Volume 204 — Massachusetts Reports

<p>Way, Private. Deed, Construction. Equity Jurisdiction, To enjoin obstruction of way. Equity Pleading and Practice, Mandatory injunction.</p> <p>The rule of construction, that the mention of a way as a boundary in a deed of land is presumed to mean the middle of the way if the land under the way belonged to the grantor, is not an absolute rule of law, and may be overcome where the language of the deed considered in reference to the subject matter and the situation of the parties plainly indicates a different intention.</p> <p>One, who owned land on a street in a city, which was bounded on one side by a passageway on the land of the adjoining proprietor, maintained a wooden huilding close upon the boundary, with an outside staircase at the side of the building leading to its second story and projecting two feet into the passageway. On account of this staircase, he bought from the adjoining proprietor a strip of the passageway two feet wide, running the depth of his land and leaving the remaining passageway about ten feet wide. The strip of land was described as two feet wide on the street and of the same width at the opposite end, and as bounded on the purchaser’s land for the number of feet which his lot ran back from the street, and on the opposite side “by a private way” for the same distance, “together with a privilege to use said private way in common with myself and others." At the time of the conveyance no persons other than the grantor and the grantee had any legal rights in the passageway. Both parties , to the deed of this strip of land by subsequent deeds to other persons treated the deed as not conveying a fee in any part of the remaining private way about ten feet wide. Held, that the language of the deed of the strip of land did not plainly convey the fee to the middle of the passageway, and was at the least ambiguous, so that the circumstances of the purchase and the conduct of the parties might be considered to aid in its interpretation, and that such circumstances and conduct were sufficient to overcome the presumption of fact that the boundary of the strip of land was upon the centre of the private way; and, accordingly, that the deed did not give the grantee any greater right in the passageway than an easement.</p> <p>Where the owner of a lot of land abutting on a street in a thickly settled part of the business district of a city, bounding at one side on a private way about ten feet wide, has a right to use the way as a passageway for teams as well as for persons on foot, the right in the way having been granted to his predecessor in title for business purposes in a place where buildings might be expected to be erected along the line of the way such that goods or other property might conveniently be loaded or unloaded through doors or windows at a considerable height above the ground, he may maintain a suit in equity to enjoin the owner of the fee in the passageway from building over it at a height of eight and a half feet above the ground; and if a building thus obstructing the way has been erected secretly in the night time after the defendant received express notice of the plaintiff’s claim of right in the passageway, there is sufficient ground for a mandatory injunction ordering the removal of the portion of the building above the way.</p>

<p>Pleading, Civil, Variance. Contract, Performance and breach.</p> <p>A declaration in contract alleged that the plaintiff agreed to sell to the defendant a certain business with the good will thereof for the sum of $600, that the plaintiff performed his part of the agreement, but that the defendant paid the plaintiff only $100, and refused to pay more. The evidence, which was uncontradicted, showed that the plaintiff sold the business “to the defendant for $600, to be paid in instalments of fifteen per cent of the gross receipts of the business, payments to be made as soon as the fifteen per cent amounted to $100 . . . and to continue to pay in the same way until $600 was paid.” There was no evidence that the gross receipts amounted to so much that $500 was due and payable when the action was brought. The defendant asked the presiding judge to rule that there was a variance between the allegations in the declaration and the proof at the trial and that the plaintiff could not recover on the declaration as stated above. The judge refused to make this ruling and the jury returned a verdict for the plaintiff. Held, that there was a variance, and that the ruling asked for should have been made.</p>

Complaint, in the Municipal Court of the Brighton District of the City of Boston on November 18, 1908, charging that the defendant on November 10, 1908, did “ operate an automobile upon a public highway, laid out under the authority of law known as Commonwealth Avenue, situate in said city and district, . . . not having . . . the registered number or mark plainly displayed thereon in Arabic numerals not less than four inches long, and not conforming in this and other details…

<p>Tort, by the executor of the estate of Margaret Rooney, for personal injuries incurred by the plaintiff’s intestate on August 8, 1901, while being transported as a passenger in a car of the defendant, which injuries resulted in the death of the intestate on February 5,1903. Writ dated May 20, 1904.</p> <p>The answer was a general denial.</p> <p>The case came on for trial before Hitchoock, J., on January 18,1909. At that time the defendant asked the judge to rule that the plaintiff’s action could not be maintained on the ground that the case declared on was an action for death by wrongful act, and that on the face of the writ and the pleadings it appeared that the plaintiff’s death occurred more than a year and a day after the alleged accident. Thereupon the plaintiff moved to amend his declaration by substituting therefor the following:</p> <p>“And the plaintiff says that the defendant is a common carrier of passengers, operating and controlling a line of street cars in the city of Boston and said Commonwealth; that on the eighth day of August, 1901, the plaintiff’s testatrix was a passenger on one of the cars operated and controlled by the defendant, its agents and servants, and while so a passenger and in the exercise of due care she was injured by being thrown forward and backward against the seats of said car, which was caused by the careless and negligent management of said car or by the improper construction of said car or the unusual motion of said car in stopping suddenly without warning or notice to the plaintiff’s testatrix, thereby causing her severe bodily injuries.</p> <p>“ The plaintiff says he was appointed executor of the will of Margaret Rooney, his testatrix, on J une 19, 1903.”</p> <p>The allowance of the amendment was opposed by the defendant on the ground that the original declaration was for death, and that as more than six years had elapsed since the cause of action arose, the amendment could not then be allowed lawfully, as it introduced a cause of action different from that for which the action originally was brought. The judge allowed the amendment, and the defendant excepted.</p> <p>One Mrs. Deehan, “ being called as a witness in behalf of the plaintiff, testified that she was a niece of Margaret Rooney, the deceased, and that on the day of the accident to the deceased had been with her to Revere Beach; that the witness had six or seven small children with" her as well. They were just returning after a day at the beach when the accident occurred. They took an open car at Revere and rode in the same car all the way. The accident happened in the subway in Boston. There were about ten passengers, the witness and her family being the largest part of the passengers in the front part of the car. She sat in one seat about in the middle, with four children, and her aunt, the deceased, sat back with three. ... I don’t know what happened; the car gave two jumps, and we saw fire and smoke; the people that was in the car hollered. . . .</p> <p>“ Q. The car was coming along ? A. Coming along in the subway. — Q. What was the first you noticed ? A. I saw fire and smoke. — Q. Fire and smoke ? A. Yes. — Q. Describe the jumping you have just mentioned ? A. Gave like two jumps; kind of stopped up quick and threw us forward. — Q. What effect did that jumping have on you ? A. Threw some of them off their seats. I slipped as far as the end; my knees kept me on; I had a baby in my arms. . . . — Q. Was your aunt thrown from the seat ? A. She didn’t say as she was; she didn’t think she was hurt when we got out. After we got up she couldn’t walk; the conductor helped her walk. She sat on some steps, I think, of the subway; I was not familiar with the subway.</p> <p>“ The car was delayed about half an hour. She couldn’t say just where. There were men around the car, fixing it up. They had wrenches or something in their hands, fixing it.</p> <p>“ On cross-examination the witness testified that the first thing that attracted her attention was the fire and the smoke, the car gave two jumps first before it started, kind of lifting the car up, so that they were thrown backward on the car. It stopped quickly. . . . One of the little girls, five years old, was thrown off her seat and smashed her spectacles. . . . The men who went to work around the car had something that looked like wrenches. She had never seen a fuse. She didn’t notice where the men went to work; she was too taken up with the six or seven children; couldn’t tell whether they went to work under the car or by the side; couldn’t see them when they were working and couldn’t tell where they were working. The car went along all right afterwards.”</p> <p>A somewhat similar account of the accident was given by a daughter of Mrs. Deehan, who was with her in the car, and who was about twelve years of age at that time. There was other evidence for the plaintiff, and the defendant also introduced evidence.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence in the case the plaintiff, was not entitled to recover. The judge refused to make this ruling, and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $442.50; and the defendant alleged exceptions.</p>

<p>Child Labor. Theatrical Exhibition. Words, “Work,” “ Employed.”</p> <p>R. L. c. 106, § 28, as amended by St. 1905, c. 267, after providing that “No child under the age of fourteen years . .'. shall be employed in any factory, workshop or mercantile establishment,” contains the following provision: “No child under the age of fourteen years shall be employed at work performed for wages or other compensation, to whomsoever payable, during the hours when the public schools of the city or town in which he resides are in session, or be employed at work before six o’clock in the morning or after seven o’clock in the evening." Held, that the prohibition of the employment at work of a child under the age of fourteen years before six o’clock in the morning or after seven o'clock in the evening is an absolute one of general application and is not confined to employment in a factory, workshop or mercantile establishment.</p> <p>The provision of R. L. c. 106, § 28, as amended by St. 1905, c. 267, that “ No child under the age of fourteen years shall... be employed at work before six o’clock in the morning or after seven o’clock in the evening,” applies to employment in a theatrical exhibition, there being no inconsistency between this prohibition and the provisions of R. L. C..106, § 45, dealing with a limited class of exhibitions. The prohibition of R. L. c. 106, § 28, as amended by St. 1905, c. 267, that “No child under the age of fourteen years shall... be employed at work before six o’clock in the morning or after seven o’clock in the evening,” applies to the employment of a child under fourteen years of age in a speaking part in a play between the hours of eight and ten o’clock in the evening, although the child receives no wages or compensation for his appearance, except that his participation in the play is a part of his training for the dramatic profession.</p> <p>If one is procured to work regularly under an engagement, rendering valuable service for a specified time, it may be found that he is “employed,” although he receives nothing as an agreed compensation. This is recognized by the provision of R. L. c. 106, § 28, as amended by St. 1905, c. 267, which prohibits the employment of a child under the age of fourteen years before six o’clock in the morning or after seven o’clock in the evening without reference to the employment being for wages or compensation.</p> <p>The provision of R. L. c. 106, § 28, as amended by St. 1905, c. 267, which prohibits the employment of a child under the age of fourteen years before six o’clock in the morning or after seven o'clock in the evening, applies to the employment of such a child at work in this Commonwealth, wherever the contract was made and whether the child is an inhabitant of the Commonwealth or a non-resident.</p>

Tort under R L. c. 51, § 18, for injuries alleged to have been caused by the plaintiff’s stepping upon the cover of a coal hole opposite a store on Main Street in Worcester, and by the cover slipping to one side because of a defective condition of which the defendant had notice or should have had notice. Writ dated July 19,1907.

<p>Libel for divorce, filed on January 9,1908, by Jane W. Holt against her husband, John Holt, upon the grounds of cruel and abusive treatment and adultery with one Emma Whitehouse.</p> <p>At the trial in the Superior Court before Lawton, J., it appeared that the libellant was in her seventy-ninth year, in ill health and feeble, and that the libellee was four years younger than his wife.</p> <p>As bearing upon the . cruelty of the husband, the libellant was asked the following question: “ Q. Whether or not Emma [meaning Mrs. Whitehouse] ever struck you in the presence of » your husband ? A. She struck me on my lame shoulder twice; took her heavy right hand and tried to push me on the floor; and if I hadn’t been so near the table, I would have been down on my face.” The judge excluded the question and answer, and the libellant excepted.</p> <p>The judge found for the libellee, and dismissed the libel.</p> <p>The libellant alleged exceptions.</p>

<p>Way, Defect in highway.</p> <p>Where a concrete sidewalk of a public way of a city is crossed by a driveway and the edge of the concrete adjoining one side of the driveway is rough and jagged, there having been no attempt by edgestones or otherwise to provide a permanent step or a gradual and reasonably regular ascent from the level of the driveway to that of the concrete, which is two and a quarter or two and a half inches higher for the whole width of the walk, if a traveller is injured by reason of catching his toe when stepping from the driveway to the sidewalk, and brings an action against the city, the question whether his injury was caused by a defect in the highway is one of fact for the jury.</p>

<p>Two appeals, filed in the Superior Court on April 1, 1907, and May 4, 1908, from refusals of the assessors of the city of Boston to abate taxes assessed to the petitioner.</p> <p>In the Superior Court there was a long trial of the cases before Fessenden, J. He made certain findings of fact, which are stated in substance in the opinion. Upon these facts, he granted no abatement, and ordered pro forma that judgment should be entered for the respondent for its expenses and costs; and, at the request of the parties, he reported the cases for determination by this court. If his declining to grant an abatement was right, the judgment was to be affirmed; otherwise, such order, decree or judgment was to be entered as law and justice should require.</p>

<p>Practice, Civil, Ordering verdict, Auditor’s report, Arrest of judgment. Evidence, Presumptions and burden of proof, Auditor’s report. Pleading, Civil, Answer, Declaration.</p> <p>An auditor, to whom was referred an action of contract upon an account annexed for labor performed and materials furnished to the defendant by one G., the assignor of the plaintiff, in his report stated in substance that the labor was performed and the materials were furnished by G. to the defendant but for an entire sum and under a special contract, which had been performed, and “ under the declaration ” he found for the defendant. After the filing of the report, the plaintiff amended his declaration so that it stated an account based on the special contract. At the trial of the case, the plaintiff introduced the auditor’s report in evidence and both parties rested, and the defendant asked the presiding judge to order a verdict for him. The presiding judge refused to do so. Held, that the refusal was proper, since it would have been unjust to follow the technical finding of the auditor to a result utterly at variance with the substance of his conclusions, when the technical difficulty upon which alone it was based had been removed.</p> <p>A defendant in an action of contract upon an account annexed for labor performed and materials furnished may rely upon the defense that the labor was performed and the materials were furnished under a special contract for an entire sum, and not as stated in the account annexed to the declaration, without having set up such a defense specifically in his answer.</p> <p>Where an action of contract upon an account annexed for labor performed and materials furnished in the construction of a building, in which the answer contains a general denial and an allegation of payment, is referred to an auditor under an order directing him "to hear the parties, to examine their vouchers, and evidence, to state the accounts, and make report thereof to the court,” it is proper for the auditor to hear evidence and make full findings in his report both as to the state of the account between the parties and as to a contention of the defendant that the labor was performed and the materials were furnished under a special contract, although he may be satisfied that such contention of the defendant is well founded, so that, while he finds a balance due to the plaintiff on the basis of the special contract, he must on the pleadings find for the defendant.</p> <p>In an action of contract by a contractor against the owner of a building for a balance alleged to be due the plaintiff on a special contract for the performance of labor and furnishing of materials in constructing the building, which contract has been fully performed by the plaintiff, he may declare either on the contract or upon a general count.</p> <p>Statement by Ruoa, J., of the proper methods of raising at a hearing before an auditor objections based upon a technical adherence to the issues stated in the pleadings. Statement by Rugg, J., of the duties of an auditor where at the hearing before him the whole cause of action which is the subject of controversy is inquired into without objection by either party, and he then discovers that the pleadings are not framed to meet precisely the facts which be finds, and the pleadings aré not amended before he files his report.</p> <p>An auditor, to whom was referred an action of contract upon an account annexed for labor performed and materials furnished in the construction of a building by one who had assigned the account to the plaintiff, the answer in the action being a general denial and alleging payment of the account, and the order of reference directing him “to hear the parties, to examine their vouchers and evidence, to state the accounts and make report thereof to the court,” without objection from either party inquired into the whole cause of action, in his report stated the account between the parties, and, being satisfied that the plaintiff’s assignor had performed the labor and furnished the material under a special contract, so found and, the declaration not having been amended, stated that “ under the declaration,” he found for the defendant. There was no motion to recommit the report, but a motion by the plaintiff to amend his declaration so as to avoid the technical objection raised by the auditor was allowed. At the trial of the case before a jury, the plaintiff introduced the auditor’s report in evidence and both parties rested, the defendant contending that, the declaration having been amended since the filing of the auditor’s report, the report was not prima facie evidence of conclusions reached by the auditor on the pleadings. Held, that the stating of the account by the auditor was within the scope of the reference to him, and therefore, it being apparent that but for the technical objection, the grounds for which had been removed by the amendment, the auditor would have found for the plaintiff, the report was prima facie evidence of the conclusions of fact reached by the auditor.</p> <p>The report of an auditor, to whom has been referred an action of contract upon an account annexed, should be dealt with, at the subsequent.trial of the action,upon its recital of testimony and findings of fact. Its soundness and character as evidence cannot be affected by erroneous rulings of law upon the facts found.</p> <p>It seems, that if the conclusion of the report of an auditor, to whom was referred an action of contract upon an account annexed, is in substance a ruling of law which is erroneous, and if upon the other parts of the report it is plain that the ruling should have been in favor of the party against whom the auditor found, the report, in respect to such findings as are the basis of the conclusion that should have been reached, possesses its prima facie character as evidence, and, if there is no other evidence in the case, a verdict properly may be directed contrary to the erroneous ruling of law of the auditor and in conformity with his findings of fact.</p> <p>Where the report of an auditor, to whom was referred an action of contract upon an account annexed, states facts which would warrant more than one inference of fact, the jury before whom the case subsequently is tried may draw a different inference from that drawn by the auditor, and therefore, although no other evidence than the report is introduced at the trial, a verdict should not be directed in accordance with the conclusions of the auditor, but the jury should be permitted to make from the facts found in the report such deductions as seem to them reasonable.</p> <p>A judgment in an action of contract will not be arrested by reason of matters which, if they existed at all, existed before verdict and might have been pleaded but were not.</p>

<p>Tort, with a declaration in four counts, the first alleging that the plaintiff’s intestate was employed by the defendants as a teamster and that, because of negligence of the defendants in failing to warn and instruct him with regard to the dangers of his work, he was thrown from a wagon and was injured by reason of the harness breaking, and shortly afterwards died; the second count alleged negligence of the defendants in suffering the wagon and harness to be in a defective condition; the third, under R. L. c. 106, § 71, cl. 1; § 73, alleged a defect in the wagon and harness, as a part of the ways, works or machinery of the defendants, and the fourth count, under R. L. c. 106, § 71, cl. 2; § 73, alleged negligence of a superintendent of the defendants. Writ dated October 21, 1907.</p> <p>The case was tried before Raymond, J. There was evidence tending to show that at about half past seven o’clock in the morning of July 20,1907, Jeremiah Murphy, the plaintiff’s intestate, in the employ of the defendants, was driving a single horse attached to a wagon loaded with forty-two cases of beer, each weighing about fifty-nine pounds, down Orange Street in Fall River, where the grade was thirty-seven and sixteen one hundredths feet in nine hundred and sixty-one feet; that the horse was harnessed to the wagon in the usual way and that nothing appeared wrong with it; that the plaintiff’s intestate was driving in the usual way looking straight ahead, and that the horse was going slowly when he stumbled; that Murphy pulled him up, gently, not violently, that the left hand breeching strap broke “ where it goes on the iron on the shaft,” that then the right hand trace fell, the right rein broke, and the team went into a yard and into a pole and tipped over; that after the breeching strap broke the horse increased his speed and was going very fast and the wagon was coming up against him; that when the wagon struck the pole Murphy was thrown out and struck up against a building, receiving injuries from which he died ten days later.</p> <p>There also was evidence tending to show that the defendants’ drivers cleaned their own harnesses once a week, but that the defendants saw to the repairs. Each horse had a separate harness. At the time of the accident, Murphy was driving a horse called Big Sam. Generally he drove a gray mare. He was driving the gray mare on the day before the accident.</p> <p>A former employee of the defendants, testifying for the plaintiff, stated that he had driven Big Sam for the defendants up to May 18 preceding the accident; that the harness which broke had been purchased by the defendants in June, 1906, that it was used on the horse in all kinds of weather, carrying loads on the wagons of from thirty to thirty-six cases of beer; that in April, 1907, the breeching straps on the harness were giving way a little so that the defendants sent them to be repaired at a harness shop, that when they were returned they had been spliced and sewn, where formerly they were one piece, the splicing lapping over about two inches on each side; that the splicing came in right on the hook of the shaft; that after they were repaired they appeared to be all right; that he saw the strap after the accident, and that it was broken in the stitching.</p> <p>A harness maker, qualified as an expert for the plaintiff, testified in substance that it was not a safe and proper thing to splice a breeching strap on the harness described, nor was it a suitable thing to do; that with the wear in the weather and in the manner described the life had gone out of the leather where it was used over the hook and no life was left in that leather; and that the danger in trying to splice leather where the life had gone out of it was that it would wear away; that the stitching would be good on the outside, but that the inside would be smooth and would come apart; that the strength had gone out of the leather.</p> <p>At the close of all the evidence, the defendants asked the presiding judge to rule that the plaintiff was not entitled to recover, that there was no evidence that Murphy was in the exercise of due care and that there was not sufficient evidence to warrant the jury in finding that the defendants were negligent.</p> <p>The judge directed a verdict for the defendants on the third count, submitted special questions to the jury on the fourth count, after the answers to which the plaintiff waived that count, and left to the jury the other counts. The jury found for the plaintiff on the second count, that for conscious suffering.</p> <p>The presiding judge reported the case for determination by this court as stated in the opinion.</p>

<p>Contbact, upon an account annexed containing one hundred and fifty-eight items of lumber alleged to have been sold to the defendant by the plaintiff. Writ dated October 4,1905.</p> <p>The case was referred to Benjamin Cook, junior, Esquire, as auditor. He found “ that the plaintiff sold the goods stated in the account annexed on the sole credit of the defendant and sold them to the defendant,” and that the account annexed was a true statement.</p> <p>The case was tried before Raymond, J. The plaintiff introduced the auditor’s report in evidence and rested. The defendant’s contention was that the plaintiff sold the goods to one Saucier and that the defendant at most merely agreed orally to see that Saucier paid the account, and he relied on the statute of frauds and introduced in evidence a letter from the plaintiff to Saucier stating “ I am sorry to inform you that I can’t let you have any more stock before I receive some money. I saw Mr. Healy and did not get much satisfaction from him.” He also introduced in evidence a bill of sale from the plaintiff bearing the heading “Mr. Elzear Saucier bought of Thomas Hindle, Lumber Dealer,” and a page of the plaintiff’s ledger showing the items which were in the account annexed, and which had the name of Elzear Saucier at the top of the page.</p> <p>The defendant also called as a witness one Catherine Barring-ton, and asked her the following questions, all of which, upon objections by the plaintiff and subject to exceptions by the defendant, were excluded: Q. “Did you see a writ of a suit brought by Thomas Hindle against Elzear Saucier in which Thomas Healy was named as trustee, prior to March, 1900 ? ” Q. “ Did you see a writ of a suit brought by Thomas Hindle against Elzear Saucier in which Thomas Healy was named as trustee for the collection of this same money ? ” Q. “ Did you see a writ for a suit brought by Thomas Hindle against Elzear Saucier in which Thomas Healy was named as trustee prior to March, 1900 ? ” Ho statement of the answers expected to these questions was made by the defendant.</p> <p>The substance of a part of the plaintiff’s testimony was that Saucier, whom previously he had not known, had come to see him about some lumber to use in building houses for the defendant, that he went to see the defendant, and told him of his interview with Saucier. “ I told him I wasn’t acquainted with Saucier, and he said he would pay the bill; ‘let Mr. Saucier have what he needed for the different jobs he was going to work on and he would pay the bill.’ ” He also testified that the defendant referred him to his son John E. Healy as his agent, that be interviewed the son, who told him that Saucier was in difficulties so that “ he couldn’t get his lumber from any other yard. . . . ‘ So I agreed with him, on condition that he would pay the bill — he and his father — to furnish the material, and he was going to arrange it so that nobody could harm us in any way, and I left him feeling that everything was all right. He told me to bring the bill for lumber to him. I asked him at the time whether I should charge it to Mr. Saucier or to Mr. Healy. He said,1 Charge it to Saucier. Let him have all he wants for the building and leave him the bill.’ ”</p> <p>Evidence of the defendant controverted that of the plaintiff.</p> <p>At the close of the evidence, the defendant asked the presiding judge to make certain. rulings, the substance of which is stated in the opinion. Except as stated in the opinion, the requests were refused, and the defendant excepted.</p> <p>The defendant also excepted to the following portion of the charge of the presiding judge, as being in violation of E. L. c. 173, § 80:</p> <p>“ Considerable has been said about the fact that the goods were charged to Mr. Saucier, and that demands were made on Mr. Saucier by the plaintiff. That is to be weighed by you just the same as the other testimony is to be weighed but it is not a controlling consideration. You heard the testimony as to the method of doing business there. It is a lumber yard. The plaintiff is out in the yard or about the city, and he has a bookkeeper and he has a yard man, according to the testimony in the case, and he makes an agreement with an individual with reference to the sale of lumber. The bookkeeper makes the charges; the bookkeeper charges it to the man to whom the lumber is delivered. You will see that that is not a controlling consideration as to whether or not the actual credit was given to Mr. Healy, with whom the plaintiff testifies that he had certain talk constituting an agreement. If you find that there was that independent talk with Mr. Healy, or with John E. Healy after his father had referred the lumber dealer to John E. Healy, and that he gave credit in consequence of that talk, then the plaintiff would be entitled to a verdict, and the verdict would be in the sum set forth in the auditor’s report, and at the bottom of this long bill of items.”</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions which were disallowed by the presiding judge as not being in conformity with the truth. The defendant thereupon filed in this court a petition to establish his exceptions, and William H. Fox, Esquire, was appointed a commissioner, before whom the defendant presented a new draft of the exceptions to which the plaintiff did not object.</p> <p>After the commissioner had filed his report, he filed another document, material portions of which are stated in the opinion, beginning, “ If I am allowed to do so, I herewith present a supplementary report in the above case, after having given a hearing on the matter to both parties.”</p> <p>While the case was pending, the defendant died and the executrix of his will was admitted as defendant.</p>

<p>Attachment. Practice, Civil, Late entry of writ.</p> <p>Where, after the failure of a plaintiff to enter his action in the Superior Court upon the return day of the writ, the court under B. L. c. 173, § 11, permits him to enter it late but before the next regular return day, an attachment of real estate made in due course by virtue of the writ remains in force.</p> <p>Under a writ returnable to the Superior Court on October 2 of a certain year, an attachment of real estate of the defendant was made on September 1. On September 2 the defendant mortgaged the real estate and the mortgage was recorded on October 4. The plaintiff failed to enter his action on October 2, but by leave of court, granted in accordance with R. L. c. 173, § 11, entered it on October 4 after the mortgage had been recorded. The mortgage was foreclosed by sale. The plaintiff recovered judgment against the defendant, execution issued, and there was a sale under the execution. The purchaser at the foreclosure sale brought a bill in equity against the purchaser at the execution sale, seeking to enjoin him from interfering with the land. Held, that the bill must be dismissed, since entry of the action late by leave of court caused the attachment to remain in force, and the title of the purchaser at the execution sale therefore was paramount.</p>

<p>Petitions, filed on June 18, 1909, for writs of mandamus commanding the mayor and aldermen of Lawrence to restore the petitioners to the positions respectively of chief engineer and of a member of the board of engineers of the fire department of Lawrence, and commanding the persons who then held those offices to surrender them.</p> <p>The cases were heard on the petitions and answers and agreed statements of facts by Morton, J., who reserved them for determination by the full court.</p>

<p>Tort for injuries sustained by the plaintiff on July 30, 1906, at the station of the defendant at Gloucester, when the plaintiff was a passenger upon a train of the defendant, from having the index finger of her left hand caught between the door jamb and the door of the car from which she was about to alight. Writ dated September 20,1906.</p> <p>In the Superior Court the case was tried before Raymond, J. The plaintiff testified that in July, 1906, she was nineteen years of age, and was living in Gloucester; that just previous to the accident she had been working as a housemaid in Magnolia; that on July 30, 1906, she bought a ticket and boarded the 6.29 P. M. train at Gloucester, to go to Magnolia to get some clothing which she had left at her place of employment; that she got in the rear car of the train and sat on the right hand side near the rear of that car.</p> <p>Among other things, she further testified as follows: “ When the car got to Magnolia the brakeman called ‘ Magnolia ’ and slammed the door open. I waited until the car stopped and I got out. There was a lady ahead of me and he helped her out. . . . Q. When you passed through, the door what did you notice with reference to the door? A. I noticed the door was fastened back because the brakeman threw the door open when he hollered ‘ Magnolia,’ and just as I went out the door slammed to. . . . — Q. What was there, if anything, to take hold of going down the steps of the car or on the platform of the car? A. I didn’t notice anything. I happened just to come out, and my hand happened to get on this side when I was going down, so I could protect myself from slipping, and I had my hand on the side of the door when the door slammed to. . . . Q. The brakeinan opened the door ? A. Yes, sir.— Q.-Pushed the door back? A. Yes, sir. — Q. Pushed the door clear back? A. Yes, sir. — Q. You saw him do that? A. Saw him open the door. — Q. Did you hear the catch when you were back in your seat ? A. Yes. — Q. You were sitting at the rear of the car? A. About five seats from the rear of the car. — Q. And the car was quite a long car ? A. Yes, sir. — Q. And that left a dozen or fifteen seats ahead of you ? A. Yes, sir. — Q. You heard the brakeman push the door back and heard it catch? A. Yes, sir. — Q. Then you were sitting in your seat at that time, and thereupon you got out after sitting there a couple of minutes, and you walked to the front of the car and the door was still open ? A. Yes, sir. — Q. Some passenger got out ahead of you ? A. Yes, sir. — Q. Did you watch her as she walked along the aisle ? A. Yes, sir. — Q. See what she did when she got to the door ? A. No, sir. — Q. You didn’t look at the door, did you ? A. No, sir. — Q. You walked out on to the platform ? A. Yes, sir. — Q. And the car was then at a standstill? A. Yes, sir. — Q. There wasn’t any motion of the car ? A. No, sir.”</p> <p>One Dolant, a young man who knew the plaintiff and who sat beside her in the same seat in the train until it reached Magnolia, testified “ that he didn’t notice anything in regard to the slamming of the door, and didn’t see how it happened. . . . Q. Then as she walked down the aisle you kept your eye on her all the time? A. Yes. — Q. All the time? A. Yes. — Q. She walked down slowly ? A. Yes. — Q. Then you saw her get out on the platform? A. Yes. — Q. Saw her turn around to go down the stairs? A. Yes. — Q. Kept your eye on her all the time ? A. Yes. — Saw her turn around to the left and go down the steps ? A. Yes. — Q. Saw her take one step down ? A. Yes. — Q. Saw her put her hand up on the door before she started to go down the steps ? A. Yes. — Q. When did she put her hand up on the door, when she started to step down ? A. Yes. — Q. Then the next thing you knew the door came to? A. Yes. — Q, You didn’t see the door shut on her finger ? A. No. —Did the girl get down off the steps? A. Yes.— Q. You didn’t see the door shut or anything of the kind? A. No.”</p> <p>At the conclusion of the evidence submitted by the plaintiff, the judge ruled that upon the evidence the plaintiff could not recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>It was agreed by counsel that if the ruling of the judge was correct, judgment should be entered for the defendant, and that if the judge was in error in not submitting the case to the jury, judgment should be entered for the plaintiff in the sum of $400.</p>

