been sustained, since by such action further litigation may be avoided.</p>

<p>Is ills and Notes. Practice, Civil, Findings of trial judge, Conduct of trial. .Evidence, Proof of signature.</p> <p>An accommodation party to a note cannot set up lack of consideration against a holder for value.</p> <p>A bank, holding a protested note which the maker had failed to pay at maturity, demanded payment from the payee of the note who had indorsed it for discount by the bank. This indorser was unable to pay the note then, and thereupon it was agreed that the bank should give him a reasonable time in which to pay the note if he would give as security a joint and several note payable on demand for the same amount signed by himself and his wife. This was done. In an action, by a holder having the rights of the hank, against the husband and wife on the joint and several demand note, it was held, that the promise of the bank to forbear suing on the original note was a binding promise, that the indorser by delivering another note signed by his wife as well as by himself did something that he theretofore was not bound to do, and that the bank by taking the demand note as security for the pre-existing debt became a holder for value against the wife of the indorser of the original note, who was an accommodation maker of the new note.</p> <p>A judge before whom a case is tried without a jury, and who makes a general finding for one of the parties which is warranted by the evidence, may refuse in his discretion to make specific findings of fact, although requested to do so by the party against whom he has made the general finding.</p> <p>It is the settled law of this Commonwealth that the holder of a negotiable promissory note payable to bearer or payable to order and indorsed in blank can sue on it in his own name. It is not necessary for him to prove that he owns the note or that he has the consent of the owner to bring an action on it in his own name.</p> <p>In an action on a promissory note given to a bank and alleged to have been indorsed by the bank to the plaintiff, a ruling of the trial judge that the plaintiff need not prove the indorsement of the bank to him (even if such ruling was not authorized by the true construction of R. L. c. 173, § 86,) is immaterial, if it appears that later in the trial the plaintiff testified that the note was indorsed by the bank and there is nothing to show that the defendant was prejudiced by the fact being proved in this manner.</p> <p>The provision of R. L. c. 173, § 86, that a signature to a written instrument which is declared on or set forth as a cause of action shall be taken to be admitted unless the party sought to be charged thereby files in court a specific denial of the genuineness of the signature and a demand that it shall be proved at the trial, is not limited in its application to the signatures of the persons sought to be charged in the action, but extends to the signatures of third persons upon the instrument which are set forth in the declaration as a part of the plaintiff’s case.</p>

<p>Tort for alleged malicious prosecution. Writ dated June 28, 1906.</p> <p>At the trial in the Superior Court before Hardy, J., it appeared that on May 17,1906, the plaintiff was arrested under a warrant issued on the complaint of the defendant for the larceny of one vice, one wrench, one pair of shears and one joint runner. The plaintiff testified that he was a plumber by trade; that he had been the manager of the New England Carbonator Company, which was sold in December, 1904, to the Sage Brothers Company, of which the defendant was the president; that he told the defendant at that time that he had borrowed the tools in question from one Fisher, of Somerville, to use in the business; that about three months after the business was sold to the Sage Brothers Company he returned these tools to Fisher; that about eight months after the return of the tools, namely, in December, 1905, he was discharged by the Sage Brothers Company, and in a week or two started in business with three others who had been in the employ of the Sage Brothers Company, for the purpose of carrying on a business similar to that of the Sage Brothers Company; that at the time of his discharge the defendant called him a thief, accused him of stealing the tools, and threatened to have him arrested therefor; that in the May following he was arrested on the complaint made by the defendant for the larceny of the tools, was tried in the Municipal Court of the City of Boston, and was discharged. The plaintiff also called certain" witnesses who testified to certain expressions of ill will toward the plaintiff used by the defendant.</p> <p>The plaintiff testified that while he was waiting for bail at the police headquarters the inspector went to the telephone and called up some one and asked if it was Sage Brothers Company and said, “ You needn’t wait any longer because we went around the other way.” To the admission of this evidence the defendant excepted.</p> <p>The police inspector referred to, who was called by the plaintiff as a witness, admitted on cross-examination that he had no recollection of making any such statement over the telephone and that it would be at least a very peculiar thing for him to say.</p> <p>The defendant admitted, at the argument before the full court, that there was sufficient evidence of malice on the part of the defendant toward the plaintiff to entitle the plaintiff to recover provided the defendant did not act with reasonable and probable cause.</p> <p>The defendant testified that soon after the purchase of the business by the Sage Brothers Company the plaintiff sold certain tools to the Sage Brothers Company, and introduced in evidence an instrument signed by the plaintiff and the Sage Brothers Company, which the plaintiff admitted to be genuine, in. which the plaintiff in consideration of the issuing to him of certain stock in the Sage Brothers Company agreed “ that all tools which he had, or may have had in the factory occupied by the New England Carbonator Company, the title to same is hereby conveyed to the said ” Sage Brothers Company. The factory was purchased by the Sage Brothers Company on or about January 1, 1905, the date of the instrument. The plaintiff testified that the instrument did not refer to the tools in question. The defendant and one Johnson, who testified that they had been in partnership with the plaintiff under the name of the New England Carbonator Company, testified that the plaintiff claimed to own the tools referred to in the warrant except the vice, which Johnson testified had belonged to the company from which the New England Carbonator Company received the machinery and the stock used in the business of the New England Carbonator Company. Johnson testified and the plaintiff admitted that the vice in question was a large, heavy vice, and had been lying unused under one of the benches all the time that the New England Carbonator Company had been in business, as there was another vice of about the same size in use which served all the purposes required.