Volume 206 — Massachusetts Reports

<p>Tort for personal injuries caused by falling upon an accumulation of ice which was alleged to have been formed by water collected and discharged upon the sidewalk on White Place in Brookline in front of a house owned by the defendant. Writ dated June 20, 1907.</p> <p>The case was tried before Bishop, J. It appeared that a spout ran from the roof of the house owned by the defendant, from which water was discharged into a spout running toward the sidewalk upon which the plaintiff slipped. It also appeared that there was a hole cut in a wooden fence between the premises upon which the house stood and the sidewalk at a point opposite the end of the spout. Evidence for the plaintiff tended to show that at the time of the accident the spout ran through the hole in the fence and discharged water upon the sidewalk which formed the ice upon which the plaintiff slipped, and that the spout had been in that position “ for five years or more previous to the accident.” Evidence of the defendant tended to show that for four years and about nine months before the accident the premises had been occupied by one who was a tenant at will of the defendant; that the defendant at various times had shingled and painted the house, and was accustomed to clean “ the burden of ” the snow from the front of the premises, leaving the town to clean up the rest; that the defendant bought the premises about fourteen years before the accident, and that the spout at that time and ever since had not run through the hole in the fence, but had run up to the base board of the fence, and had discharged water wholly within the defendant’s premises.</p> <p>At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, which after the death of Bishop, J., were allowed by Aiken, C. J.</p>

Tort for personal injuries sustained by reason of an alleged defect in Washington Street, a public highway of the defendant, on the evening of March 8,1906. Writ dated March 15, 1906. At the trial in the Superior Court before Dana, J., the evidence for the plaintiff was presented which is described in the opinion.

<p> Negligence. Street Railway. </p> <p>In an action by a woman against a corporation operating a street railway, for personal injuries sustained, while being transported as a passenger in a closed surface car of the defendant, by reason of the conductor shutting a sliding door of the car upon the fingers of the plaintiff when she had taken hold of the door jamb to steady herself, there was evidence that the plaintiff was sitting on the right hand side of the car in. the seat next to the rear door, that the car reached a terminal transfer station where all the passengers were to leave, that the conductor called out the name of the station, and further said, “ Change for other lines. Leave by the front door,” that the car stopped and the plaintiff was in the act of rising, when, without any warning, the car started again with a sudden jerk and moved about three feet, that the plaintiff in order to save herself from falling grasped the jamb of the rear door, and that while she still was steadying herself the conductor closed the sliding door and injured her fingers, that, on ordinary occasions, after a car came to a stop at this station it did not start again until the passengers all were out and a signal to start had been given, and there was no evidence that any signal to start was given at this time. The conductor testified as to providing for the orderly exit of passengers as follows: “ When we see that everybody is safely in we close the rear door so passengers will go out by the forward door.” Held, that it might have been found that under the circumstances shown by the evidence the stopping followed by the sudden starting of the car put upon the conductor an additional duty of observation for the safety of passengers near the door and in such a position as to be thrown toward it, and that he ought to have refrained from closing the door until he was assured that no one would be hurt by it, and until sufficient time had elapsed for the plaintiff, whom he ought to have seen, to regain her. balance; so that the question of the defendant’s negligence was for the jury.</p>

<p> Conversion. </p> <p>In an action for the alleged conversion of a certain machine, it appeared that the plaintiff delivered the machine to the defendant under an agreement in writing signed by the defendant, whereby the defendant acknowledged that he had received the machine from the plaintiff “ on sale,” that when the machine was sold and was paid for by the purchaser the plaintiff was to have $200 net, and the defendant guaranteed that amount or the return of the machine, it being provided that any damage to the machine from fire or other causes should be at the risk of the plaintiff, that the defendant, without the knowledge or consent of the plaintiff, overhauled and repaired the machine, replacing worn parts with new, and paid for the repairs the sum of $75, that the defendant thereupon delivered the machine to a third person under a contract of conditional sale, giving the conditional purchaser the right to keep the machine for thirty days on trial, and stipulating that the title should be in the defendant until the machine was fully paid for by the purchaser, the defendant taking notes from the purchaser payable to the defendant. Held, that the acts of the defendant constituted a conversion of the machine as matter of law, and that a verdict should be ordered for the plaintiff.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway corporation for personal injuries from being run over by a car of the defendant, there was evidence for the plaintiff that the house of the plaintiff was on a street in which there were parallel tracks of the defendant and that during a period of five years the plaintiff had been accustamed, when he wished to board a car on the farther track, to go across the double tracks to a white post on the opposite side of the street, that on the day of the accident he saw a car which he wished to take approaching on the farther track about three hundred yards distant and proceeded to cross the street in his usual manner, selecting a line of travel which would bring him to a point ten or twelve feet beyond the post, allowing, as he thought, sufficient space for him to pass in front of the car when it had stopped, that, when he reached the first rail of the nearer track and the car was within one hundred and fifty feet of him, he looked to see whether the nearer track was clear and then waved his hand as a signal to the motorman of the approaching car, who thereupon shut off the power, applied the brakes and lessened the speed of the ear, that in reliance'on his belief that the car would be stopped in the usual manner, and without looking toward the car, the plaintiff walked quickly or ran upon the farther track, and, when about half way across it, saw that the car had not stopped hut was approaching very rapidly, that he then ran faster but could not clear the track before he was struck by the car, and was injured. Held, that the plaintiff’s mistake, in what could have been found to be his reasonable conclusion that the car would come to a full stop at or near the post, did not constitute negligence as matter of law, and that the question whether he was in the exercise of due care was for the jury.</p> <p>In an action against a street railway corporation for personal injuries from being run over by a car of the defendant, it appeared that between seven and eight o’clock on a September evening the plaintiff was crossing a street to take a car which he saw approaching on the farther of two parallel tracks of the defendant, and that when he reached the first rail of the nearer track he signalled to the motorman of the car to stop at the usual stopping place, a white post of the defendant on the opposite side of the street, the plaintiff being then on his way to a point ten or twelve feet beyond the post, that the headlight of the car was shining and that the street in the vicinity was illuminated by two large electric arc lights, that in response to the plaintiff’s signal the motorman shut off the power, applied the brakes and lessened the speed of the car, whereupon the plaintiff, without looking again, proceeded to cross the farther track in front of the usual place for the car to stop, when the motorman, instead of stopping at the post, materially increased the speed of the car without any warning and ran over the plaintiff before he could get clear of the track. Held, that there was evidence of a failure on the part of the defendant to exercise the degree of care which it owed to the plaintiff as a traveller concurrently using the highway.</p>