<p>Evidence, Declarations as to title to land. Practice, Civil, New trial.</p> <p>Declarations as to the title to land made by the owner of the land while upon it are admissible in evidence against any one claiming under such former owner although the maker of the declaration is alive at the time of the trial.</p> <p>A motion for a new trial is addressed to the discretion of the trial judge.</p> <p>A memorandum made by a trial judge stating a reason for his denial of a motion for a new trial is no part of the record, and it cannot be assumed that the judge in making the order denying the motion acted solely on the ground stated in the memorandum.</p> <p>It seems, that the fact that a very small amount of money is in dispute may be an adequate reason for refusing a new trial that otherwise might be granted.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff on the night of July 6,1907, upon the premises of the defendant in Swampscott adjoining its railroad station there. Writ dated September 12, 1907.</p> <p>In the Superior Court the case was tried before Lawton, J. The findings of fact which were warranted by the evidence are stated in the opinion. The following facts appeared in evidence:</p> <p>At the Swampscott station the defendant’s tracks, which are double, run practically north and south. On the east side of the tracks is located the main station building containing the ticket office. On the west side of the -tracks is a long, covered waiting shed containing a baggage compartment and settees. From the east to the west side of the tracks at a convenient place is a plank walk through which the rails run. Access to the station from the east side of the tracks is from Railroad Avenue, so called, and this side of the defendant’s premises is entirely unfenced. Access from the west side of the tracks is from Columbia Street, and upon this side the premises of the defendant are fenced for their entire length, there being an opening for the passage of teams and also an opening, with a passage consisting of gravel and plank, for the use of pedestrians, leading directly to a flight of steps in the waiting shed mentioned above.</p> <p>Shortly after eight o’clock on the evening of the accident the plaintiff entered from Railroad Avenue the premises of the defendant for the double purpose of purchasing tickets to be used by him the following day in travelling from Boston to Swampscott and of taking a train immediately for Lynn.</p> <p>The train for Lynn left the station as the plaintiff entered the main passenger building, and the plaintiff, after purchasing his tickets to use the next day and learning there was no other train for an hour, started to leave the defendant’s premises from the westerly side to take an electric car a short distance away, this electric car line being on the westerly side of the railroad. The plaintiff, although familiar with the station, always had entered from the easterly side, and was unacquainted with the westerly side except that he frequently had seen people coming and going on that side.</p> <p>He crossed the tracks on the plank walk provided for the purpose, passed through the doorway in the waiting shed and down the flight of steps mentioned above. Having reached the foot of the steps, he proceeded along the path toward Columbia Street, the name of which he then did not know but where he frequently had seen people travelling, and with the general direction of which he was perfectly familiar. At the end of the pathway and about three feet inside the defendant’s fence the path was planked for several feet, and at the westerly end of the plank walk was a wooden step down.</p> <p>It appeared by the evidence that the plaintiff never had been at this spot before; that the step was worn and split and had been so moved under the plank walk that at the time of the accident it appeared triangular in shape, being one foot wide at one end and running off to nothing at the other end; and that the ground in front of the step had been worn by use and was hollowed away, being deeper in some places than in others. An electric arc light was so situated in the street that shadows from intervening posts were cast directly over the step, the end of the plank walk and the hollow worn in the earth, throwing the whole into obscurity. The plaintiff when he reached the step slipped upon it and fell, thereby receiving severe injuries.</p> <p>“ It was agreed by the parties before the case was submitted to the jury that, upon the pleadings and facts, the plaintiff should not be considered as a passenger.”</p> <p>The defendant offered evidence only upon the question of damages, and at the close of the testimony asked the judge upon all the evidence to order a verdict for the defendant. The defendant further asked the judge to give the following instructions:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. Upon all the evidence and under the pleadings the plaintiff was not an invitee at the time of the alleged injury.</p> <p>“ 3. Upon all the evidence the plaintiff had no greater rights at the time of the alleged injury than that of a licensee.</p> <p>“4. Upon all the evidence the condition of the step was not the proximate cause of the injury.</p> <p>“5. Upon all the evidence the plaintiff was not in the exercise of due care at the time of the accident and just before the same occurred.”</p> <p>The judge refused to order a verdict for the defendant or to give any of the foregoing instructions requested. He submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,779. The defendant alleged exceptions.</p>

<p> Corporation. Agency. </p> <p>In an action of contract against a corporation, known as a glue company, the declaration alleged that the defendant agreed to buy from the plaintiff at par certain shares of the capital stock of the defendant. The plaintiff introduced evidence showing that he was a manufacturer and that the defendant agreed to buy from him all his glue material for five years, paying for it during the first two years in shares of the defendant’s capital stock at par and thereafter in cash, that the plaintiff delivered to the defendant certain glue material and received the shares in question, that the plaintiff asked the defendant’s vice president, who also was one of its directors and one of its executive committee of three, whether there was any doubt as to the value of the shares, that the vice president answered, “ No, not a bit; if you have any doubt about it I will take it off your hands and pay you a hundred cents on the dollar,” that the plaintiff asked the defendant’s vice president to put that in writing, whereupon the vice president wrote and signed in his individual name the following: “ In regard to our talk over the phone I hereby agree to pay you one hundred cents on the dollar for your stock in the Glue Company.” The plaintiff called as a witness the defendant’s vice president, who testified that he did not propose to purchase the shares in his own behalf, but he did not testify that he undertook to act iu behalf of the defendant or anybody else. He testified that one of the other three members of the executive committee acted in conjunction with him in trying to secure the rights of the plaintiff. Held, that the testimony last mentioned did not warrant a finding that a majority of the executive committee agreed to a purchase of the plaintiffs shares on hehalf of the defendant, that there was no evidence that the vice president?in signing the agreement to buy the plaintiffs shares was acting for the defendant or was authorized to act for it, and that a verdict rightly was ordered for the defendant.</p>

<p>Contract, Building contracts, Performance and breach.</p> <p>If a contractor agrees to complete a building by a date named, and to forfeit §10 for every day thereafter that the work remains unfinished, and performance within the time fixed by the contract is made impossible by additional requirements of the owner of the building, which are complied with by the contractor without objection, this does not absolve the contractor from his obligation to complete the building by the day named so far as he is not prevented from doing so by the owner of the building, and if, after the day named for the completion of the building, further delays occur by reason of want of diligence on the part of the contractor, he must forfeit $10 for each day of delay thus caused by him.</p>

<p>Contract on a policy of fire insurance in the Massachusetts standard form, in the sum of $2,000, issued by the defendant on October 1, 1903, for one year, upon the stock in trade of the plaintiff which was wholly destroyed by fire on May 31, 1904. Writ dated November 7,1904.</p> <p>In the Superior Court the case was tried before Hardy, J. The only evidence offered was the report of an auditor, who found that the policy was duly issued, that there was a total loss exceeding the amount named in the policy and that proof of loss was made in compliance with the terms of the policy. He also found the facts in regard to the action of the parties under the arbitration clause in the policy which are stated in the opinion.</p> <p>The judge ordered a verdict for the defendant, and reported the case for determination by this court. If upon the evidence the judge was justified in ordering a verdict for the defendant, judgment was to be entered upon the verdict; otherwise, judgment was to be entered for the plaintiff in the sum of $2,040, with interest from November 7, 1904.</p>

<p>Tort, against the city of Haverhill, to recover damages resulting from the deposit of sewage upon the plaintiffs’ land by the defendant by means of a branch sewer running from a sewer of the defendant in Washington Street in Haverhill through the land of the plaintiffs to the Merrimack River, with three counts which are described in the opinion. Writ dated September 20, 1905.</p> <p>In the Superior Court the case was tried before Bell, J. The material facts shown by the evidence are stated in the opinion. The defendant asked the judge to give, among others, the following instructions to the jury:</p> <p>“ 1. On the pleadings, as a matter of law, this action cannot be maintained on the first count of the declaration.</p> <p>“2. On the pleadings, as a matter of law, this action cannot be maintained on the second count of the declaration.</p> <p>“ 3. On the pleadings, as a matter of law, this action cannot be maintained on the third count of the declaration.</p> <p>“ 4. On all the evidence this action cannot be maintained on the first count of the declaration.</p> <p>“5. On all the evidence this action cannot be maintained on the second count of the declaration.</p> <p>“ 6. On all the evidence this action cannot be maintained on the third count of the declaration.</p> <p>“ 7. The remedy, if any, of the plaintiffs or their predecessors in title for laying the sewer was a petition for damages to be assessed in the manner and upon the same principle as damages are assessed in laying out town ways at the time the sewer was laid.</p> <p>“ 8. On all the evidence the defendant had acquired a prescriptive right to maintain the sewer mentioned in the plaintiffs’ declaration before the bringing of this action.”</p> <p>“ 12. Assent of the landowners does not make the use permissive so as to prevent the defendant from acquiring a prescriptive right to maintain the sewer in its present location by adverse use.”</p> <p>“ 14. By virtue of the passage of the order and building of the sewer under the authority thereof the defendant was acting under a claim of right and there is no sufficient evidence that the sewer was maintained on the plaintiffs’ land under circumstances that would warrant the jury in finding a mere permissive use.”</p> <p>“ 16. On all the evidence the plaintiffs are entitled to no more than nominal damages.”</p> <p>The judge refused to give any of the instructions requested as above, and submitted the case to the jury, who returned a verdict for the plaintiffs in the sum of $500. Upon the hearing of a motion made by the defendant for a new trial, the. plaintiffs remitted $400 of the amount of the verdict. The defendant alleged exceptions to the refusal of its requests for instructions.</p> <p>There were also the following exceptions to the admission of evidence, which are referred to in the last paragraph of the opinion:</p> <p>One Sargent testified for the plaintiffs that he was engaged in the real estate business, and that he had seen the land at the end of the sewer within six years before 1905, and had smelt the odor, which was the same as any sewer. He was asked the following question: “ Would .such a condition of things as you observed there during this six years interfere, in your judgment, with the value of the use of the property ? ” To this question the defendant objected on the ground that there was no allegation of loss of tenants or that the premises were less rentable or that the rental value had been depreciated; but the presiding judge, against the objection and exception of the defendant, permitted the witness to testify, “ that it would to a certain extent ” in the way that any nuisance would interfere with any property. He further was allowed, against the objection and exception of the defendant, for the purpose of getting at the reasons of his previous opinion, to testify that the existence of a sewer creating such a nuisance as he saw would tend to diminish the character of the use and value of the buildings that would be put upon the land, but that he did not consider himself competent to express an opinion as to the amount of the damage. He further was asked the following question: “ Would it affect the character, in your judgment, of tenants that would be — and the nature of business that would be done upon the premises, the nature of a nuisance like that?” The defendant objected to this question on the ground that it did not appear that the premises were fitted for a better class of tenants than were occupying them, but the presiding judge, against the objection and exception of the defendant, permitted the witness to answer as follows: “ Yes, it would. It would make a difference, of course, as I once said, as any nuisance. I consider that a nuisance to a certain extent, and all the rest of sewers I ever had anything to do with across land that was occupied, and I should say that it wo,aid affect in the way that you would not get certainly so much rent for your premises.”</p>

<p>Way, Defect in highway. Evidence, Judicial notice.</p> <p>In an action against a city for injuries caused by an alleged defect in a public way of the defendant, where it appears that as the plaintiff was driving along the way a part of the street caved in, precipitating the plaintiff’s horse into the opening thus made, and that immediately after the accident the plaintiff saw that the cover of a wooden box sewer two feet below the surface of the street had broken down under the place where the street had caved in and that it was rotten and in pieces, and where it also appears that the wooden box sewer had been in the street for eighteen years and during that time never had been relaid, the plaintiff may show that two months before this accident there was a similar hole in the same street above the same sewer ten or fifteen feet away from the spot where the plaintiff was injured, that the boards in the sewer at that place were rotten and decayed and had broken down, that the police of the defendant then were notified and put a barrel and wooden horses there, and that on the next day a gang of men in the employ of the defendant repaired the sewer by patching it, putting in some new boards and filling the hole in the street; and this evidence, properly being admitted, warrants a finding that the defendant by the exercise of reasonable diligence should have known of the defect which caused the injuries.</p> <p>It is matter of common knowledge, of which a court will take cognizance, that planks or boards when placed under ground have a tendency to decay, and that such decay may affect the condition of a wooden box sewer which has been under a street for eighteen years and never has been relaid.</p> <p>Notice to a city that the boards of a wooden box sewer two feet below the surface of a public street, which has been there for eighteen years and never has been relaid, have become rotten at a certain place and have broken and caused the street to cave in at that spot, not only is notice of the particular defect pointed out, but gives the city knowledge of conditions from which it should infer that there is a reasonable probability that in the immediate vicinity the walls of the sewer upon examination would be found to be unsound.</p>

<p>Tort for injuries to the plaintiff’s automobile resulting from a collision with the defendants’ automobile in Lowell, on the morning of September 7, 1908. Writ dated September 8, 1908.</p> <p>In the Superior Court the case was tried before Grashill, J., without a jury. It appeared that on the day of the accident there were automobile races over the course in Lowell which were attended by a large concourse of people, and that the plaintiff, accompanied by his wife, a lady guest and a servant, was driving his automobile from his house in Lowell up Varnum Avenue toward the race-course where he had secured a stall for his automobile near the grand stand, and that when he was nearing the Pawtucket Boulevard the defendants’ automobile, driven by oné Lodge, a licensed chauffeur, without any passengers, came down Varnum Avenue and ran into the plaintiff’s automobile near the intersection of those public ways.</p> <p>At the close of the evidence, the defendants asked the judge to make the following rulings:</p> <p>“ 1. On all the evidence, plaintiff is not entitled to recover in this action.</p> <p>“ 2. At the time of the alleged accident, the witnesss Lodge was doing the work of the Fiat Automobile Company under the control of said Fiat Automobile Company or its officers and was not then the agent or servant of the defendants. Wherefore the plaintiff is not entitled to recover in this action.</p> <p>“ 3. That the witness Lodge was, at the time of the accident, the servant of the Fiat Automobile Company. Wherefore the plaintiff cannot recover in this action.”</p> <p>The judge refused to give any of these rulings, and found for the plaintiff in the sum of $400. The defendants alleged exceptions.</p> <p>It was admitted that there was sufficient evidence that the plaintiff was in the exercise of due care and that the driver of the defendants’ automobile was negligent, and it was agreed that the only question raised by the exceptions was whether the defendants were liable for the negligence of the driver of their automobile. The facts shown by the evidence upon this issue are stated in the opinion.</p>

<p>Writ op entry in the Land Court dated October 15, 1908, by the heirs at law of Nathaniel Haskell to recover possession of his homestead in the town of Rochester, against the sole devisee under the will of Eugenia L. Haskell, the last surviving daughter of Nathaniel, who died unmarried in 1907 at the age of eighty-nine years.</p> <p>In the Land Court the case was tried before Davis, J., who ruled that the title to the demanded premises was in the tenant and ordered judgment for the tenant. The demandants alleged exceptions.</p>

<p>Zand Court. Practice, Civil, Appeal.</p> <p>Upon an appeal to this court under St. 1904, c. 448, § 8, from a judgment of the Land Court, this court is limited in its jurisdiction to the consideration of questians of law, and cannot revise the findings of fact made in the Land Court.</p>

<p>Tax, Sewer assessments. Sewer. Covenant, Against incumbrances.</p> <p>Under St. 1890, e. 188, and St. 1895, c. 448, the street commissioners of the city of Malden, upon the completion of certain sewers forming part of the system of sewage disposal for that city authorized by the first named statute, established yearly rates to be assessed upon all abutting estates, and fixed a gross sum which the owners might pay instead of making annual payments. In § 3 of the first named statute it is provided that “ Said annual rates and said sums to be paid in lieu thereof shall constitute a lien upon said estates, and may be collected in the same manner as taxes upon real estate or by an action of contract in the name of the city. Said lien shall continue for two years after said rates or sums to be paid in lieu thereof have been committed to the collector for collection, and wiien said sums are to be paid in instalments shall continue for two years after the last instalment has been committed to the collector for collection.” The street commissioners in levying the assessment estimated the gross amount by the street frontage. The owner of a parcel of land abutting on two public ways in which the sewers had been laid, after the assessment had been levied on his land and while it remained unpaid and had not been committed to the collector for collection, conveyed the land to a purchaser by a deed containing a covenant that it was free from incumbrances. In an action brought against him by the purchaser for a breach of the covenant against incumbrances, the defendant contended that there was no incumbrance, because the assessment was invalid by reason of having been based upon the street frontage of the premises. Held, that the defendant, to prevail, must show affirmatively that the assessment exceeded or was disproportionate to the special benefit received, that it might be assumed that the commissioners had made an examination of the land assessed before determining the benefit and deciding upon the assessment, that, the sewers being laid in public ways of a city, an assessment according to the frontage of the lots abutting on the streets might be a reasonable mode of assessing the cost of constructing the sewers in such streets, and, there being nothing to show that the basis of assessment was disproportionate or unreasonable or that it worked any injustice, that the assessment was not shown to be invalid, and that, the lien for the assessment having existed when the deed was delivered, there was a breach of the covenant against incumbrances at that time.</p>

<p>Mechanic’s Lien. Practice, Civil, Verdict, New trial, Entry of judgment. Supreme Judicial Court. Judgment, Entry of.</p> <p>R. L. c. 197, § 6, requiring for the preservation of a lien for labor or materials the filing of a sworn statement, provides that “ if a lien is claimed for labor only performed or furnished under an entire contract which includes both labor and materials at an entire price, the contract price, the number of days of labor performed or furnished and the value of the same shall also be stated." A petition was filed for the enforcement of a lien for labor performed and furnished under a contract to do all the carpenter work upon a block of five houses for an entire price of §3,600. In stating the account and giving the items no mention was made of anything but labor. The value of lumber included in the contract was $36. The statement of the lien did not comply with the requirement of the provision of the statute above quoted by stating the number of days of labor and the value of the same. The petitioner contended that the amount of materials included in the contract was so small that it might be disregarded and the contract treated as one for labor alone. Held, that there was no foundation for this contention, and that the petition could not be maintained.</p> <p>Under R. L. c. 197, § 3, no lien for materials can be established against the owner of real estate if the materials were furnished under a contract which was made with the person from whom he purchased the property before it was conveyed to him and no notice was given to him of an intention to claim a lien, although a part of the materials were furnished after he acquired the title.</p> <p>Upon a petition to establish a lien for labor furnished in the construction of a building, the case was tried before a jury upon issues framed for them, upon which they found for the petitioner. The petition was for the enforcement of a lien for labor only, and by the evidence it appeared that the labor had been furnished under a contract which included both labor and materials at an entire price, and that the requirements of R. L. c. 197, § 6, as to a statement of the number of days of labor and the value of the same had not been complied with. The respondent moved for a new trial, which was granted by the judge. The respondent then asked the judge “ upon all the evidence in the case” to find for the respondent. This motion the judge denied on the ground that he had no authority to grant it. Held, that the action of the judge was right, both in granting the new trial and in refusing to make a finding for the respondent; that the evidence on which the judge was asked to make the finding had been introduced upon the trial of issues before the jury, and, after their verdict, was not before the judge to be passed upon by him, and he could not assume that the petitioner would not desire and be able to introduce other evidence upon a new trial on the merits.</p> <p>The provision of St. 1909, c. 236, § 1, that in a case before this court on an exception by a defendant to a refusal of a presiding judge to order a verdict for such defendant, this court, if the defendant’s exception is sustained, may by rescript direct the entry in the trial court of judgment for the defendant, does not apply to a case which comes to this court not by a bill of exceptions but by a report of the presiding judge, although it appears by such report that the judge refused to order a verdict for the defendant and that the defendant excepted and that such refusal was erroneous and was held to be so by the presiding judge himself, who accordingly set aside the verdict and reported the case without providing in his report for a judgment for the defendant.</p>

Tort by the administratrix of the estate of Celestin Proulx, the plaintiff being also his widow, for the conscious suffering and death of the plaintiff’s intestate, caused by an injury sustained by him on March 2,1908, while in the defendant’s employ, from the giving way under him of a section of the flooring of the second story of a building in Lowell where he then was at work, and his consequent fall of about eighteen feet, from the effects of which he died on March 16,…

<p> Constitutional Law. Tax. </p> <p>The taxation under R. L. c. 12, §§ 2, 4, 23, of shares of the capital stocks of corporations organized under the laws of other States held by residents in this Commonwealth is not in violation of the fourteenth amendment of the Constitution of the United States; and, if it is assumed that the part of the statute which applies to the taxation of tangible personal property situated in another State is invalid, that part is so far separable from the provision under which taxes upon the shares of foreign corporations are assessed as not to affect the validity of such assessments.</p>

<p> Negligence. </p> <p>In an action against a railroad corporation for personal injuries, there was evidence that the plaintiff was a weigher of oil in the employ of an oil company and worked in a building used as a filling and shipping house, by the side of which was a railroad track belonging to the oil company and kept in repair by that company but used for the transportation of oil by cars and an engine owned and operated by the defendant, that on the opposite side of the track was a platform belonging to the oil company, that when there was no train on the track the opposite platform was connected with the door of the building by movable skids placed across, and that the plaintiff usually removed and replaced these skids whenever cars were to be run in or out upon the track, that on the day of the accident the skids by some oversight had not been removed, and that two cars, which had been disconnected from an engine, ran on a down grade upon the track, breaking the skids and throwing them down behind the trucks of the second car, which was a tank car, that the cars were stopped, and a conductor, in charge of the cars, who was standing at the rear of the tank car, called to the plaintiff “ to come and pick up the skids,” that the platform of the tank car was opposite and entirely across the doorway of the shipping house, and the only practicable way for the plaintiff to reach the broken skids quickly was to pass over the car to the platform on the other side of the track, that, while the plaintiff was attempting to cross in this way, the engineer in obedience to a signal from the brakeman backed down the engine to recouple the detached cars, and the impact caused the plaintiff to lose his footing, and he fell and was caught and rolled between the car and the wall of the building. There also was evidence that, before the plaintiff had come fully upon the car, the conductor signalled to the brakeman to couple the cars. Held, that it could not be ruled as matter of law that the plaintiff was negligent or that he assumed the risk of the accident; that the call of the conductor to the plaintiff “ to come and pick up the skids ” could be found to be, not a command of employment, but a request to the plaintiff as an employee of the oil company, with an intimation that he had neglected his duty in not removing the skids previously; that an express or implied invitation to the plaintiff to use the car in passing to the platform was within the authority of the conductor, who had been put in charge of the train by the defendant, and that the questions whether the plaintiff was upon the car by the defendant’s invitation and whether while there he was injured by reason of the negligence of the defendant’s servants were for the jury.</p>

<p>Two actions OP contract by the city of Newburyport for money had and received, against different defendants, who received from one Felker, a former city treasurer of the plaintiff, checks drawn without authority upon a bank account of the city by Felker as city treasurer, payable to himself personally and indorsed by him in blank. Writs dated June 30 and June 19, 1906.</p> <p>In the Superior Court the cases were tried together before Fox, J., who refused to make certain rulings requested by the defendants, and ordered the jury to return a verdict for the plaintiff in each of the cases, in the action against Spear in the sum of $5,259.91, with interest, and in the action against Fay in the sum of $3,160.73, with interest. The defendant in each of the cases alleged exceptions, raising the questions which are disposed of in the opinion.</p>

<p>Two Actions op tort against a corporation operating a street railway, the first by a married woman for personal injuries sustained while she was a passenger in an open electric car of the defendant on Huntington Avenue in Boston at about half past five o’clock in the afternoon of July 2,1906, and the seconcL action by the husband of the plaintiff in the first case for damages occasioned by her injuries. Writs dated January 9,1907.</p> <p>In the Superior Court the cases were tried together before Lawton, J., who at the close of the testimony of the plaintiff in the first case ruled that there was no evidence of the defendant’s negligence, and on that ground ordered a verdict for the defendant in each of the cases. The plaintiffs alleged exceptions.</p>

<p>Tort for injuries to the plaintiff’s health, received by her while living in premises at 33 Windsor Street in Boston belonging to the defendants, alleged to have been caused by defective drainage. Writ dated January 17,1905.</p> <p>At the trial in the Superior Court before Hitchcock, J., it appeared in evidence that the plaintiff moved into the premises in the autumn of 1899, under an oral agreement with one Frederickson who was an agent of the owners, and that there was no agreement between the plaintiff and the agent at that time in regard to any repairs on the premises. The defendants became the owners of the premises in September, 1903, and Frederickson continued as agent for them in charge of the premises with authority to make repairs.</p> <p>The premises, so far as material to the case, consisted of a kitchen, dining room and coal cellar in the basement, the flooring of which was laid upon the soil. Between the soil and the wooden flooring ran the drain pipes from the kitchen sink to the main sewer.</p> <p>It appeared that the plumbing had been put in new throughout the house during the year 1899-1900, and that no other plumbing work was done until the plaintiff complained to Frederickson in April, 1904, that her sink was stopped up. The testimony of the plaintiff on this point was as follows: “ Q. What next was done in regard to the plumbing? A. There wasn’t anything else done after they went away until 1904 in March, particularly, that I noticed. My sink stopped up again. ■77-Q. What did you do? A. I went over to Mr. Frederickson who was the agent for the house and told him my sink was stopped up, he turned around to a young man named Clifford and told him to go over. — Q. What did you say to him ? A. I told him that my sink was stopped up, the water wouldn’t run off. — Q. And in response to that what did he say ? A. He turned around to a fellow in the office and said to a fellow by the name of Clifford to go over and clean out the drain pipe. — Q. Did he go over with you? A. He came over with me.— Q. What did he do ? A. He cleaned out the drain pipe in the cellar and underneath the floor. — Q. Did you see him do it ? A. No, sir, I just seen him go in there. I didn’t watch while he was doing it. — Q. The sink drained off after that? A. Yes, sir.”</p> <p>It appeared that Clifford was about seventeen or eighteen years of age at the time, that he used to drink and that there was no record of his having a plumber’s license as required by statute.</p> <p>The plaintiff testified that about two weeks after Clifford had cleaned out the sink drain she noticed a bad odor in her basement and requested Frederickson to attend to it. The testimony of the plaintiff on this point was as follows: “ Q. Now shortly after this time or after the sink had been cleaned out did you go and see Mr. Frederickson again ? A. Yes, sir, I smelled a bad odor in my basement and I went to Mr. Frederickson again, and he sent two plumbers over, Scott and Collins, to see what the trouble was. They told me it was surface water. — Q. Did they make an investigation ? A. Yes, sir. — Q. And they reported to you? A. Surface water. — Q. Was anything further done? A. No. Then the odor got worse and I commenced to feel sick and sent for the board of health. — Q. When you complained of the stopping up of the drain, when you went to Mr. Frederick-son and complained of the stopping up of the drain what did he say? A. He turned around and told him to go over with me, with Mrs. Fisher, and clean out the drain pipe. — Q. When you complained of the odor some time in April following to Mr. Frederickson, what did he say then — What did Mr. Frederickson say when you complained? A. He sent over two plumbers. — Q. What did he say ? A. When I complained of what ? — Q. Of the odor ? A. He said he would send the plumbers right over. — Q. Did he do so? A. Yes. — Q. Did they go over with you at that time? A. No. — Q. How soon afterwards did they come? A. It wasn’t only just a little while, the same day.”</p> <p>The odor not disappearing but becoming stronger, the plaintiff sent for the board of health, and as a result of an inspection the floors were torn up and it was found that there was a hole broken in the elbow of the drain leading from the sink. This elbow was a new piece of pipe in good condition but the edges of the hole were rusty. The dirt under the floor was wet and slimy. There was evidence that no one had been in the basement at work or had taken up the flooring since 1900.</p> <p>The plaintiff offered to show that it was a usual method of cleaning pipes to break holes therein in order to remove any foreign substance and then patch them up again, but the judge ruled that this was inadmissible, and the plaintiff excepted. There was evidence tending to show that the hole in the pipe was the width of the house distant from the sink.</p> <p>At the close of the plaintiff’s evidence, the judge' ruled that there was no evidence of negligence on the part of the defendants and ordered a verdict for the defendants. The plaintiff alleged exceptions to the refusal of the judge to admit the evidence offered as stated in the preceding paragraph, and to the ruling of the judge that there was no evidence of negligence.</p>

<p>Tort, against a corporation operating a street railway, for personal injuries alleged to have been received by the plaintiff by reason of the derailment of an open electric car of the defendant on which she was a passenger on the afternoon of Sunday, May 26, 1906. Writ dated "June 9, 1906.</p> <p>In the Superior Court the case first was tried before Bond, J., and the jury returned a verdict for the plaintiff in the sum of $15,000. The defendant alleged exceptions, which were sustained by this court in a decision reported in 201 Mass. 263.</p> <p>There was a new trial of the case before Hardy, J. A description of the issues tried and of the evidence introduced by the plaintiff is contained in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>« 1. There is no evidence of any defect in the car.</p> <p>“ 2. There is no evidence of any negligence as to the condition of the track or roadbed.</p> <p>“ 3. There is no- evidence of negligence as to the operation of the car.”</p> <p>The judge refused to make any of these rulings and submitted the case to the jury with other instructions. The portion of the charge of the judge which contained the reference to the inspection of cars mentioned in the opinion was as follows:</p> <p>“ If you are satisfied that the motorman behaved properly in accordance with my instructions, then the next question is, what was the condition of the car? Was that properly equipped? Well, you have evidence here introduced by the defendant as to the inspection of that car. The company was called upon to exercise the highest degree of care in having a car properly constructed, in the first place, constructed so that it fitted the tracks. Then it was called upon to exercise the same degree of care in having it properly equipped, having proper arrangements of machinery and running gear. When it has done that, then it is called upon, because of the fact that the car may weigh about eight tons, to exercise that high degree of care in connection with its inspection. What was done in this case ? Was there anything in the condition of the car that shows that it was improperly constructed, and that is a question of fact for you to decide.</p> <p>“ Did the company exercise a proper degree of care in accordance with the standard prescribed in seeing that the car was properly inspected, and you have the evidence of the railway servants as to what they did in that respect both before and after the accident. They have told you what they found. Was that inspection proper and reasonable under all the eireumstances in accordance with the standard prescribed ? If you are satisfied that it was proper and reasonable, it was in accordance with the high degree of care prescribed, then you will find for the defendant upon that issue.</p> <p>“Next, was the track in proper condition? You have some evidence here on the part of the plaintiff tending to show that the track was somewhat defective; that at a certain juncture of rails one rail was higher than the other; and it is for you to say who is telling the truth about that condition of the rails. The defendant’s testimony tends to show that the junction there was even. The plaintiff’s testimony tends to show that there was unevenness in connection with the junction of those rails. Of course, that is a question of fact for you to decide. If you are satisfied that the rails were uneven there, when you have found that fact, then it is for you to say whether that was a defective condition. Did the company exercise the high degree of care that I have suggested to you in connection with its construction in having the rails in that condition ? If it was properly constructed, in the first place, was that high degree Oof care used in connection with the inspection of the track ? Could it have been discovered by the exercise of the highest' degree of care required that there was a defective condition there ? The duty is imposed upon the company. If it failed to do its duty in that respect and that caused the accident, then the company would be liable. It is for you to say whether the explanation given here by the company as to the causes here has done away with anything that may have appeared there that was of a defective nature.</p> <p>‘.‘Now, it is not incumbent upon the plaintiff to satisfy you with reference to any one of these specific causes which may have caused the accident; that is, whether it was the action of the motorman or the failure of the company or its officials to inspect the track properly, or the failure of the company or its officials to have the proper construction of the car. If you are satisfied that in any one of these respects there has not been a proper explanation given, and you are satisfied that there was negligence on the part of the defendant company, then you will find for the plaintiff on the question of liability. If you are satisfied that reasonable care in accordance with the instructions. given, the care required, has been used by the company in all \ these respects, and you find it has not been negligent, then your verdict should be for the defendant on the question of liability.”</p> <p>At the conclusion of the charge, the counsel for the defendant among other things stated to the court the following: “ There .is one thing in your honor’s charge with reference to the explanation by the defendant. I am afraid the jury will understand from your honor’s charge that it is the duty of the defendant when it attempts to explain the accident, to show that it properly inspected the car and track, even though the evidence should go to show that there was not any defect in the car or track. In other words, if the jury should find there was not any defect in the car or any defect in the track, and no negligence in operation, the fact that we have not shown more about inspection, it seems to me would be immaterial. I did not know but what the jury might go astray on that.” The judge replied “I do not believe I led them astray on that.</p> <p>I think I will let it stand as it is.” To this part of the charge and the refusal to amend it the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff in the sum of $15,000; and the defendant alleged exceptions.</p>

<p>Contract, upon an agreement in writing quoted in the opinion, by which the defendant promised to pay to the plaintiff the sum of $300. Writ in the Municipal Court of the City of Boston dated November 30,1908.</p> <p>On appeal to the Superior Court the case was tried before Hardy, J., without a jury. The evidence presented at the trial is described in the opinion. The defendant after signing the agreement quoted in the opinion and before the date of the writ was married to one Parker. At the close of the evidence the defendant asked the judge to rule that upon the pleadings and the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling, and found for the plaintiff in the sum of $311.60. The defendant alleged exceptions.</p>

Tort against Gardiner H. Shaw for injuries from being run into by an automobile driven by one Peterson, alleged to be the servant of the defendant, while the plaintiff was riding a bicycle on Beacon Street Boulevard, a public way in the town of Brookline, at about eleven o’clock in the morning of July 3, 1904. Writ dated May 7, 1907.