</p> <p>The defendant and Johnson testified that Johnson some time during the summer of 1905 told the defendant that the plaintiff had collected from the shop a quantity of ball cocks and carried them to the office adjoining with the apparent intention of taking them away with him, and, in that conversation, in response to a question asked by the defendant as to whether the plaintiff had taken anything else, Johnson told him that several months before, about half past five one afternoon, the plaintiff had taken a number of tools from a certain chest, including the tools referred to in the warrant, and had sent them away. Johnson, who had general charge of the manufacturing department of the Sage Brothers Company, then told the defendant that he would not be responsible for the things in that shop any longer unless the lock was changed, because the plaintiff had a key to the premises, and Johnson then insisted that the lock be changed. The plaintiff admitted that for a long time he had had a key to the shop, and that one night he went to the shop after hours for some purpose and found that the lock had been changed.</p> <p>The defendant and one Pineo, an expressman, testified to a conversation between the defendant and Pineo a short time before March 31, 1906. In this conversation the defendant remarked that he would like to know who took away certain tools for the plaintiff. To which Pineo replied, stating that he had taken some tools for the plaintiff, and then stated that they consisted of a box of tools and a vice, and that he took them out to a plumber in Somerville by the name of Fisher. That thereupon the defendant stated that that was just what he had been wanting to find out, what expressman took those tools away. The plaintiff produced a letter from the defendant to Fisher, stating that something had come to his attention which was of importance to Fisher and asking Fisher to call and.see him. This letter was dated March 31, 1906, and was introduced in evidence by the defendant. In the conversation Pineo told the defendant that he received an order from the plaintiff asking him to call for some tools at the shop not earlier than 5.30 in the afternoon ; that he did call a few minutes before half past five; that the plaintiff at first hesitated as to whether he should have the tools taken away then or not, but decided to have them go. The plaintiff admitted that the elevator then was closed and that the tools including the heavy vice had to be carried down two flights of stairs.</p> <p>The plaintiff testified that he was simply the manager of the New England Carbonator Company and had no other interest in it, but later admitted that he had an interest in the profits of the company. He further testified that Johnson, who worked in the shop of the New England Carbonator Company, and later for the Sage Brothers Company, was simply an employee under the plaintiff while the plaintiff was the manager for the New England Carbonator Company, and that Johnson had no interest whatever in the business, except as an employee. Johnson testified that he was a partner with the plaintiff in the business. The plaintiff testified that the books of the New England Carbonator Company were kept by him or under his supervision. The defendant then offered the cash book of the New England Carbonator Company, showing an entry on the first page thereof of $100 paid by the plaintiff as an investment in the business and $100 paid by Johnson as- an investment in the business. The judge excluded this evidence and the defendant excepted.</p> <p>The defendant asked the judge to instruct the jury as follows: “ If the jury believe that Mr. Johnson told Mr. Sage what he testified he told him, and that Mr. Pineo told Mr. Sage what he testified he told Mr. Sage, and if Mr. Sage believed the statements to be true, then the defendant acted with reasonable and probable cause, and the plaintiff cannot recover.”</p> <p>The judge refused to give this instruction and instructed the jury instead that it was for them to determine under all the circumstances of the case whether or not the defendant acted with reasonable and probable cause in having the plaintiff arrested, that, if he did not act in good faith on the information given to him, he could not be said to have acted with reasonable and probable cause.</p> <p>The substance of the charge is stated in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $500 ; and the defendant alleged exceptions.</p>

<p>Contract, by the trustee in bankruptcy of the estate of Adelard J. Dubois, on a policy of fire insurance in the Massachusetts standard form- issued by the defendant to Dubois. Writ dated December 8, 1905.</p> <p>In the Superior Court the case was submitted to Grashill, J., upon the pleadings and exhibits and an agreed statement of facts. The judge found for the plaintiff in the sum of $550, with interest thereon from the date of the writ. The defendant alleged exceptions, raising the single question which is stated in the opinion.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1908, and afterwards was submitted on briefs to all the justices.</p>

<p>Contract, between the parties afterwards described, upon an account annexed, the only item of the account being a charge of |-15 as a commission on the sale of one broaching machine. Writ in the Municipal Court of the City of Boston dated March 28, 1907.</p> <p>The defendant filed a motion to dismiss and also an answer in abatement. The grounds stated in the motion to dismiss were as follows:</p> <p>“1. That it appears from the plaintiffs’ writ and declaration that the defendant is a corporation and that an attachment of its goods and chattels was made at Hudson in our county of Middlesex.</p> <p>“ 2. That it does not appear from the writ or declaration that the defendant corporation has a place of business within the jurisdiction of this court.</p> <p>“ 3. That sufficient facts do not appear to bring the defendant corporation within the jurisdiction of this court.”