<p>Contract, against the assignees of the members of a partnership called Bemis and Wright under a common law assignment for the benefit of creditors, for $436.52 for money alleged to have been received by the defendants to the plaintiff’s use, with originally another count in tort, alleging the conversion of a check for $436.52, alleged to be the property of the plaintiff. Writ dated July 10, 1909.</p> <p>In the Superior Court the case was submitted to Pierce, J., upon an agreed statement of facts. He gave judgment for the defendants, and the plaintiff appealed.</p> <p>The agreed statement of facts was as follows:</p> <p>On or about May 28, 1908, the plaintiff, a corporation doing business at Endicott in the State of New York, began to purchase boots and shoes of Gilbert C. Bemis and Ward E. Wright, copartners doing business at Lynn, Massachusetts. These purchases ran into considerable amounts during the months of July, August and September, 1908, The course of business between the parties was as follows:</p> <p>Bemis and Wright would send shipments of goods to the plaintiff charging them usually a gross price, but allowing a discount of seven per cent upon payment within ten days. The plaintiff would pay sometimes for specific shipments, and at other times would pay a balance due consisting of the price of several shipments.</p> <p>On September 1, 1908, the plaintiff owed Bemis and Wright for goods shipped from August 15 to 29 inclusive a sum which, after deducting the discount, amounted to $3,253.83. In order to avail itself^ of the discount for payment within ten days, on September 1, 1908, the plaintiff sent to Bemis and Wright a check for $1,500 on account. Later, on September 10, the plaintiff sent to Bemis and Wright a check for the full amount of $3,253.83, and on September 12, this amount was received and the plaintiff was credited on the books of Bemis and Wright with the amount of the payment, and also the amount "of the discount of seven per cent, although on part of the articles paid for the ten day discount period had expired before the payment of $1,500." The amount of the discount was $244.86.</p> <p>This payment of $3,253.83 was made through the mistake of a bookkeeper in the office of the plaintiff who did not know of the previous payment of $1,500, and was intended as payment in full of all indebtedness to September 1, 1908.</p> <p>On September 2 and 5," goods were shipped by Bemis and Wright to the value of $532.23 and $469.37 respectively, and checks for these amounts, less discount, were sent by the plaintiff to B.emis and Wright on September 14 and 15 respectively, the bookkeeper still being ignorant of the payment of $1,500 on September 1, and these payments being intended as specific payments for the two shipments of September 2 and 5, respectively. The first of these checks was received by Bemis and Wright on September 16, 1908, was deposited in the bank that day or the next, and was paid in due course; the second was for $436.52, and was received on September 18. On September 19, 1908, Bémis and Wright made a general assignment for the benefit of creditors to the defendants, and notice of this assignment was sent to the plaintiff by mail, postage prepaid, on September 19, 1908.</p> <p>In the meantime, on September 11 and 12 respectively, Bemis and Wright sent to the plaintiff goods to the value of $671.33 and $269.28 respectively, subject to the usual discount, the total of those two amounts, less discount, being $874.77.</p> <p>On September 18,1908, Bemis and Wright consulted Frank L. Simpson, one of the assignees, about the check of September 15, for $436.52, stating to him that it was a check in payment for a specific bill of goods, and asking him if they should deposit •the check in the Lynn National Bank, in which Bemis and Wright were in the habit of making their deposits. The assignment of September 19 was then in contemplation. Mr. Simpson advised Bemis and Wright not to deposit the check, because the bank held notes of Bemis and Wright considerably in excess of their deposits, and would have the right, if this check were deposited, to set it off against the amount of their notes, which would, in Mr. Simpson’s view, give the bank an unfair preference over other creditors of Bemis and Wright, as to the amount of that check.</p> <p>On the day of the assignment, the assignees received this check as part of the assets of Bemis and Wright. On September 21, they asked the bookkeeper for a statement of the accounts, and inquired as to the account with the plaintiff. The assignees did not receive a statement of the accounts until nearly a month after this conversation; but a few days after September 21, the bookkeeper, and also Mr. Bemis, stated to them that apparently there was a balance in favor of the plaintiff. The assignees, being in doubt as to the balance between Bemis and Wright and the plaintiff, and wishing to give the plaintiff an opportunity to stop payment on the check if the balance was in their favor, delayed depositing it until September 30,. 1908; but did not notify the plaintiff of that delay, thinking that it would be unfair to other creditors, for the assignees to go to the extent of notifying the plaintiff to stop payment under the circumstances.</p> <p>Before the assignment there were orders from the plaintiff to Bemis and Wright, which had not been filled. The exact amount of these orders was unknown, but it was agreed that it was greater than the amount of the entire credit balance in favor of the plaintiff, including the amount of the check of September 15.</p> <p>On or before September 24, 1908, and after the plaintiff had actual notice of the assignment, the sales agent of the plaintiff wrote to Thomas W. Gardiner, one of the assignees, requesting the shipment of goods to make up the unfilled orders. At the time of writing this letter, the sales agent knew that there was a credit balance in favor of the plaintiff but made no demand for the return of the check of September 15, or its equivalent in cash. The plaintiff made no attempt to stop payment upon that check, and, if material, it is agreed that its sales agent supposed, the check had been paid in due course before he wrote the letter of September 24, requesting that goods be shipped to make up the unfilled orders.</p> <p>On October 3, 1908, the plaintiff wrote to Mr. Gardiner, referring to the former request to make shipments to complete the unfilled orders, calling attention to the fact that there was a credit balance in favor of the plaintiff and requesting that goods be shipped, at least to the amount of the credit balance. The assignees replied that they were not in a position to continue the business of Bemis and Wright, and could not ship any goods; whereupon the plaintiff consulted counsel, with the result that on October 19, 1908, Messrs. Page and Hays of Binghampton, New York, wrote to the assignees as attorneys for the plaintiff asserting that the plaintiff was entitled to payment in full and in preference to the other creditors of Bemis and Wright, of a balance of §876.36, which was made up of the following items:</p> <p>1. The amount of the check of September 15, §436.52.</p> <p>2. The difference between the amounts of previous checks and the prices, less discount, of goods shipped, §188.72.</p> <p>3. The amount paid for goods returned as defective, $251.12.</p> <p>In this letter for the first time appeared the suggestion that</p> <p>the check of September 15, 1908, should have been returned to the plaintiff, instead of being deposited to the credit of the assignees. This action was for the amount of that check.</p> <p>It was agreed that the assignment by Bemis and Wright to the defendants was a valid common law assignment for the benefit of creditors, that the plaintiff never assented to the assignment, or became a party to it in any way, or attempted to do so, and that the assets in the hands of the defendants were not sufficient to pay in full the creditors who had assented.</p> <p>It was agreed further that the court might draw inferences of fact from the foregoing facts.</p>