<p>Sale. Corporation. Contract, Making. Mistake. Replevin. Estoppel.</p> <p>If the owner of certain goods, being assured that a proposed corporation is in existence and believing this to be the fact, delivers the goods on the day before the corporation is formed at the address given to him as that of the corporation in accordance with the terms of an oral order purporting to have been given in behalf of the corporation, there is no sale, and, in the absence of a new contract made with the corporation after it is formed, the owner of the goods may replevy them from the corporation or its assignee.</p> <p>By an express provision of St. 1903, c. 437, § 12, the existence of a business corporation formed under that statute begins upon the filing of the articles of organization in the office of the secretary of the Commonwealth, and not before.</p> <p>In an action of replevin by a corporation against the common law assignee for the benefit of the creditors of an insolvent corporation for certain goods delivered by the plaintiff on the day before the defendant’s assignor was created, the delivery having been made by the treasurer of the plaintiff who supposed the defendant’s assignor to be in existence, it appeared that the plaintiff’s treasurer was the only person connected with the plaintiff who had knowledge of the particulars of the transaction, and that he had no knowledge of his mistake in having supposed that he was contracting with a corporation in existence, until the corporation had made the assignment to the defendant for the benefit of its creditors, and that then he had directed the bringing of the action of replevin. There was no evidence of any action by the plaintiff in reference to the matter, which could change its situation, until after the assignment was made. It appeared that the plaintiff sent to the defendant’s assignor monthly statements of account which included the goods replevied, but it might have been found that these accounts were sent by a bookkeeper as a matter of regular routine in the belief that there had been a valid sale of the goods at the time of their delivery. The trial judge, who heard the case without a jury, refused to rule that the plaintiff could not maintain its action, and found for the plaintiff. Held, that it did not appear that the plaintiff had done anything with a knowledge of the facts on which an estoppel could be founded ; that the presiding judge was right in refusing to rule as requested, and that bis finding for the plaintiff was warranted.</p>

<p>pVay, Public, discontinuance of, laying out. Jerusalem Road• Cohasset. Adverse Possession. Disseisin. Limitations, Statute of. Evidence, Presumptions and burden of proof. Land Court. Practice, Civil, Exceptions.</p> <p>Where county commissioners alter and improve a road in a town and define it upon a plan by metes and bounds under statutory authority, any part of the former way outside the boundaries thus defined is discontinued as a public way, and, where such discontinued parts of the way are upon land owned by the town in fee, the title of the town to those parts of the land becomes like that of any private owner.</p> <p>In 1670 the town of Hingham, in making a division and allotment of lands in what is now the town of Cohasset, reserved land for highways at various places including a reservation for that purpose along the shore where now is the highway known as the Jerusalem Road. There were thirty acres of land in the portion reserved for the highway on this part of the shore, which along the sea was rough, rocky, irregular and indented. For five years beginning in 1718 the land reserved for this highway was let by the town for six pounds a year. In 1737 a road three rods wide was laid out there by a committee and was accepted by the town. Held, that in view of the character of the shore it was not to be presumed that the original reservation was intended to establish a legal highway, and that the letting of the land by the town was inconsistent with its being at that time an established highway, but that, if there had been a highway outside the road three rods wide before this was laid out, the establishment of that road would have discontinued the portions of the way outside its boundaries.</p> <p>In proving a title to land acquired by adverse possession for more than twenty years, it is not necessary for the claimant to show when the owner of the land was disseised. It is only necessary to show that there was a disseisin at some time, and that the disseisin continued without interruption for twenty years or more.</p> <p>At the trial of an issue as to the title to land claimed by adverse possession for more than twenty years, it is not the duty of the presiding judge to instruct the jury that one claiming a title by adverse possession “ must prove a strong case,” in order to prevail. Such an one has only to prove his case by a fair preponderance of the evidence.</p> <p>The refusal by a presiding judge to instruct the jury, that the evidence before them is not Sufficient to warrant the finding of a certain fact, is made immaterial by a finding of the jury against the existence of the alleged fact.</p> <p>The statute of limitations contained in R. L. c. 202, § 30, which allows the Commonwealth only twenty years after its disseisin within which to bring an action for the recovery of land, applies to a petition by a town to establish its title to land which is claimed by the respondent under an alleged title by adverse possession for more than twenty years.</p> <p>St. 1905, c. 288, provides that when an appeal is taken from the Land Court to the Superior Court the report of the judge of the Land Court who rendered the decision appealed from shall be prima facie evidence as to the matters therein contained. Upon a petition by a town for the registration of its title to certain land claimed by the respondent under a title alleged to have been acquired by adverse possession of the land for more than twenty years, the judge who heard the case in the Land Court found that the town formerly had owned the land and that the respondent had acquired a title to it by adverse possession. On appeal to the Superior Court the jury upon one of the issues presented to them made the same finding. The town excepted to a portion of the judge’s charge on the ground that it was erroneous as to the effect to be given to the report of the decision of the judge of the Land Court. The portion of the charge excepted to, when taken strictly and understood properly, was held by this court not to be erroneous in law, but it was said by the court, that it would have been better if the judge had told the jury to consider the whole evidence together, including the decision of the Land Court, and, if they found that the claims of the parties balanced evenly, to decide against the party that had the burden of proof, that is to say, against the respondent who had the burden of proving a title by adverse possession.</p> <p>A bill of exceptions cannot be sustained unless the excepting party shows affirmatively that there was error at the trial from which he may have suffered.</p>

<p>Practice, Civil, Exceptions, Auditor’s report. Auditor. Evidence, Admitted without objection, Of testimony of deceased witness, Of market value, Presumptions and burden of proof.</p> <p>No exception lies to the refusal of a judge sitting without a jury to make a finding of fact requested.</p> <p>Exceptions to the refusals of a judge who heard a case without a jury to make certain rulings requested cannot be sustained, where the findings of fact made by the judge have caused the rulings requested to become inapplicable to the case, or have caused them although applicable to become immaterial.</p> <p>An action by the assignee in insolvency of the joint and several estates of the members of a business partnership, to recover certain goods alleged to have been received by the defendant fraudulently in violation of the insolvency laws, was referred to an auditor together with two other like actions by the same plaintiff against different defendants. The auditor made one report covering the three cases, and the cases were tried together before a judge of the Superior Court who found for the defendants. Exceptions of the plaintiff were sustained. Later, the two other cases having been otherwise disposed of, the case was tried again before a judge without a jury, and the auditor’s report covering the three cases was put in evidence without objection. In the portions of the auditor’s report relating to the other two cases there were certain general findings which were applicable to the case on trial. No question was -raised at the trial in regard to the competency of these findings or their effect as evidence. The judge found for the plaintiff, and, upon the argument before this court of exceptions alleged by the defendant, the defendant contended that the auditor’s report in the other two cases should not have been considered. Held, that it was too late to raise the question as to the competency of these portions of the auditor’s report, which had been admitted in evidence without objection and must be given their natural probative force.</p> <p>Evidence which is before a trial court without objection, although upon objection it would have been excluded as incompetent, may be considered in support of the facts which it tends to establish.</p> <p>At a trial before a judge without a jury, where an auditor’s report has been put in evidence which discloses on its face no such manifest error of law as to call for a ruling, the judge is not bound to rule as matter of law upon the effect of certain parts of the report considered apart from other portions of the report with which they are connected and thereby control and set aside the general finding of the auditor.</p> <p>At the trial of an action in which an auditor’s report had been put in evidence, the auditor was called as a witness, and was asked to state the testimony of a deceased witness as it was given at the hearing before him. He testified that he was unable to remember the witness’s testimony without using his notes, but that he knew that his notes were accurate and that what appeared there was what the witness said before him. The evidence was admitted against objection. Held, that the evidence was admitted rightly; that the statement of the auditor that his notes were accurate fairly included the fact that the notes showed everything that the witness had said upon any material matter, that, since the enactment of recent statutes upon kindred subjects, the strictness of the requirements in regard to proving the testimony of a deceased witness has been relaxed, and that the present method of application of the rule, that there must be a close approach to verbal accuracy in giving the substance of the language used by a deceased witness, justified the admission of the evidence.</p> <p>In an action by an assignee in insolvency of the joint and several estates of the members of a firm of cigar dealers, for the value of certain cigars alleged to have been received by the defendant fraudulently in violation of the insolvency laws, witnesses for the plaintiff, who testified by deposition to sales of cigars in Pennsylvania shortly before the insolvency, were asked to give the fair market value of the cigars thus sold. Their answers were objected to by the defendant on the ground that the questions did pot refer to the place in reference to which the value was to be given. The witnesses testified generally, without intimating that there was any difference in the market value of cigars between Pennsylvania and Boston, and there was nothing in the case to indicate that there was any such difference. Held, that there was no presumption of fact that articles like cigars, when sold in large quantities, differ materially in value in Massachusetts and Pennsylvania, and that the court could not assume that the testimony in regard to the value of the cigars, given in response to questions not directed in terms to any particular market, was prejudicial to the defendant, in the absence of evidence that there was any material difference between the price of such goods in Boston and the price in Pennsylvania and, if so, which was the higher; and that, whether or not the trial judge exercised his discretion properly in admitting the evidence, the defendant failed to show that he was harmed by its admission.</p>

<p>Tort for personal injuries sustained by the plaintiff while in the employ of the defendant, a corporation, at work in its piano action factory at Cambridge on May 25, 1906. Writ dated August 10, 19Ó6.</p> <p>In the Superior Court the case was tried before Bond, J. It appeared that at the time of the accident the plaintiff was a young unmarried woman about twenty years of age, who had been employed in defendant’s piano action factory for seven years and in the action department' where she was hurt for three months. The evidence in regard to the happening of the accident is described in the opinion.</p> <p>At the close of the evidence the defendant asked for certain rulings, some of which the judge refused to make. Among the rulings requested by the defendant and refused by the judge was the following: “ 1. Upon all the evidence, the plaintiff is not entitled to recover, and you must return a verdict for the defendant.” The judge submitted the case to the jury, putting to them also a special question which, with the answer of the jury, is quoted in the opinion. The jury returned a verdict for the plaintiff in the sum of $2,500; and the defendant alleged exceptions.</p>

<p>Tort under R. L. e. 102, § 146, to recover double damages for injuries alleged to have been caused by the bite of a dog of which the defendant was the owner or keeper. Writ dated September 15, 1908.</p> <p>At the trial in the Superior Court before Hitchcock, J., the jury returned a verdict for the plaintiff in the sum of $1,000; and the defendant alleged exceptions to the admission of certain evidence, as stated in the opinion.</p>

<p>Tort for personal injuries sustained while the plaintiff was in the employ of the defendant at its car bam at North Cambridge on March 16, 1903, from the flattened top of a bolt flying into the plaintiff’s left eye, when the plaintiff, who was assisting in repairing an iron fender of a car, by the direction of one Lynch, alleged to be a superintendent of the defendant, was holding a sledge hammer pressed against the bolt to keep it in position while Lynch cut off the flattened top of the bolt with a bolt cutter; with three counts, the first and second under the employers’ liability act alleging negligence of a person in the service of the defendant entrusted with and exercising superintendence, and the third at common law alleging negligence of the defendant in employing an incompetent person as superintendent. Writ dated May 13,1903.</p> <p>At the trial in the Superior Court in April, 1908, before Harris, J., the plaintiff’s counsel read the pleadings and then read an opening statement.</p> <p>At the conclusion of his opening statement the plaintiff’s counsel offered to prove the facts stated in his opening in support of the following contentions:</p> <p>“ 1. It appearing that there were no rivets at hand, and having a blacksmith shop at hand, the work to be done was for a blacksmith and should have been ordered to be done by the blacksmith in the blacksmith shop of the defendant in that building, where tools and implements were provided for the purpose.</p> <p>“ 2. That the negligence complained of is the failure to order a rivet to be used. If a rivet had been used, it being softer, it could have been cut and the cut would not fly. If there were no rivets in stock, the blacksmith could have easily and quickly' made a sufficient supply for this work.</p> <p>“ 3. The negligence complained of is the order to use a carriage bolt where a rivet should have been used. A carriage bolt being made of a different material, is harder than a rivet and when cut will fly.</p> <p>“ 4. That the determination to cut a bolt that had been riveted was an act of superintendence and was negligent. That the process of riveting will make the material of a bolt harder and more brittle and more likely to fly when cut. That a bolt once riveted should not be cut.</p> <p>“ 5. That to permit the plaintiff to be so near to the material that was cut, in the condition in which the superintendent then knew it to be, and knowing, as he must have known, that it would fly when cut, was negligence on the part of the superintendent.</p> <p>“ 6. That the determination to use a cutter to cut the head of the bolt that had been riveted was an act of superintendence and was negligence.</p> <p>“ 7. That the superintendent was negligent in using the bol) cutter at the time and under the circumstances.</p> <p>“ 8. That the proximate cause of the accident was an act of superintendence, not an act of manual labor.</p> <p>“ 9. That the superintendent, in permitting the plaintiff to be in the position he was in at the time of the accident without warning to the plaintiff of the danger, which the superintendent knew and' appreciated or should have known and appreciated, was negligent.</p> <p>“ 10. That the superintendent had no mechanical training outside of a limited knowledge of electrical wiring, and that the knowledge and training he did have did not fit him to assume the duties of a superintendent having in charge work involving a general knowledge of mechanics, and that this was known or should have been known to the defendant.”</p> <p>After hearing the plaintiff’s opening statement and his offer of proof, the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Municipal Corporations, By-laws and ordinances, Mayor, Veto. Taunton. Mandamus.</p> <p>Under R. L. c. 26, § 9, which provides that an ordinance presented to the mayor of a city by the city council “ shall be in force if it is not returned by the mayor within ten days after it has been presented to him,” if an ordinance is presented to the mayor of a city only two days before his term of office and the terms of office of all the members of the city council expire, and the mayor neither approves the proposed ordinance nor returns it with his objections to the city council, it never takes effect.</p> <p>Whether the provision of the charter of the city of Taunton contained in St. 1882, c. 211, § 22, giving the mayor of that city a veto power in regard to a certain class of ordinances, is subject to the general provision in regard to the approval of ordinances by the mayor of a city contained in R. L. c. 26, § 9, it here was not necessary to determine, as the ordinance in question was not of the class described in the charter.</p> <p>Whether a writ of mandamus addressed to the chief of the fire department of a city would be granted to a member of that department to compel the respondent to place the petitioner’s name on a pay roll of the department at the rate of compensation provided by a certain ordinance of the city, in case the petitioner was entitled to some remedy, it here was not necessary to determine, because the alleged ordinance sought to be enforced never had been enacted.</p>

<p>Contract, What constitutes, Termination. Agency.</p> <p>In an action of contract against a Massachusetts corporation for an alleged breach of an oral agreement to employ the plaintiff for one year at a fixed rate of compensation, it appeared that the alleged oral agreement was made between the plaintiff and an agent acting for the defendant, that the plaintiff entered the defendant's employ under this agreement and rendered services for a little more than four months, when he was discharged by the defendant, and that there was a balance due him when he was discharged. It also appeared that, a few days after he entered the defendant’s employ, he executed an agreement in writing purporting to be made between him and another corporation of the same name as that of the defendant, organized under the law of the State of New York, which was signed by the same agent of the defendant purporting to act as treasurer of such New York corporation. This instrument in writing provided for the employment of the plaintiff by the New York corporation during the year covered by his oral contract with the defendant. No such New York corporation was in existence, and both the plaintiff1 and the defendant’s agent understood that the New York corporation had not been organized, and that the new agreement was not to become binding until that corporation had been organized completely and had taken a transfer of the defendant’s business, and it did not appear and was not contended that these things ever had been done. The defendant in substance asked the judge to rule that the oral agreement between the plaintiff and the defendant was terminated by the new agreement in writing made between the plaintiff and another party, and that the plaintiff’s services thereafter must be taken to have been rendered under such agreement in writing, and therefore that the plaintiff could not recover. The judge refused to make this ruling, and ruled that the alleged contract in writing was void as purporting to be made by a corporation not in existence, and the jury returned a verdict for the plaintiff. On exceptions alleged by the defendant, it was held, that the judge’s refusal of the ruling requested by the defendant was right, and that the defendant could not have been harmed by the judge’s ruling that the agreement in writing was void, because, even if the defendant’s agent could have been bound by it personally on the ground that he had held himself out as the agent of a non-existing principal, the instrument could not affect the relations between the plaintiff and the defendant.</p>

<p>Two actions OF tort, the first by a married woman against a corporation operating a street railway, for personal injuries alleged to have been incurred while the plaintiff was a passenger on a ear of the defendant on Massachusetts Avenue at the corner of. Boylston Street in Boston on January 26, 1906, and the second action by the husband of the plaintiff in the first action for medical expenses and loss of consortium caused by her injuries. Writs dated May 15, 1906.</p> <p>In the Superior Court the cases were tried together before Bond, J. The plaintiff in the first case testified, among other things, that at about four o’clock in the afternoon of the day named above she waited to take a car for South Boston; that she was waiting on the Post Office side of Massachusetts Avenue ; that a car came in from South Boston on the right hand track, that is, the track nearer to her; that the car came to a stop at the regular stopping place there; that, after stopping, the trolley was taken around to the other end of the car ready to start in the opposite direction, toward South Boston, along Massachusetts Avenue; that other passengers had boarded the car; that she went to the rear end and put one foot on the step; that the conductor was on the rear platform with his back to her as she started to get on; that, while she had one foot on the step and was just bringing up the other foot from the ground to the step, the conductor without looking around toward her rang two bells and the car started suddenly; that she grasped with her right hand the grab handle on the dasher on the car and was swung out and twisted around striking her back and right arm against the dasher and partially throwing her off; that a passenger on the rear platform took hold of her and prevented her from falling and a second passenger tried to help her; that somebody shouted and the car went along for a block when the conductor stopped the car; that when it stopped the two passengers mentioned helped her to get upon the car; and that she then went into the car and sat down.</p> <p>One Dr. Richardson, mentioned in the opinion, testified that he was a nerve specialist, and that he examined the plaintiff on September 19, 1906, at the request of her family physician. Besides the testimony of this witness which is stated in the opinion, he testified that, so far as he knew, there was nothing the matter with the plaintiff when he examined her except the nervous trouble which he had described; and that it was from the objective and subjective symptoms, coupled with her history of the case, that he made his diagnosis of traumatic neurosis.</p> <p>On cross-examination, he then was asked the following questions and answered them as follows: “ Q. Did you write an article a few years ago entitled ‘Accident Litigation'—A popular Graft ’ ? A. I did, sir. — Q. Did you in that, write 1 Neurologists are now practically agreed that a special form of neurosis excited by trauma does not exist, but the term traumatic neurosis has come to be generally applied to this particular class of cases ’ ? A. That is correct quite so. — Q. Did you say in this article 4 Litigation is undoubtedly a potent causative factor in the production and prolongation of these functional neuroses ’ ? A. That is quite true, sir. — Q. This is a functional neurosis ? A. I believe it to be. . . . — Q. Did you say in that article ‘ It will frequently become your duty to discriminate between unconscious exaggeration and that variety of exaggeration which is the outcome of avaricious desire for litigation graft ’ ? A. I did. . . . — Q. Did you say, also, in the article referred to, that 6 In litigation cases in which there exist the strongest motives for exaggeration or deceit, it is imperative that the physicians be cautious about too unreservedly accepting the patient’s statements ’ ? A. I did say so.”</p> <p>The effect of the portion of the judge’s charge in regard to the statements which Dr. Richardson on his cross-examination testified were contained in the article written by him is stated in the opinion. The portion of the charge in regard to the defendant’s duty as a common carrier of passengers is there quoted.</p> <p>At the close of the charge the defendant excepted to so much of it as related to the degree of care required of the defendant and also to so much of it as related to the evidence of Dr. Richardson. The jury returned a verdict for the plaintiff in each case, in the first case in the sum of $3,000, and in the second case in the sum of $1,500. The defendant alleged exceptions.</p>

<p>Boston. Contract, Consideration, Acceptance, Validity, Performance and breach. Statute, Construction. Mistake. Damages, Liquidated.</p> <p>In an action by a contractor against the city of Boston for the amount of a deposit of §2,000, for which the plaintiff had transmitted a check to the defendant, when he, at the same time with others, in response to an advertisement of the school house commissioners had submitted a bid for the erection of a certain school house, it appeared that the plaintiff had made his bid upon a blank furnished by the defendant, containing a provision, in accordance with the requirements of St. 1890, c. 418, §§ 4-6, that, if within twenty days after the day named for leaving the proposal notice that his proposal would be accepted by the city should be mailed or delivered to him, he would on some day of the six weeks next after such mailing or delivery execute and deliver a contract and bond for doing the work in the form required, and whereby the plaintiff agreed that the certified check payable to the defendant left with his proposal was the defendant’s property and that the amount thereof was the amount of the damages which the city would sustain by the plaintiff's failure to carry out his proposal. In accordance with a requirement of the statute, the advertisement inviting proposals for the contract reserved the right to reject any or all proposals. The bid of the plaintiff was the next to the lowest. The bid of the lowest bidder was accepted, but he declined to execute the contract, and the city kept his check. Thereupon, the proposal of the plaintiff was accepted by a letter mailed to him within the time limited in the bid, and the plaintiff refused to execute the contract. The proposal of the next lowest bidder then was accepted, but he also refused to execute the contract, and his check was taken by the city. The next lowest bid was about §24,000 higher. This was accepted, and the bidder executed a contract. Held, that, under the provisions of the statute and the terms of the proposal, the previous acceptance of the lowest bid by the defendant, without the execution of a contract, was not a rejection of all the other bids, but left the defendant at liberty to accept the bid of the plaintiff, so that the defendant's acceptance of the proposal made binding the plaintiff’s agreement as to his deposit of the $2,000.</p> <p>In an action by a contractor against the city of Boston for the amount of a deposit of $2,000, for which the plaintiff had transmitted a check to the defendant, when he, at the same time with others, in response to an advertisement of the school house commissioners had submitted a bid for the erection of a certain school house, it appeared that the plaintiff had made his bid upon a blank furnished by the defendant, containing a provision, in accordance with the requirements of St. 1890, c. 418, §§ 4-6, that, if within twenty days after the day named for leaving the proposal notice that his proposal would be accepted by the city should be mailed or delivered to him, he would on some day of the six weeks next after such mailing or delivery execute and deliver a contract and bond for doing the work in the form required, and whereby the plaintiff agreed that the certified check payable to the defendant left with his proposal was the defendant’s property and that the amount thereof was the amount of the damages which the defendant would sustain by the plaintiff’s failure to carry out his proposal. In accordance with a requirement of the statute, the advertisement inviting proposals for the contract reserved the right to reject any or all proposals. The statute requires in § 6 that all contracts made by the city of Boston where the amount involved is more than $2,000 shall be in writing and that no such contract shall be deemed to have been made or executed until the approval of the mayor in writing is affixed thereto. The proposal of the plaintiff was accepted by a letter mailed to him within the time limited in the proposal, but the plaintiff refused to execute the contract. Held, that the fact that the approval of the mayor was required for the valid execution of a contract did not make the acceptance of the plaintiff’s proposal a conditional one, because by implication the invitation of the defendant was for proposals for a contract which required the mayor’s approval; and that the agreement of the plaintiff contained in his proposal as to the terms on which he deposited the $2,000, which was in compliance with the requirements of St. 1890, c. 418, was binding upon the plaintiff when accepted by the city, although the city would not be bound until a contract was executed and was approved by the mayor, and was not void for want of mutuality.</p> <p>If a contractor in making a proposal in writing to a city for a contract for the erection of a school house signs his proposal upon a blank furnished by the city, of which the specifications for the contract are made a part, and owing to an honest but unjustified mistake on his part as to the interpretation of the specifications he underestimates by a large sum the expense to be incurred by the contractor, and names a price so small that after his proposal has been accepted by the city he refuses to execute the contract, his misunderstanding of the legal effect of the proposal voluntarily signed by him is no ground for releasing him from his obligation under the terms of that instrument as accepted by the city.</p> <p>In an action by a contractor against the city of Boston for the amount of a deposit of $2,000, for which the plaintiff had transmitted a check to the defendant, when he, at the same time with others, in response to an advertisement of the school house commissioners had submitted a bid for the erection of a certain school house, it appeared that the plaintiff had made his bid upon a blank furnished by the defendant, containing a provision, in accordance with the requirements of St. 1890, c. 418, §§ 4-6, that, if within twenty days after the day named for leaving the proposal notice that his proposal would be accepted by the city should be mailed or delivered to him, he would on some day of the six weeks next after such mailing or delivery execute and deliver a contract and bond for doing the work in the form required, and whereby the plaintiff also agreed that the certified check payable to the defendant left with Ilia proposal was the defendant’s property and that the amount thereof was the amount of the damages which the defendant would sustain by the plaintiff’s failure to carry out his proposal, but that, if the plaintiff’s proposal was not accepted, or if notice was mailed or delivered and the plaintiff executed and delivered the contract and bond required, the check or its amount was to be paid to him on receipt therefor. The proposal of the plaintiff was accepted by a letter mailed to him within the time limited in the proposal, but the plaintiff refused to execute the contract. Held, that the requirement of the deposit was not a penalty, the deposit being required expressly for the purpose of liquidated damages by the terms of the proposal accepted by the defendant.</p>

<p>Two actions of tort against the Boston Elevated Railway Company, the first by a married woman for personal injuries alleged to have been sustained when the plaintiff was entering the centre door of a car forming part of a train of the defendant at its Dover Street station in Boston at about one o’clock in the afternoon of May 25, 1906, and the second action by the husband of the plaintiff in the first for damages suffered by him by reason of her injuries. Writs dated July 16, 1906.</p> <p>In the Superior Court the cases were tried together before Fox, J. At the close of the plaintiffs’ evidence, the defendant rested except as to damages. The judge refused to rule that the plaintiffs could not recover, and submitted the cases to the jury. They returned a verdict for the plaintiff in each of the cases, in the first case in the sum of $2,000 and in the second case in the sum of $600. Upon a motion by the defendant for a new trial, the plaintiffs at the suggestion of the judge remitted the portions of these amounts in excess of $1,000 and $300 respectively, and the judge reported the cases for determination by this court.</p> <p>If, upon all the evidence on the question of liability, the judge’s refusal to rule that the actions could not be maintained was wrong, judgment was to be entered for the defendant in each case. If the ruling was correct, judgment was to be entered on the verdicts as reduced.</p>

<p>Two actions of tort against the Boston Elevated Street Railway Company, the first for personal injuries by reason of being run into by a car of the defendant while the plaintiff was driving a horse attached to a depot wagon on Massachusetts Avenue near the corner of Trowbridge Street in Cambridge on December 31, 1907, and the second by the owner of the horse and wagon for loss of property by reason of the same collision, the plaintiff in the first action having been the servant of the plaintiff in the second action. Writs dated January 22, 1908.</p> <p>In the Superior Court the cases were tried together before Hardy, J. There was evidence tending to show the following facts: Immediately before the accident the plaintiff Murphy, who was a coachman in the employ of the plaintiff Sortwell, was driving a depot wagon owned by Sortwell on the northerly side of Massachusetts Avenue in Cambridge, in a westerly direction. When he reached Putnam Square he wished to enter Mount Auburn Street which runs into Putnam Square on the southerly side, and to do so it was necessary to cross the double tracks of the defendant in Massachusetts Avenue. Trowbridge Street enters Massachusetts Avenue at a right angle on the northerly side at Putnam Square, about opposite the end of Mount Auburn Street. When Murphy reached the corner of Trowbridge Street two cars of the defendant were passing him going in a westerly direction upon the northerly or outbound track. At the same time a car of the defendant (not the car which struck the plaintiff) was approaching going in an easterly direction upon the southerly or inbound track. The foremost of the outbound cars came to a stop at the west side of Trowbridge Street opposite a cross walk running from the north to the south side of Massachusetts Avenue. The rear car followed along slowly and did not come to a full stop. The inbound car also, stopped at the east side of Trowbridge Street The presence of these three cars made it impossible for Murphy to cross the defendant’s tracks when he first reached Trowbridge Street, and he therefore brought his horse and depot wagon to a full stop to wait for the cars to pass and the tracks to become clear so that he could cross in safety. While the depot wagon was thus standing at rest, the front wheels were just over a cross walk running from the north to the south side of Massachusetts Avenue opposite the easterly side of Trowbridge Street, which was forty feet to the east of the cross walk at which the outbound car stopped. The plaintiff remained at rest until the second of the two outbound cars had passed four or five feet beyond the westerly cross walk. Murphy testified that he then looked to the left. He reined his horse in preparing to start across the tracks. He did not hear anything. He did not see anything. He did not hear any gong ring. He “ crossed over and looked up to the right again,” and then saw the car which struck him coming from Harvard Square. When he looked to the right and first saw the car, the horse was between the inward rails, and the motorman’s head was turned toward the right.</p> <p>The car when he first saw it was about two car lengths, or seventy feet, away, travelling at the rate of about twelve miles an hour according to Murphy’s estimate. From the evidence as to the distance that the horse was dragged under the fender and as to the noise made by the collision, the jury would have been warranted in finding that the car was travelling even faster than twelve miles an hour. As soon as Murphy saw the car approaching he concluded that he could not get across the inbound track without being struck. Instead, therefore, of driving ahead and taking his chance of being struck in the rear by the car, he reined in his horse and tried to back off the track. He swung his horse toward the east and had backed a couple of steps when the horse was struck by the fender of the car, was torn from the shafts and was dragged twenty or twenty-five feet under the fender. Murphy was thrown from the wagon and was picked up at the rear wheels of the car.</p> <p>The plaintiff introduced in evidence a rule of the defendant requiring its motormen both to sound their gongs and shut off their power when approaching a street like Trowbridge Street.</p> <p>At the close of the plaintiff’s evidence the defendant asked the judge to order a verdict for the defendant on the ground that there was no evidence of due care on the part of the plaintiff. The judge refused to do this, and submitted the case to the jury,-who returned a verdict for the plaintiff in each of the cases, in the first case in the sum of $1,300 and in the second case in the sum of $200. The defendant alleged exceptions, it being stated in the bill of exceptions that the only question presented was whether the plaintiff Murphy was in the exercise of due care.</p>

<p> Executor and Administrator. Damages. Bond. Interest. Attorney at Law. </p> <p>In an action on the bond of an executor, it is proper in assessing damages against the surety on the bond to disallow all charges for the services of the executor, although for some time after his appointment he performed his duties as executor without misconduct, if afterwards he wilfully failed to administer properly the personal estate which came to his possession and the proceeds of the real estate which he sold, and after misappropriating large sums of money to his own use absconded with substantially all that was left of. the assets of the estate, making necessary the action on his bond after the appointment of an administrator de bonis non with the will annexed.</p> <p>In an action on the bond of an executor, the plaintiff is not entitled to have assessed as damages against the surety on the bond interest on a sum of money in the hands of the executor at the end of a year after his appointment, which had not been deposited in any bank and on which the executor received no interest, the executor at that time not being in default and having made no use of the money and not having been guilty of any breach of trust. A brief delay by an executor in accounting for funds in his hands is not enough in itself to warrant charging him with interest which he did not receive and which he was under no duty to obtain.</p> <p>In an action on the bond of an executor, who, after misappropriating large sums of money belonging to the estate of his testator to his own use, absconded with substantially all that was left of the assets of the estate, making necessary the action on his bond after the appointment of an administrator de bonis non with the will annexed, in assessing damages against the surety on the bond, it is proper to charge the defendants with the reasonable expenses incurred for obtaining the removal of the absconding executor and the appointment of the administrator and in procuring leave from the Probate Court to bring the action on the bond, but the surety should not be charged for the services of the new administrator or for expenses incurred by him in bringing and prosecuting the action on the bond, nor can the surety be charged for the services and expenses of the new administrator in completing the settlement of the estate.</p> <p>The theory of the law is that the taxable costs prescribed by the Legislature which a successful plaintiff is entitled to recover are a full indemnity for the expenses which they represent. And, if the attorney’s fee of $2.50 allowed by R. L. c. 203, § 24, will not enable the administrator of an estate, whose duty it is to bring and prosecute an action, to procure competent attorneys to carry on the action, a remedy can be afforded only by the Legislature.</p> <p>In an action on the bond of a defaulting executor, in assessing damages against the surety on the bond, where the will made it the duty of the executor to account for the rents as well as for the proceeds of sales of the real estate, it is proper to charge the defendants with the value of the occupancy by the executor of one of the houses belonging to the testator’s estate, his liability being the same as if he had received rent for it.</p>

<p>Contract for the price of horses sold and delivered. Writ dated March 27, 1908.</p> <p>The answer was a general denial.</p> <p>In the Superior Court the case was tried before White, J., who at the close of the plaintiff’s testimony ruled that the evidence showed that the action had been brought prematurely, and upon that ground ordered a verdict for the defendant. At the request of the plaintiff and with, the consent of the defendant, the judge reported the case for determination by this court. If the ruling of the judge was right, the plaintiff was to become nonsuit; if his ruling was wrong, judgment was to be entered for the plaintiff in the sum of $1,275.</p>

Tort for personal injuries sustained when the plaintiff was a passenger on an elevated train of the defendant. Writ dated July 2, 1906. The second count of the declaration, upon which the case was tried, was as follows: “ And the plaintiff says that on or about October 12,1905, the defendant was a corporation operating trains of cars upon an elevated structure in, the city of Boston, in the county of Suffolk, in said Commonwealth.

<p>Two actions OE tort, by the executrix of the estate of George G. Haynes, respectively at common law and under R. L. c. Ill, § 267, for the conscious suffering and death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant and the gross negligence of its servants, by reason of which the plaintiff’s intestate was run down by an inward bound electric street car of the defendant on Beacon Street in Somerville, while he was crossing a track of the defendant on the afternoon of May 18,1905. Writs dated January 22 and January 11, 1906.</p> <p>In the Superior Court the cases were tried together before Bishop, J. The facts shown by the evidence upon the issue of the due care of the plaintiff’s intestate are stated in the opinion. At the close of the plaintiff’s evidence the judge ordered a verdict for the defendant in each of the cases; and the plaintiff alleged exceptions.</p>

Tort at common, law for personal injuries sustained by the plaintiff while in the employ of the defendant and engaged in operating a lathe run by power transmitted by a belt, by reason of an alleged defect in the belt which was alleged to have been furnished negligently by the defendant for use by the plaintiff in his work. Writ dated September 29,1906.