</p> <p>The answer in abatement was as follows:</p> <p>“ And now comes the defendant, not admitting but denying the jurisdiction of the court over it in this action, and not waiving but relying upon its motion to dismiss heretofore filed in said cause, and says that it is a corporation organized under the laws of the State of Maine having its office and usual place of business in Hudson, in our county of Middlesex, that an attachment in this action was made upon it at said Hudson; and that it has not, nor is it alleged to have had, a place of business within the jurisdiction of the court at the date of the writ. Therefore it ought not to be held to answer the plaintiffs’ writ.”</p> <p>The defendant, not waiving its motion to dismiss or its answer in abatement, also filed an answer to the merits containing a general denial.</p> <p>Upon a hearing in the Municipal Court the defendant’s motion to dismiss was allowed and the action was dismissed. The plaintiff appealed to the Superior Court.</p> <p>At the hearing, in the Superior Court before Fessenden, J., upon the defendant’s answer in abatement, the following facts were admitted by the parties or appeared in evidence and were found by the judge:</p> <p>The defendant is a manufacturing corporation duly organized under the laws of the State of Maine, and at the date of the writ was established in this Commonwealth at Hudson, in the county of Middlesex, where it carried on in a factory of its own the business of making broaching and other machines and machine tools, and had its office and carried on all of its business there. At' the date of the writ the defendant did not have and has not had since any property in the county of Suffolk, and did not have and has not had since any place of business in the county of Suffolk, unless, as contended by the plaintiff, the appointment by the defendant of the commissioner of corporations, before the date of the writ, as its attorney upon whom service of legal process might be made as required by R. L. c. 126, § 4, constituted the office of the commissioner a place of business of the defendant in the city of Boston. At the date of the writ the plaintiffs were copartners in business and had a usual place of business in Boston.</p> <p>Upon the foregoing, which were all the facts material to the question of jurisdiction upon the answer in abatement, the defendant asked the judge to rule that the answer in abatement should be sustained. The judge refused to make this ruling, overruled the answer in abatement, and found for the plaintiff in the sum of $42.17. The defendant alleged exceptions.</p> <p>The judge also denied the motion to dismiss; and the defendant appealed from the order denying the motion.</p> <p>The case was argued at the bar in November, 1908, before Knowlton, C. J., Morton, Hammond, Braley, & Bugg, JJ., and afterwards- was submitted on briefs to all the justices.</p>

<p>Constitutional Law, Interstate commerce. Express Company. Carrier. Statute, Construction. Intoxicating Liquors. Practice, Criminal, Conduct of trial. Evidence, Presumptions and burden of proof. Words, “ Upon arrival,” “ Express business,” “ General,” “Kegularly.”</p> <p>The transportation of goods may continue to he interstate in the hands of the last carrier, although he does business only in the terminal State and his transportation of the goods consists in taking them from a railroad station to the consignees by means of a horse and wagon.</p> <p>The definition by the Supreme Court of the United States of words and terms used in a federal statute is binding upon this court.</p> <p>In U. S. St. 1890, c. 728, providing that intoxicating liquors transported into any State “shall upon arrival in such State ... be subject to the operation and" effect of the laws of such State . . . enacted in the exercise of its police powers, to the same extent and in the same manner as though such . . . liquors had been produced in such State . . . and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise,” the words “ upon arrival ” mean upon delivery to the consignee or to some person or at some place in his behalf, and until such delivery the liquors are not subject to the laws of the terminal State although the final link in the shipment is through a carrier operating wholly within the terminal State.</p> <p>A statute, which would be unconstitutional as applied to a certain class of cases and is constitutional as applied to another class, may be held to have been intended to apply only to the latter class, if this seems in harmony with the general purpose of the Legislature.</p> <p>Even though much the larger part of the business of a corporation engaged in the transportation of intoxicating liquors may be interstate commerce, yet if it does engage in local trade, a requirement for a permit, which it. would be within the-power of the Legislature to make as to transactions wholly within the Commonwealth, would be valid respecting such transactions.</p> <p>R. L. c. 100, § 49, as amended by St. 1907, c. 617, prohibiting any person or corporation not regularly and lawfully conducting a general express business, other than a railroad or street railway corporation, from receiving for hire or reward spirituous or intoxicating liquor for transportation for delivery in a city or town in which licenses of the first five classes for the sale of such liquors are not granted, is not intended to apply to interstate commerce, and is constitutional.</p> <p>Since St. 1906, c. 421, prohibiting any person or corporation from transporting for hire or reward spirituous or intoxicating liquors into a city or town where licenses of the first five classes for the sale of such liquors are not granted, without' first being granted a permit as provided in the statute, would be unconstitutional if it applied to cases where persons or corporations within the Commonwealth receive such liquors while acting as a link in an interstate shipment, it does not apply to such cases, but only to shipments wholly within the Commonwealth, and is constitutional. Rogg, J., agreeing that the statute is constitutional, but not for the reasons upon which the majority of the court relied, he being of the opinion that it is constitutional because it incidentally, and not primarily and mainly, affects interstate commerce, and therefore is within the police power of the Commonwealth.