<p>Devise and Legacy. Trust. Evidence, Extrinsic affecting writings. Will.</p> <p>A testatrix left certain personal property in trust, to pay over the income therefrom to her two sons “share and share alike . . . upon the death of either to pay his share of the income to the lawful issue of his body, but if he dies without issue then to pay the entire net income to the survivor: upon the death of both this trust shall cease and determine.” The sons survived the testatrix, and both died, each leaving a will and without issue. Those, who were next of kin of the testatrix at the time of the death of the survivor of the sons, claimed the right to have the trust fund transferred to them and offered oral evidence’ tending to show that the testatrix had intended to make this disposition of the property. Held, that the will was unambiguous, that there was an intestacy as to the principal of the trust fund after the death of the survivor of the sons without issue, and therefore that the fund should be paid to the executors of the wills of the sons, who were the next of kin of their mother at the time of her death.</p>

<p>Bill in equity, filed in the Superior Court on December 21, 1908, against the Bankers Surety Company and Addison R. Pike, to reach and apply assets of the defendant company in the hands of the defendant Pike to satisfy a bond given in ne exeat proceedings in a suit in equity by the plaintiff against one George L. Richards.</p> <p>The case was heard by Dana, J.</p> <p>The bond which is the basis of the proceedings was as follows, the attesting clause, signatures and seals being omitted : “ Know all men by these presents that we, George L. Richards . . . as principal and the Bankers Surety Company ... as surety, are holden and firmly bound unto Harrie V. Dunsmoor . . . in the sum of $4,000, to the payment of which to the said Harrie V. Dunsmoor or his executors, administrators and assigns, we hereby jointly and severally bind ourselves, our heirs, executors and administrators, successors and assigns.</p> <p>“The condition of this obligation is such that whereas the said George L. Richards was arrested by virtue of a writ of ne exeat (which writ issued on the fifteenth day of November, A. D. 1906, from the Superior Court within and for the County of Suffolk and said Commonwealth sitting in equity in a bill of complaint pending in the Superior Court, in equity in and for said County of Suffolk, wherein the said Dunsmoor is plaintiff and the said Richards, and Cora B. Ayling and the Federal Trust Company are defendants) and gave bail pursuant to said writ that he will not go or attempt to go into parts beyond this Commonwealth without leave of said court, and was released on bail and is now at large in the custody of his sureties, and whereas said court has granted the said Richards leave to go into parts beyond this Commqnwealth with liberty to be absent herefrom for a period not exceeding three months and fifteen days upon first giving bond running to said plaintiff and to be filed with the clerk with sufficient sureties in the sum of $4,000 to be approved as to form by some justice of the Superior Court or the clerk, or an assistant clerk for equity business thereof, and as to the sufficiency of the sureties by a justice of said court or said clerk or any said assistant clerk that he would obey the orders and decrees of said court made in the proceedings in said bill of complaint.</p> <p>“ Now therefore if the said Richards shall appear in person before said court at all times after the expiration of his said period of leave of absence when commanded by said court and shall pay to the plaintiff in said bill of complaint all sums of money that may be established in said bill to be due him from said Richards, within thirty days of the entry of the decree therefor, and shall obey all orders and decrees of said court and shall abide the final decree or judgment in said case and shall not be contempt or avoid, then this obligation shall be void, otherwise it shall remain in full force and effect.”</p> <p>Other facts are stated in the opinion.</p> <p>A decree was entered in accordance with the prayer of the bill; and the defendant surety company appealed.</p>