<p>Carrier, Of goods. Bill of Lading. Contract, What constitutes.</p> <p>In an action, against a corporation operating a line of steamships sailing from New York, for the value of an automobile delivered to the defendant for transportation to Miami, Florida, which was delivered by the defendant contrary to the provisions of the bill of lading, it appeared that the plaintiff delivered the automobile to the Boston and Maine Railroad for transportation to the defendant at New York, and took from the railroad company a shipping receipt which recited that the package was marked for transportation “via . . . Mallory Line to Key West.” The plaintiff sent this shipping receipt to the defendant’s agent in Boston and asked the defendant to accept the package for transportation. Thereupon the defendant issued to the plaintiff a bill of lading stating that the automobile was “ to be transported by steamer sailing from New York, ... to the port of Brunswick or if destined beyond to be there delivered, ... at cargo owner’s risk, to connecting carrier, or so on by one connecting carrier to another, until they [the goods] reach the station or wharf nearest to the ultimate destination.” The automobile was consigned to the order of the plaintiff and by the terms of the bill of lading the surrender of the bill of lading properly indorsed was “required before the delivery of the property at destination.” The defendant, instead of shipping the automobile to Brunswick and sending it thence by a connecting railroad to Miami, shipped it to Key West, and there delivered it to the master of a sailing vessel to be taken to Miami. This master took it to Miami, and there delivered it without requiring the bill of lading and without authority from the plaintiff. The plaintiff’s agent, upon receiving the bill of lading from the defendant, without noticing the route mentioned in it, indorsed it, attached it to a draft for the price of the automobile, and deposited it in a bank to be sent to Miami for the collection of the draft. The draft was not honored and the plaintiff never was paid for the automobile. The defendant sought to avail itself of the provision for its protection in the bill of lading, that the property was to be delivered at Brunswick to the connecting carriers at the owner’s risk. The plaintiff contended that this defense was not open to the defendant because the property never was delivered at Brunswick. Held, that there was a deviation from the route prescribed by the bill of lading, and that accordingly the defendant was subject to its common law liability as a carrier of goods ; that, the defendant by the bill of lading having prescribed a different route from that which originally was intended by the plaintiff and was stated in the shipping receipt of the Boston and Maine Railroad and the plaintiff having accepted the bill of lading without examining it, the bill of lading became the only contract between the parties, and after making this contract it was the duty of the defendant to conform to it as to the route, instead of following the shipping order given by the plaintiff to the Boston and Maine Railroad; and that whether the defendant’s disregard of this original order in making the contract in the bill of lading was by accident or otherwise was immaterial.</p>

<p>Two petitions, filed in the Land Court on December 18, 1908, as described below.</p> <p>With the petitions was filed a plan, a reduced copy of which is printed on page 259.</p> <p>The cases were heard together by Davis, J., who made the following decision, in which the facts are stated :</p> <p>“ These two petitions for registration of title to land on the west side of Winthrop Shore Drive, formerly called Crest Avenue, in the town of Winthrop, involve the same matter of controversy, and were tried together. All of the properties came out of what was formerly lot F on a plan of land in Winthrop on the west side of Crest Avenue. This lot F became subdivided into five smaller lots, of which, what will hereafter be designated as lots 1, 2 and 3, fronting on Crest Avenue, have been acquired by Powers ; lot 4, immediately in the rear of lot 3, and separated from Crest Avenue by the three Powers lots, has been acquired by Rogers, and lot 5, in the rear of the Rogers lot, has been acquired by the respondent Hurd. The Rogers and Hurd lots claim a right of way over the Powers lots to the street.</p> <p>“ Title to the whole of the original lot F was in George E. Rogers in December, 1887, who proceeded to erect three cottages, one on lot 1 at the southeast corner of the land on Crest Avenue, one on lot 2 at the southwest corner of the land, and one on lot 3 in the rear of lots 1 and 2. Access from lot 3 to the street was provided over a walk which led down about half way between the cottages on lots 1 and 2.</p> <p> </p> <p>“ March 14, 1888, Rogers mortgaged lot 1, with a provision for a five-foot passageway on the southerly side thereof for the benefit of those abutting on said way and those purchasing any of the rear portion of lot F. On March 17 Rogers mortgaged lot 2, with a similar provision for a five-foot passageway on the northerly side thereof. These two mortgages were recorded on June 23, 1888, and subsequently were discharged. No rights of way were therefore acquired under them, but they are mentioned in and explain subsequent deeds.</p> <p>“ May 20, 1888, Rogers mortgaged, to one Wadsworth, lots 3, 4 and 5, granting in said mortgage the ‘ free use of a ten-foot right of way between the two houses now built on the Easterly part of lot F, to Crest Avenue.’</p> <p>“ June 23,1888, Rogers transferred to his wife, through one Rich, lot 1, subject to a five-foot passageway on the southerly side thereof for the benefit of abutting estates, including the lots in the rear ; on the same day, by separate deed, lot 2, subject to a similar right of way over the five-foot strip on the northerly side thereof; and on the same day, also by a separate deed, lots 3, 4 and 5, with a right of way ten feet wide to Crest Avenue. These transactions, while apparently creating three separate lots, with rights of way to Crest Avenue, would all have merged in Mrs. Rogers but for the Wadsworth mortgage.</p> <p>“ On May 3, 1889, Mrs. Rogers conveyed to Rich the two rear lots 4 and 5 6 with a right of way ten feet wide, seventy-five feet long, on the northerly side of the granted premises.’ After that deed was dated and acknowledged, but before it was recorded, Wadsworth executed to Mrs. Rogers a partial release from his mortgage of the land described in her deed of May 3 to Rich (of lots 4 -and .5) and ‘ also a right of way ten feet wide along the northerly and easterly sides of the premises connecting with the way to Crest Avenue.’</p> <p>“ May 15,1889, Mrs. Rogers deeded to Rich, who was then the owner free from incumbrances of lots 4 and 5, lot 3, with the free use of a ten-foot right of way to Crest Avenue, ‘ between the two houses now built on the easterly side of lot F,’ and subject to a right of way over said way ten feet wide along the northerly side of the granted premises for the benefit of lots 4 and 5, the title to which last-named lots was already in Rich. No release was obtained of lot 3, however, from the Wadsworth mortgage, and that mortgage was subsequently foreclosed. Title to lot 3 under that foreclosure is now held by the petitioner, Powers.</p> <p>“ In October, 1889, Mrs. Rogers sold lot 1 to one Page, subject to a five-foot passageway along its southerly side for the benefit of abutting estates. Page, however, blocked access to this passageway from the rear land, so that no rights have been acquired by prescription.</p> <p>“All of the land was beach land, open and unfenced, and people travelled over it without much regard to streets or property lines. All of the original cottages were destroyed in the fire at Winthrop of 1907, but a new house has been erected on the Powers lot, No. 2, the piazza and steps of which project over the former way or walk ten feet wide which lay between that lot and lot 1.</p> <p>“ Actual access to the rear lots 4 and 5 has been across lots from the south over the unfenced lands of others, or along other land of the petitioner Powers, to the north of lots 1 and 3, but no rights of way have been thus acquired. Rich sold lot 4 in 1890, subject to a right of way ten feet wide along the northerly side of it for the benefit of lot 5.</p> <p>“ The petitioner, Powers, admits that there was a passageway between lots 1 and 2 for the benefit of the rear land, but contends that, so far as lot 3 is concerned, this right of way was extinguished by merger when the title to lots 1, 2 and 3 came together in him; and that, so far as the Rogers and Hurd lots 4 and 5 are concerned, the right was lost when Mrs. Rogers, in conveying those lots to Rich on May 3, 1889, granted, or attempted to grant, a right of way over the granted premises itself instead of over her remaining land between lots 4 and 5 out to Crest Avenue; and that by the .partial release from the paramount Wadsworth mortgage, under foreclosure of which he, Powers, now holds title to the intervening lot No. 3, there did not pass, either by express or implied grant, or by necessity, any right of way to Crest Avenue. If the partial release can, and should, be construed as granting a right of way to the street, it is through the words ‘ connecting with the way to Crest Avenue.’</p> <p>“ I think and rule that, under the deed to Rich of May 3,1889, and the partial release from the Wadsworth mortgage, there was created in favor of the Rogers and Hurd lots a right of way ten feet wide along the northerly and easterly boundaries of the Powers lot numbered' 3, and thence out to what was formerly Crest Avenue over a strip ten feet wide, lying five feet on each side of the boundary line between lots 1 and 2. (See Lipsky v. Heller, 199 Mass. 310.) The Rogers lot is subject to a right of way ten feet wide along its northerly boundary line in favor of the said Hurd lot.</p> <p>“ Decree accordingly.”</p> <p>A decree was entered in accordance with the foregoing decision, from which Wilbur H. Powers, being the respondent in the first case and the petitioner in the second case, appealed to this court.</p>

<p>jEquity Jurisdiction, Accounting. Partnership. Equity Pleading and Practice, Reference to master, Frivolous appeal.</p> <p>A bill in equity alleged that the plaintiff and the defendant had been partners in the practice of law under an agreement which provided for a certain division of fees received, that the partnership had been dissolved by mutual agreement, when it also was agreed that a settlement of accounts between the parties should be had immediately, but that the defendant had not accounted to the plaintiff. The answer alleged that there had been an accounting and an account stated before the filing of the bill. Upon a motion for a reference to a master, the issue, whether there had been an accounting and an account stated as alleged in the answer, was heard by a judge of the court, who filed a memorandum stating that the defendant “ had failed to establish ” such allegation. The case thereupon was referred to a master, who also found that “ there was no final accounting or account stated between the plaintiff and the defendant,” and stated an account favorable to the plaintiff. The defendant excepted to the master’s report on the ground that, there being in the bill no charge of fraud or mistake in certain divisions of profits between the partners, it was not open to the plaintiff to ask for an examination of all the partnership accounts. Meld, that, because of the findings of the judge and of the master, the contention of the defendant was without foundation.</p> <p>Testimony of the plaintiff, at the hearing before a master of a suit in equity for an accounting between former partners in the practice of law for a period ending on a February 17, that, with regard to certain transactions on the.previous December 23, “ Everything was then supposed to be squared up to [the following] January 1,” does not require a finding that there was an account stated between the parties, where from other facts found by the master it is obvious that no sucli finding would be warranted, even if the language of the witness in different circumstances might have been susceptible of the construction contended for.</p> <p>A bill in equity alleged that the plaintiff and the defendant had been partners in the practice of law under an agreement which provided for a certain division of fees received, that the partnership had been dissolved by mutual agreement, when it also was agreed that a settlement of accounts between the parties should be had immediately, but that the defendant had not accounted to the plaintiff. The answer alleged that there had been an accounting and an account stated before the filing of the bill. Upon a motion for a reference to a master the issue, whether there had been an accounting and an account stated as alleged in the answer, was heard by a judge of the court, who filed a memorandum stating that the defendant “ had failed to establish ” such allegation. The case thereupon was referred to a master. At the hearing before him, the master ruled in accordance with a request by the plaintiff that the decision of the court on the issue heard before the reference was binding upon the master, and he also found “ that there was no final accounting or account stated between the plaintiff and the defendant.” Held, that the record plainly showed that the issue raised by the answer was heard and finally decided by the court, and, even if it had not so shown, that the finding of the master concluded the issue adversely to the defendant.</p> <p>In this case, the defendant’s appeal from a final decree of the Superior Court was adjudged frivolous, and therefore it was ordered that the decree appealed from should be so modified as to include double costs and interest at twelve per cent upon the amount awarded by that decree from the date when it was entered.</p>

<p>Executor and Administrator, Insolvent estate, Recovery of property conveyed by decedent in fraud of creditors. Insolvency. Deed, Delivery.</p> <p>In order for the administrator of an estate, which has been represented insolvent and commissioners for the receiving and examining of claims against which have been appointed by the Probate Court in accordance with R. L. c. 142, § 2, to maintain a writ of entry or a suit in equity to recover possession of land conveyed by the intestate in fraud of creditors, he first must obtain from the Probate Court a license to sell real estate of his intestate to pay debts, k conveyance of land by an insolvent person in consideration of services which the grantee had rendered to the grantor for a number of years and for which the grantor repeatedly had promised to pay, although it is made with intent to defeat other creditors, is valid at common law, and, since there are no statutory provisions allowing the administrator of an insolvent estate to recover property so conveyed, if an insolvent person under such circumstances delivers a deed of his land in escrow to one who, after the death of the grantor and upon the grantee’s paying the expense of preparing it, is to deliver it to the grantee, and upon the grantor’s dying and the grantee’s paying such expense, delivery of the deed is made to the grantee, the rule of the common law governs and the land cannot be recovered from the grantee, whose title vests from the time of the delivery of the deed in escrow.</p>

<p>Equity Pleading and Practice, Agreed statement of facts, Statements of counsel. Equitable Restrictions. Equity Jurisdiction, To enforce restriction on land. Deed, Construction.</p> <p>In a suit in equity an agreed statement of facts is not treated as such a statement would be in an action at law in regard to the power of the court to draw inferences. In equity the facts, although they are agfeed without any stipulation that the court may draw inferences, are to be treated as evidence with power on the part of the court to draw such inferences from them as are warranted. On an appeal in a suit in equity where the case was presented to the trial judge upon an agreed statement of facts, and there also were presented to him “ the statements of counsel in explanation and elucidation ” of the “ agreed statement of facts,” such statements of counsel, although helpful to this court in showing the contentions of the parties, cannot be regarded as constituting a part of the evidence on which the case was heard, and the case must be dealt with on the basis that all the evidence which was before the judge is contained in the agreed statement of facts.</p> <p>In a suit in equity to enforce an alleged restriction on land, where it appears that the lots of the plaintiff and the defendant formerly were parts of a large tract of land owned by one person, and the contention of the plaintiff is that such former owner established a building scheme applicable to the entire tract, if it is shown that, although such former owner made conveyances of portions of the tract which were subject to restrictions, he also conveyed large portions of it without any restrictions whatever, that the conveyances free from restrictions included two corner lots and that the size and position of the lots conveyed without restrictions were such that they cannot be regarded as unimportant and insignificant, the plaintiff has failed to prove the establishment of any general building scheme for the entire tract, especially where there is a difference in the restrictions which were imposed.</p> <p>A recital in a deed that the premises are conveyed “subject to the restrictions, if any now exist,” contained in the deed of a predecessor in title of the grantor, must be regarded as merely precautionary and does not create and impose restrictions if none existed.</p>

<p>Evidence, Competency. Municipal Corporations, Officers and agents.</p> <p>The ordinances of a city empowered the mayor to sign, seal, execute and deliver in behalf of the city all leases of land leased by the city and all deeds and agreements made and entered into by the city council; provided for the appointment of a public property committee of the city council, which had the general care of the public lands and buildings of the city but no general authority to lease them; and required the city treasurer to keep a record of all contracts entered into by or on behalf of the city. Acting under a vote of the city council approved by the mayor, the public property committee on July 2 of a certain year advertised for sealed proposals for the purchase from the city of a certain parcel of land, stating therein.that proposals were to be made “subject to the right of the present lessees of said parcel to remove therefrom any and all buildings or parts of buildings erected and owned by them.” One, who had read the advertisement and learned of the ordinance as to records with the city treasurer, having been shown by the treasurer as all papers in his custody respecting the real estate in question two leases, the second of which had expired on June 22, both of which provided that the lessees should at the termination of the terms of the leases deliver up the premises in as good order and condition, reasonable use and wearing, fire and other unavoidable casualties excepted, as they were at the dates of the leases, made a proposal for purchasing the land, which was accepted by the city. At the time when the agreement was made, the tenant who had occupied under the leases still was in possession, but he vacated the premises before the city conveyed to the purchaser, taking with him windows, doors, and many other substantial parts of the buildings. The purchaser brought an action against the city for breach of the contract of purchase. The defendant offered in evidence an agreement made on June 7 between the public property committee of its city council and the lessee, which gave the lessee p'ermission at the expiration of his lease to occupy the premises as tenant at will and, on vacating, to remove any buildings or parts of buildings then owned by the lessee or put on the premises by him by way of attachment to any other building. The agreement was not signed or sealed by the mayor and had not been recorded with the treasurer. Later an order was passed by the city council and approved by the mayor giving to the public property committee authority to lease or to sell the land in question. It did not appear that, during the consideration of such order in two co-ordinate branches of the city council, anything was known by either branch of the council or by the mayor of the agreement offered in evidence. The agreement was excluded. Held, that the exclusion was proper, since the agreement was not competent to justify the defendant in not conveying the premises to the plaintiff in the condition in which, according to his examination of the records at the time when he made his proposal, the plaintiff had a right to expect them to be.</p>

<p>Bill in equity, filed in the Superior Court on November 23, 1907, seeking to compel the defendants to remove a brick structurc which was erected by them and which the plaintiff contended constituted an infringement of a right of way and easement of light and air belonging to him. The case was heard by Fox, J., and the evidence was taken by a commissioner appointed under Equity Rule 35. There was a decree for the plaintiff; and the defendants appealed.</p> <p>At the request of the defendants, the presiding judge made a report of the material facts in accordance with R. L. c. 159, § 23, among which were the following:</p> <p>“All the buildings on the premises of which partition was made [as stated in the opinion] were three story brick buildings which are still standing.. The owners of the plaintiff’s building have never had any access to the open space and the passageway leading to Endicott Street, except through the wall of their building [which abutted on one side of the open space]. When the building was originally erected there was in the first story of this wall a doorway and probably, no other opening. There were two windows in each of the upper stories as now. At some time the doorway in the first story was bricked up, and a window lighting the first story and a door leading to the cellar were substituted. Although the time of this substitution is not definitely fixed, I find upon all the evidence and my view of the premises that the substitution had been made before the decree of partition. The surface of the yard or open space, in which the defendants have erected the building complained of, was but a few feet below the first floor and head room for the cellar stairs was taken out of the room by means of a box, and above this box was a small window lighting the first story. At the time of the partition, therefore, the first story was lighted by a large window and a small window, and there was a door leading into ■ the cellar from the yard. In the year 1905, the plaintiff bricked up the cellar doorway and took away the box on the first floor in his premises and substituted a large window lighting the first story, leaving the premises with two windows in the first story looking into the yard, but no door or entrance into said yard. There is no evidence that any of these changes in the openings in the wall have ever been objected to by the owners of the defendants’ premises. I do not find that there was any well defined way through said open space or yard but the plaintiff’s cellar door was opposite the entrance to the covered passageway, each being at the rear of the plaintiff’s and defendants’ lots respectively. At the entrance from Endicott Street into said covered or arched passageway running through the defendants’ building there was a door which was kept locked.</p> <p>“ At some time after the partition proceedings, a one story wooden shed was erected by the defendants’ predecessors in title covering a part of the yard. This shed was not standing for a period of twenty years and was at all times several feet away from the windows of the plaintiff’s building.</p> <p>“I find that the easements in question have not been destroyed by the use which the owners of the defendants’ building have made of their yard, and that the recent bricking up by the plaintiff of his cellar door does not amount to an abandonment of this right of way.”</p>

<p>Partnership, Accounting between partners. Equity Pleading and Practice, Master.</p> <p>Good Wi'lr. Estoppel. Abandonment. Evidence, Presumptions and burden of proof.</p> <p>At the end of the term of a business partnership formed by an agreement in writing between two persons, one of the partners ceased to be connected with the firm’s business of manufacturing and the other, without making any effort to sell the machinery, stock or finished merchandise of the firm in the general market or to any one other than himself, took into his possession and control all of the firm’s assets, among which were many machines which could not be bought in the general market but were of design and construction especially adapted to the business conducted by the firm, and continued to carry on the business, which was large and profitable. Held, that it was proper that such continuing partner be charged in his accounting with his former partner not with the fair market value of the machinery, fixtures and other assets in the open market, but with their fair value to him or to one in his position. .</p> <p>Prom a master’s report in a suit in equity for an accounting between partners, it appeared that the partnership was created by an agreement in writing according to which it was to continue for five years, during the first two of which the plaintiff was to receive twenty per cent of the profits and during the remaining three was to receive forty per cent, that the defendant kept all the books and that the plaintiff knew little about books and left the whole matter to the defendant, that the defendant repeatedly had rendered incorrect accounts to the plaintiff and that through the defendant’s fraud or negligence the books were kept so improperly that it was impossible to determine with certainty, as to some of the profits for which the defendant had not accounted, to what part of the five years they should be referred. The master also found that the evidence did not enable him to correct or reconstruct the books in regard to such profits, and that the only inventories of stock for four years bad been destroyed. The master awarded to the plaintiff forty per cent of the profits as to which.the defendant had made no accounting. The evidence was not reported. The defendant excepted. Held, that, since the master had made the best finding that lie could from the books and accounts, and the defendant was responsible for the way in which the books were kept and for the condition of them before the master, and had failed to show that the finding of the master was erroneous, the exception must be overruled.</p> <p>Where, by the provisions of an agreement creating a partnership between two persons, a limited partnership was to have been formed, but the partnership has been carried on for the entire term of five years covered by the agreement without the requirements of R. L. c. 71, §§ 4-6, with regard to the recording and publishing of a certificate by the members of such a partnership, being complied with, in the accounting at the termination of the partnership the partners, under R. L. c. 71, § 11, between themselves as well as otherwise are to be considered as general partners.</p> <p>Upon the termination of a partnership between two persons in accordance with the provisions of the partnership agreement, one of the partners continued the business at the same place, using the assets and the name of the firm, and the other partner retired. There was no talk or arrangement between them with regard to the good will. The retiring partner did not know that he had any rights with regard to the good will until lie consulted an attorney at law nearly a year after the termination of the partnership. Thereafter he did nothing to prejudice whatever rights in the good will lie had, but brought a bill in equity to enforce such rights within a month after he consulted the attorney. A master to whom the suit was referred found that the plaintiff had lost his rights in the good will by abandonment. Held, that the finding was erroneous, since the plaintiff could not lose such a right by mere abandonment so long as he was ignorant of its existence.</p> <p>Where at the termination of a partnership one of the former partners with the acquiescence of the other appropriates and uses the good will and assets of the partnership, makes no effort to sell them, but continues to carry on the business at tlie same place and under the same firm name, he is equivalent to a purchaser of the good will and is liable to account to his former partner for his share of the fair value thereof, except that, in determining such value, it is to be estimated as it would have been if the good will had been disposed of at a judicial sale, that is, at its value with the right of the retiring partner to set up a competing business among the customers of the firm and others.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 23, 1909, by Herbert M. Federhen, trustee under the will of John Federhen, for instructions as to the proper disposition, under the provisions of that will which are quoted in the opinion, of certain accumulated income in his hands as such trustee derived from the share of John Federhen, 3d, a son of John Federhen and mentioned in such provision as his son John.</p> <p>The case came on to be heard before Braley, J., who reserved it upon the pleadings for determination by the full court.</p>

<p>Practice, Civil, Exceptions, New trial. Contract, Construction, Performance and breach. Lateral Support. Practice, Civil, Amendment. Limitations, Statute of.</p> <p>In an action against a contractor, who had made a general contract with a landowner for the erection of a building at the corner of two streets in that part of Boston called East Boston, brought by one who had agreed to do all the work of excavation called for by the defendant’s contract with the landowner, it appeared that,.after certain work had been done by the plaintiff, the plaintiff and the defendant had agreed that the plaintiff should stop work and that the defendant should complete the excavation at the plaintiff’s expense. It appeared also that there was in one of the streets adjoining the land to be excavated a compressing air plant used in the construction of the tunnel under the harbor to East Boston. The defendant was notified by his engineer and by the engineer in charge of the construction of the tunnel that a bulkhead must be built at once and requested the plaintiff to build one. The plaintiff refused to do this, and the defendant caused the bulkhead to be built at a cost of $467. The defendant asked the presiding judge for a ruling “ that the defendant should be allowed the cost of building the bulkhead ... if the same was necessary to 'protect the street or sidewalk and prevent them from falling in, or if the same was necessary to protect the water mains or sewers or tunnel or compressed air plant in the street, or if the same was necessary in order to comply with the provisions contained in the specifications accompanying the contract between the defendant ” and the landowner. The judge refused to make this ruling. He submitted to the jury the special question “ What expense, if any, for the bulkhead does the jury include in their verdict 7 ” The response was “ The jury answers $467.” The jury returned a verdict for the plaintiff “in the sum of $623.80, with interest,” from a certain date. The case had been referred to an auditor, and the amount allowed to the plaintiff by him, after deducting certain items in dispute which he disallowed, was $721.77. The amount claimed by the plaintiff without deducting those items was $1,344.88. The plaintiff contended that the only way in which the expense of the bulkhead could be included in the verdict was by deducting that expense from the sum otherwise found by the jury to be due to the plaintiff, that the answer of the jury to the special question must be taken to mean that they deducted $467 on this account from the sum otherwise found by them to be due to the plaintiff, and that therefore the refusal of the judge to make the ruling requested by the defendant about allowing him the cost of building the bulkhead was immaterial. Held, that although the contention of the plaintiff seemed to be in accordance with the strict interpretation of the answer to the special question, yet that question as addressed to the jury under the circumstances was a somewhat blind one, and this court were unwilling to decide that the jury in finding a verdict for the plaintiff in the sum of $623.80 deducted from the sum otherwise found to be due to the plaintiff $467 for the expense of the bulkhead, and thus to say that the defendant could not have been harmed by the refusal of the ruling which he requested.</p> <p>In an action against a contractor, who had made a general contract with a landowner for the erection of a building at the corner of two streets in that part of Boston called East Boston, brought by one who had agreed to do all the work of excavation called for by the defendant’s contract with the landowner, it appeared or was assumed, that at the date of the contract between the defendant and the landowner there was in one of the streets adjoining the land to be excavated a compressing air plant consisting of buildings and machinery of great weight used in the construction of the tunnel under the harbor to East Boston, that there were under the same street a large water main, a large trunk line sewer and gas mains, and that the presence of the air plant was known to the defendant and landowner when they made their contract, even if the presence Under the street of the water main, the trunk line sewer and the gas mains was not known to them at that time. It did not appear whether the excavation was more than ten feet below the grade of the street and thus came within the provisions of St. 1892, c. 419, § 32, now St. 1907, c. 550, § 19. The specifications of the contract between the defendant and the landowner provided that each contractor should “ make good any damage done to adjoining premises or sidewalks which he or his workmen may occasion," that he should “keep all sidewalks and adjoining property from caving in” and that he should “ repair any damages to adjoining work.” The presiding judge told the jury that the right of lateral support which one landowner owes to another is the support of the land in its natural condition, and that it was the plaintiff’s duty to take all reasonable and proper precautions to prevent injury to other people’s land and to the street in front of the lot. At the close of the charge the defendant excepted to this portion of it, and asked the judge to rule “ that everything in that street in tlie way of work, tunnel, water main, should be held up and that K. or R. [the plaintiff or the defendant] was under a liability to hold those things in place, and, if the necessity of a bulkhead was reasonable in view of what was in the street in the way of public improvements, public necessities, he was obliged to hold them up by a bulkhead if a bulkhead was necessary.” The judge refused to make this ruling, and the jury returned a verdict for the plaintiff. On exceptions alleged by the defendant, it was held, that there was a mistrial and that the exceptions must be sustained; that, if the excavation was more than ten feet below the grade of the street, the statute put on the landowner making the excavation the burden of supporting any buildings on adjoining land, and that, if the excavation was not within the statute, the defendant’s obligation in regard to the excavation under his contract with the landowner was by the terms of the contract between the plaintiff and the defendant the measure of the plaintiff’s obligation to the defendant, and therefore that it was the duty of the plaintiff to prevent a cave-in of the street adjoining the excavation as the street then existed with the air compressing plant in it and the other structures under it.</p> <p>In an action against a contractor, who had made a general contract with a landowner for the erection of a building at the corner of two streets in that part of Boston called East Boston, brought by one who had agreed to do'all the work of excavation called for by the defendant’s contract with the landowner, it appeared that, after certain work had been done by the plaintiff, the plaintiff and the defendant had agreed that the plaintiff should stop work and that the defendant should complete the excavation at the plaintiff’s expense. It appeared also that there was in one of the streets adjoining the land to be excavated a compressing air plant, consisting of buildings and machinery “ of great weight,” used in the construction of the tunnel under the harbor to East Boston, and that there were under the same street a large water main, a large trunk line sewer and gas mains. The defendant was notified by his engineer and by the engineer in charge of the construction of the tunnel that a bulkhead must be built at once and requested the plaintiff to build one. The plaintiff refused to do this, and the defendant caused the bulkhead to be built at a certain cost. By his contract with the defendant the plaintiff had bound himself to prevent a cave-in of the street adjoining the excavation as the street then existed with the air compression plant in it and the other structures under it, and a new trial was granted to the defendant on account of an error in the instructions to the jury as to this obligation of the plaintiff. A portion of the charge of the presiding judge could have been understood to mean that, if the plaintiff was not bound to put in the bulkhead, he might recover the cost of the filling back of it which he furnished to the defendant. The plaintiff testified that it did not cost any more to deposit the excavated material as back filling than to take it away. In anticipating questions that might arise upon a new trial of the case, it was held, that, although as a matter of construction of the contract between the plaintiff and the defendant it was the absolute duty of the plaintiff to keep the sidewalk of the adjoining street from caving in, it did not necessarily follow that the plaintiff must pay the expense incurred by the defendant in putting in the bulkhead, that it was necessary to determine whether the bulkhead was put in solely to protect the air machinery from being jarred, and, if it was not, but was put in solely or partly for the purpose of preventing a caving in of the sidewalk, it would be necessary to determine whether putting it in as it was put in was a reasonable method of stopping a cave-in, and, if it cost more than reasonably would have been expended merely in stopping a cave-in, the defendant could be allowed no more than the ariiount of the reasonable expense which would have accomplished that purpose. Held, also, that, if the plaintiff was not bound to put in the bulkhead, it did not follow necessarily that he was entitled to recover the cost of the filling which he supplied for it.</p> <p>Under R. L. c. 173, § 48, the question whether a new count may or may not be permitted to be added to a declaration by amendment depends upon the question whether it will enable the plaintiff to sustain the action for the cause for which it originally was intended to be brought; and, when an amendment has been allowed on this ground, the count thus added stands ior all purposes, including the defense of the statute of limitations, as if it had been inserted in the declaration originally.</p> <p>Where an amendment to a declaration by the addition of a new count is “filed by consent,” and no order of the court is made at the time, but afterwards an answer to the new count is filed by the defendant “by leave of court,” the order permitting the answer to be filed is equivalent to an order allowing the amendment.</p> <p>In an action against a contractor, who had made a general contract with a landowner for the erection of a building, brought by one who had agreed to do all the work of excavation called for by the defendant’s contract with the landowner, where it appeared that, after the plaintiff had done a certain amount of work, the plaintiff and the defendant had agreed that the plaintiff should stop work and that the defendant should complete the excavation at the plaintiff’s expense, the plaintiff included in his claim a charge for teams furnished by him to the defendant to cart off snow and ice from the part of the lot which the defendant was about to excavate which “ were removed for the purpose of enabling the defendant to excavate that part.” It appeared that by the contract the whole work of excavation was to be done in twenty-three days, and that the snow and ice were carted away thirty-one and thirty-two days after the agreement of the parties that the defendant was to finish the excavation at the expense of the plaintiff. The defendant contended that the charge for the teams should be deducted from the plaintiff’s claim as part of the work of which the plaintiff was to bear the expense. Held, that it did not appear that by the terms of the agreement the plaintiff was to bear the burden of additional expense caused by the defendant having put off the work of excavation for his own convenience.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a longshoreman of ten years’ experience against a stevedore by whom he was employed, for personal injuries incurred while obeying the orders of the defendant’s superintendent who was alleged to have set the plaintiff at work in a dangerous place, it appeared that the plaintiff, who had been working in the hold of a vessel, had come on deck to take part in putting on a hatch cover for the night, that before the hatch cover was put in place it was necessary to put in place heavy timbers fitting into slots in the coaming of the hatch to support the cover, these timbers being called “fore and afts,” that at the time of the accident one of these fore and aft timbers had been slung on the fall of the winch and was about to be lowered into position, that the plaintiff was standing on the port side of the vessel and the defendant's superintendent in charge of the work told him to steady the port side of the forward end of the timber as it was lowered into position, saying to him, “ Get in there, get hold of the fore and aft,” that to do this the plaintiff had to step in between the winch and the forward end of the coaming, that the superintendent gave the order to lower, the winch was started and the plaintiff’s left leg was caught between the crank shaft of the driving wheel and the coaming and was released only by reversing the engine. It appeared that the reason the plaintiff’s leg was caught was that he placed it in the path of the crank shaft, and, by a proper interpretation of the testimony, it also appeared that the plaintiff could have carried out the order of the superintendent in safety without putting his leg in the path of the crank shaft. The presiding judge ordered a verdict for the defendant. The plaintiff, upon exceptions alleged by him, contended that the defendant's superintendent was negligent, either in ordering the plaintiff to “ get in ” between the end of the coaming and the winch without warning him of the danger, or else was negligent in giving the order to lower without first ascertaining whether the plaintiff had got out of harm’s way. Held, that the superintendent had no reason to suppose that a longshoreman of ten years’ experience ought to be warned of the dangers incident to an ordinary winch and an ordinary hatch cover or to the two in combination, and that it was not the duty of the superintendent before giving the order to lower the timber to find out whether such an experienced longshoreman had taken his stand in the path of the crank shaft; and accordingly that the judge was right in ordering a verdict for the defendant.</p>