</p> <p>At the trial of the P. Express Company for violation of St. 1906, c. 421, in transporting for hire, without having been granted a permit to do so, intoxicating liquors into a town in which licenses of the first five classes for the sale of intoxicating liquors were not granted, there was evidence tending to show that a shipper in another State delivered at one time twenty parcels of intoxicating liquors to a railroad company operating a railroad running to a town in this Commonwealth in which licenses of the first five classes for the sale of intoxicating liquors were not issued, each parcel being addressed to a person in such town “ in care of P. Ex. Co.” and the railroad company’s shipping order stating that the parcels were marked “ c/o P. Express Co., consignees,” that the railroad company transported the parcels to the town in this Commonwealth, unloaded them and placed them in its freight house there where they were delivered to the P. Express Company upon its signing a voucher for the entire shipment and paying @2.19, the entire freight charge, and that the P. Express Company then delivered each parcel to the person whose name was upon it and received from such person twenty-five cents. The presiding judge ruled, “ There is no question of interstate commerce which comes into this case.” Held, that such ruling should not have been given, since the jury would have been warranted in finding that there were real purchases from the shipper by the several persons whose names, appeared on the various parcels and that the defendant’s only connection with the goods was in concluding the interstate transportation in this Commonwealth, which was not subject to the statute.</p> <p>The words “ express business,” used in R. L. c. 100, § 49, as amended by St. 1907, c. 517, prohibiting any person or corporation not regularly and lawfully conducting a general express business, other than a railroad or'street railway corpora- ' tian, from receiving for hire or reward spirituous or intoxicating liquor for transportation for delivery in a city or town in which licenses of the first five classes for the sale of such liquors are not granted, include a common carrier who transports packages of merchandise under the personal and immediate ' charge of himself or his agent over a regular course between certain termini, with a speed or individual care, or both, greater than obtains as to ordinary freight; but they do not include the business of a corporation which merely carries to various persons named thereon as consignees such goods as are brought into a certain town by a railroad company and by it are deposited in its own freight depot, although such corporation is incorporated with power to do an express business and is named an express company.</p> <p>Where, in his argument to the jury at the trial of a criminal case, the district attorney states that the defendant, a corporation, was in a position to disprove a certain material fact which the evidence of the Commonwealth tended to prove, and that the fact that it failed to do so should be considered by the jury, and the defendant seasonably objects, it is discretionary with the presiding judge whether he shall interrupt the argument, or shall let it proceed and in his charge later state to the jury the correct rule of law relating to the facts.</p> <p>Where, at the trial of a corporation called an express company for violation of R. L. c. 100, § 49, as amended by St. 1907, c. 517, in transporting for hire, without being a person or corporation "regularly and lawfully conducting a general express business,” intoxicating liquors for delivery in a town in which licenses of the first five classes for the sale of such liquors are not granted, the Commonwealth has introduced evidence that the defendant transported such liquors, it is proper for the presiding judge to refuse to rule that, in the absence of evidence to the contrary, the presumption was that the defendant did maintain and carry on a general express business, since, although as a matter of law the defendant is presumed to be innocent until its guilt is proved, it is not presumed to be innocent for a particular reason.</p> <p>A corporation, which was organized with power to do a general express business, and which holds itself out to do such business, is nevertheless guilty of a violation of R. L. c. 100, § 49, as amended by St. 1907, c. 517, prohibiting any person or corporation not regularly and lawfully conducting a general express business, other than a railroad or a street railway corporation, from receiving for hire or reward spirituous or intoxicating liquor for transportation for delivery in a city or town in which licenses of the first five classes for the sale of such liquor are not granted, if it thus transports intoxicating liquors and its carriage of other goods is but casual, infrequent, desultory and incidental, the words “ regularly and lawfully conducting a general express business ” meaning that the substantial and major part of its regular daily traffic as an express company must comprehend that variety of goods commonly the subject of transportation by express companies.</p>

<p>Replevin. Evidence, Presumptions and burden of proof.</p> <p>The fact, that the defendant at the trial of an action of replevin brought by a married woman relies upon evidence tending to show that the property replevied was sold to him by the plaintiff’s husband and that the plaintiff ratified such sale, does not relieve the plaintiff from the necessity of sustaining the burden of proving that she is entitled to possession of the property.</p>

<p>Petition, filed on August 8, 1903, by the Fifty Associates, a corporation, against the city of Boston, under St. 1894, c. 548, §§ 26, 34, St. 1895, c. 440, § 1, St. 1897, c. 580, St. 1902, c. 114, and acts amendatory to those statutes, for the assessment of damages alleged to have been caused during the years 1902 and 1903 to the estate of the petitioner on State Street in Boston numbered 276, 278, 280, 282, 284 and 286 by the construction of the East Boston tunnel.</p> <p>In the Superior Court the case was tried before Harris, J. The following statement of the case and of the questions raised by the bill of exceptions is taken from the brief of the counsel for the respondent.</p> <p>The Boston transit commission, being duly authorized by the Legislature, built a subway or tunnel in State Street in front of the plaintiff’s premises. A station was constructed as a part of this work in front of that one of the plaintiff’s three buildings lying nearest the water and extending from there towards Atlantic Avenue, there connecting by means of elevators with the elevated railway in Atlantic Avenue.