<p>Equitable Restrictions. Equity Pleading and Practice, Parties, Costs. Mortgage, Eight oí mortgagee to enforce equitable restrictions. Equity Jurisdiction, To enforce equitable restrictions, Laches, Mandatory injunction.</p> <p>A mortgagee of a lot of land has a right to enforce equitable restrictions placed by a former owner of a large tract of land, of which the mortgaged lot is a portion, upon all the lots in the tract for the benefit of each other in carrying out a scheme for the development of the entire tract, and for that purpose' may maintain a suit in equity against any one who is violating the restrictions in the use of any other lot in the tract which is subject to them.</p> <p>The mortgagee and the owner of the equity of redemption of a lot of land may join as parties plaintiff in a suit in equity for the enforcement of equitable restrictions placed upon all the lots in a large tract of land, of which their lot formerly was a part, by the former owner of the large tract for the common benefit of all of the lots therein.</p> <p>Where, in a suit in equity by the owner of the equity of redemption of and of a mortgage upon certain land, seeking a mandatory injunction commanding the removal of a building built upon certain other land by one of the defendants in violation of equitable restrictions placed thereon in favor of the plaintiffs’ land, a single justice who heard the case found upon oral evidence that the plaintiffs were not “ aware of the defendant’s intention to violate these restrictions until the building was up; in other words, I do not believe the testimony of the defendant," and it appeared that a delay in the bringing of the suit from the middle of May, when the building was “ practically all up ” and the infringement was discovered by one of the plaintiffs, until the following March was due in part to the lapse of time during which the plaintiff who had discovered the infringement consulted an attorney and the other plaintiff, who was out of the State, and, as the single justice found, “ was largely due to the interference of the mortgagee” of the defendant’s land, who “finally dissuaded the counsel selected by them [the plaintiffs] from acting for them,” a further finding that the plaintiffs were not guilty of loches which would bar the suit was held to be warranted.</p> <p>In a suit in equity in which the plaintiff asked for a mandatory injunction directing the defendant to remove such parts of a building which he had erected upon his land as violated certain equitable restrictions, it appeared that lots of land which the plaintiff and the defendant owned formerly had been owned by the same person and were a part of a larger tract which the owner laid out into lots in accordance with a plan which he recorded and that upon the lots shown on the plan he placed, in accordance with a general scheme for mutual improvement, the restrictions which the plaintiff contended the defendant had violated. The restrictions prohibited building anything other than necessary outbuildings upon the rear twenty feet of the lot, and placed the front lines of the buildings not less than ten feet from the street. When the creator of the restrictions conveyed to the defendant’s grantor, which was in 1856, he stated in the deed, "A dwelling house has been erected and completed on said lot in conformity with the conditions and restrictions.” That dwelling house had an ell extending into the reserved space at the rear which was two stories in height, and also had a piazza extending two feet within the reserved ten foot space in front. At about the same time a similar house was built upon the plaintiff’s lot, and was being maintained there at the time of the bringing of the suit in 1907. The building which the plaintiff averred that the defendant had erected in violation of the restrictions covered substantially the whole of his lot and was five stories in height. The defendant contended that the plaintiff was barred from maintaining the suit because he himself was violating the restrictions which he sought to enforce. Held, that the original deed to the defendant’s grantor showed that the building, such as the plaintiff was maintaining on his lot, was regarded by all parties more than fifty years before this suit as in substantial conformity with the requirements of the restrictions, and that, even if there were in the maintenance of such a building any technical infringements of the restrictions by the plaintiff, they were of so trivial a character when compared with the infringements committed by the defendant that they could not be regarded as a barrier to the maintenance of the suit.</p> <p>The owner of certain land, which was subject to equitable restrictions prohibiting the erection on the rear of the lot of any building except necessary outbuildings and prescribing that the front line of the building should be ten feet back from the street, erected a building five stories in height covering the entire area of the lot. The owner of another lot of land, for the benefit of which as part of a large tract the restrictions were created, did not discover the infringements by the defendant until the building “ was practically all up,” and then brought a bill in equity seeking a mandatory injunction directing the removal of such portions of the defendant’s building as were in violation of the restrictions. A single justice who heard the case found on evidence warranting the finding that . the defendant knew of the restrictions and “deliberately attempted” to override them. Held, that the mandatory injunction should issue.</p> <p>A court of equity has power under R. L. c. 203, § 14, in its discretion to allow to the plaintiff in a suit, in which a mandatory injunction has been issued directing the defendant to remove certain parts of a building which he had erected in violation of certain building restrictions, the sum of $107.50 which, without any previous order of the court, the plaintiff paid to a civil engineer for services rendered in accordance with orders of the plaintiff as follows: for investigating “building restrictions with plan showing relation of buildings to street line, etc.,” $37.75; for a “locality plan,” $54.75; for preparation for testifying and for testifying in court, $15.</p>