<p>Carrier, Of passengers by water. Ship. Evidence, Presumptions and burden of proof. Practice, Civil, Ordering verdict, Orderfor judgment by full court, Election of remedy. Supreme Judicial Court. Contract, Implied in law. Probate Court, Jurisdiction, Decree. Judgment.</p> <p>A carrier of passengers by water lawfully may refuse to take a passenger on an ocean voyage who is not fit to travel without medical attention and depends wholly on the carrier to furnish it, and who has purchased an ordinary ticket for the voyage at the regular price without giving notice of his condition.</p> <p>In an action of tort against a steamship corporation for refusing to take the plaintiff’s intestate as a passenger on an ocean voyage, where the plaintiff’s evidence necessarily disclosed the facts that the plaintiff’s intestate was not fit to travel without medical attention and depended wholly on the defendant to furnish it, and that she was provided with an ordinary ticket for the voyage which had been purchased at the regular price without giving notice of her condition, and these facts were held to justify the refusal of the defendant to take her on the voyage, it also was held, that, although in an action of tort the burden of proving a justification is on the defendant, such burden here was sustained for the defenddant by the plaintiff’s evidence, and that a verdict should have been ordered for the defendant.</p> <p>In an action of tort where the plaintiff’s evidence disclosed facts which proved a justification of the acts of the defendant, and where after a verdict for the plaintiff it was held, upon an exception to a refusal of the presiding judge to rule that upon all the evidence the plaintiff could not recover, that a verdict should have been ordered for the defendant, this court under St. 1909, c. 236, ordered that judgment should be entered for the defendant.</p> <p>In two actions, one of contract and the other of tort, against a steamship corporation for refusing to take the plaintiff’s intestate upon an ocean voyage for which she was furnished with a ticket purchased from the defendant without notice of the fact that she was unfit to travel without medical attention for which she depended wholly on the defendant, this court did not find it necessary to determine whether an order made by the presiding judge that the plaintiff must elect between the action of contract and the action of tort would have been correct if the plaintiff had had a right of action in tort, because it was held that the plaintiff had no right of action in tort.</p> <p>The administrator of the estate of a woman, whom a steamship company rightly refused to take on an ocean voyage upon an ordinary ticket purchased for her without notice of the fact that she was unfit to travel without medical attention for which she depended wholly on the steamship company, if the ticket was bought for the woman by another person and the steamship company has not refunded the passage money to anybody^ properly may bring an action of contract against the steamship company to show, if he can, that his intestate was the person to whom the money was due.</p> <p>The decree of the Probate Court, upon a petition for administration which.alleged that the intestate “last dwelt in Boston,” appointing the petitioner administrator of the estate of the intestate “ late of Boston,” is an adjudication that the intestate was an inhabitant of or resident in the county of Suffolk at the time of his decease, and thus shows that the court had jurisdiction to grant the administration whether or not the intestate left property to be administered within that county.</p> <p>The jurisdiction of the Probate Court in granting administration upon the estate of an intestate, on the ground that the intestate was at the time of his death an inhabitant of or resident in the county where the court is established, cannot be questioned in an action of contract brought by such administrator for money alleged to have been due to his intestate, and in such an action the finding of fact made by the Probate Court as to the residence of the intestate is not the subject of attack.</p>

<p>Tobt for personal injuries received by the plaintiff while in the employ of the defendants at the Hotel Bristol in Boston, as stated in the opinion. Writ dated August 1, 1904.</p> <p>The case was tried before Bond, J. The material facts shown by the evidence are stated in the opinion. At the close of the evidence the defendants asked that a verdict for them be ordered. The presiding judge refused to do so, and the defendants excepted.</p> <p>The defendants also excepted to the following portion of the charge to the jury:</p> <p>“ How, as was stated to you by counsel for the plaintiff, where an article, an implement or a machine, is being used as it was intended to be used, and it does not act as it was intended to act —that is, it does not operate as it was intended to operate— and a person is injured thereby, the fact that it operates in that way, the fact that it fails to do as it was intended to do, is some evidence that it was out of condition — that it was in a defective condition, and that is some evidence of negligence on the part of those who have control of it—charge of it, to keep it in repair.”</p> <p>There was a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Trustee Process. Jurisdiction. Corporation, Foreign. Judgment. Partnership.</p> <p>Words, “ As copartners.”</p> <p>A writ described the defendants in the words “L. and K. as copartners under the firm name and style of L. and Company” and summoned a corporation as “ trustee of the said defendants’ goods, effects and credits.” The trustee owed L. nothing and owed the firm nothing, but owed K. §2,000. Held, that the trustee should be charged, the words “as copartners ” not being a limitation of the right of attachment.</p> <p>If a plaintiff, who is not an inhabitant of this Commonwealth, brings an action in a court of this Commonwealth against two defendants, neither of whom is such an inhabitant, and summons as trustee, by service of process upon the commissioner of corporations in accordance with St. 1903, c. 437, § 58, a foreign corporation which has a usual place of business in this Commonwealth and which owes one of the defendants a certain amount of money, jurisdiction thus is obtained by the court here and, until the action is determined, the trustee should not be discharged although during the pendency of the action here the defendant to whom it owed the money brought suit upon that claim against it in a court in a foreign country and recovered a judgment which it paid, if it did not inform the court of the foreign country of the pendency of the action here.</p>

<p>Attorney at Law, Disbarment. Practice, Civil, Judgment in disbarment proceedings, Appeal, Exceptions. Judgment. Supreme Judicial Court. Words, “Judgment.”</p> <p>After hearing a petition for the disbarment of an attorney at law, a judge of the Superior Court on March 10 of a certain year filed an extended memorandum of findings of fact which ended with the words, “ It is ordered that the respondent be disbarred,” and on April 9 a formal “ Order of Disbarment ” was entered in the following language : “ This cause came on to be heard and was argued by counsel, and thereupon and upon consideration thereof, it is ordered, adjudged and decreed that the respondent be and he hereby is removed from the office of attorney at law in the courts of this Commonwealth.” Thereafter at the request of the respondent the trial judge reported the case to this court which after consideration sent a rescript directing the entry, “ Order of disbarment affirmed,” whereupon the respondent made in the Superior Court motions to vacate and in arrest of judgment, for a new trial, and for amendments to the record, all of which after a hearing the trial judge denied. The respondent appealed. Held, that the formal order of disbarment of April 9, while it was a judgment within the meaning of R. L. c. 173, § 96, which gives a right of appeal to the Supreme Judicial Court, was not a judgment made under R. L. c. 177, § 1, which would be the final entry of record and would end the jurisdiction of the court and which might by proper proceedings be vacated or arrested, but was merely an order of judgment.</p> <p>No appeal lies from the order of a judge of the Superior Court “ disallowing as contrary to the truth ” a bill of exceptions of the respondent in a petition for disbarment. The respondent’s remedy, if any, is by a petition to prove exceptions under B. L. c. 173, § 110.</p> <p>A motion to amend a record containing the report of a case to this court by a judge of the Superior Court under R. L. c. 173, § 105, should be made before the record is transmitted to this court. Such a motion, made not only after the record was so transmitted but also after the case was fully argued and determined by this court and a rescript was sent, properly was denied.</p> <p>It is not the practice of this court to grant a rehearing to parties upon questions which once have been argued and decided, or to hear them upon questions of law which have been waived or abandoned at a former hearing; but in their discretion they may do so.</p>

<p>Land Court, Jurisdiction, Amendment of petition, Decree, Withdrawal of petition.</p> <p>The Land Court in the matter of a petition for the registration of the title to certain land has no power to allow a motion of the respondent 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 ; an'd therefore a decree, which was entered as to such part of the land described in the original petition after the allowance of such an amendment, no decree being entered as to the remaining land, and which declared the respondent to be the owner of such land, was wholly beyond the jurisdiction of the court and is void.</p> <p>After the trial upon a petition for the registration of the title to certain land, the judge of the Land Court filed a decision that the petitioner had title to a part of the land described in the petition and the respondent to the rest and thereupon on motion of the respondent substituted him for the petitioner as to that part of the land described in the original petition which he found to be the respondent’s, and made a decree which, without dealing at all with the land which he had found to be the petitioner’s, declared the respondent to be the owner of the land described in the amendment and ordered that his title thereto be registered. Thereafter the petitioner under R. L. c. 128, § 36, filed a motion to withdraw his application for registration upon such terms as the court might fix, which motion the judge disallowed with the indorsement, “ a final decree having been entered” ; and the petitioner alleged exceptions. Held, that no final decree had been entered, the decree that had been entered being void; and therefore that the petitioner’s motion should have been allowed.</p> <p>The denial of a motion of one, who has petitioned in the Land Court for the registration of his title to certain land, that his petition be dismissed so far as it applies to a part of the land described in the petition to which the judge has found that he had no title, is within the discretion of the judge, although the petitioner would have a right to have his petition dismissed as to the whole tract upon terms.</p> <p>It seems that when one, who has applied in the Land Court for the registration of his title to certain land, files, after the court has found that he has not a title proper for registration, a motion that his application be dismissed without prejudice, such motion should be passed upon and disposed of before any further action is taken respecting the application.</p>

<p>Tort for personal injuries received by the plaintiff as he was driving in a grocery wagon out from the yard of one Clinton in East Braintree to and upon the tracks of the defendant on Quincy Avenue under the circumstances stated in the opinion. Writ dated November 10, 1906.</p> <p>The case was tried before Qrosby, J. The material facts are stated in the opinion. At the close of the evidence the defendant, among other requests, asked for a ruling that upon all the evidence the plaintiff could not recover. The presiding judge refused to rule as requested, there was a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, What constitutes, Rescission. Frauds, Statute of. Evidence, Extrinsic affecting writings.</p> <p>In a suit in equity to enforce the specific performance of an alleged contract to sell certain land to the plaintiff, it appeared that the defendant, one W., owned the land in question and other land in the neighborhood, a large part of which was not subject to any restrictions, and that the defendant’s agent with the defendant’s knowledge and approval sent to the plaintiff a letter describing the land and agreeing to sell it to the plaintiff for a price named “subject to the usual W. restrictions which cover this neighborhood,” adding “I think you know them all, but I will be glad to send you a copy if you care to see them.” Thereupon the plaintiff asked for a copy of “ the usual W. restrictions,” and the defendant’s agent sent the plaintiff a copy of an agreement between W. and one P. to whom W. had conveyed land in the vicinity of the land in question. The agreement contained a statement of certain restrictions, a covenant on the part of P. to hold his land subject thereto during a certain period, and a covenant by the defendant to hold certain land of his own, including a part of that here in question, subject to the same restrictions for the same period. A master to whom the case was referred found that it was a term of the oral contract between the parties, of which the agent’s letter was a memorandum, that the land should be conveyed subject to “ the usual W. restrictions,” that this phrase was intended by the defendant and his agent to mean those restrictions which already had been imposed by the agreement of P., and that at the time of the. oral contract the plaintiff understood this phrase to refer to some restrictions existing on the land but did not have in mind the agreement of P. until it was sent to him by the defendant’s agent, after which he wrote to the defendant's agent reciting his purchase and agreeing to pay the stipulated price. The master also found that there was no dispute between the parties as to these restrictions until a disagreement had arisen between them as to other matters. The defendant contended that the minds of the parties never met upon the matter of the restrictions, which was a material part of their bargain, and therefore that no contract was made. Held, that the phrase “ the usual W. restrictions ” used in the letter of the defendant’s agent had been fixed and made -certain through the subsequent adoption by the parties of the restrictions in the agreement of P. as the ones intended by the words used, and that a final and complete agreement had been reached between the plaintiff and the defendant.</p> <p>A memorandum of a contract for the sale of land belonging to one W. signed by the agent of W., which contains in all other respects a complete statement of the agreement of the parties but refers to restrictions to which the land is subject as “ the usual W. restrictions,” offering to send the purchaser a copy of such restrictions if he cares to see them, can be made a complete memorandum of the contract sufficient to satisfy the requirements of R. L. c. 74, § 1, cl. 4, as against W. by showing that a copy of an instrument in writing signed by W. and another person containing the restrictions referred to was furnished by W. at the request of the purchaser and was accepted by the purchaser as a statement of the restrictions intended by the parties and referred to in the memorandum, and it is immaterial whether the copy of the previous instrument containing the restrictions was made before or after the memorandum was signed by the agent of W.</p> <p>In a suit in equity to enforce the specific performance of a contract to sell certain land to the plaintiff, if it appears that the defendant said that he would throw up the contract unless certain claims made by him were conceded and that the plaintiff replied “ All right,” this does not necessarily show a rescission of the contract by mutual consent, and a finding of a master to whom the case was referred that the defendant’s remark was not intended as anything more than a tentative suggestion, if supported by other facts reported by the master, will not be revised.</p>

<p>Evidence, Opinion, As to soundness of mind, Presumptions and burden of proof. Will, Proof of.</p> <p>Upon the issue whether an alleged testatrix was of sound mind, it is not com-' petent for the contestant of the will to show that an attorney at law, whom the alleged testatrix wished to employ to draw a will for her, told her to go to see a certain physician and, if the physician thought that she was fit to make a will, to come back and he would make it, this testimony showing the opinion of a person not an expert that the alleged testatrix did not seem to him to be of such mental capacity that it was proper for her to make a will, and being in substance a declaration of the attorney to that effect, neither his opinion nor his declaration being competent to show the woman’s mental condition.</p> <p>Upon the issue whether an alleged testatrix was of sound mind, it is competent for the contestant of the will to show that a conservator of the property of the alleged testatrix had been appointed, because the existence of the facts required by statute to be proved before a conservator can be appointed is some evidence of weakened faculties affecting her ability to manage and dispose of property, which it is proper to consider in determining the question of her soundness of mind.</p> <p>Upon the issue whether an alleged testator was of sound mind at the time of the execution of his will, the executor has the burden of proof, but the presumption of sanity is enough to sustain that burden until evidence is introduced which tends to control it. On the introduction of such evidence, the case is to be determined upon the whole evidence including the presumption of sanity, and, if the preponderance of the evidence is in favor of sanity, the burden of proof is sustained and the finding must be for the executor. If upon the whole evidence including the presumption of sanity the scales are in even balance, the finding must be for the contestant of the will on the ground that the executor has failed to sustain the burden of proof.</p>

<p>Bill ik equity, filed in the Superior Court on December 31, 1906, and amended on January 2, 1907, to enforce upon property held in trust for the defendant Franklin E. Clark an equitable charge created by the following instrument:</p> <p>“ 23d September 1905.</p> <p>“Messrs. A. S. Lascelles & Co.,</p> <p>E. A. DePass & Co.,</p> <p>Lascelles BeMercado & Co.</p> <p>“ Dear Sirs:</p> <p>“ In consideration of your continuing for the next month the account current between you or any of your firms and Mr. Malcolm George DaCosta of Kingston, Druggist, I hereby guarantee payment of all sums of money in which Mr. DaCosta may now be indebted to you or to any or either of your firms and also of any future indebtedness whether in respect of account current or otherwise which Mr. DaCosta may incur with you or either of you.</p> <p>“ I hereby charge payment of any liability hereunder on all my interest in the estate of the late Evelyn Alice Clarke of Dorchester, Boston, U. S. A., deceased, and I agree to execute a legal mortgage whenever you may require me to do so. My liability hereunder is limited to the sum of seven hundred pounds.</p> <p>“Yours faithfully,</p> <p>“F. E. Clark.”</p> <p>The plaintiffs were merchants doing business in Kingston in Jamaica, London in England, and New York. The defendant Franklin E. Clark (hereinafter called the defendant) was a resident of Boston who spent about six months of the year 1905 in Jamaica. The interest on which the charge was given was created by the will of the defendant’s mother, under which the residue was to be held in trust to apply the income to the maintenance and education of the defendant and his younger brother until each was thirty years old, the income not to be alienable or subject to the claims of creditors. Each son was to receive his share of the principal upon reaching the age of thirty years. If either should die before he was thirty years of age, his share was to go to his issue, or in default of issue to his brother.</p> <p>The defendant became thirty years old on December 18,1906. This bill was filed on December 31, 1906. Immediately after-wards the plaintiffs learned that on December 18 tho trustee, who had been notified promptly of the plaintiffs’ claims, had conveyed to the defendant his share of the trust property, and by a simultaneous conveyance, made through the defendant’s counsel, had taken it back on new trusts by which it was sought to limit further the alienability of the property and the rights of creditors. Allegations of the facts as to these conveyances were added to the bill on January 2, 1907, by amendment.</p> <p>The trustee, who was joined as a defendant, admitted these conveyances, and alleged that he was bound to make them because the provisions of the will made the charge invalid, and the beneficiary therefore had the right to call for a conveyance.</p> <p>The defendant demurred to the bill on the ground that the bill made out no case for equitable relief, that the plaintiffs had an adequate remedy at law, and that “ the plaintiffs did not within a reasonable time give this defendant notice of the acceptance of the guaranty set out in their bill nor of the furnishing of goods or credits thereunder.” He also filed an answer denying his signature and alleging that if genuine it “ was procured from him by fraud and deceit and by duress and undue influence, and while said defendant was under the influence of drugs and mentally incapacitated from doing business and totally irresponsible therefor.” By an amendment to the answer he further alleged that his liability, if any, had been discharged by extensions given to DaCosta without his knowledge or consent.</p> <p>The demurrer was overruled by Richardson, J., and the defendant appealed.</p> <p>The defendant was ordered “ to specify as far as he can what acts or facts of fraud or deceit or duress he relies on.” His specifications were as follows: “ That his purported signature . . . was procured from him by fraud in that this defendant was under the influence of drugs and mentally incapacitated from doing business, and totally irresponsible at the time, if he ever signed said letter; and that said purported signature was procured from him by undue influence in that this defendant was under the influence of drugs and mentally incapacitated from doing business and totally irresponsible at the time, if he ever signed said letter, and was in such a condition that he was subject to the influence and suggestions of others, and would act upon such suggestions and under the influence of others, without the exercise of his own volition.”</p> <p>The defendant filed a motion that issues be framed for a jury, presenting with the motion the following issues:</p> <p>“ 1. Is the purported signature on the letter dated September 23, 1905, as alleged in the plaintiffs’ bill, the genuine signature of the defendant Franklin E. Clark ?</p> <p>“ 2. Was said signature procured of the defendant Franklin E. Clark by fraud and deceit ?•</p> <p>“3. Was said signature procured of the defendant Franklin E. Clark by undue influence?</p> <p>“ 4. Was said signature procured of the defendant Franklin E. Clark, while he was under the influence of drugs to such an extent that he was irresponsible and incapacitated from doing business ? ”</p> <p>This motion was denied by Hiohardson, J., and the defendant appealed.</p> <p>Thereafter the case was referred to Arthur P. Hardy, Esquire, as master, who reported, subject to a question of law whether the defendant had been discharged by certain renewals given by the plaintiffs to DaCosta, that the defendant was liable to the plaintiffs in the sum of $3,490.85.</p> <p>The following facts, among others, appeared by the master’s report:</p> <p>The plaintiffs were general merchants, whose business was “an extensive one, carried on in all parts of the world.” DaCosta was in 1905 a druggist and grocer in Kingston. He had for some time been buying goods from the plaintiffs, for which he was in the habit of paying by accepting drafts. In the ordinary course of business these were taken up by new acceptances given as the old acceptances fell due. Early in September, 1905, DaCosta was largely indebted to the plaintiffs, and they refused to give him further credit. This apparently meant closing up his business. He urged them not to do this, and told them “ that he had some one who would guarantee the account and would probably go into business with him.” The defendant, who had been in Jamaica for several months, then called on the plaintiffs, confirmed DaCosta’s statements, and proposed to give the plaintiffs security upon his interest in the trust estate. The plaintiffs were not disposed to accept this security, and it took several weeks before DaCosta and the defendant could persuade them to do so.</p> <p>In the course of the conversations with the plaintiff DeMercado, the defendant “reiterated his statement to the effect that he felt under obligations to DaCosta, and gave as his reason for desiring to go into business with him that the condition of his health was such he was unable to live North.” '</p> <p>Finally, on September 23, 1905, the plaintiff DeMercado agreed to accept the guaranty, and went with DaCosta and the defendant to the office of .his solicitors, Farquharson and Milholland, “leading solicitors on the island of Jamaica.” After being ' informed of the facts Mr. Milholland went into his private office and dictated the form of the guaranty. When he returned with the typewritten paper the defendant called attention to the fact that the amount of his obligation was to be limited to £700, and this addition was made by Mr. Milholland in his own handwriting. The defendant also ‘..‘inquired why the credit to be extended to DaCosta was therein stated to be for the ‘ next month,’ and both Messrs. Milholland and DeMercado explained to him that the extension of credit was not necessarily limited to the period, of one month; that the plaintiffs now proposed' to bind .themselves for one month, and that during such time the security offered by the defendant would be investigated and the account would not be closed at the end of the month unless the security turned out to be unsatisfactory.” As Mr. Milholland testified in his deposition, he said to the defendant: “ That is only a minimum time that Mr. DeMercado agrees to give, and is the consideration for the giving of the guaranty by you.” The defendant then signed the agreement, and it was accepted by the plaintiffs. The master’s finding on these facts was as follows:</p> <p>“Upon the foregoing facts I find and rule that the guaranty was accepted by the plaintiffs at the time it was signed, and that Dr. Clark then so understood it.”</p> <p>Upon all the evidence before him, the master found that neither DeMercado nor Mr. Milholland “ had any knowledge or intimation or reason to know” of the defendant’s habits, and that “ his appearance and the statement he made to them when the guaranty was signed were such that they believed, and had the right to believe, they were dealing with a man fully able and mentally competent to make the contract embodied in the guaranty.” He further found that when the guaranty was signed the defendant was not in fact mentally incapacitated. On this point he stated his conclusions as follows: “ It is possible that the doctor’s statement is correct that at the time of-the hearings before me he had no clear recollection of what happened either at the trial [upon a criminal charge, when he made the notes referred to below,] or in fact during any part of his stay in Jamaica. Taking into consideration, however, the fact that Dr. Clark was under treatment by Dr. Clare while confined in jail for three weeks, and that such treatment resulted in a very material lessening of the amount of morphine taken by him, that at his trial in Jamaica no attempt was made to introduce the defense of irresponsibility on the ground of the excessive use of drugs; that Mr. Whitney who then appeared as a witness in his behalf made no mention of Dr. Clark’s condition or his use of drugs, or that he considered him mentally irresponsible; that neither Mr. Milholland nor Mr. DeMercado saw any indicatian of the use of drugs or mental incapacity at the time the guaranty and other papers were signed; that within sixteen or seventeen days Dr. Clark underwent a medical examination on an application for life insurance, and that the doctor who made such examination failed to discover any evidence of mental weakness or use of drugs; that at the time of such examination Dr. Clark subscribed to clear and concise answers to various questians respecting his physical condition; that three days after said examination he made an extensive affidavit concerning the particulars of his dealings with his former solicitor, Mr. Samuel, and that such affidavit makes reference to various dates, places and consultations and contains other matter indicating a reasonably clear comprehension of the situation by Dr. Clark and the varipus matters in which he was then concerned; that Dr. Clark discussed the terms and conditions of the guaranty and other papers with Mr. Milholland and gave him a clear description of the nature of the security offered, and that he was able to make the clear and comprehensive memoranda in the note book, I am led to the conclusion, and find, that Dr. Clark at the time he signed the guaranty was not then mentally incapacitated from entering into a binding and valid contract, and was not then so under the influence of morphine, cocaine or other drugs that it can be said he did not know what he was doing.”</p> <p>The note book, referred to above, bore the title “ The Standard Life Assurance Company 1906” printed on the outside of the cover, and contained printed matter relating to the offices and business of that company. It was apparently a diary issued by that company and was of sufficient size for memoranda for each day for two weeks upon a single page. In addition to the pages bound into the book there were several sheets of paper fastened in with a wire clip. The book and loose sheets contained handwriting which the plaintiffs contended was Dr. Clark’s. This writing comprised Dr. Clark’s name and address in Massachusetts and certain notes and memoranda relating to his arrest and trial in Jamaica. The book also contained newspaper clippings giving accounts of the same matter and several photographs of scenes in Jamaica with memoranda in writing indicating that they were views similar to those which formed the basis of the charge against Dr. Clark. The master found that the handwriting was the usual and ordinary handwriting of Dr. Clark and that the memoranda were written by him. Dr. Clark objected to the admission of this note book or its contents in evidence. This objection was overruled, and the master thereupon made the following ruling: “ I will exclude the newspaper clippings. I will admit the book so far as the handwriting is concerned as evidence tending to show Dr. Clark’s mental condition at that time. Mot as evidence of the truth or falsity of the statements.”</p> <p>The defendant filed ten exceptions to the master’s report as follows:</p> <p>“ 1. “ Because the master admitted in evidence the note book produced by the defendant and referred to in the report as Exhibit 8, so far as the handwriting in that book is concerned, as evidence tending to show this defendant’s mental condition at the time of the signing of the guaranty or at any material time.</p> <p>“ 2. Because upon the facts reported the master found for the plaintiffs.</p> <p>“ 3. Because the written guaranty in suit did not set out the agreement which the master found was actually made between the parties.</p> <p>“ 4. Because the master ruled upon the facts found that the guaranty in suit was accepted by the plaintiffs at the time it was signed.</p> <p>“ 5. Because the master ruled that notice to this defendant of the acceptance of the guaranty in suit was not necessary.</p> <p>“ 6. Because the master found for the plaintiffs after finding that there was no notice to this defendant of the acceptance of the guaranty in suit at any time after the execution of said guaranty on September 23, 1905.</p> <p>“ 7. Because the master ruled that the guaranty in suit itself comprehends the renewals of the drafts and bills of exchange which constituted the indebtedness of the defendant DaCosta to the plaintiffs.</p> <p>“ 8. Because the master declined to rule that the guaranty in suit was discharged by the renewals of the drafts and bills of exchange, which constituted the indebtedness of the defendant DaCosta to the plaintiffs, without the consent of this defendant.</p> <p>“9. Because the master found upon the facts reported that this defendant was liable to the plaintiffs in the sum of $3,490.85.</p> <p>“10. Because the master found for the plaintiffs after finding that there was no notice to this defendant that any goods had been furnished to DaCosta or that any credit had been given DaCosta upon this defendant’s guaranty at any time after the execution of said guaranty on September 23, 1905.”</p> <p>The foregoing exceptions of the defendant to the master’s report were overruled by Wait, J., and a final decree was entered declaring “that the plaintiffs are .entitled by virtue of the written agreement dated the twenty-third day of September 1905 set forth in the bill of complaint to an equitable lien or charge upon the one half share to which the defendant Franklin E. Clark when he attained the age of thirty years on the eighteenth day of December 1906 became entitled in the real and personal estate held by the defendant John Q. A. Brackett upon the trusts of the will of Evelyn Alice Clark deceased and upon all the income of the said share from the time when the defendant Franklin E. Clark so attained the said age for securing to the plaintiffs the sum of $3,512.32 ” with costs, and ordering a sale of the defendant’s interest in the trust property if this sum should not be paid within thirty days. From this decree the defendant appealed.</p>

<p>Equity Jurisdiction, Treatment of joint defendants, Review. Equity Pleading and Practice, Bill of review, Appeal.</p> <p>It is contrary to the principles of equity that when joint defendants in a suit in equity make the same defense, which is applicable alike to each of them, some of them should be held liable and others should prevail.</p> <p>Although the granting of a petition for leave to file a bill of review in a suit in equity is said to be a matter of discretion, the proper exercise of that discretion is subject to revision on appeal.</p> <p>The exercise of discretion by a judge in a proceeding in equity may be revised upon an appeal where it could not be so revised in an action at law.</p> <p>It is not a sufficient reason for refusing to grant a petition for leave to file a bill of review in a suit in equity, that there has been a final decree in the case founded upon a rescript of this court, if the errors relied upon by the petitioner as reasons for granting a review were not apparent on the record previously .before this court and then were not considered.</p> <p>After an appeal had been taken from a decree of the Superior Court in a suit in equity, where a commissioner had been appointed under Equity Rule 35 to take the testimony, the appealing party discovered that the stenographer who took the testimony at the later part of the hearings was not the person who had been appointed the commissioner and who had taken the first portion of the evidence. He thereupon moved that the stenographer should be appointed a commissioner nunc pro tune to take the evidence. This motion was denied. He appealed from the order denying the motion, and the denial of the motion was affirmed by this court. He then filed a petition for leave to file a bill of review. Held, that the failure of the petitioner to obtain a hearing in this court upon the questions of law involved was not so far chargeable to his own fault or neglect as to preclude him from relief by a bill of review.</p>

<p>Appeal from a decree of the Probate Court allowing the will of Charles E. Giles of Somerville.</p> <p>Issues for a jury were framed by a single justice of this court, as stated in the opinion, and were sent to the Superior Court to be tried.</p> <p>In the Superior Court the issues were tried before Hardy, J., who, as stated in the opinion, directed the jury to make certain answers to the questions which were unfavorable to the appellants ; and the appellants alleged exceptions.</p>

<p>Bill in equity, filed in the Superior Court on April 1, 1909, seeking to enjoin the defendant Albert W. Greer from continuing to engage in the express, furniture moving, storage and dray business within twenty miles of Revere in alleged violation of a covenant contained in a bill of sale and assignment under seal by the defendant to the plaintiff of the business, as stated in the opinion.</p> <p>The case was referred to Arthur P. Hardy, Esquire, as master. Such of his findings as are material to this decision are stated in the opinion. Objections and exceptions to his report were filed by both parties. The exceptions were overruled and the master’s report confirmed by Wait, J., who directed a decree to be entered enjoining the defendant Albert W. Greer as prayed for in the bill. The defendants appealed.</p>

<p>Probate Court, Jurisdiction, Appeal. Conflict of Laws. Comity. Jurisdiction.</p> <p>A testatrix died in 1908 in the State of New York where she had resided for sixty years. She had not been in this Commonwealth for thirteen years. She left real estate of great value in New York and a deposit of $600 in a bank there. She had a deposit of $16,000 in a bank in Boston and certificates of capital stock and bonds of corporations, some organized under the laws of this Commonwealth and some under the laws of other States, in a safety deposit box under the care of a nephew in Boston, who had managed them for her for many years. She also had a power of appointment over a trust fund created by a will, the trustees of which liad been appointed by the Probate Court of this Commonwealth. Of this trust fund, $600,000 was in this Commonwealth, and an equity in real estate valued at $60,000 was in New York. The testatrix’s only heirs at law were three daughters, all of whom resided in New York. The rest of the beneficiaries under the trust, twenty-one in number, resided near Boston. The will of the testatrix had been drawn in Boston, but was executed by the testatrix in Nfewport, Rhode Island, and always had remained in the custody of a Boston attorney at law who was named as one of the- executors. The other executors named were the nephew, who had been the testatrix’s agent and who declined to serve, and one of her daughters. Before the will was proved in New York, the Boston attorney at law filed in the county of Suffolk a petition that it be proved here, in which petition the daughter who was named as one of the executors refused to join, and to which proceedings she objected. Special administrators were appointed to take charge of the property in this Commonwealth. A judge of the Probate Court allowed the will, and daughters of the testatrix appealed. A single justice of this court reported the case for determination by the full court. Held, that, while the Probate Court of this Commonwealth, since the testatrix left property here, had the power, and in that sense the jurisdiction, to allow proof of the will here before it was proved in the State in which the testatrix died domiciled, there was not shown any reason for departing from the rule, recognized by the various States for practical reasons and through comity, that the primary proof of a will should be where the testator had his domicil when he died; and therefore that the petition should be dismissed without prejudice.</p> <p>The jurisdiction of the Probate Court of this Commonwealth to allow proof of the will of one who has died domiciled in another State exists only when the will first has been proved in the State of the domicil of the testator, unless special reasons are set forth for an application for proof of the will in this Commonwealth without waiting longer for proof in the courts of the domiciliary State.</p> <p>It is within the very large power given to the Supreme Judicial Court on appeal from the Probate Court by R. L. c. 162, § 23, to order a petition for the proof of a will, which has been allowed by the Probate Court, to be dismissed without prejudice, where it appears that the testator had died domiciled in another State, that the will had not been proved there, and that there was no special reason for its being proved first in this Commonwealth.</p>