</p> <p>The plaintiff’s property consisted of three adjoining brick and stone buildings of four stories and a basement, each on the north side of State Street. The tunnel or subway proper was constructed entirely beneath the surface, but the station was constructed from the surface down. In consequence of the construction of the subway and station at this point the plaintiff’s buildings began to settle and were shored up by the contractor or contractors. After the walls of the station were put in, the shoring was removed and the settling stopped, but the buildings had settled during this period, the settling varying from two and one half inches at the pier at the front of the most westerly party wall to four and five-eighths inches at the pier between numbers 286 and 288 State Street, being the pier supporting the party walls of the easterly building of the plaintiff and its next neighbor.</p> <p>It appeared, also, that when these buildings were built many years ago the basements were below tide water level, and that, instead of waterproofing the basements or cellars and making them tight, the then owners of the block put a coffer dam or water tight structure around the whole block, the southerly side of which structure ran in State Street parallel with the buildings and between the curbstone and the wall of the subway. It appeared by testimony in the case that this clay wall or dam was injured more or less by the building of the subway, and that, in consequence of this, water in large quantities came at times of high tide into the cellars or basements of the plaintiff’s buildings.</p> <p>The defendant offered testimony which tended to show that the clay dam had been pierced occasionally in the past by gas pipes, water pipes and other things, connecting things in the street with the buildings, and that for a long time before the building of the subway or tunnel water had come into the cellars at such openings at high tide.</p> <p>The plaintiff contended that it was entitled to recover the expense of waterproofing the cellars or basements, estimated by its experts at from $3,000 to $4,000, the defendant contending that it ought not to pay for such waterproofing.</p> <p>The judge ruled among other things in reference to this subject, “ that any boxings or any structure that the owners of this particular piece of property or the original owners of this whole block had put into the street for their own purpose, having been put in long after the public rights had been acquired in the street, were not structures whose destruction or removal gives them any right, by reason of that destruction or removal, to claim damages.”</p> <p>The plaintiff’s testimony tended to show that the necessary repairs beyond what had been made by the city or its contractors after the completion of the work would cost, including the waterproofing, from $4,100 to $6,600. The defendant’s experts testified that the necessary repairs would cost only a few hundred dollars. The plaintiff’s experts testified that in addition to the repairs there would be an injury to the market value of the estate of some $10,000, arising apparently from two causes, —first, that a purchaser would know that the building, had settled and might fear that it would settle more; or, second, if he were going to buy the property for the purpose of putting up a new building, that the presence of the subway might cause the new building to settle.</p> <p>The defendant’s testimony tended to show that the putting of the walls of the subway and station in the street tended to support the filling and flats mud, and that after the material had adjusted itself to the new conditions the material underneath the plaintiff’s buildings would be more stable than before the subway was put in the street. The testimony of the city’s experts was that the presence of the station in front of the plaintiff’s property was of special benefit to its real estate and increased the value of its property instead of impairing it.</p> <p>The jury returned a verdict for the petitioner in the sum of $1,000 ; and the petitioner alleged exceptions.</p> <p>The questions raised by the bill of exceptions were, first, as to whether the judge was right in ruling that the special and peculiar benefits, if any, which came to this property by reason of having the station in front of it could be offset against the damage, if any, to the market value of the property. Incidental to this question were the questions as to whether the testimony offered by the defendant as to the number of passengers using this station was competent, and as to some requests of the plaintiff for rulings.</p> <p>Second, as to whether the judge was right in ruling that the plaintiff could not recover for the damage, if any, sustained by the weakening or injury to its dam or structure in the street.</p> <p>Third, as to the judge’s ruling that the plaintiff could not recover as a specific item for the bill of one Adams for watching the buildings for the plaintiff while the subway and the station were being constructed.</p>

<p>Bill in equity, filed in the Superior Court on September 4, 1908, to enforce the specific performance of an alleged agreement, partially reduced to writing but not signed by either party, by which the defendant agreed to sell to the plaintiff the-stock in trade, fixtures and good will of the defendant in the business of manufacturing and selling upholstery supplies consisting chiefly of brass goods, carried on by the defendant in the city of New York.</p> <p>In the Superior Court the case came on to be heard by Wait, J., and the plaintiff made the offer of proof which is printed below. The defendant did not admit the facts to be as stated in the offer of proof, but contended that if the statements all were true the plaintiff could not maintain his bill. Thereupon, the judge, being of opinion that upon the facts stated in the offer of proof he could find nothing sufficient to maintain the bill, found for the defendant, and ordered that a decree be entered dismissing the bill. At the request of the plaintiff he-reported the case for determination by this court. If he was-right in his findings and ruling, a decree was to be entered as ordered dismissing the bill; if not, such orders were to be made as justice and equity required.