<p>Contract, (afterwards amended into a bill in equity as stated in the opinion,) with a declaration in four counts upon four promissory notes of which the defendant was alleged to be the maker. Writ dated November 17,1908.</p> <p>The facts regarding the service upon the defendant and the proceedings in the action at law and the suit in equity into which it was amended are stated in the opinion.</p> <p>The first amendment to the declaration, made by leave of court when the order was made removing a default and permitting the defendant to file an answer, struck out two counts of the declaration and left the action upon two instead of four promissory notes.</p> <p>The bill in equity into which the action was amended as stated in the opinion was against George E. Wallace, who was the defendant in the action at law, and Frank Watson, who was not a party to the action at law. The bill set forth the plaintiffs’ claim upon the two promissory notes described in the amended declaration in the action at law and averred the circumstances under which the notes were given to the plaintiffs by the defendant Wallace, set forth certain payments of principal and interest thereon, and alleged in detail that Wallace had purchased certain property and had had the title placed in the name of Watson. The prayers of the bill were that a receiver be appointed to take possession of the rents and profits of the property, to apply such portion thereof as was necessary for the' preservation of the property during the pendency of the suit; for the adjudication of the plaintiffs’ claim, and for the application of the defendant Watson’s interest in the property toward the satisfaction thereof.</p> <p>Besides demurring to the bill in equity, as stated in the opinion, the defendant filed a plea to the jurisdiction which was overruled ; and the defendant appealed.</p> <p>The grounds of the defendant’s demurrer to the bill in equity were, “ (1) that the plaintiffs have not stated such a case as entitles them to any relief in equity against this defendant; (2) that the plaintiffs have a plain and adequate remedy at law; (3) that a suit in equity cannot be maintained upon an attachment of property without personal service on the defendant within the jurisdiction of the court.”</p> <p>The bill was taken pro confess as against the defendant Watson.</p> <p>The final decree, besides adjudicating that the defendant Wallace owed the plaintiffs as alleged in the bill, and that the real estate described was the property of Wallace, ordered that the defendant pay the debt to the plaintiffs, and “ that in the event that the defendant Wallace shall refuse or shall neglect to pay to the plaintiffs the aforesaid sum and interest and costs within thirty days from the date of this decree, then all the property of the defendant Wallace which was attached upon the original writ in this suit, ... be taken on execution in the manner provided by R. L. c. 178.”</p> <p>The various appeals of the defendant Wallace and the substance of the orders appealed from are stated in the opinion. -</p>

<p>Information in the nature of quo warranta, filed on December 8,1909, in the Superior Court by the Attorney General at the relation of the civil service commissioners, to try the title of the respondent to the office of sealer of weights and measures of the city of Cambridge.</p> <p>The case was heard upon the pleadings and an agreed statement of facts by Richardson, J., and by him was reported to this court for determination.</p> <p>It appeared that under the seventh rule of the civil service commission, class 6 of the “ official service ” was “ sealers and deputy sealers of weights and measures, and gougers in the service of the Commonwealth or of any city thereof ”; and that Rule 21 required “ Whenever there is a vacancy to be filled in the classified service, the appointing officers shall make requisition upon the commission for the names of eligible persons.” Chapter 1, § 16, of the ordinances of the city of Cambridge created departments, among them “ Sealer of Weights and Measures Department,” and provided, “ each of the several departments shall be under the charge and management of the officers or boards designated in the respective chapters relating thereto, all to be under the general supervision and control of the mayor.” Chapter 22, § 1, provided, “ The sealer of weights and measures department shall be under the charge of the sealer of weights and measures. The department shall consist of a sealer of weights and measures, and two deputy sealers of weights and measures, who shall hold their respective offices for the term of one year from the first day of April in the year of their appointment, subject to removal at any time by the mayor and aldermen.” Chapter 22, § 2, provided, “The sealer of weights and measures shall have general control and supervision of all the public scales in the city, and in case of his absence or inability to perform his duties from any cause, the senior deputy sealer shall exercise said duties. Annually in the month of December he shall make a full report of all matters pertaining to his department with an inventory of all property of the city in his charge.”</p> <p>On April 18, 1909, the mayor of Cambridge, without making any requisition upon the civil service commissioners, appointed the respondent to be sealer of weights and measures of that city, his appointment was duly confirmed by the board of aldermen, and he assumed office on April 21 and was holding it at the time of the bringing of this information.</p>

<p>Charity, Duty as to accumulation of fund, General charitable purpose, Administration ' cypres.</p> <p>A testatrix by her will left the residue of her estate to establish .an industrial home bearing her name, “ where colored children may be taught by actual practice in everything which in the opinion of my trustees, will tend to make home really comfortable, attractive and happy. My desire being that my property shall go to and for the use and benefit of colored people and none other.” Upon a bill by the trustees under the will for instructions, it appeared that the value of the property which passed under this clause was $32,000, that this was not at the time of the filing of the bill sufficient to establish and maintain an industrial home for colored children as directed by the will, and that it was altogether problematical and uncertain how much money would be required and how long it would take to accumulate the funds necessary for the purpose specified. Held, following Ely v. Attorney General, 202 Mass. 545, that “ the trustees should not be instructed to hold the fund for accumulation, in the hope that some time, in the more or less distant future, they would be able to carry out literally the purpose of the testatrix, which evidently was intended to be executed in a short time after her death.”</p> <p>A testatrix by her will left the residue of her estate to establish an industrial home bearing her name, “ where colored children may be taught by actual practice in everything which in the opinion of my trustees, will tend to make home really comfortable, attractive and happy. My desire being that my property shall go to and for the use and benefit of colored people and none other.” Preceding this clause was an explanatory clause declaring that the testatrix several years before had bequeathed her property to a certain missionary society, “ in order that young colored men might be educated. But there is so much spent for salaries and for elegant offices, comforts and luxuries for the officers in that institution, that I am disappointed. Therefore I make this change in order that the friends of colored persons may be my trustees believing that at my decease my plans may be more fully carried out to the end that the colored people by being assisted may become intelligent, industrious and thrifty citizens.” Upon a bill in equity by the trustees under the will for instructions, it appeared that the value of the property which passed under the residuary clause was not sufficient to establish and maintain an industrial home for colored children as directed by the will, and that the circumstances were such that it was not the duty of the trustees to hold the fund for accumulation. Held, that the will contained plain indications of a general charitable intent in reference to the colored people and particularly in reference to the education and training of colored children, and that the object of the testatrix was not limited to the establishment of a specific institution to be called by her name; therefore, that a scheme should be framed for the administration of the fund in accordance with the general intent of the testatrix which should accomplish her purpose as nearly as might be.</p>