<p>Equity Pleading and, Practice, Master, Bill, Answer, Decree, Appeal. Equity Jurisdiction, For an accounting, Mistake, Circuity of action.</p> <p>A bill in equity alleged that, to secure the repayment of cash advances by the defendant to the plaintiff, the plaintiff gave to the defendant in 1900 his promissory note for 858,000 and a conveyance of certain real and personal property; that in 1903 the defendant gave to the plaintiff a statement of their account which showed a balance due to the defendant of 851,000 “ and the value of six hundred shares ” of the capital stock of a certain corporation; that, relying on the accuracy of that statement, the plaintiff and the defendant entered into an agreement which contained an acknowledgment that the amount due to the defendant was 851,000 and the value of the six hundred shares of stock, and made some readjustments of securities; that the statement, because of a mutual mistake of the parties, was inaccurate in that the amount of balance was in excess of that owed to the defendant, “ said excess amounting to more than 812,000 and the six hundred shares of ” stock; and that the defendant refused to comply with a request by the plaintiff to rectify the mistake. The prayers of the bill were for a cancellation and surrender of the agreement of 1903, a restoration of the parties to the status quo, and “ that an accounting may be held between the plaintiff and the defendant, and that the amount now due from the plaintiff to the defendant may be determined.” The answer contained an averment that the statement of 1903 was accurate and that the obligation of the plaintiff to deliver the shares of stock “ was expressly excepted from said agreement [of 1903] by apt words therein contained.” The case was referred to a master and, after it had been pending before him for a year and four months, and before he made his report, the plaintiff amended his bill among other respects by adding a prayer for “ an accounting of all transactions between the plaintiff and the defendant.” By a written stipulation filed with the master, it was agreed that but five matters were left in controversy, one of which was whether the plaintiff was bound to deliver the shares of stock to the defendant. The master found that the ■ plaintiff should deliver to the defendant the shares and the dividends that had accrued thereon. The plaintiff excepted to the report on the ground that the'finding was beyond the scope of the pleadings. Held, that the exception must be overruled, since the finding was within the scope of the pleadings.</p> <p>Ordinarily, if a defendant in a suit in equity desires affirmative relief, he must resort to a cross bill; but in suits to settle the affairs of a partnership, or for the foreclosure or redemption of a mortgage where a statement of accounts is involved, or in a suit for an accounting, both parties are actors and a defendant may have a decree in his favor without the aid of a cross bill.</p> <p>In a suit in equity for an accounting of transactions, among others, between the plaintiff as a stockbroker and the defendant as his customer, the question of whether the plaintiff should deliver to the defendant certain shares of stock of a corporation was put in issue by the pleadings. There was no cross bill. A master to whom the suit was referred found that the defendant was “ entitled to these shares of stock with all dividends which have been paid upon them.” Exceptions of the plaintiff to the report were overruled and a final decree was entered which stated “ that there exists an unfulfilled and unliquidated obligation on the part of the plaintiff to deliver to the defendant” the shares of stock “ and to pay to the defendant the amount of all dividends which have been paid them.” There was no order that the plaintiff should deliver the stock or pay the dividends. The plaintiff appealed, but the defendant did not. Held, that the decree establishing the obligation of the plaintiff as to the shares of stock was within the scope of the pleadings, and that the plaintiff’s appeal mustbe dismissed ; and it seems, that to avoid further litigation, the defendant, if he had asked for it, might have been granted affirmative relief by an order to the plaintiff to deliver the stock and pay the amount of the dividends.</p>

<p>Bill in equity, filed in the Superior Court on January 16, 1908, by a creditor, who also was an employee, of an insolvent firm of stockbrokers against the assignee of the firm for the benefit of creditors and a bank in which the firm had deposited a check received by them as the price of certain shares of stock entrusted to them by the plaintiff for sale, to follow the proceeds of such sale.</p> <p>The case was heard with four other cases by Richardson, J., who by consent of all the parties reserved and reported the cases for determination by this court upon the judge’s report of the evidence and an agreed statement of facts. This court ordered that the bill in the present case should be dismissed, in a decision rendered on July 19,1909, and reported in 203 Mass. 108.</p> <p>An application by the plaintiff for a rehearing having been denied, the plaintiff on September 21, 1909, filed in the Superior Court a motion to withdraw a certain portion of the agreed statement of facts and for a further hearing of the case. On October 28, 1909, the motion came on to be heard before Pierce, J., and on that day the following agreement, signed by the counsel for all the parties, was filed.</p> <p>“ In the above entitled cause it is agreed that the words in the agreed facts, ‘said check was duly presented for payment by said Furber on the morning of January 15, 1908 but was not paid ’ may be withdrawn and cancelled; and in place thereof the following words may be substituted:</p> <p>“ ‘ The said Furber at the time he received said check from Dane, Smith and Company was not informed that they were financially embarrassed or were contemplating the making of a common law assignment.</p> <p>“6 The said Furber was confined to his house in Milton all day on January 14, 1908, by illness, and did not learn of the common law assignment or that Dane, Smith and Company were in financial difficulties until after the assignment was actually made. Dane, Smith and Company were financially embarrassed on January 13, 1908, when they gave Mr. Furber the check aforesaid.</p> <p>“ ‘ Said check was presented for payment by said Furber at the Merchants National Bank on the morning of January 15, 1908, and was not paid.’</p> <p>“ It is also agreed that the case may be further heard by the court.”</p> <p>The judge reported the case for determination by this court as follows:</p> <p>“ The above entitled suit came on to be further heard before me after rescript upon the plaintiff’s motion to withdraw a certain portion of the agreed facts and for a further hearing of the case, and, by agreement of parties, said motion was allowed and one sentence of said agreed facts was cancelled and certain other sentences substituted therefor, as appears by the agreement of parties filed in the case.</p> <p>“ The case thereupon came on before me for further hearing for a final decree. A portion of the original agreed facts and also a part of the oral testimony taken in the five cases heard together in this court and by the full bench of the Supreme Judicial Court were introduced, being all of the agreed facts and evidence which related to this Furber case.</p> <p>“ All parties requesting it, I hereby reserve and report said agreed facts, said evidence and the agreement aforesaid, and all . questions of law therein for the consideration of the full court, such decree to be entered as equity and justice may require. It is agreed by all parties that any needed amendment of the pleadings may be made or may be considered as made in said suit.”</p>

<p>Landlord and Tenant, Landlord’s liability to member of tenant’s family, Construction of lease. Evidence, Extrinsic affecting writings. Negligence, Of one controlling real estate. Words, “In,” “ In said building.”</p> <p>If the seven year old daughter of a woman, who with her family including such daughter occupies a tenement under a lease, is injured by a defect in the premises, she has the same and only the same right to maintain an action against her mother’s landlord that her mother would have had, if she instead of the daughter bad been injured.</p> <p>Access to a four story tenement house, the rear of which abutted upon an alleyway, was had by means of two stairways, one of which entered the building from in front and was wholly within the building, while the other was on the outside of the building except that it led from the alleyway in the rear to a platform on the level of the second floor, thence successively to similar platforms on the levels of the third and of the fourth floors. These platforms were used for drying clothes and for other household purposes by the tenants of the building, and ashes and garbage were carried down the stairs from them.. The owner of the building let the tenement on the fourth floor by a lease in which he covenanted that he would “ at his own expense light and keep neat and clean the common stairs in said building.” Whether the rear stairs could be said to be “ in said building ” here it was not necessary to decide, although it was said by Sheldon, J., that it would not be a violent stretch of language to say that they properly might be described as “in” the building.</p> <p>Where, in a lease of the top floor of a four story tenement house, access to which is had by flights of stairs leading from the front of the house and wholly included within it and also by flights of stairs wholly outside of but connected with the house and leading from an alley at the rear successively to platforms which are used by the tenants on each floor for various household purposes and from which ashes and garbage are carried down the stairways, the landlord covenants with the tenant that he will “at his own expense light and keep neat and clean the common stairs in said building,” there is at least room for doubt whether the rear stairways are intended to be included by the words “common stairs in said building,” and, at the trial of an action by one of the family of the tenant to recover for injuries alleged to have been due to a failure to remove snow from the rear stairs, evidence of the conduct of the landlord in cleaning the stairs after previous snowfalls of the same winter is admissible to show the proper scope and intent of the covenant.</p> <p>At the trial of an action by a member of the family of a tenant on the fourth floor of a tenement house against the landlord to recover for personal injuries alleged to have been caused by the plaintiff on the afternoon of a day in February slipping upon some stairs because the defendant had not removed snow and ice therefrom, whereby, it was alleged, the defendant had broken a covenant in the lease in which he had agreed that he would “at his own expense light and keep neat and clean the common stairs in said building,” there was room for doubt whether the stairs upon which the plaintiff fell were a part of the “ common stairs in said building," and therefore evidence, tending to show that employees of the defendant after the previous storms of the winter in which the plaintiff was injured had removed the snow and ice from the stairs in question, and also had done so later in the afternoon when the plaintiff was injured, was admissible to show that by his covenant the landlord had intended to take upon himself the care of the stairway in question ; and, in connection with evidence that the tenants themselves did not clean the stairs, and that such stairs led from an alley at the back of the house successively to platforms level with each tenant’s apartment which were used by the tenants for various household purposes, and from which employees of the defendant were accustomed to carry ashes and garbage down the stairs for the tenant, and that such rear stairs with stairs at the front of the house formed the only means of access to the tenements, such evidence would warrant a finding that the acts and conduct of the parties had been such as to justify a ruling that the defendant’s covenant in the lease was . to be applied to the rear as well as to the front stairs of the building.</p> <p>Evidence tending to show that the landlord of a four story tenement house after each snowfall up to a certain day in February during a certain winter sent men to clean snow and ice from stairways leading from an alley at the rear of the house successively to platforms on a level with each tenement, which were used by the tenants for various housekeeping purposes, that employees of the defendant carried ashes and garbage for the tenant on the top floor from such platform down the rear stairs, that the tenants themselves did not clean the snow and ice from such stairways, and that such stairways were, with some stairs at the front of the house, the only means of access to the premises, would warrant a finding, at the trial of an action for personal injuries against the landlord by a member of the family of the tenant on the top floor, that the landlord had assumed the duty of keeping the rear stairways free from snow and ice, even though in his lease to the tenants he had not covenanted to do so; and if on such a day in February there had been a four inch fall of snow and on the afternoon of the next day, the snow not having been cleaned from such stairways, the plaintiff, in the exercise of due care, slipped upon the snow and ice upon such stairway and was injured, the landlord might be found to be liable for the injuries so received.</p> <p>Where, from an alleyway at the rear of a four story tenement house flights of stairs lead successively to platforms on a level and connected with each tenement, which are used by the tenants for general housekeeping "purposes and down which employees of the landlord are accustomed to take the ashes and garbage of the tenants, the flight of stairs from the third to the fourth or top floor is intended for the common use of the landlord and the tenant of that floor and is part of the common stairways of the building, although all of the top floor is let to one tenant and such flight is not used by the other tenants.</p>

<p>Contract. Writ dated June 24,1908.</p> <p>The declaration was as follows: “ The plaintiff says that it is engaged in the business of selling cotton goods and sheetings, and that on or about the fifteenth day of November, 1907, the defendant agreed in writing to purchase from the plaintiff a large quantity of 40" 4.50 yd. 48 x 52 sheeting at 5| c. deliverable about 10,000 yards a week from January first to April first, 1908, goods to run within about five points. Thereafter disputes arose between the plaintiff and the defendant in regard to the quality of similar goods delivered by the plaintiff to the defendant on other contracts, on similar terms, and on or about the tenth day of January, 1908, the plaintiff and defendant agreed that the defendant should take about 40,000 yards of goods previously billed to him; that his order previously given should be reduced to 35,000 yards to be shipped him weekly commencing February 1, all at the price of 51 c. per yard; and to change the dates when the defendant should pay for the same. Thereafter the plaintiff continued to deliver the goods and has delivered all of said goods of the character and quality called for and agreed upon. And the defendant has received the same and has paid for a large part thereof but has refused to pay for ” a certain forty-seven bales, “although the purchase price therefor is due and payable. And the plaintiff says that the defendant owes it the amount of $4,370.68 for said goods so sold and delivered with interest thereon, from the dates when payment became due.”</p> <p>The case was tried before Fessenden, J., without a jury. The evidence put in by the plaintiff consisted wholly of documentary exhibits, namely, some fifty-five letters and the invoices and bills of lading for the forty-seven bales of goods and telegrams, which passed between the plaintiff and defendant from early in February, 1907, down to and including April, 1908, and an itemized statement of the mill weights of the bales, which was introduced in evidence by the plaintiff upon an agreement with the defendant that such weights were the true and correct mill weights of the bales of goods for which the action was brought.</p> <p>The bill of exceptions states that “ it was agreed at the trial that the trade description of the goods, namely, ‘ 40-inch 48 X 52, 4.50 yard sheetings’ meant sheetings forty inches wide, weighing four and one half yards to the pound, with the threads running forty-eight threads warp to the inch and fifty-two threads filling to the inch.”</p> <p>The agreement of January 10, 1908, upon which the declaration was based, was contained in a letter of that date which was written by the plaintiff to the defendant after a personal interview between the parties which closed extended negotiations looking to the settlement of certain claims made by the defendant regarding the weight of the goods furnished by the plaintiff.</p> <p>The letter was as follows:</p> <p>“ As per our arrangement with Mr. Hewins this date, we enclose you statement of goods already charged to you with the extra dating marked on each invoice. As to additional order for these same 40ff goods, we have reduced this from 50,000 yards to 35,000 yards. These goods to be shipped to you at the rate of about 8500 yards weekly, shipments to begin February 1st. Price 5f c.” [Here followed the plaintiff’s signature, a schedule of shipments and prices, and an initialed approval by the defendant.]</p> <p>At the close of the plaintiff’s evidence, the defendant rested and asked the judge for the following rulings among others:</p> <p>“ 4. The evidence shows that the meaning of the expression in the contract that the goods should be ‘ 4.50 ’ construction is, as a matter of law, that the sheeting should weigh 4¿ yards to the pound, and this is a weight to be taken by the piece and not to be averaged up by the bale, for it well might be that a bale showed, after allowing for the tare (i. e. for weight of wrapping, bale bands, etc.) an average weight of 4.50 yards to a pound, and yet the pieces composing the bale might vary in the extreme, running both ways over 5 points of 4.50 and still make the bale ' average up to the 4.50 construction, so that the bale weight is not at all conclusive to prove compliance with the contract, although it is important in proving breach of the contract, if it does not show an average weight within the 5 point variation of 4.50 yards to a pound.</p> <p>“ 5. The matter of quality and construction of the goods was exclusively in the knowledge of the plaintiff until after an opportunity was afforded the defendant for inspection, the quality and construction were conditions of the contract sale and there was clear evidence of the breach of such conditions, and judgment should be for the defendant. ”</p> <p>“ 8. Under all the circumstances of the case, the defendant exercised his right to rescind the contract in seasonable time and before he had in any way dealt with the goods as owner, and the defendant acted with the customary promptness, under all the circumstances of the case, in notifying the plaintiff of his rejection of the goods for defects therein, and said notice was given before the plaintiff’s position had in any way been changed or prejudiced by non-acceptance of the goods by the defendant.”</p> <p>“ 10. Upon all the evidence, judgment should be entered for the defendant.”</p> <p>The rulings were refused, the judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on October 7 and amended on December 24, 1907, under R. L. c. 163, § 17, to revise certain decrees of the Court of Insolvency for the county of Suffolk dated. May 15 and 17 and September 24,</p> <p>1907. On February 12, 1909, the case came on to be heard at its final stage before Sheldon, J., who reserved it for determination by the full court upon the pleadings, a master’s report and his supplemental report, including the evidence and exhibits reported by the master, and the exceptions thereto of the respondent Jackson, the administratrix of the will of Coburn mentioned below, such decree to be entered as equity and justice might require.</p> <p>The following statement of the case is taken from the opinion of the court:</p> <p>One Epaminondas Wilson filed his petition in insolvency on October 21, 1891, and thereafter was adjudicated an insolvent. On March 11,1892, he offered a compromise of twenty per cent. That compromise was confirmed on April 1, 1892, and Wilson received his discharge on April 12 of the same year.</p> <p>On May 16, 1894, he filed a petition in the Court of Insolvency alleging these facts and alleging in addition that the assignees (Coburn and Pratt by name) had in their hands property to the amount of $30,000 after the payment of all sums due to his creditors ; that they refused to pay this over to him or to file an account of their doings as the assignees of his estate. This petition was amended in January, 1895.</p> <p>The assignee Coburn had died in the interim between the filing of this petition and of this amendment. The amendment contained a prayer that the administratrix of his estate might be cited in in his place. By a decree of the Court of Insolvency made on January 28, 1895, the surviving assignee Pratt was directed to file an account on or before March 1, 1895. Thereupon he filed a supervisory bill in the Supreme Judicial Court under what is now R. L. c. 163, § 17, in which he set up that the parties had settled among themselves all claims growing out of the insolvency.</p> <p>The supervisory suit was heard by a single justice of this court and seems to have been decided on March 27,1895. No formal decree was made, but there was a docket entry, “Bill dismissed with costs,” the date of which does not appear on this record.</p> <p>On April 29, 1895, Pratt, the surviving assignee, filed an account. Hearings on the allowance of that account seem to have begun on October 2,1895, and to have continued until March 2, 1898. On October 13, 1896, Pratt died and the defense was ■ carried on by the administrator of his estate.</p> <p>On June 15, 1900, the judge of insolvency entered a decree as the result of these hearings. In that decree the judge found two facts, to wit: (1) That the insolvent became satisfied that he could not procure the necessary assent of a majority in value of his creditors to the compromise offered by him unless he obtained the assent of the Boylston Bank. Thereupon, “ colluding” with Pratt, one of the assignees, the insolvent authorized him [Pratt] “to pay said bank sixty cents on the dollar being forty cents on the dollar more than any other creditor would receive,” and that this was done. (2) That an agreement was made between the insolvent, his attorney and Pratt, by which the residue of the estate left after paying the creditors should be divided equally between them. That a quarrel arose in carrying this agreement into effect; that the insolvent, thinking that he had not received his share under that agreement, brought the petition of May 16, 1894 (on which the hearings had taken place), to have the assignees file an account. The decree ends with these words: “ Upon a hearing being had upon said account the above facts appeared in evidence. Whereupon the court finds that said discharge was void under the provisions of section 93 of chapter 157 of the Public Statutes, and that said discharge was obtained by a fraud upon the court, and a fraud upon the creditors; and the court therefore declined to make any decision upon said account or upon said petition in equity which shall vest any rights either in said insolvent or said assignees.”</p> <p>On July 2, 1900, the insolvent filed a supervisory bill in the Supreme Judicial Court, dated June 16, 1900, to have this decree reversed. This supervisory suit was referred to a master,* who made a report on October 20, 1906. Exceptions were taken by the insolvent to this report. These are not set forth in the record, but the master’s report is.</p> <p>This report of the master confirmed the two findings of fact (stated above) made by the Court of Insolvency. The master in his report stated somewhat in detail the making of the agreement to divide what was left of the insolvent’s estate after the compromise of twenty per cent had been paid to creditors, and the transactions which gave rise to the insolvent’s thinking that he had not received his share of that surplus. He also stated shortly the transaction by which sixty in place, of twenty per cent was paid to the Boylston Bank. In addition he found that on April 29, 1892 (seventeen days after the insolvent’s discharge was granted to him), $1,968.24 had been paid by a common law assignee to Coburn who paid it to Pratt, and Pratt divided it between himself and the plaintiff’s attorney. The master reported to the court the question whether on these facts the decree of the Court of Insolvency should be annulled or modified. His report ended with these words: “ The petitioner offered evidence upon items of the assignees’ account, and claimed that an assignees’ account should be stated and reported by the master; this was objected to and I ruled that upon the present status of the cause, such evidence and report would be premature.”</p> <p>The case came on for hearing before a single justice of this court * upon the master’s report and the exceptions thereto; and on November 24, 1906, a decree was entered by the single justice. By this decree all the exceptions were overruled and the report was confirmed; the last clause of the decree of the Court of Insolvency was stricken out and in place of it the administrator of Pratt’s estate was directed to file an account of all the doings of the assignees and of all his doings as surviving assignee; and the administratrix of Coburn’s estate was directed to file an account of all money, property and assets “ which have come into her hands as administratrix,” and which were part of the insolvent’s estate in the hands of Coburn as one of the assignees. The decree then provided: “That the recital of facts and the findings of the court, contained in said decree, are not to be altered ”; that neither party should be allowed costs “ in this court,” and “ that a copy of this decree be certified to the said Court of Insolvency for its direction.”</p> <p>The facts (as to the agreement to divide the surplus of the insolvent’s estate after paying the compromise of twenty per cent) stated in the master’s report (on which the decree of the single justice was founded providing that “ the findings of the court [of insolvency], contained in said decree, are not to be altered ”) were these: One Carpenter was the legal adviser of the insolvent from August 25, 1891, to October 11, 1892. The insolvent had made a common law assignment in May, 1891. In August or September Carpenter advised the insolvent to go into insolvency, to make a composition with his creditors, and “that what was left of the estate after such settlement should be divided between ” him (Carpenter) and the insolvent. After the petition in insolvency was filed on October 21, 1891, Carpenter became attorney for a large number of creditors whom he represented in the choice of assignees. Early in November, 1891, a few days before the assignees of the insolvent were appointed, Pratt was introduced to Carpenter by the insolvent, and it was then orally agreed between Carpenter, Pratt and the insolvent that Pratt should be made one of the assignees, and that “ after a composition settlement the property that was left should be divided equally between” the three, Carpenter (the insolvent’s attorney), Pratt (who was to be elected an-assignee), and the insolvent. Pratt, together with Coburn, was elected an assignee. Some three or four weeks before the insolvent received his discharge (he received his discharge on April 12, 1892, as stated above), Carpenter drew up a written agreement by which (in consideration of Pratt, Coburn and Carpenter’s effecting a compromise with his creditors on the offer of a composition “ now pending,” and securing the assent of his creditors to his discharge) the insolvent agreed “ to accept for my proportion a one-fourth interest in- all the residue of my said estate both real and personal, after said composition is paid to my said creditors, except the right of dower which is now held by my wife Sarah E. Wilson, and I further agree to accept the equity in my said real estate, according to the assessed valuation, to jvit: Fifty-eight Hundred ($5800) Dollars, as part payment of my share.” Coburn refused to sign the paper. It was then orally agreed to divide into thirds in place of fourths. On the day the insolvent obtained his discharge, but after he had obtained it, the insolvent signed and sealed the agreement stated above. Pratt and Carpenter then signed and sealed the follow- . ing agreement: “We, the undersigned, hereby agree, that in case said Wilson’s share in ’the residue of his estate, after the payment of his said composition in insolvency, does not amount to the sum of Fifty-eight Hundred ($5800) Dollars, he shall receive the equity in his said real estate this day conveyed to Isaac L. Pratt, as his proportion of the whole sum remaining, without regard to our share.”</p> <p>On May 24, 1892, an agreement was made for the sale of the personal property of the insolvent consisting of pianos, machinery, etc., and spoken of as the “ piano plant,” to James B. Taylor and others of Wooster, Ohio, for $15,000. The “piano plant” was soon after moved to that place. A further agreement was made on May 24 between Wilson and Taylor and others, reciting that Taylor and others had bought “ the plant of the Boston Piano Company of which the insolvent was the real owner,” and providing that it should be removed to Wooster, Ohio, where a company was to be organized with a capital of $30,000, sixteen thirtieths of which were to go to Wilson and fourteen thirtieths to Taylor and others. Wilson expected to receive under this agreement $16,000 paid up stock; but Taylor and others, in the summer and autumn of 1892, took the position that he was to have assigned to him the opportunity to subscribe and pay for $16,000 of capital stock. Pratt and Carpenter received the $15,000 and divided it between them, and the insolvent got nothing. The real estate which was to go to the insolvent under the agreement stated above was conveyed to his wife.</p> <p>The whole story of the quarrel which arose out of the division between Carpenter, Pratt and the insolvent was not given in this master’s report but it appeared in the evidence put in at the hearing before the single justice of this court* in 1895, and in the hearings before the judge of the Court of Insolvency in 1895 and 1898, which evidence and all of it was submitted to the master and was before the full court in the present proceeding. From that evidence it appeared that $10,000 of the $15,000 was paid within two weeks of the purchase (that is, in the early part of June, 1892), and that notes were given for the remaining $5,000 which was paid about October 1, 1892. On October 11, 1892, Carpenter, Pratt and the insolvent came together for a final settlement. The insolvent, by an instrument under seal, dated on that day, assigned and transferred to Pratt and Carpenter all sums of money and choses in action “ now due and coining to me from my estate by virtue of my discharge in insolvency dated April 12, 1892, except such sum as I received from the sale of the piano plant to parties in Wooster, Ohio, as my share taken in stock.” Apparently on the same day the deeds were delivered to the insolvent of his real estate. This real estate was the land and house where he lived and had been conveyed on April 12, 1892, to Pratt for the purpose of keeping it from attachment by foreign creditors. Eleven days later the insolvent wrote to Carpenter, saying that he was “not satisfied” with the settlement of his affairs, and “if I have signed any papers under your advice, against my own interests,” they should be destroyed, Pratt and Carpenter should be paid for services, and the proceeds of the estate turned over to him (the insolvent). The contention of Pratt and of the administrator of his estate, and later the contention of the administratrix of Coburn’s estate has been that this change of front on the part of the insolvent came from the position taken by the persons in Wooster who bought the “ piano plant,” which, if upheld, rendered the insolvent’s rights as to sixteen thirtieths of the stock in the new company worthless to him. By the supplementary agreement of May 24,1892, the insolvent was to have the conduct of the business of the new corporation in Wooster.</p> <p>In regard to the transaction by which a dividend of sixty per cent was paid to the Boylston Bank, it was found in the master’s report that this fraud was suggested to the insolvent and Pratt by the counsel for the bank, and that it was made and carried out at the request of the insolvent. Coburn was a director of the bank, and (although it was not so found in terms by the master) he was a party to this fraud. The extra forty per cent was paid to the bank through an assignee of its claim by a joint check of the two assignees, drawn on April 25, 1892.</p> <p>The result of the decree of November 24, 1906, entered upon the report of the master was to confirm the two findings made by the Court of Insolvency to the effect that the insolvent had committed two frauds upon that court, and to remand the case to that court to settle with Pratt’s administratrix the account of the assignees and the survivor of them; and to settle with Coburn’s administratrix what property, if any, belonging to the insolvent estate had come into her hands. On February 4, 1907, Coburn’s administratrix filed an account stating that nothing had come into her hands which was part of the insolvent’s estate.</p> <p>Thereafter hearings were had in the Court of Insolvency, and on May 15,1907, a decree was made by that court. That decree is in these words: “The first and final account of Hannah C. Jackson, as administratrix of the estate of Frank J. Coburn one of the assignees of the estate of Epaminondas Wilson, and the foregoing account [being the account filed by Pratt on April 29, 1895] having been presented for allowance, and the same having been verified by the oath of the accountants, and objection being made thereto; said accounts have been fully heard, examined and considered by the court. It is decreed that I. Lowell Pratt and Frank J. Coburn as assignees in insolvency of estate of Epaminondas Wilson be charged with the sum of $1968.24 the amounts received by them from the common law assignees. That the following payments be disallowed; $200 for the alleged services of appraisers; $5359.22 being the sum illegally and fraudulently paid on the claim of the Boylston National Bank; $37000 paid to I. Lowell Pratt, assignee, for services; and $1500 paid Frank J. Coburn, assignee, for services. And it is further ordered and decreed that there is a balance due from said Pratt and Coburn as assignees as aforesaid of the sum of $12,715.08, and said accounts as thus amended are allowed.”</p> <p>On October 7, 1907, the insolvent filed the present supervisory bill to revise this decree and two other decrees of the. insolvency court, to wit: One appointing an assignee of the insolvent’s estate and the other giving that assignee the conduct of the petition filed by the insolvent in January, 1895, amending his petition of May 16, 1894, to compel the assignees to account.</p> <p>The defendants named in this supervisory bill were the administratrix of Coburn’s estate, the administrator of Pratt’s estate and the newly appointed assignee of the insolvent’s estate. The prayers of this petition were (1) that the finding that the amount due from Pratt and Coburn, assignees, was $12,715.08 might be set aside as less than the amount due, and that a just finding might be made in its stead; (2) that the insolvent and not the new assignee was entitled to whatever sums might be found to be due from the assignees; and (3) “that there may be a hearing upon all the evidence as to the liability of said Pratt and Coburn as assignees, and their legal representatives, and that said decrees of the Court of Insolvency may be revised in accordance with the decree of this court.”</p> <p>On December 24,1907, one Evans, to whom the insolvent in April, 1896, had assigned all claims he had against Pratt and Coburn, was allowed to amend the supervisory bill by setting forth the assignment. On March 18, 1908, the petition was taken pro oonfesso against Pratt’s administrator. Coburn’s administratrix and Ensign filed answers, and on April 7, 1908, the cause was referred to a master * “ to hear the parties and their evidence, and to find the facts, and report the same to the court.”</p> <p>On June 15, 1908, the master made a report. On June 26, 1908, a motion to recommit was made and on September 22, 1908, the cause was recommitted to the master. On December 21,1908, the master filed a supplemental report. On December 23 it was again recommitted to him, and on January 9, 1909, he made a second supplemental report. Various exceptions to the master’s reports were taken by Coburn’s administratrix. On February 5, 1909, Evans having died, the administrator of his estate was admitted as a party in his stead.</p> <p>On February 12, 1909, the case was reserved upon the pleadings, the master’s report and supplemental report, including the evidence and exhibits reported by the master and the exceptions taken thereto by Coburn’s administratrix.</p> <p>The master in his report found that the amount due from the assignees was $31,699.87, to which he added interest to June 5, 1908, making a total of $61,732.31. He found in substance that Carpenter and Pratt had devised a fraudulent scheme to cheat the insolvent, and that the consent of Coburn to it had been bought by their paying to the Boylston Bank of which he was a director, sixty in place of twenty per cent; that in consequence he was liable for all sums taken by Carpenter and Pratt.</p> <p>At the request of the assignee of the insolvent’s claim the master ruled: “ That the Court of Insolvency should have ordered and decreed the payments to Wilson, the plaintiff, by the defendants Lowell Tyler Pratt, as administrator of the estate of Isaac Lowell Pratt, and Hannah C. Jackson, as administratrix of the estate of Frank J. Coburn, of all sums disallowed from the account filed by said Isaac Lowell Pratt as surviving assignee and of all sums with which said assignees are chargeable, and interest on said sums, and that execution issue therefor.” The master’s report ended with this finding: “ And that whether or not any part of the said decrees of the Court of Insolvency stands, or should stand, the contents of the said decrees are details which, upon all the evidence heard by me, are controlled by such evidence, so that the said Wilson is not in pari delicto with his said assignees or either of them; and that the said agreements of Wilson with Pratt, Carpenter, Coburn, or any of them, are, because of their said frauds, not binding on Wilson.”</p>

<p>Bill im equity, filed in the Superior Court on April 25, 1904, by Andrew B. Sunter and Jennie B. Bolton, children of Andrew B. Sunter and Jane Sunter, against their brother William M. Sunter, praying that the defendant might be ordered to convey to each of the plaintiffs an undivided third part of a certain parcel of real estate in that part of Boston called Dorchester, which had belonged to the plaintiffs and the defendant in common and which had been conveyed to the defendant by Jane Sunter, the mother of the plaintiffs and the defendant, who had been their guardian before they came of age and who died on February 24, 1904, and for an accounting for all the rents and profits received from the real estate in question by Jane Sunter and the defendant.</p> <p>In the Superior Court the case was referred to Alfred W. Putnam, Esquire, as master, and later was heard by Sheldon, J., upon the defendant’s exceptions to the master’s report. He found that each of the plaintiffs was entitled to a conveyance of one undivided third part of the premises in controversy, and that the plaintiffs further were entitled to a judgment for the sum of $233.98, with interest from the date of the filing of the bill. The defendant appealed; and in a decision of this court, reported in 190 Mass. 449, it was held, that, on the defendant conveying to each of the plaintiffs one undivided third part of the property, and on an accounting by the defendant for the rents and profits of the plaintiffs’ shares of the property after the defendant obtained possession, the plaintiffs must contribute their proportionate part of the enhanced value of the common property due to the improvements made upon it by their mother, setting off against this their shares in the rents and profits during their mother’s occupation after deducting the sums expended by her for taxes, repairs and insurance, but being allowed nothing in excess of the sum charged to them for improvements.</p> <p>Thereafter the case was recommitted to the same master, who filed a second report, to which both the plaintiffs and the defendant filed exceptions. Sanderson, J., made a decree overruling all the exceptions and confirming the second report of the master, ordering that the plaintiffs pay to the defendant the sum of $1,749.35, and interest from the date of the filing of the bill, and that upon such payment the defendant should convey to each of the plaintiffs an undivided one third part of the premises. Both the plaintiffs and the defendant appealed; and in a decision of this court, reported in 198 Mass. 137, it was held, in regard to the accounting, that the plaintiffs should be charged with two thirds of the value of the improvement to the land by the addition of the house, with two thirds of the amount paid by the guardian and by the defendant for taxes upon the land exclusive of the house lip to the date of the commencement of the suit, and with two thirds of all the defendant’s proper expenditures for taxes, repairs and insurance upon the land and house after the time of the commencement of the suit; and that the defendant should be charged with two thirds of the rental value of the land without the house from the time when the guardian received a deed of it to the time of the commencement of the suit, and with two thirds of the value of the rental of the land and house for the time after the commencement of the suit:</p> <p>After the rescript the case was recommitted to the master, who filed a third report. The subsequent proceedings are described in the opinion. The final decree from which the plaintiffs appealed was made by Fox, J.</p>