</p> <p>The plaintiff offered to prove the following facts:</p> <p>The plaintiff and the defendant have had business relations for the last ten or eleven years. About eleven years ago the plaintiff entered the employ of the defendant as a clerk, and was advanced from position to position until he finally became a partner with him in his New York business on equal terms. The defendant is engaged in the business of manufacturing and selling upholstery supplies, consisting chiefly of brass goods. Up to about five years ago the business was confined to the city of Boston, but in January, 1903, a corporation was formed and a store was opened in the city of New York, and in June it was placed in charge of the plaintiff, as the manager was making a failure. The business was then successful, and later another arrangement was made whereby the corporation ceased to do business in New York and the business was continued by the plaintiff and the defendant as partners, the plaintiff devoting his entire time to the New York business. The business continued to be very successful, but toward the close of the year 1907 various disagreements arose between the" partners and the partnership was dissolved; the plaintiff disposed of his interest in the partnership to the defendant and began to do business in the same line as a stockholder and officer in an existing corporation, which then was doing business in New York in competition with the defendant, known as Gould-Mersereau Company. The plaintiff and the defendant have since been in active competition, and the competition was fiercer than that existing between any other houses, has been so bitter that neither would sell any of his goods to the other, and both had cut prices until the margin of profit on many lines was very slight.</p> <p>Shortly after the separation the business of the defendant began to decrease, and in May at the instance of one Turner, a common friend of the parties and a creditor of the plaintiff, negotiations were begun for the sale of the defendant’s business to the plaintiff, the proposition being made by the defendant to the plaintiff. These negotiations fell through, but in the latter part of July they were reopened, a proposition being made by the defendant to the plaintiff, it being represented to the plaintiff that the defendant was conducting business at a loss and was in poor health, that he had come to the conclusion that it was unwise for him further to attempt to run both the Boston and New York establishments, being part of the time in each place and a great deal of the time travelling between them. It was, therefore, arranged that the plaintiff and the defendant should meet with their attorneys in Boston on Monday, August 3,1908, at the office of one Yerxa, and they did so, but as Yerxa wished to have Turner present the meeting was adjourned until the following day when Turner, who had been summoned by telephone, was present.</p> <p>The subject matter of the transaction was gone over thoroughly, point by point, and as the various items were agreed to they were reduced to writing by the attorneys. The matter was finally covered some time in the afternoon and it was agreed to adjourn until the next day to give the attorneys an opportunity to have their memoranda typewritten, and a fair copy of the contract as it then stood prepared. The following day, typewritten copies of the agreement having been prepared, the copies were gone over thoroughly, and several minor amendments were suggested and agreed to. During the discussion several outstanding merchandise contracts which had been entered into by the defendant were mentioned and were definitely disposed of, being assumed by one party or the other as will hereinafter appear, and the question of the application of the existing law of New York regulating the sales of merchandise in bulk was brought up. In order to find out the application of this law it was agreed that the attorney for the plaintiff should obtain the exact phraseology of the act, and the meeting was adjourned for that purpose. Before adjourning, the defendant stated that he was satisfied with the contract as it then stood with the addition of a clause requiring compliance with the New York bulk law, and promised to sign the contract as soon as the wording of that act should be ascertained and a suitable clause relating to it should be added to the existing draft. The parties met again on the same day and a clause was added to the contract, and agreed to, requiring the defendant to comply with the terms of the act above mentioned. The plaintiff then made a formal demand of the defendant to furnish him a complete and accurate list of his creditors, which demand the defendant acknowledged and promised to comply with. The defendant and his attorney then stated that there was a contract of employment which had been entered into by the defendant with one Smith, which they desired to have disposed of before signing the contract of sale. The plaintiff objected to a postponement of the matter on that account, but the defendant and his attorney told him, and Yerxa assured him in the defendant’s presence, that the contract would be signed on the following Saturday at all events, that they wished to delay signing merely that they might be in a better position to deal with Smith, stating that they could dispose of him more effectively if they could say that the contract was not signed than would be the case if they were obliged to tell him that they had committed themselves to the sale of the business. Upon the assurance of the defendant, his attorney and Yerxa that the disposal of the Smith contract was not a condition to the signing of the contract of sale and that the contract of sale as it then stood would be signed on the following Saturday at all events, the plaintiff assented to the postponement.</p> <p>The terms of the contract, as finally agreed to, were as follows:</p> <p>“ Memorandum of an agreement made this day of August 1908, by Dickran M. Sarkisian, of Malden, County of Middlesex and Commonwealth of Massachusetts, party of the first part, and Woodman H. W. Teele, of Cambridge, in said County of Middlesex, party of the second part.</p> <p>“The party of the first part does hereby purchase and the party of the second part does hereby sell to the party of the first part the entire stock of goods in trade (less certain deductions hereinafter mentioned) connected with and used in* the business transacted by the party of the second part under the name of W. H. W. Teele & Company, at 43 East 20th Street, New York City, also the fixtures and good will of said business in New York City, with the right to use the name of W. H. W. Teele Sc Company only in connection with the name of Dickran M. Sarkisian, as successor thereto, and then only until January 1st, 1909.</p> <p>“ Out of the stock now on hand it is agreed that the party of the second part shall take in value not less than fifteen thousand dollars nor more than twenty thousand dollars of said stock of goods. The value of the goods so taken out to be determined at the inventory prices of goods on hand December 31st, 1907, and the cost prices of goods purchased since. The balance of the stock of goods is to be paid for by the said party of the first part as follows:</p> <p>“ The goods acquired since January 1st, 1908, shall be paid for by the said Sarkisian at cost price, less 35 %. The goods which were in stock and were in the inventory dated December 31st, 1907; shall be taken by the said Sarkisian at the inventory price less 35 %.