<p>Practice, Civil, Verdict, New trial.</p> <p>Where the verdict of a jury consists of a general verdict and answers to specific questions, the answers to the specific questions must be considered as parts of the whole verdict, and if they are necessarily inconsistent with the general verdict, the verdict is erroneous in law and must be set aside.</p> <p>At the trial of an action against a corporation operating a street railway, for personal injuries alleged to have been received by the plaintiff, while travelling as a passenger in a car of the defendant, by reason of a collision of the car with a cart in the street, whereby the plaintiff suddenly was moved forward, the plaintiff testified that he was thrown from his seat toward the middle of the car by the force of the collision. There was much dispute between the parties as to the extent of the plaintiff’s injuries and as to whether he was thrown to the floor. At the time of the trial the plaintiff was suffering from an incurable disease of the spinal cord, which he contended was caused entirely by his injuries, and which the defendant contended was due entirely to other causes. There was testimony from which the jury might have found that the disease was due in part to conditions existing before the accident and in part to the aggravation of these conditions and to changes produced by the injury. In submitting the case to the jury the presiding judge directed them to return a general verdict and also to answer two questions, which he told them they might answer “ Yes ” or “No” simply, or in any other form of words which was satisfactory to the jury. The jury returned a general verdict for the plaintiff in the sum of §3,000. To the first question “ Was the plaintiff thrown from his seat toward the middle of the oar by the collision t ” the jury answered “ No.” Upon the second question “Is the present condition of the plaintiff due to violence received at the time of the collision % ” the jury disagreed. The plaintiff moved to set aside the verdict in his favor and for a new trial, substantially on the ground that the disagreement of the jury upon the second question was inconsistent with the return of an agreed sum for damages. At the hearing upon the motion the judge found that one of the main questions in the case was whether the permanently diseased condition of the plaintiff’s spinal cord was due to violence inflicted at the time of the collision. He found that upon all the evidence in the case, taking also into account the answer of the jury to the first question, “ the jury would scarcely be justified in finding as a fact that the plaintiff’s present condition was due to such violence as could reasonably be found to have been inflicted upon him at the time of the collision.” He then continued as follows: “ On the other hand, it was reasonably permissible for the jury to find that the violence actually received by the plaintiff at the time of the collision, acting upon a latent existing but hitherto unsuspected diseased condition of the spine, was in some degree the cause of the plaintiff’s present condition. The jury might reasonably have been unanimously agreed upon this view of the plaintiff’s case, while it might be a matter of difficulty to state their view in writing in such a form as to command the assent of each juror.” The judge denied the plaintiff’s motion and refused to set aside the verdict. Held, that the findings of the judge were warranted by the evidence; and that the failure of the jury to agree upon the form of an answer to the second question did not show that they failed to agree in substance upon all the elements that necessarily enter into a proper assessment of damages, so that there was no error of law in the refusal of the judge to set aside the verdict as inconsistent.</p> <p>Where a presiding judge has submitted a case to a jury with instructions to return a general verdict and to answer two questions framed for them by him, if the jury agree upon a general verdict and upon an answer to one of the questions before the time at which an officer of the court has been directed to permit them to separate if they then have failed to agree, and afterwards, with the consent of the officer, spend a few minutes more upon the second question and then sign their disagreement upon it, and if the officer, thinking that there has been no agreement, puts the general verdict and the answers to the questions in an unsealed envelope and lays it upon the desk of the clerk of the court, where it remains until the following morning, when he hands the envelope to the foreman of the jury in order that the verdict may be returned to the judge, and afterwards the general verdict is found to be a valid one in spite of the failure of the jury to agree upon an answer to the second question, all parties having acted in good faith and there being no reason to suppose that the mistake of the officer in leaving the papers unsealed on the desk of the clerk until morning injuriously affected the rights of either party, this affords no ground for setting aside the verdict and granting a new trial.</p>

Tort by the administrator of the estate of Ralph E. Norris, who was the son of the plaintiff, for causing the death of the plaintiff’s intestate by the falling of a derrick upon him, when he had gone into the quarry of the defendant between Paul Gore Street and Boylston Street in that part of Boston called Jamaica Plain on January 18, 1906. Writ dated July 11,1906.