<p>Boston, Acting mayor, Superintendent of streets. Contract, Validity. Statute, Repeal. Pleading, Civil, Answer. Words, “ Act as mayor.”</p> <p>The provision of St. 1895, c. 449, § 1, in the revision of the charter of the city of Boston of that year, that if a vacancy in the office of mayor occurs in the last six months of the term, “ the chairman of the board of aldermen shall act as mayor for the unexpired.term,” was not restricted nor repealed by implication by the provisions contained in R. L. c. 26, §§ 29, 30, which, “ except as otherwise provided by city charters,” limit the power of an acting mayor to “ matters not admitting of delay.”</p> <p>The provision of St. 1895, c. 449, § 1, in the revision of the charter of the city of Boston of that year, that if a vacancy in the office of mayor occurs in the last six months of the term, “ the chairman of the board of aldermen shall act as mayor for the unexpired term,” gives to such an acting mayor the power to perform all the duties of the office of mayor as defined by the charter, and he accordingly has authority to approve a contract for the construction of a sewer for which the necessity is not immediate.</p> <p>Under St. 1885, c. 266, § 6, and St. 1890, c. 418, § 6, although the superintendent of streets of the city of Boston is authorized to make a contract in behalf of the city for the construction of a sewer for a price less than $2,000 without the approval in writing of the mayor, if in his judgment such a course is advisable, he is not required to act thus independently, and may make a contract "for a price less than $2,000 in such a form that its validity depends on the mayor’s approval in writing.</p> <p>In an action against the city of Boston for the breach of an agreement in writing for the construction of a sewer, which was made with the plaintiff by the superintendent of streets of the defendant in the month of December and was approved lawfully in writing by the acting mayor, the defendant, under an answer containing a general denial and an allegation of payment, cannot set up the defense that the superintendent of streets did not comply with the requirement of St. 1903, c. 268, § 1, by filing in the registry of deeds before beginning the work a statement approved by the mayor of his intention to construct a sewer, and did not comply with the requirement of St. 1891, c. 323, § 13, which by amendments includes the construction of sewers, by filing a certificate in writing approved by the mayor that public necessity required the work to be done after the fifteenth of November in that year.</p>

<p>Contract, Construction. Referee. Architect. Pleading, Civil, Answer. Practice, Civil, Stipulation of parties, Ordering verdict. Evidence, Extrinsic affecting writings.</p> <p>A contract to furnish to a general contractor window frames, door frames and other things for a certain building contained the following provision : “ It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the architects, and that their decision as to the true construction and meaning of the drawings and specifications shall be final. . . . No alterations shall be made in the work except upon written order of the architects; the amount to be paid by the general contractor, or allowed by the contractor, by- virtue of such alterations, to be stated in said order. Should the general contractor and the contractor not agree as to the amount to be paid or allowed, the work shall go on under the order required above, and in case of failure to agree, the determination of said amount shall be left to the architects for decision.” Held, that these provisions did not empower the architects to act as arbitrators in interpreting the meaning of the contract after an action had been brought upon it.</p> <p>In an action of contract the defense of an award under an agreement of arbitration or of a decision by a referee must be pleaded, and if not set up in the answer it cannot be proved.</p> <p>In .an action upon a contract in writing to recover a balance alleged to be due for furnishing to a general contractor window frames, door frames and other things for a certain building, where the controversy between the parties relates to the question whether the plaintiff was obliged under the contract to provide certain iron window frames and to provide and erect certain iron door frames, if the parties file a stipulation stating that the plaintiff is entitled to the full amount claimed by him unless the defendant is to be allowed the expense of providing and setting the frames after the failure of the plaintiff to do so, this does not leave open to the defendant a subsequent contention that the action is barred by a, decision of the architects of the building that the plaintiff was bound by the terms of the contract to provide the iron window and door frames.</p> <p>In an action upon a contract in writing to recover a balance alleged to be due for furnishing to a general contractor window frames, door frames and other things for a certain building in accordance with certain specifications, where the only matter in dispute is whether the plaintiff became bound to furnish exterior iron frames for ten large windows and for two large doors, and the contract itself does not specify the kind of material to be used, so that resort must be had to the specifications, and where each party selects certain parts of the specifications on 'which he relies for an interpretation supporting his contention, but the specifications construed as a whole leave the matter in doubt, oral evidence is admissible to remove the ambiguity by defining the meaning of the terms employed in the contract, to ascertain whether the plaintiff was to provide both the wooden and iron frames or only the woodwork; and for this purpose evidence of the preliminary negotiations, the conduct of the parties and the correspondence and interviews between them or their respective agents after the contract was executed is competent.</p> <p>In an action upon a contract in writing, where extrinsic evidence is admissible to ascertain the meaning of the ambiguous terms of the instrument sued upon, the question of the meaning of the contract is one of fact for the jury under proper instructions from the presiding judge, and the ordering of a verdict is erroneous.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on October 22, 1908, by the trustee for the benefit of Marjorie Atkins under an agreement of compromise concerning a will approved under R. L. c. 148, § 15, by the Supreme Judicial Court on January 3, 1889, in accordance with which the estate of John Q. A. Williams was ordered to be administered, for instructions as to the disposition which the plaintiff should make of the trust property after the death of Marjorie Atkins who, never having married, died on July 13,1908, at Nanuet in the county of Rock-land in the State of New York, where she was a resident and had her domicil.</p> <p>The case was heard by Braley, J. The material provision of the agreement of compromise was as follows:</p> <p>“ Fifth. Out of the one half of said estate, which is to be paid, transferred and conveyed to said Martha M. Atkins, under the fourth item of this agreement the sum of Ten Thousand Dollars is to be set apart by her for the use of the said Marjorie Atkins and to be held in trust for her use by said Martha M. Atkins, until she attains the age of twenty-one .years, at which time the said trust may be terminated at the will of the trustee who shall be appointed by the Probate Court or continue for a further term of ten years. The income, derived from the said Ten Thousand Dollars, is to be added to the principal sum,' until the amount of the principal sum shall reach a total of Eighteen Thousand Dollars. After the principal shall have reached the said sum of Eighteen Thousand Dollars, the income derived from that sum may be applied to the support, maintenance and use of said Marjorie, and when the said trust is terminated the said principal sum shall be paid to said Marjorie, and in case she should die before she attains the age of twenty-one years or at any time before the trust ends by lapse of time, the said sum is to be paid to her heirs at law freed from the trust herein expressed.”</p> <p>John Q. A. Williams, who was the father of Martha M. Atkins, died testate on December 14, 1886, and upon a contest over his will the agreement of compromise was made, the interpretation of the above provision of which was the occasion for this bill.</p> <p>One half part of the estate was paid to Martha M. Atkins, and on March 3, 1890, she was appointed by the Probate Court of Suffolk county trustee of the fund of $10,000 for the benefit of Marjorie Atkins. On December 20, 1902, by an instrument filed in the Probate Court for Suffolk county, Martha M. Atkins set forth that Marjorie Atkins would become twenty-one years of age on January 7, 1903, and that in the exercise of the power given her in the fifth clause of the agreement of compromise set forth above she willed that the trust should continue for the further period of ten years as provided in the fifth clause. On February 19, 1904, the resignation of Martha M. Atkins as trustee was accepted by the Probate Court for Suffolk county, and the plaintiff was appointed trustee to succeed her.</p> <p>The defendants, Edward Atkins and Martha M. Atkins, were husband and wife and were the parents of Marjorie. They were not divorced, but had lived apart for several years.</p> <p>Majorie Atkins, upon the separation of her father and mother, remained with her father and left Massachusetts with him and went to New York at some time in 1904 or 1905, and thereafter lived with him in the State of New York, either at New York city or at Nanuet, until her death on July 13, 1908.</p> <p>At the time of the death of Marjorie, Martha M. Atkins was domiciled in Massachusetts and Edward Atkins was living at Detroit in the State of Michigan. Edward Atkins contended that by the Code of Civil Procedure of the State of New York, §§ 2473, 2476, 2732, which was introduced in evidence, he was entitled to the fund as the sole heir at law of Marjorie. Martha Atkins contended that under K. L. c. 140, § 3, and c. 133, § 1, cl. 2, the fund with its accumulations should be divided equally between herself and Edward Atkins.</p> <p>The justice found that Marjorie Atkins at the date of her death was domiciled in the State of New York. He made a memorandum of decision, which concluded as follows: “The rights of the parties, however, are to be determined under the construction to be given to the contract, called ‘ the agreement of compromise,’ so far as it relates to the fund provided for Marjorie. I find that the contract was made here and was to be performed here. Accordingly I rule that the law of the place, of performance must govern and that 6 her heirs ’ are those who would take under our statutes of descents and distributions, and the fund, with accumulations, is to be divided equally between Edward Atkins and Martha M. Atkins. American Malting Co. v. Souther Brewing Co. 194 Mass. 89, 95.”</p> <p>A final decree was entered in accordance with this memorandum, and the defendant Edward Atkins appealed.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by an employee against his employer under B. L. c. 106, § 71, cl. 2, for personal injuries alleged to have been received by the plaintiff while at work on a concrete mixing machine, there was evidence tending to show that the plaintiff was familiar with such machines and had been working upon the one upon which he was injured on alternate days for about a week; that his duty was to stand on a platform, with one set of gearing at his back and another at his side, and shovel sand, which was placed in a pile before him by other employees, to other men toward the side where one set of the gearing was; that when he first went to work on the machine the gearings were covered with boards, but that two days before th^ accident the board coverings had been broken by a boom of a derrick, at which time the plaintiff had told a superintendent of the defendant that it was dangerous for him to work where he was with the gearing uncovered and the superintendent had “ told him to go ahead, that he would get it fixed,” and thereafter on that day the plaintiff had worked on the machine. When he returned to the machine on the day of the accident, the coverings had not been replaced and he again called the superintendent’s attention to the danger of his position and received the same assurance as before. The only place that the plaintiff could stand as he worked was six inches in front of one set of gearing. The platform had many pieces of cracked stone upon it. . The plaintiff wore a jumper which he did not button. As he worked, he stumbled somewhat on a piece of stone, the back of his jumper became caught in the gearing, he reached around with his hand to free himself, his sleeve became caught and his hand was drawn into the cogs and crushed. Held, that the questions, whether the plaintiff had assumed the risk of the injury which he received, and whether when injured he was in the exercise of due care, were for the jury.</p>

<p>Public Officer. Evidence, Presumptions and burden of proof, Inferences. District Police. Notice. Governor. Civil Service.</p> <p>The removal from office of a public officer is not accomplished usually merely by the signing by one empowered to remove him of a paper stating such removal, but it also is necessary to give some notice to the officer of his removal, and, where the mail is employed for the conveyance of such notice, the removal cannot be said to have occurred at a time previous to the time when the letter was deposited with the carrier.</p> <p>The statutes which relate to the removal from office of members of the district police of the Commonwealth, R. L. c. 108, § 1, as amended by St. 1904, c. 818; St. 1904, c. 314, as amended by St. 1905, c. 248; St. 1906, c. 210, as amended by St. 1907, c. 272, while they provide for a notice from the Governor of his intention to remove such an officer from office, do not prescribe the length of time which should elapse after such notice before the removal takes place; but such time should elapse as, under all the circumstances, is reasonable.</p> <p>There is a presumption in favor of the validity of the acts of the chief executive of the Commonwealth, and every reasonable inference is to be drawn in favor of such validity.</p> <p>A member of the district police of the Commonwealth, upon going to his office, which was in Springfield, at ten o’clock in the morning of a Saturday, received a letter from the Governor notifying him that the Governor proposed to remove him from office for the good of the service. Enclosed in the lettet were specifications of reasons for removal which, if found to be true, would have been sufficient ground for removal and which were styled “ grave offenses,” and were stated to be of such a nature as to warrant the speedy removal of the officer. The letter was dated at Boston on Thursday and bore the Boston postmark of Eriday at 11 A. m. After receiving the letter, the officer finished the routine work of his office and at 11.30 a. m. went to his home and discussed the contents of the letter with his wife and an aunt. In the afternoon he attempted to reach the Governor’s office by telephone, but was unsuccessful because the office was closed on Saturday afternoons. On Monday morning he arrived in Boston at 11.40 A. m., went to the home of his spiritual adviser in the West Roxbury district, and was advised by him not to see the Governor until the next morning. On Tuesday morning between ten and eleven he went to the Governor’s office with a letter from his spiritual adviser requesting a “ personal interview,” was unable to see the Governor, but was referred by the Governor’s secretary to the chief of the district police, who informed him that he had been removed from his office and that the notice had been sent to Springfield. Such notice was contained in a letter signed by the Governor, dated Monday, which was delivered to the chief of the district police by a messenger, and was by him forwarded to Springfield by a letter postmarked at Boston at 1 p. m. on Tuesday. Held, that under all the circumstances it could not he said that the Governor did not give to the officer notice of his intention to remove him a reasonable length of time before his removal.</p>

<p>Tax, Exemption. Charity.</p> <p>In the determining of the question whether certain real estate owned and used by an incorporated local branch of an incorporated national society is exempt from taxation under R. L. c. 12, § 5, cl. 3, as real estate owned and occupied by an incorporated literary, benevolent, charitable or scientific institution and used by it for the purposes for which it was incorporated, the terms of incorporation of the national organization have no effect to enlarge the objects of the incorporated local branch as defined in its charter.</p> <p>The charter of a corporation organized under R. L. c. 125, §§ 1-3, stated that it was incorporated “for the purpose of perpetuating the memory of the men and women who achieved American independence ; of acquiring and protecting historic spots; encouraging historical research, and the publication of its results; preserving documents and relics and individual records of revolutionary soldiers and patriots and promoting the celebration of patriotic anniversaries; of cherishing, maintaining and extending the institutions of American freedom, and fostering true patriotism and love of country; also for the purpose of holding real estate so far only as may be necessary to its lawful ends.” The corporation aided in soldiers’ relief work and in the relief of suffering resulting from an earthquake in San Francisco, California, contributed to a fund for the education of Cuban teachers at Harvard College, made gifts of an historical nature to public schools, and assisted in making a high school building sanitary and artistic, assisted in the establishment of a public library and in the main, tenance of a class in a boys’ club for the learning of cane seating and of a sewing class among Greek girls, aided historical research, the preservation of historical sites and the inculcation of patriotism by the perpetuation of the memory of the men and women who were instrumental in achieving our national independence. In the doing of the foregoing work, it owned and occupied certain land and a house thereon, itself historical, which it used as a meeting place for its members, as a free public exhibition hall of historical things, and for lectures upon subjects kindred to the purposes of its incorporation for which an admission was charged and the net proceeds of which were devoted to maintenance of the house. Free use of the house was given for various charitable purposes, school children were entertained there, and patriotic exercises were held. The house also was let from time to time for a stipulated fee to persons giving entertainments, the fees thus obtained being used to defray the expenses of maintaining it. The only income which the corporation received outside of membership fees was from the use of the house. No part of the income was divided among the members or was used for other uses than those above recited. Held, that the house and land were exempt from taxation under R. L. c. 12, § 6, cl. 3, which so exempts real estate owned and occupied by incorporated literary, benevolent, charitable and scientific institutions and used by them for the purposes for which they are incorporated.</p>

<p>Bill in equity, filed in the Superior Court on January 25, 1908, and afterward amended, by the receiver of the Fosburgh Company against the county of Hampden, with which the Fosburgh Company had made contracts in writing for the construction of the Hall of Records and heating plant as stated in the opinion; the Chapin National Bank, to whom the Fosburgh Company had executed as security for loans of $15,000 an assignment of- its right to fifteen per cent of the contract price to be paid by the county of Hampden under the contracts, which amounts, $19,022.70 and $4,581.85, were held by the county under the provisions of the contract stated in the opinion; and various persons and corporations who had filed, with the county in accordance with St. 1904, c. 349, statements of claims for materials furnished and labor performed in connection with the Hall of Records and heating plant. The bill alleged that the assignment to the bank was null and void because it purported to operate only on a part of the funds to become due from the county to the Fosburgh Company, and because the formal requirements of the statutes as to assignments and the recording of them had not been complied with. The prayers of the bill were that the defendants other than the county should be enjoined from interfering with the payment by the county to the plaintiff of the $19,022.70 and $4,581.85 still due under the contracts, and that the county should be ordered to pay those sums to the plaintiff; also</p> <p>Cross bills in equity by the bank and by the various claimants for labor and materials above described, seeking to establish their respective claims to the funds in the hands of the county.</p> <p>The case was referred to Nathan P. Avery, Esquire, as master, to “hear the parties, to examine their vouchers and evidence, and make report of the facts thereof and such parts of the evidence as may be necessary to present any questions of law which may arise at the hearing.”</p> <p>Those of the findings of the master which relate to claims of Henry J. Pratt and Company, mentioned in the paragraph of the opinion numbered 4, were in substance as follows :</p> <p>Henry J.Pratt and Company made a contract in writing with the Fosburgh Company on December 14, 1905, to do the roofing and metal work on the Hall of Records called for by that company’s contract with the county of Hampden. On July 24,1906, they agreed to do a similar work on the boiler house in letters between themselves and the Fosburgh Company which referred to the work agreed to be dong as “ an addition to your [Pratt and Company’s] contract for work on the Hall of Records dated December 14, 1905, it being understood that the terms of payment and general conditions of the above contract shall apply to the boiler house, and are made a part of this order, the same as if written in full herein.” The work of Henry J. Pratt and Company on the boiler house contract was completed on March 6,1907, no payments were made to them, and they duly filed their claim with the county commissioners under St. 1904, c. 349. Because of the failure of the Fosburgh Company to make payments on the boiler house contract with them, Henry J. Pratt and Company ceased work under the contract of December 14, 1905, on November 15, 1907. The master found as follows: “ Shortly after respondents completed their work on the boiler room which was March 6, 1907, they notified the Fosburgh Company that they refused to continue work on the Hall of Records contract unless the payments due on the boiler room should be paid. If the agreement made on the twenty-fourth day of July, 1906, for work on the boiler room should be construed as an extra to and part of the original contract with the Fosburgh Company then at the time the respondents so notified the Fosburgh Company there had been a default on the part of the Fosburgh Company in the payments for work done under said original contract. If, however, the agreement of July 24, 1906, is a separate contract, then at the time they so notified the Fosburgh Company, there had been no default on the part of the Fosburgh Company on the payments on the hall of records contract.”</p> <p>Under an agreement with the county commissioners, Henry J. Pratt and Company afterwards completed for a stipulated price the work on the roofing of the Hall of Records. The county commissioners having called their attention to some needed repairs in the work which they previously had done under their contract with the Fosburgh Company, they made such repairs on November 16,1907, which the master said were worth $2.90. They filed their claim under St. 1904, c. 849, with the county commissioners on January 11, 1908.</p> <p>The MeClean referred to in the paragraph of the opinion numbered 4, was under contract with the Fosburgh Company to set up some radiators in the Hall of Records building, placing them out from the wall, so that the walls might be plastered and dried, and to disconnect them later after the Fosburgh Company was through using them. The master found “ that it was necessary in constructing this building that the plaster should be dried by artificial heat such as was furnished by means of these radiators.” McClean’s charge for doing the work was $74.78.</p> <p>Other facts contained in the report are stated in the opinion, where also are stated the various exceptions to the report.</p> <p>The case came on for hearing on the exceptions to the master’s report and on a motion for a final decree before Dana, J., who reserved and reported the case for determination by this court.</p>

<p>Contract, Building contracts, Performance and breach, Construction, Implied in law. Practice, Civil, Rulings and instructions. Payment. Waiver.</p> <p>Where a contractor makes with a landowner a contract in writing to construct a building upon the land, and the contractor fails to perform his contract in some particulars so that he cannot maintain an action thereon against the owner for an unpaid balance of the contract price, he may bring an action on a quantum meruit and declare upon an account annexed containing an item “ Balance due on the contract,” but he cannot recover unless he has made an honest attempt fully to perform the contract in pursuance of an honest intention to do so, and unless there has resulted from his efforts such an approximation to complete performance that the owner obtains substantially what was called for by the contract, although not exactly so, and although because of omissions and imperfections in the carrying out of the contract there should be, in what is allowed under the quantum meruit, a deduction from the contract price.</p> <p>The substantial performance of a building contract, which, if accomplished by the contractor in pursuance of an honest attempt to carry out an honest intention fully to perform the contract, will entitle the contractor to some recovery on a quantum meruit if he has not been paid for what he has accomplished, may be none the less substantial because the work is not complete in all respects, or because in it there have been omissions that cannot be supplied by the owner except at great expense or with great risk to the building, or omissions which could not be supplied exactly as called for by the contract without taking down the building to its foundations, if such omissions affect the value of the building for use or otherwise so slightly as to be hardly appreciable.</p> <p>If a contractor, who has made an honest attempt fully to perform a building contract in pursuance of an honest intention to do so, has effected a substantial performance thereof and has not been paid for what he has accomplished, he may recover therefor on a quantum meruit although the building contract contained a clause that it should be performed “ to the entire satisfaction and approval of the owner,” if the only disapproval and dissatisfaction of the owner under the circumstances is not reasonable.</p> <p>If a contractor, who has made an honest attempt fully to perform a building contract in pursuance of an honest intention so to do, has effected a substantial performance thereof and has not been paid for what he has accomplished, he may recover therefor on a quantum meruit, and such recovery is not prevented merely by the fact that he intentionally omitted to do certain things which were called for by the contract, if he honestly believed that under the contract the things omitted were not called for, and in good faith intended to do all that he had agreed to do.</p> <p>The erection of a building upon real estate ordinarily confers a benefit upon the owner and he should not be permitted to escape payment for it on account of a personal idiosyncrasy; and therefore a provision in a building contract that the work should be done “to the entire satisfaction and approval of the owner,” requires that the owner should act reasonably in determining whether the work is satisfactory.</p> <p>A provision in a building contract, that the decision of an architect therein named as to the true construction and meaning of the specifications should be final, is binding upon the parties; and, if the architect in good faith decides that certain things were called for by the specifications and should be done by the contractor and the contractor thereupon does such things, he cannot thereafter in an action of contract recover therefor as for extra labor performed and materials furnished outside of the contract.</p> <p>A provision in a building contract that no payment made under the contract should be construed to be an acceptance of defective work or improper materials, does not mean that, upon a question whether there has been an acceptance by the owner, a payment without objection may not be considered in connection with other evidence, as other similar conduct may be considered, so far as it indicates the owner's purpose and state of mind; but it means merely that such a payment does not in itself constitute such ah acceptance.</p>

<p>Three actions oe tort for injuries alleged to have been received by the plaintiff on October 8, 1904, a Saturday, between four and five o’clock in the afternoon by reason of his being thrown from a wagon which he was driving on Atlantic Avenue in Boston, because the wagon ran against a piece of timber negligently left protruding from a pile which had been placed at the side of the travelled way while the street at that place was being widened; the first action being against the city under R. L. c. 51, § 18; the second against Daniel J. Kiley, who had contracted with the city to do the work; and the third against the - Cahill Construction Company, which was a subcontractor under Kiley as to a part of the work. Writs dated, respectively, July 5, July 20 and July 21, 1905.</p> <p>The cases were tried together before Stevens, J.</p> <p>A plan was used at the trial and at the argument before this court, of which the plan on the following page is a reduced copy.</p> <p>Atlantic Avenue at this point was seventy-eight and one half feet in width. Over the middle of it ran the double elevated structure of the Boston Elevated Railway Company, supported by iron posts on each side placed at distances of about sixty feet apart, and under the structure in the middle of the street and between the rows of posts ran the double track of the Union Freight Railroad Company; on the east side, or water side, of the posts supporting the elevated structure in the street, and distant less than three feet from them, ran a surface track of the Boston Elevated Railway Company on which the north bound surface cars ran, and on the westerly side of the posts ran the south bound surface cars on a similar track. The distance between the posts and the curb of the sidewalk was about twenty feet on the easterly or water side and about fifteen feet on the westerly or land side. The width of the street railway track was four feet and eight inches. The distance from the westerly rail of the north bound track to the fender base of the posts was two feet two inches, the fenders extending nine inches from the posts.</p> <p> </p> <p>One Robert F. Cooper, a witness for the plaintiff, testified that he was a salesman and worked for his father, who had a place of business on Atlantic Avenue on the harbor front nearly opposite where the accident occurred; that in October, 1904, the sidewalk in front of his father’s premises and the street also near to the curbstone where they were putting in a new1 sea wall and toward the Metropolitan Steamship Company was all torn up to within a foot or two of the car track, so that one could see the water beneath; the whole street was used for public travel, and on the easterly or water side teams used the portion where the street car track was and also the space between the track and where the repairs were going on and between the tracks and the posts of the structure of the Boston Elevated Railway Company; that portion of the street on the water side which was not torn up was used for teaming about a month before October 8, 1904, the day of the accident, and considerable travel took place there. The lumber, bricks and other material used in making the improvements were kept in different places; lots of timber were placed between the Elevated posts and some over on a lot of brick, such as they put in the sidewalk, on the corner of India Wharf; there were some other things put on Milk Street, but most of the timber was placed on Atlantic Avenue between the posts of the elevated structure, running from the head of Central Wharf; the lumber was piled three or four timbers high one on top of the other; there were timbers so piled between the posts in front of his store and to the south of it; the lumber had not been so piled there more than a week; it was piled lengthwise of the tracks, the timbers being about five feet long, single tiers, one piece on top of another, three or four pieces high, and two piles of timber running lengthwise with each other were between each two posts, except that between the two posts opposite his store only one tier or pile was placed; these timbers were distant from the nearest rail of the surface track so that a car had plenty of room to go by; such was the condition of the timbers on October 8, 1904, in all places but one; the witness saw teams passing there during that day.</p> <p>The witness Cooper further testified that he saw the plaintiff on a rack wagon come along at a pretty good gait down Atlantic Avenue on the car track on the easterly surface track of the Boston Elevated Railway; he was going north, and his front wheel struck a piece of timber, and the horse started a little faster, and, as he did, the hind wheel struck a piece of timber, and the man was thrown in the street, and was dragged about ten feet. The hub of the front wheel struck the piece of timber on the end, and then the rear wheel struck the timber and chipped off a little piece and moved it out a little. During that day a great many teams had come along.</p> <p>The same witness further testified that the work there was being done by the defendant Kiley; that there were two gangs of men: one gang, with a foreman, in the employ of the defendant Kiley, fixing the street, and the other gang, under one Cahill, fixing the sidewalk. The defendant Kiley was there about every day; the work was being done by him; “ he seemed to be superintending all of the men that were working there: he would come along and talk with Mr. Cahill; then he would talk with his foreman in the paving division that he had paving there.”</p> <p>On cross-examination the witness Cooper stated that at the time of the accident the plaintiff’s horse was not coming very fast, just barely jogging along “ like any other team horse would come, trotting right along the car track.”</p> <p>One Thomas J. Keefe, a witness for the plaintiff, testified that he was driving a large express caravan immediately behind the plaintiff; that the plaintiff was jogging along, the horse was trotting very slow, not more than five miles an hour; that the wagon was running with its right hand wheel in the right rail of the track, and the left hand wheel on the outside of the track; “ generally wagons are built so that one wheel will set in the track and the other set out; there are a very few wagons that will set in the track, with the exception of carriages, but wagons, as a rule, one wheel will either set in, the right wheel will set in, but the left wheel will project on the outside.” The witness stated that he had driven through there at least two or three times a day every day previous to this day, and had driven through there in the forenoon of this day; that the condition of the street there relative to what was open for traffic was just about the same all the time while they were making the alterations; that there were no guards or danger signals there or flags. Other testimony of the witness Keefe was in corroboration of the witness Cooper.</p> <p>One Austin M. Farwell, junior, a witness for the plaintiff, corroborated the two preceding witnesses and also testified that at the time of the accident he was driving behind the plaintiff and was separated from him by one team; that for a week and more previous to the accident the lumber had been piled up between the posts, and the witness had been along there pretty nearly every day; that the west side of Atlantic Avenue was open,and on the east side the track.and street on each side was open for teams during that week; that the condition of the street during that time was about the same as on the day of the accident, that he didn’t notice any safeguards; that he did not see any wooden horses or flags; that there was room for two teams going up and down on the west side of Atlantic Avenue; that Atlantic avenue was quite a good deal crowded by travel on week days, especially in the afternoon, Saturday as well.</p> <p>One David Bennett, a witness for the plaintiff, testified that he drove out from Metropolitan Wharf just after the accident and saw that the condition of one pile of lumber which was about ten feet back of the plaintiff’s wagon as it then stood was disarranged, “ the top was turned over that way, opposite, and the second one was tipped towards the wagon, one tipped in one direction and one in the other in this one pile ”; that the witness’s regular trips took him along Atlantic Avenue twice a day to the various boat lines and railroads, and that there is the heaviest traffic on Atlantic Avenue of any freight street in use in Boston ; that Saturday afternoon is a little quiet, and it was exceptionally quiet that afternoon; on cross-examination the witness testified that a man driving a team northerly on Atlantic Avenue on that afternoon could either have .gone in where the repairing was or have gone over on the Union Freight Railroad rail, and passed down the Union rail, towards State Street; that the whole street was vacant; that the witness’s team was a heavy truck team and the plaintiff’s team was not so wide, being a single team; that that morning the witness went along with his right wheel in the right rail of the track.</p> <p>One Henry A. Young, a witness for the plaintiff, a contractor with a place of business opposite the place where the accident occurred, testified as to the condition of the place of the accident, and stated that he saw the accident happen; that the lumber was piled up between the track of the street car and the Union Freight Railroad track, and that there were stray timbers lying on the ground, single sticks on each side of the pile. The witness pointed on the map to the place where the accident occurred, between post numbered 126 and post numbered 127.</p> <p>One Frank E. Nickerson, a witness for the plaintiff, testified that the distance across between the outside hubs of the plaintiff’s wagon was seven feet five inches; across between the outer rims of the tires, six feet six inches; that the rack of the wagon did not project over the wheels; that the front wheels stood lower than the back ones, and that the front hubs and axle were five inches nearer the ground than the back hubs and axle.</p> <p>The defendant Kiley was called by the plaintiff and among rTter things testified that he had a contract with the city of Boston that was still pending in October, 1904, relating to a section on Atlantic Avenue; that he had a subcontractor, which, was the defendant Cahill Construction Company, which under its contract did all of the timber work, including the furnishing of all labor, lumber and material connected therewith, and that the work done by the witness was the concreting, paving and laying of brick sidewalks wherever necessary and the setting of the curb; that all lumber and piling work was done by the Cahill Construction Company; that the witness’s men were not at work in the neighborhood of this accident on the day of the accident, but had been at work there some time previously, had prepared it for Cahill and then had waited, so far as this section was concerned, until Cahill had completed his work; that the witness had done nothing in the street itself between the sidewalk and surface track; that he had not removed anything; that the entire pavement was still intact between the east rail of the north bound track and the curb or east wall; that he had no material at that point; that there were two wooden horses at the corner of India Wharf, and “ at the entrance to the Metropolitan Steamship Company ” a horse from the curb to the rail, or reaching close to the rail, and another horse, a shorter horse, between the rail of the street railway and the Union Freight rail, partly under the elevated structure, and that upon these horses in the daytime was a sign bearing the words, “ Street closed for repairs, no passing through,” and upon these horses at night was a lantern suspended; that he placed these barriers there to warn teamsters against possible danger; that the electric cars ran through on the north bound rail and they placed wooden horses on both sides of the rails; that the roadway from the old curb to the track was clear and the pavement was undisturbed in that entire section until after Mr. Cahill had finished his work, which was some time subsequent to the accident; that it was the witness’s business to come there to his work and spend as much of the day as he could; that on the day of the accident he had been there as late as three o’clock and had come back and passed along the place of the accident just immediately preceding it; that he had spent a good portion of the day around that location and was familiar with the condition of things in that locartion during the entire day; that the wooden horses and the lamps belonged to the witness; that the easterly surface track they had to leave open; that there were teams going in there behind the cars, and sometimes when there were no cars passing; that the horse which stood between the curb and the east rail of the street car track was eight or ten feet long; that at the point of the accident it was about nine feet from the east rail of the street car track to the curb and from two to three feet of that was occupied and six feet was unoccupied and undisturbed, clear; that the witness had given no instructions to any of the men to warn teamsters or others not to pass up into that section.</p> <p>The evidence regarding the notice given to the defendant under R. L. c. 51, §§ 20-22, is stated in the opinion. On December 21, 1904, the plaintiff was adjudged insane, and his father was appointed his guardian. The notice was as follows:</p> <p>“ To the City Treasurer or the City Clerk of the City of Boston. Sir; — I hereby give you notice that on or about the 8th day of October A. D. 1904, between the hours of 4 and 6 o’clock in the afternoon, Ernest M. Stoliker of Everett in the County of Middlesex and Commonwealth of Massachusetts, was injured by reason of an obstruction to wit a pile of planks or timbers piled near the centre of the travelled part of the street or highway, known as Atlantic Avenue in the said City of Boston, nearly opposite number 272 of the said street or avenue. The said Stoliker while in the exercise of due care was thrown from a wagon which he was driving at that time by reason of coming in contact with said obstruction which was carelessly and negligently permitted to remain on said street or highway, being thrown from said wagon on his head, he received injuries which caused him to become insane and by reason of said insanity he was and is unable to give notice of the accident prescribed by law. On the 21st day of December A. D. 1904, the undersigned James G-. Stoliker was appointed guardian of Ernest M. Stoliker, an insane person, and this notice is given by the said James G. Stoliker as guardian of Ernest M. Stoliker. Dated this 29th day of December, A. D. 1904. James G. Stoliker, Guardian of Ernest M. Stoliker, by his attorney, Vm. L. Strickland, 54 Devonshire St., Boston.”</p> <p>Various witnesses for the defendant testified that, when injured, the plaintiff was driving very rapidly, and that just before he was thrown he was turning around in his seat and was waving his hand to some one behind him; that the roadway to the east of the north bound street railway track was clear for five or six feet. One John W. Corbett, an inspector of the work for the city, also testified on cross-examination that cars passed every seven or eight minutes, and that he saw a considerable number of teams passing on the track. “We were not supposed to keep teams out.” One Duncan G. Chisholm, a police officer, stated on cross-examination that he considered that the street at the easterly surface track and each side of it was open and safe for public travel.</p> <p>Recalled by the defendants, the defendant Kiley among other things on cross-examination testified as to what he understood about the track with some feet on each side of it being open for public travel, that he understood “ if public after passing those notices or barriers that were there took their chances, why, that was their lookout ” ; that some teams would drive in there, and that “ if you attempted to stop them some of them would drive over you; I never attempted to stop any, that was not my business, I was too busy ”; that he kept no man regularly standing at India Wharf or India Street; that the contract and specifications required that the street car traffic proceed during the progress of the work, and they had no right to stop them; that witness knew that teams went through there regularly.</p> <p>At the close of the evidence, the respective defendants asked that verdicts be ordered for them. The presiding judge instructed the jury to return a verdict for each defendant and also to answer the following questions:</p> <p>“ (1) At the time of the accident, was there a barrier near the head of India Wharf on the north side extending from the sidewalk towards the east track of the Boston Elevated Railway Company with a sign that the street was closed for repairs, no passing through or words to that effect ?</p> <p>“ (2) At the time of the accident, was there a barrier between the easterly track of the Boston Elevated Railway Company and the easterly track of the Union Freight Railroad Company with a sign that the street was closed for repairs, no passing through or words to that effect ? ”</p> <p>The jury answered the first question “ Tes ” and the second question “Ho.”</p>