</p> <p>“ The remaining articles of such stock of goods which were purchased prior to January 1st, 1908, and which were allotted to the party of the second part January 1st., 1908, shall remain the property of the party of the second part.</p> <p>“ One party shall take the wood cuts and the other party shall take the electrotypes now used in said business and the party of the second part shall have his choice as to which of the two he shall take.</p> <p>“ The items above enumerated include all the merchandise, stock in trade and property whatsoever, except the fixtures.</p> <p>“The fixtures which were in the store January 1st, 1908 shall be left therein and shall be taken by the said party of the first part at the inventory price of the same, and in addition to such inventory price the party of the first part shall pay and allow to the party of the second part for such fixtures the sum of one hundred and fifty dollars. This last named sum is to cover the expense which the party of the second part has made upon said fixtures since the first day of January 1908.</p> <p>“ The party of the first part assumes and hereby agrees to take care of the contracts for the purchase of merchandise which may be delivered after the final transfer hereinafter mentioned, which have been ordered or contracted for, prior to the signing hereof, of the following firms, to wit:</p> <p>“ Rome Manufacturing Company.</p> <p>Turner & Seymour Manufacturing Company.</p> <p>American Pin Company.</p> <p>American Ring Company.</p> <p>Berbecker & Rollan Manufacturing Company.</p> <p>M. S. Brooks & Sons.</p> <p>Rogers Screw Company.</p> <p>“ Such merchandise as shall be taken by the said party of the second part, as hereinbefore provided, out of the stock of goods in trade, shall be removed from the premises on or before August 22nd, 1908.</p> <p>“ An inventory in duplicate shall be prepared by the party of the second part of the remaining articles and the possession of such remaining articles and the entire stock shall be given to the party of the first part by the party of the second part on or before September 1st., 1908.</p> <p>“ This inventory so to be prepared shall be submitted to the party of the first part on or before August 27th., 1908. In the taking of this inventory the stock shall be taken by two men selected by each party, and the store shall be closed at the commencement thereof and remain closed until the final transfer. On August 27th., 1908, the stock remaining in the inventory shall be called off by the party of the first part. The prices of the several goods shall be placed on the inventory and the total amount to be paid therefor shall be verified by the initial signatures of each party.</p> <p>“ The party of the first part assumes no responsibility whatsoever on account of bills payable which may be due before the final transfer.</p> <p>“ The party of the first part assumes the lease of the store for the balance of the term from the date of the final transfer and agrees to hold the party of the second part harmless therefor.</p> <p>“ The party of the first part also assumes and agrees to pay a proportion of the taxes and insurance which shall be apportioned pro rata.</p> <p>“ There shall be delivered to the party of the first part by the party of the second part at the time of the final transfer all the books of accounts relating to the business, except the ledgers, cash books and receipt books, and the said party of the second part shall have access to and use of the sales books pertaining to the business transacted up to September 1st., 1908, at any time upon demand, and the party of the first part shall be allowed to take a list of the customers whose names appear in the ledgers, before the ledgers are removed from the store. The party of the second part shall also deliver to the party of the first part all the stationery on hand, and whatever is left thereof at the end of the year shall be returned to the party of the second part.</p> <p>“ It is hereby agreed that for the period of five years the party of the second part shall not directly or indirectly solicit any business of the same line in New York City, and that the party of the first part during said period shall not directly or indirectly open any store or carry any stock of merchandise of a similar line in the states of Massachusetts, Maine and New Hampshire, and the party of the first part shall have but one representative in said states. That in the three states last mentioned the party of the first part will not sell any of these goods secured under this agreement at below the then prevailing market price.</p> <p>“ Upon the final transfer of the property as aforesaid, the party of the first part shall pay to the party of the second part the sum of five thousand dollars in cash. The balance of the consideration verified as before stated shall be paid by the party of the first part to the party of the second part in two notes of equal amount, one payable in two months and one in three months from the time of the final transfer.</p> <p>“The party of the second part agrees to comply in all respects with the existing law relating to the sale of merchandise in bulk, in so far as the said law applies to the property herein transferred.</p> <p>“ Together with the passing of this agreement there shall be given a general release of all demands of every name and nature of each party to the other, excepting such obligations as arise out of this contract and such other obligations as are named in the written agreements made at the time of the dissolution of partnership between the two parties December 30th., 1907.”</p> <p>It was further agreed by and between the parties that if the plaintiff should require any of the goods comprised in the agreement for use or sale by Gould-Mersereau Company before the transfer of the property, he could receive them upon his or their order from the defendant, and goqds so obtained by him or them out of the stock sold by the defendant should be carried on memorandum and added to the inventory which the defendant agreed to make, whenever the inventory should be made. It also was agreed that the parties should meet in New York on the following day and call upon the presidents of two national banks, which held notes signed by the defendant, to acquaint them with the fact that the defendant had sold his business and to get them to grant an extension of the notes in order that the defendant might pay them in full, or in part, out of the money which he was to receive from the plaintiff.