<p>Two actions of contract respectively by Charles McKenna and Ellen E. McKenna, his wife, against the administrators of the estate of John McKenna, the deceased brother of-the plaintiff in the first action, each for attendance on and personal care and nursing of the defendants’ intestate day and night during his last illness for a period of three years. Writs dated May 15; 1908.</p> <p>In the Superior Court the cases were tried together before Hitchcock, J. The facts which could have been found upon the evidence in regard to the services rendered by the plaintiffs and the circumstances under which they were performed with an expectation of compensation understood by the defendants’ intestate are stated in the opinion. Evidence to prove the following facts was offered by the defendants, the plaintiffs admitting its truth but not its competency, and was admitted by the judge against the plaintiffs’ exception, as follows:</p> <p>“ That on September 6, 1904, the plaintiff Charles McKenna presented to the Probate Court for Suffolk County for probate an instrument purporting to be the last will and testament of John McKenna, late of Boston, deceased, dated and executed August 4,1903, by which the deceased bequeathed all his property of every nature to the said Charles McKenna and nominated him to be his executor; that the said will was allowed by the Probate Court by a decree dated February 1, 1905; that thereafter the case was appealed to the Supreme Judicial Court, in which court it was submitted to a jury upon the following issues, which were answered by said jury as follows:</p> <p>“ First issue: ‘ At the time of the execution of the instrument propounded for probate as the last will and testament of John McKenna, was said John McKenna of sound and disposing mind and memory?’ Answer: ‘Yes.’ Second issue: 6 Was the execution of said instrument procured through the undue influence of Charles McKenna or Ellen E. McKenna or either of them ? ’ Answer: ‘ Yes.’ That at the trial in the Supreme Judicial Court before said jury Ellen McKenna testified as a witness in support of the will; and thereafter, upon rescript from the full court, a decree was entered in said Supreme Judicial Court for Suffolk County upon March 29, 1906, disallowing said will upon the ground of said undue influence.”</p> <p>At the close of the evidence the judge refused requests of the defendants to order verdicts for the defendants in each case. He submitted the cases to the jury, who returned a verdict for the plaintiff in each case in the sum of f1,700.40. The defendants alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p> Executor and Administrator. Power. </p> <p>A widow, having under the will of her husband an equitable estate for life in the residue of his estate, with a general power of appointment of the remainder in fee, died leaving a will in which she disposed of her own property and exercised her power of appointment. She made four specific devises, giving a lot of land and the buildings thereon to each of her four daughters. The devise to one daughter was of real estate which was the individual property of the testatrix, and was all the property she left. The other three devises were of property over which the testatrix had the power of appointment under her husband’s will. “ All the rest, residue and remainder ” of her estate she gave to such of her four daughters as should be living at her death. As there was no residue of her individual property, this clause operated only under the power of appointment to dispose of some vacant land which was the residue of her husband’s estate after the specific devises. It was necessary to sell some real estate to pay the debts of the testatrix and the expenses of administration. Held, that, although the testatrix, under the power in her husband’s will, might have appointed the residue of his estate to her executor for the benefit of her own estate, yet instead of doing this she appointed it otherwise, and the general rule applied, that her individual estate must be exhausted in the payment of her debts before resorting to any part of the appointed estate for this purpose, and the rule, that specific devises are not to be touched to pay debts until general devises are exhausted, had no application, because that rule relates only to devises under the same will, and the general devise took effect only as an exercise of the power under the will of her husband; therefore that the individual real estate of the testatrix devised to one of the daughters must be sold to pay the debts of the testatrix, and must be exhausted before any of the appointed property could be sold.</p>

<p>Landlord and Tenant, Landlord’s liability to tenant, Covenant for quiet enjoyment.</p> <p>If one, who has possession of certain premises by virtue of a lease from the owner, sublets a portion thereof by a lease containing an implied covenant for quiet enjoyment and thereafter, by reason of a failure on his part to keep the covenants contained in the lease from the owner to him, the owner brings ejectment proceedings in which by agreement a judgment is entered for the owner and an execution is issued and possession of the premises taken thereunder by an officer in behalf of the owner; and if thereafter the sublessor writes to the sublessee, “ I have no claim for the rent . . . [of the premises] . . . and you can pay . . . to the present owner . . . ,” the sublessee is not obliged, before he can maintain an action against the sublessor for breach of the covenant for quiet enjoyment, to wait for a technical eviction by the owner, but, upon the owner insisting that the sublessee must vacate the premises or else attorn to him on the owner's terms, he may so attorn and then may maintain his action against the sublessor for breach of the covenant.</p>

<p>Contract, Consideration, Construction, Independent agreement. Bills and Notes.</p> <p>A promissory note for $1,000 contained the following : “ I having deposited with this obligation as collateral security ten shares ... [of an unincorporated real estate trust] . . . the same now standing in his [the payee’s] name but to be transferred to me at any time upon request. A payment of $100 to be made upon this obligation on the ninth day of each and every month subsequent to the date hereof, and the whole of said collateral is to be held as security until the full payment of this obligation, as above, with authority to sell the same without notice ... on the non-performance of this promise, he or they giving me credit for any balance of the net proceeds of such sale remaining, after paying all sums due from me to the said holder or holders.” The note was given to the payee as the purchase price of the shares referred to therein. Held, that, although the shares still stood in the name of the payee, the equitable ownership had passed to the maker of the note and constituted a consideration for the note.</p> <p>A promissory note for $1,000 contained the following : “ I having deposited with this obligation as collateral security ten shares ... [of an unincorporated real estate trust] ... the same now standing in his [the payee’s] name but to be transferred to me at any time upon request. A payment of $100 to be made upon this obligation on the ninth day of each and every month subsequent to the date hereof, and the whole of said collateral is to be held as security until the full payment of this obligation, as above, with authority to sell the same without notice ... on the non-performance of this promise, he or they giving me credit for any balance of the net proceeds of such sale remaining, after paying all sums due from me to the said holder or holders.” The note was given to the payee as the purchase price of the shares referred to therein. At the trial of an action upon the note against the maker by one to whom the payee had assigned it, the maker contended that it was arranged that he might at any time have the shares transferred to him by the payee, he at the same time to give a transfer back for collateral security, and introduced evidence tending to show that the payee had refused to transfer the shares to Mm upon his request. Held, that, if it was assumed that there had been such an agreement as contended by the maker and that it was a part of the consideration for the note and that the payee had failed to perform it, such default, although it was a breach of contract for which the maker might, have a remedy in damages against the payee, worked only a partial failure of the consideration for the note, and was not a bar to the maintenance of the action.</p>