<p>Land Court, Master, Exceptions, Appeal. Public Officer, Defacto, De jure. Tax, Assessment, Collection, Tax sale. Mortgage, Assignment, Foreclosure. Evidence, Competency, Relevancy.</p> <p>Although questions of law arising upon an order of a judge of the Land Court overruling exceptions to a master’s report can be brought to this court by a bill of exceptions, the proper method of doing so is by an appeal, for when an appeal is taken the whole record is before this court and it can dispose of the case by directing what the final decree shall be, but when a bill of exceptions is resorted to the case must be remanded to the Land Court for further hearing, per Losing, J.</p> <p>Where it appears that on May 1 of a certain year persons, who were acting as assessors of taxes of a city, were doing so after their terms of office had expired and without reappointment, but that before the assessments of taxes for that year they took a certain oath before the city clerk, and thereafter acted as assessors in making the assessments, it is immaterial, so far as the validity of such assessments is concerned, whether the correct oath was administered to them or not, since it is apparent that they were acting as assessors de facto, and whether they also were assessors de jure does not affect the validity of their acts,</p> <p>On the issue, tried before a master appointed by the Land Court, as to whether a tax upon certain real estate was assessed by the board of assessors, the evidence was that a principal assessor, a first assistant assessor and a second assistant assessor for the district in which the land was situated “assessed” the land, the first assistant “ being the local man and having all the say.” It also was shown that the assessment of the land “ appears on the assessor’s books,” that is, on the books of the board of assessors specified in Pub. Sts. c. 11, §§ 50-64, now R. L. c. 12, §§ 66-60. The master found that the assessment was made by the board of assessors as a whole or by a majority thereof. Held, that the finding was warranted, since the true explanation of the evidence above stated was that the board adopted the report of the assessor for the district and his two assistants.</p> <p>An exception to a ruling of a judge of the Land Court overruling an exception of a respondent to the report of a master will not be sustained where from the report of the master it appears that no particular objection to the finding excepted to was pointed out to the master by the respondent, and no evidence on the subject is reported, since no error in the ruling is shown.</p> <p>From a bill of exceptions to rulings of a judge of the Land Court as to exceptions to a master’s report by the respondent in a petition for the registration of the title to certain land, it appeared that the owner of the locus in 1874 sold it to one from whom he took back a mortgage to secure the payment of a part of the purchase price, assigned the mortgage “ as collateral,” and later caused a caveat to be recorded in which he averred that the assignment was invalid. The person who had received the assignment “ as collateral" assigned the mortgage absolutely to one who caused it to be foreclosed. The original mortgagee in the meantime having become bankrupt, the assignee of the mortgage who had foreclosed it procured from the “assignees in bankruptcy” an assignment of the mortgage and recorded such assignment “ with his deed from said foreclosure.”</p> <p>Held, that whether or not the assignment made to the person who foreclosed the mortgage by the person who had held the assignment “ as collateral ” gave a right to foreclose it, was not material since the only persons who could object thereto were the “ assignees in bankruptcy ” and they had assigned their rights to the person who had received a deed “ from said foreclosure.”</p> <p>From a bill of exceptions to rulings of a judge of the Land Court as to exceptions to a master’s report by the respondent in a petition for the registration of the title to certain land, it appeared that the owner of the locus in 1884 had sold it to one from whom he received a mortgage back, and that the respondent had received in 1905 from the administrator of the estate of such mortgagee an assignment of the mortgage by virtue of which he claimed the right to redeem the land from a tax sale. At the trial before the master after March, 1905, there was admitted in evidence the testimony of one who had been the guardian of the mortgagee after 1884 to the effect that he never knew that his ward ever held any such mortgage, and the testimony of the administrator of the mortgagee’s estate to the effect that he never saw such a mortgage or mortgage note, and that he had made the assignment to the respondent only when told of the mortgage by the respondent’s attorney, and when offered money therefor. The master found that no valid mortgage existed in 1905 and that nothing was assigned to the respondent. Held, that the testimony of the guardian and of the administrator of the mortgagee’s estate was admissible, and that the finding was warranted by the evidence.</p> <p>A master, to whom a case is referred by the Land Court, is not required to report the evidence upon which he bases his findings unless the order of reference directs him to do so; and an exception to a ruling of the judge of the Land Court sustaining the master in a refusal so to report the evidence will not be sustained if neither the bill of exceptions nor the record disclose what was included in the order of reference.</p> <p>The title of the purchaser at a sale for the collection of a tax, which had been assessed upon real estate in.the name of one who bad purchased at a previous</p> <p>.. tax sale for the collection of a previous tax, is not rendered invalid by reason of the fact that the tax for the collection of which the previous sale was made was assessed to one who was not the owner of the land.</p> <p>A tax deed is not rendered invalid because, in describing the parcel of land conveyed, a reference to it as a lot of a certain number on a plan of a certain date recorded on a certain page in a certain volume of assessor’s plan “on file with Suffolk Deeds,” described the plan as “ made by W. E. Jackson,” whereas the plan was made by “ W. H. Jackson.”</p> <p>At the hearing before a master appointed by the Land Court upon a petition for the registration of the title to certain land, the validity of a tax title was in question, and the respondent requested the master to rule that “ So evidence was offered that petitioner paid the collector within twenty days the amounts bid by him, under R. L. c. 13, § 47, which alone precludes the title,” and the master ruled, “ I refuse the ... request and I find on the contrary that the petitioner did pay within twenty days the amount bid by him. I base this finding on the dates of execution and acknowledgment on the face of the tax deeds.” Held, that the master’s inference of fact was warranted and that for that reason the ruling requested was not applicable and therefore was refused rightly.</p> <p>Two years and four months after filing his answer to a petition in the Land Court for the registration of certain land, and twenty-three days after the filing of the report of a master to whom the case had been referred and before whom it had been fully tried, the respondent filed a motion that the petition be dismissed on the ground that the petitioner did not comply with R. L. c. 128, § 25, as to filing plans and original muniments of title within his control. The motion was denied. Held, that the judge was not bound to dismiss the petition under such circumstances.</p> <p>Land conveyed by a tax deed was described therein as of a certain area “ on the northerly side of S. Street,” and as being a lot of a certain number on a certain-plan, and a judge of the Land Court, before whom was tried a petition for registration of the title to the land, ruled “ that the tax proceedings under which the petitioner claims title covered a tract of land including the fee in the portion of the street adjoining the land therein described to the middle line,” and refused to rule that the tax deed was void because the line of the estate taxed ran to the middle of S. Street and the line as described in the tax deeds did not. Held, that there was no error in the ruling and the refusal to rule.</p>

<p>Devise and Legacy. Words, “ Equally,” “ Or.”</p> <p>The will of a testatrix contained many small specific and pecuniary bequests, and disposed of the real estate of the testatrix as follows: “ The furnished house in which I live I give to my brother Oliver’s children and heirs. When disposed of to be divided equally.” It also contained the following clause, which was the subject of a bill for instructions: “ After bequests are paid al( bank books and stocks I give to living children or heirs of my brother Oliver including Caroline widow of Orrin D. Waldron and Waldron Sharpe son of Mary (Waldron) Sharpe deceased to be divided equally.” The testatrix left no heirs other than the children and heirs of her brother Oliver. When the will was made and at the time of the death of the testatrix there were four living children of her brother Oliver, two of whom had children, and two other children of her brother Oliver had died leaving issue then surviving. One of these deceased children of Oliver thus leaving issue was Orrin D. Waldron and the other was Mary (Waldron) Sharpe. There was nothing in the will to indicate that the testatrix intended to prefer any branch of her brother Oliver’s family to any other branch, and every grandchild of her brother Oliver was mentioned in some way as a recipient of her bounty. Held, that the clause should be interpreted as if there were added at the end of it the words “ they taking per stirpes by right of representation, except that the share which Orrin D. Waldron would have taken, if living, shall be divided among his widow and children as his intestate property would be divided under the statute of distributions.”</p> <p>When the word “ equally ” is used in a will to describe a distribution of property among the children and heirs of a certain person as a class, it means that the distribution shall be made per stirpes.</p> <p>In the interpretation of a will the word “ or ” may be held to mean “ and ” when this is necessary to give effect to the obvious meaning of the testator.</p>

<p>Tort for personal injuries alleged to have been received while, as an employee in the defendant’s shoe factory at Fitchburg, the plaintiff was operating an elevator, and to have been caused by a defective condition of the elevator for which the defendant was accountable. Writ dated January 10, 1907.</p> <p>At the trial before Sanderson, J., the parties submitted a “ statement of agreed facts,” in which it was stated, “ If on the foregoing facts the court shall be of opinion that there is an issue for the jury as to the plaintiff’s right to recover for the injuries sustained, judgment shall be entered for the plaintiff in the sum of $300; otherwise judgment is to be entered for the defendant.” The facts are stated in the opinion.</p> <p>The presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tax, Collection, Collector’s deed. Deed. .Mortgage, Of real estáte. Words, “Duly.”</p> <p>While at common law a deed under a power is valid if it conveys the property and the power to execute it is proved aliunde, it is established law in Massachusetts that tax deeds, the forms of which have been regulated by statute for more than a century, are void if they do not contain the statements prescribed by the statute.</p> <p>In determining whether a tax deed of real estate which contained allegations that the real estate had been “ duly assessed ” and that “ said assessment was duly committed ” to the collector for collection, satisfies the requirements of R. L. c. 13, § 43, as to the statement of the cause of sale, no reliance can be put on the use of the word “ duly.” The deed must state facts and not the collector’s opinion as to facts.</p> <p>A city collector’s tax deed of real estate, which states as the cause of sale, “ Whereas V. ... in 1901, was duly assessed as owner of the real estate hereinafter described, an assessment thereon in the sum of $41 for State, county and city taxes, and whereas said assessment was duly committed to me for collection, and I served on said person ... a summons, and after ten days therefrom a demand, for the payment of said assessment; and,” after publication and posting as required by the statute, “ said assessment, interest and charges remaining unpaid, ... I sold at public auction . . . the whole of said real estate,” is not invalid by reason of the fact that it does not in terms state that the assessors issued to the collector their warrant to collect the tax.</p> <p>While the power of selling land for non-payment of taxes is strictissimi juris and for that reason the statutory requirements of a valid sale must be complied with in minute particulars, the terms in which a tax deed must be drawn are not strictissimi juris, and it is not necessary to state the facts which must be set out in a tax deed with the precision of a common law indictment, per Loring, J.</p> <p>The requirement of R. L. c. 13, § 43, that a collector’s tax deed of real estate shall state, among other things, “the cause of sale” is satisfied if the cause of sale is stated with reasonable certainty.</p> <p>Where one has conveyed real estate by a mortgage deed containing a covenant that the property is free from all incumbrances, and at the time of the conveyance the property had been sold for non-payment of’taxes and had been conveyed to one, to obtain a conveyance from whom the mortgagee paid money as the consideration for a deed and for expenses in procuring it, if thereafter the mortgagee sells the property at a foreclosure sale under a power contained in the mortgage, he may retain from the proceeds of such sale the amount he paid out in procuring a conveyance to him of the tax title.</p>

<p>Equity Jurisdiction, Specific performance. Contract, Construction. Trust.</p> <p>A woman, who possessed personal property worth $3,200 exclusive of her personal effects, died intestate, leaving a husband and two married sons, A. and C. O. had children, A. had none. The intestate left a “ request ” in writing as to the disposition of her property, in which, besides directing the giving of various articles of use and ornament to certain persons, she stated in the first clause that her husband should have all the rest of her estate and that on his death “ I wish everything to be equally divided between the two sons ”; in the second clause she gave to A. “ one half the real and personal after his father in trust in his wife's care not to pay any old debts but for his and her use after him should he die without an issue then to go to the other sons heirs ”; in the third clause she gave to C. the other half of the real and personal property absolutely " after his father.” Within a few days from the time of the funeral of the intestate, the articles of use and ornament were distributed in accordance with the “ request.” Thereafter the husband and two sons executed an agreement in writing under seal that the husband should receive from the administrator all of the remaining personal property and should hold it as trustee for the carrying out of the terms of the “ request,” that he should receive the income thereof during his life, “but shall not use any part of the principal, the said principal being reserved as a trust fund for the” sons, “to be distributed between ” them “upon the death of the” husband “according to the terms and intentions of the . . . written request.” The husband was appointed administrator and, after his death, an administrator de bonis non of the wife's estate was appointed and the $3,200 worth of personal property came into his possession. Thereafter the two sons executed a further agreement in writing and under seal, by which it was agreed that one half of the personal property in the hands of the administrator should be paid to C. absolutely, and one half to the wife of A. in trust for A. and his wife, upon the wife giving to C. a suitable bond that the income should be used for the benefit and support of A. and his wife. The agreement contained a provision for a distribution to A.’s issue, if any survived him and his wife and reached the age of twenty-one years, otherwise for a distribution to the children of C. on the death of A. Held, that C. might maintain a bill in equity to enjoin the administrator from paying one half of the personal property to A. and to compel him to pay it to A.’s wife as trustee or to some other trustee upon the same trusts if she refused to serve, and to compel A.’s wife, or some other suitable person if she declined to act, to accept the property on the trusts set out in the “ request ” and the agreements.</p> <p>A woman, who died intestate possessed of personal property, exclusive of personal effects, worth $3,200, and seised of real estate in New York State and in this Commonwealth worth $11,000, left a husband and as her only next of kin two married sons, A. and C. She left a “request ” in writing as to the disposition of her property, in which, besides directing the giving of various articles of use and ornament to certain persons, she stated in the first clause that her husband should have all the rest of her real and personal estate and on his death “ I wish everything to be equally divided between the two sons real and personal.” By a second clause she gave to A. “ one half the real and personal after his father in trust in his wife's care not to pay any old debts but for his and her use after him should he die without an issue then to go to the other sons heirs.” In the third clause she gave to C. the other half of the real and personal property absolutely “ after his father.” Within a few days after the funeral of the intestate, the articles of use and ornament were distributed in accordance with the "request." Bight days after her death, the husband and two sons executed an agreement under seal, whereby the husband was to receive the personal property from the administrator of his wife’s estate “ and shall carry out the intention of the deceased as set forth in her written request,” that lie should hold the property in trust “ shall enjoy and use for his own benefit all the income therefrom . . . but shall not use any part of the principal, the said principal being reserved as a trust fund for the parties of the second part [the sons] to be distributed between said parties of the second part upon the death of” the husband “according to the terms and intentions of the aforesaid deceased’s written request. . . . The original request is also hereto annexed and become a part of this agreement.” W ithin ten days after the death, the husband conveyed his interest in both parcels of real estate to the sons and they as part of the same transaction conveyed a life estate therein to their father. Within a month the husband was appointed administrator of his wife’s estate. Ten months later he died, and within four days the sons executed a second agreement under seal in which they described themselves as " the only remaining heirs ” of their father and mother and “ the only living parties to the declaration of trust” previously described, “herewith attached,” and in which “ in consideration of not contesting the second clause of the request which is a part of said declaration of trust and is attached thereto,” they agreed that the clause should mean that “the one half portion of the estate ” of their mother should be given to A.’s wife subject to a trust as to the income in favor of herself and her husband, and a final distribution to their issue if any, and, in default of such issue, to C.’s issue. Held, that the “request” and the two agreements should be construed together, and that they applied to the real as well as to the personal property of the intestate and that C. might maintain a suit in equity to compel the real estate to be held upon the trusts described therein.</p>

<p>Bill in equity, filed in the Superior Court on June 23, 1908, by Caroline F. Lydon, wife of Michael J. Lydon, and Catherine P. Campbell, the two being daughters of Patrick Campbell, late of Boston, against John L. Campbell and James H. Campbell, the last named defendant being a son of Patrick Campbell and the brother of the plaintiffs.</p> <p>The bill alleged that by the will of Patrick Campbell there was bequeathed to the plaintiffs and to the defendant James Campbell the sum of $2,500 as stated in a certain note, with interest thereon, which note formerly had been secured by a mortgage on certain property devised to the defendants by that will; that the legacy to the plaintiffs was by the terms of the will charged upon certain lands therein devised to the defendants, subject to such charge, and described in the will, as follows: “all that part and parcel of real estate and all appurtenances thereto belonging situated at the corner of A and Second streets in that part of Boston called South Boston and now numbered 88 and 90 on said Second street; ” that the defendants accepted the devise and entered upon and occupied the parcel of land so devised to them, claiming title thereto by virtue of the devise; that the plaintiffs demanded payment from the defendants of the amount of their legacy so charged on such lands, but that the defendants refused to pay to the plaintiffs any part of the legacy due to them and charged upon the estate devised to the defendants, and that the plaintiffs never received any sum whatsoever on account of the legacy.</p> <p>The bill prayed for an injunction restraining the defendants from making any conveyance or assignment of the property until the further order of the court; and for a decree establishing a charge upon the property in the amount of $2,500 with such interest as might be due thereon in favor of the plaintiffs and the defendant James Campbell; also praying that the charge should be enforced by an order that the property should be sold for the benefit of the persons entitled to the charge; and for further relief.</p> <p>The will of Patrick Campbell contained the following devise: “ Sixth. I give, devise and bequeath to my two sons John and James to have and to hold to them and their heirs and assigns all that part and parcel of real estate and all appurtenances thereto belonging situated at the corner of A and Second streets in that part of Boston called South Boston and now numbered 88 and 90 on said Second street, but subject nevertheless to the mortgage thereon, which mortgage and other charges and incumbrances affecting the same at my death, my two sons aforesaid are to assume and to pay.”</p> <p>The property described in the foregoing clause was bought by Patrick Campbell in 1875, subject to a mortgage for $3,500, which he agreed to assume and pay. In 1892 there remained $2,500 still unpaid on the mortgage, and Patrick Campbell then paid this amount to one Richards, trustee, the holder by assignment of the mortgage, and took from Richards an assignment of the mortgage, the consideration of which was expressed to be $2,500, in favor of the plaintiffs and the defendant James H. Campbell, who then were minor children. This assignment was recorded, and remained in the possession of Patrick Campbell until his death in 1898.</p> <p>In a suit in equity brought on March 20, 1906, by Michael J. Lydon to foreclose the mortgage mentioned above, which was reported for determination by this court, it was held, in a decision reported in 198 Mass. 29, that the payment of the mortgage debt by Patrick Campbell, in discharge of the obligation imposed upon him by the deed under which he held the property, was an extinguishment of the mortgage debt, even if an assignment of the mortgage was made with the intent to keep it alive; and the bill to foreclose the mortgage accordingly was dismissed.</p> <p>The present case came on to be heard before Dana, J. By agreement of counsel the case was heard on the report of the previous suit to foreclose the mortgage as made to this court by Lawton, J. The memorandum of his decision contained in that report included the following findings:</p> <p>“At the time of the making of the assignment of Henry C. Richards, trustee, to Carrie F., Catherine C. and James H. Campbell the three assignees were the minor children of the owner of the property, Patrick Campbell. It is apparent and I find that at that time Patrick Campbell paid the mortgage in full but took, instead of a release, the assignment just mentioned, the consideration of which was expressed to be $2,500, that being the amount of the balance due and at that time paid on the mortgage. This assignment he kept possession of till his death, and it does not appear that he ever mentioned it to either of the assignees except on one occasion he showed it to Carrie F., wife of the plaintiff, and said something which possibly might be construed as an offer to give it to her. It seems evident, as was suggested at the hearing, that the father was trying to make a testamentary gift of $2,500 to the three children, a theory confirmed by the fact that he devised the property in question as subject to this mortgage. Whatever his idea, however, nothing appears here to control the finding that he paid the mortgage in full and thereby extinguished it.”</p> <p>The fifth clause of the will of Patrick Campbell, referred to in the opinion, was as follows:</p> <p>“Fifth. I further give, devise and bequeath to my loved daughters Mary Blanche Campbell and Caroline Frances Campbell to have and to hold to them and their heirs as tenants in common all that part and parcel of real estate with the appurtenances thereto belonging situated on Dorchester Avenue and now numbered 574 and 576 on said Dorchester Avenue, in that part of Boston called South Boston, but subject to the mortgage thereon in their names and said Mary shall pay unto said Caroline the sum of one thousand dollars and thereupon the said Mary and said Caroline shall join in discharging the aforesaid mortgage which mortgage is recorded with Suffolk Deeds liber 2290 folio 49.”</p> <p>Dana, J., reported the case upon the pleadings and the agreed facts for determination by this court, such decree to be entered as justice and equity required.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on April 5 and amended on June 8,1909, by the trustee in bankruptcy of the estate of Edward A. Bangs against the executors of the will of S. Gannett Wells, late of Boston.</p> <p>The bill as amended alleged</p> <p>That on August 1,1903, and for a number of years before S.</p> <p>Gannett Wells of Boston and Edward A. Bangs of Wareham were doing business as copartners under the firm name of Bangs and Wells, and had a usual place of business in Boston; that during a portion of that time, and until his decease in the autumn of 1903, Samuel Wells also was a member of the firm;</p> <p>That the business of the firm consisted of the handling as agents, trustees, or attorneys, or in some representative capacity, of various properties consisting of real estate and stocks and bonds and cash, receiving the income therefrom, and paying the expenses thereof from the net income of this real and personal property; that they received their commissions for handling the property and turned over the dividends to the various trustees and individuals for whom they were acting as agents or otherwise;</p> <p>That after the decease of Samuel Wells, S. Gannett Wells and Edward A. Bangs were entitled and bound to share the profits and losses in equal portions, and on dissolution of the firm were entitled and bound to share the assets and liabilities in the same manner;</p> <p>That on February 18, 1907, S. Gannett Wells died, leaving Bangs the sole surviving partner, and the defendants were appointed by the Probate Court of Suffolk county executors of the will of S. Gannett Wells ;</p> <p>That on May 27, 1908, an involuntary petition in bankruptcy was filed in the United States District Court for the district of Massachusetts, against Bangs, the sole surviving partner of the firm of Bangs and Wells, and on June 15, 1908, he was adjudicated a bankrupt; that on September 8, 1908, the plaintiff was elected trustee in bankruptcy of the estate of Bangs on claims and votes filed by the creditors of the firm of Bangs and Wells, and qualified by giving a bond as called for by the bankruptcy act;</p> <p>That there were not enough firm assets in the estate of Bangs, the surviving partner, to pay the creditors of the firm, whose claims had been filed in bankruptcy against him; nor were there enough individual assets in the estate of Bangs to pay his individual creditors whose claims had been filed against him. JSTor would the money, assets and property which the plaintiff sought to recover in this suit from the defendants, together with all the other assets of the firm, be sufficient to pay in full all the claims of the creditors of the firm.</p> <p>That on or about August 1, 1903, Bangs had become heavily involved in serious financial difficulties, and the entire control of the firm business of Bangs and Wells was placed in the hands of S. Gannett Wells, who alone had authority to sign checks or make collections and disbursements; that all the bank deposits which were in the name of Bangs and Wells at that time were placed in the name of Wells, subject only to his personal signature ; that no firm bank accounts were thereafter subject in any manner to the signature of Bangs, nor did he have any control over such bank accounts, nor was he in any way consulted as to the withdrawals or disbursements therefrom by Wells so far as known to the plaintiff;</p> <p>That between August 1, 1903, and February 18, 1907, Wells used the bank accounts of the firm, which stood in his name as above set forth, and used the other assets of the firm, consisting of book accounts due for commissions, cash on hand in the money drawer, and the like, as he saw fit, and at various times between those dates subscribed to and paid for shares in the capital stock of various building trusts with the firm’s money and out of the firm’s assets and business, and made loans and advances to various persons and trusts with whom he was associated with the firm’s money and out of the firm’s assets and business; that all of this stock was purchased in his own name and all of these loans or advances were evidenced by papers or charges in his own name;</p> <p>That at the time these purchases and advances were made by Wells the firm of Bangs and Wells was hopelessly insolvent, as he well knew, and the money which was used by him individually was money which came into the firm on account of these various clients whom the firm represented as above set forth, either as collections on their accounts or as commissions on their business, all being placed in the firm’s bank account, subject to the signature of Wells only;</p> <p>That the plaintiff was unable to say whether Bangs at the time of these purchases and advances knew of them, or knew of the insolvent condition of the firm, and fraudulently assented thereto, or whether Wells, in the exercise of his control over the assets and business of the firm, concealed the financial condition of the firm from his partner, and concealed the fact that he was purchasing in his own name such stocks and securities, and was making such advances and loans, or not;</p> <p>That at the time of the filing of the bill some of the stocks which were purchased in this manner by Wells were in the hands of the defendants as executors of his estate; that some of them had been sold by the defendants since his decease and the proceeds thereof were in their hands and readily ascertainable; and that some of the money so advanced by him was evidenced by notes payable to him, some of which were secured by mortgage and were also in the possession of the defendants;</p> <p>That it appeared from the books of the partnership that during the time when Wells had entire control of the business of the firm he withdrew from the assets thereof about $14,000 above his share of the profits thereof, and thereby rendered the firm insolvent; that this was done by him with his knowledge of the condition of the firm and of the fact that these withdrawals out of the capital of the firm or out of the money of the clients which came into the accounts of the firm were reducing the fund to which the creditors would some day be obliged to look for payments of their accounts;</p> <p>That all of the purchases, payments and loans by and to S. Gannett Wells were entered on the books of the firm, and that Bangs at all times had, or might have had if he so wished, access to the books; and</p> <p>That the estate of Wells was insolvent and unable to pay his individual creditors in full.</p> <p>The bill prayed</p> <p>1. That an accounting might be had between the parties, and the amount due from the estate of Wells to the partnership should be determined;</p> <p>2. That the defendants might be ordered to turn over such stocks, bonds, notes or other securities or evidences of indebtedness as might be in their hands that were purchased by Wells out of the funds of the firm;</p> <p>3. That the defendants might be ordered to turn over the proceeds from the sale of such stocks, bonds, notes or other securities or evidences of indebtedness as might be in their hands that were purchased by Wells out of the funds of the firm; and</p> <p>4. For such further relief as to this court might seem necessary.</p> <p>The defendants demurred to the bill for want of equity.</p> <p>The case came on to be heard before Morton, J., who at the request of the parties reserved it, upon the demurrer to the bill as amended, for determination by the full court. If the demurrer was sustained, the bill was to be dismissed. If the demurrer was overruled, the defendants were to answer the bill and the case was to stand for hearing.</p>

Bill in equity, filed in the Superior Court on April 28, 1908, by the holder of a mortgage made by Mary A. Goodwin dated October 81, 1904, which conveyed a certain parcel of land on Bowdoin Street in that part of Boston called Dorchester, to redeem the land from sales made by the collector of taxes on September 28,1904, for the non-payment of certain sewer assessments, assessed upon this and adjoining land then owned by the trustees of the Meeting House Hill Land Company.

<p>Replevin for a sloop yacht called the Pocahontas. Writ dated June 30, 1908.</p> <p>The defendant’s answer was as follows:</p> <p>“ And now comes the defendant in the above-entitled cause, and for answer says that he did not take nor detain the goods of the plaintiff, to wit: one sloop, formerly called the Pocahontas, unlawfully,' and without justifiable cause, as is alleged in the plaintiff’s writ.</p> <p>“ And the defendant further answering says that on or about the tenth day of November, 1907, George Rogers and Lewis Rogers, both of West Tisbury, in said county of Dukes, and Edward H. Luce, of said Tisbury, found the said sloop, formerly called the Pocahontas, abandoned and in great peril on the high seas, to wit, in Vineyard Sound, and that they saved the said sloop and took her to a safe harbor and placed her and hauled her up safe from the peril of the seas, upon the ship ways of him the defendant, and made and appointed the defendant their agent and servant as keeper and custodian of said sloop. That the said George Rogers, Lewis Rogers and Edward H. Luce have, and had at the date of the plaintiff’s writ, a lien upon said sloop as salvors as aforesaid, and that the defendant held, and was entitled to hold, said sloop as agent and keeper for said salvors under said lien at the time said writ was served.”</p> <p>In the Superior Court the case was tried before King, J. The undisputed facts were as follows:</p> <p>“ The Pocahontas was the property of Dr. Fred C. Merrill, of Wollaston; said yacht was stolen from her moorings in Quincy Bay on the sixteenth day of October, 1907, by two boys, one named Croucher and the other McDonald. These boys sailed said yacht around Cape Cod, being four days on the trip. On the night of October 20 they anchored in Tarpaulin Cove, Vineyard Sound, because they had been warned that a storm was coming on. The wind increased in the night and the yacht dragged across Vineyard Sound to Gray’s Beach, so called, on the north shore of the island of Martha’s Vineyard. Here the anchor caught, holding the yacht about sixty feet from the beach, and the thieves went ashore in the yacht’s tender.”</p> <p>The disputed facts are described or sufficiently referred to in the opinion.</p> <p>On the evidence presented to him and without the making of any motion, the judge ordered a verdict for the plaintiff, and further directed the jury to assess damages in favor of the plaintiff for the detention of the yacht. The defendant excepted.</p> <p>The defendant thereupon submitted to the judge “ the proposition that on the following questions there was, as matter of law, evidence for the consideration of the jury under proper instructions from the court:</p> <p>“ 1. Did a marine peril exist ?</p> <p>“ 2. Were services voluntarily rendered by the alleged salvors ?</p> <p>“ 3. Did such services if so rendered result in whole or in part in success ?</p> <p>“ 4. Did the alleged salvors obtain the right to exclusive possession of the yacht Pocahontas ?</p> <p>“ 5. If such exclusive possession was obtained by the alleged salvors on their claim of salvor’s lien, was their right to exclusive possession lost by their loches ? ”</p> <p>The judge refused to submit any of these questions to the jury; and the defendant alleged exceptions.</p>