</p> <p>In consequence and in pursuance of the foregoing agreement the parties met at the office of the defendant in New York, on Thursday, August 6, and while there the defendant requested of the plaintiff that he would fill the defendant’s orders for merchandise from the store of Gould-Mersereau Company now that the agreement for sale had been completed. Relations between the two concerns had ceased in April, 1908, and no goods had been sold by either to the other since that time. The plaintiff replied that now that the agreement was completed and they were friends again the defendant could have anything he needed from the store of Gould-Mersereau Company. The plaintiff then asked the defendant if he had spoken to his salesmen of the sale, and upon being informed that he had not, asked his permission to speak of it to one who was then present. With the permission of the defendant the plaintiff told the salesman of the sale, and later,. on the same day, made an arrangement to employ him on and after the first of September.</p> <p>The parties then called upon the presidents of the banks, which held the defendant’s notes, and the defendant told each of them that he had sold out his New York business to the plaintiff and that he was unable to pay his notes when they came due, and asked for an extension of time which was granted.</p> <p>The plaintiff gave directions to his employees to obtain from the defendant whatever goods they might need to fill orders, such goods to be taken from the stock purchased by him of the defendant, and also told them that if the defendant should send in orders for goods those orders were to be filled, thus modifying the rule of the establishment, which was well known to the defendant, that no goods were to be sold to the defendant. The defendant’s manager came to the store of the GouldMersereau Company for goods on the same day, not having been there since the previous April when the partnership was finally dissolved.</p> <p>In pursuance of the agreement relating to the delivery of goods by the defendant to the plaintiff and in consequence of it the plaintiff received from the defendant</p> <p>On August 8th, 1908, goods amounting in value to $5.88</p> <p>16 66 10 th, 11 11 66 11 5.10 16 11 15th, 11 11 11 11 5.40 11 61 17th, It 11 16 11 2.03 11 16 26th, 61 16 16 11 1.52</p> <p>making a total of $19.93</p> <p>which goods were delivered to him and accepted and received by him and, the plaintiff says, must in law be taken to have been delivered, received and accepted in part performance of the contract sought specifically to be enforced.</p> <p>No invoices accompanied or followed the goods (which was contrary to the custom of the defendant) nor were any sent until late in August, after the plaintiff had notified the defendant that he intended to compel the performance of the contract, whereupon invoices were sent, charging the goods to the GouldMersereau Company, at prices far in excess of the amount agreed upon. These invoices were returned with the information that the goods should not be charged to the Gould-Mersereau Company, but should be carried on memorandum in accordance with the agreement of the parties, and added to the inventory which should subsequently be made. These invoices are still in the possession of the defendant.</p> <p>On Saturday, August 8, the parties met again by appointment, and it was stated by the defendant that he had not yet been able to make a satisfactory arrangement with Smith, and asked for further time; the plaintiff objected to the postponement on the ground that the Smith matter had no connection with this contract, but finally assented, upon the assurance that on the following Wednesday the contract would be signed.</p> <p>On Tuesday the defendant’s attorney announced that no arrangement had yet been made with Smith, and upon his suggestion Smith was sent for and came from New York, arriving in Boston on Wednesday.</p> <p>After extended negotiations with Smith, without result, the signing was further postponed in spite of the objections of the plaintiff. Some time after the middle of the month it became apparent to the plaintiff that the signing of the contract by the defendant would be indefinitely postponed, and he was not until after that time acquainted with the legal significance of the signatures to the contract or of the delivery of the goods in part performance of it.</p> <p>As he had then been at great expense in the course of the negotiations, spending considerable of his own time in Boston and had already cancelled a lease of a store in Boston which he had been intending to open, with consequent loss of business, had discharged an employee in order to comply with the terms of the agreement, and had allowed to lapse a suit which he had commenced against the defendant for the value of the electrotypes and woodcuts, the disposition of which was effected by this contract, and, as he further offered to show, the competition which existed between him and the defendant would continue indefinitely to his irreparable damage, and as the defendant was deeply in debt and losing money and was, or was likely to be, insolvent, he decided to enforce the performance of the contract, and the defendant was so notified. Thereupon invoices came from the defendant charging to the Gould-Mersereau Company the goods which had been delivered to the plaintiff and received and accepted by him as part of the goods sold to him, which invoices were returned as previously stated.</p> <p>On September 1 the plaintiff, with a witness, called at the , store of the defendant and demanded of him the transfer of the stock and further compliance with the terms of the contract, offering to pay the money required of him and to give the notes provided for in the agreement. The defendant replied that he was soriy he could not go on with the contract, as he had not yet succeeded in disposing of Smith and had been advised to settle that matter before going further with the plaintiff.</p>

<p>The provision of art. 4, § 2, of the Constitution of the United States that “A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime,” has no application to a case where the offender is, at the time, held to answer for an offense against the laws of the State in which he has taken refuge.</p> <p>The Governor of this Commonwealth has no power, by his warrant issued upon a demand from another State, to take a prisoner, upon whom a sentence of a court is being executed in the State prison, out of the custody of the law of Massachusetts and send him away to another State.</p>