<p>Damages, In actions of tort, For loss of earning capacity. Evidence.</p> <p>In an action against a street railway company for personal injuries by the proprietor of a business of buying, cleaning and repairing second hand barrels and then selling them, the plaintiff may recover for impairment of his earning capacity due to the injuries he received, and, as bearing upon the question of the ex- . tent of such impairment, he may introduce evidence as to the nature and extent of his employment and of the importance of his personal oversight, and he therefore may show that because of his injuries he was compelled for some months to employ servants to perform work formerly done by himself; but evidence as to the amount of compensation which was demanded or received by such servants should be excluded.</p>

<p>Tort by a girl nine years of age for injuries caused by her being struck by a piece of ice which was alleged to have fallen from- an lee wagon of the defendant owing to negligence on the part of the driver. The declaration alleged that the plaintiff was a traveller upon a public street when she was injured. Writ dated June 1, 1906.</p> <p>The case was tried before White, J. The facts are stated in the opinion. At the close of the evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for personal injuries received by the plaintiff, who, the declaration alleged, “ owing to the crowding on the car ” of the defendant on which she was riding as a passenger, “ was obliged to stand in said car,” and was injured by reason of the negligent management of the car by the defendant’s servants. Writ dated December 24, 1906.</p> <p>The case was tried before White, J. The facts are stated in the opinion. At the close of the evidence the presiding judge refused to rule that there was no evidence of negligence on the part of the defendant. The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Constitutional Law, Eminent domain. Boston Transit Commission. Summary Process. Evidence, Extrinsic affecting writings.</p> <p>Whether the purpose for which land is authorized to be taken under the right of eminent domain is a public use is a judicial question, and its determination by the Legislature is subject to revision by this court; but, where the use for which the taking is authorized is a public one, the question whether the taking of a particular parcel of real estate is necessary or expedient is a legislative question, upon which the decision of the Legislature as a tribunal of fact is conclusive, and in deciding it the Legislature may determine what kind of an estate it is necessary to take to accomplish the public purpose for which the taking is made, and may authorize the taking of a fee in the public interest, even where the use of the fee will not be needed permanently, and in such a case may authorize a subsequent sale or leasing of any rights in the property that no longer are required for the public use.</p> <p>The right of the Legislature, to determine what land or rights or easements in land it is necessary or expedient to take for use in the construction or maintenance of a tunnel and its appointments under a street of a city for the promotion of the rapid transit of passengers, they can delegate to a commission representing the public interest in that particular.</p> <p>Section 7 of St. 1902, c. 634, authorizing the construction of additional tunnels and subways in Boston, providing that the Boston transit commission “ may sell or remove the buildings from any and all lands taken by it, and shall sell, if a sale be practicable, or if not shall lease, any lands, or rights or interests in land or other property so taken, or purchased for the purposes of this act, whenever the same shall in the opinion of the commission cease to be needed for such purposes,” is constitutional, and that commission, in taking real estate in fee under § 6 of the same chapter and paying for it, and, when the construction of the tunnel is completed, disposing, under the power given in § 7, of such part of the property taken as is no longer needed, are exercising legislative authority properly delegated to them, and their decision in determining in good faith what property it is expedient to take to accomplish the public purpose is not subject to revision.</p> <p>In an action, where the effect and validity of a taking of real estate by the Boston transit commission under St. 1902, c. 534, for use in the construction and maintenance of a tunnel beneath "Washington Street in Boston are in question, evidence offered to show “the sense of the commission” or the belief or the conclusion of the commissioners is incompetent, and so is all evidence which attempts to show the views and opinions of the individual members of the commission, the taking by the commission being done by an instrument in writing filed in the registry of deeds, which by reason of delegated authority stands in the place of a legislative act and is to be interpreted like a statute.</p> <p>The Boston transit commission, in taking a parcel of land and the building upon it under St. 1902, c. 534, for use in the construction and maintenance of a tunnel beneath Washington Street in Boston, where the original plan of the engineer of the commission contemplated a taking of only the part of the real estate which afterwards was used for the tunnel and a station, consisting of abasement underneath the greater part of the building, lawfully may take 'the fee of the whole property, if such a taking seems to the commission reasonably necessary for the proper and economical accomplishment of the work.</p> <p>In an action, where the effect and validity of a taking of real estate by the Boston transit commission under St. 1902, c. 534, for use in the construction and maintenance of a tunnel beneath Washington Street in Boston are in question, evidence tending to show that the commission were mistaken in their judgment as to what real estate it was necessary or proper to take is incompetent.</p> <p>An action of summary process for the possession of land or tenements under JR. L. c. 181 is the proper remedy for the city of Boston to recover from the lessee of the previous owner real estate which has been taken by the Boston transit commission under St. 1902, c. 534, for use in the construction and maintenance of a tunnel beneath Washington Street in Boston, where the lease of the defendant has been terminated either by the taking under the right of eminent domain or by a notice given by the lessor under a provision of the lease permitting such a termination in case the premises or any part thereof should be taken for a street or other public use. Whether the defendant in such an action properly can raise the questions of the validity of the taking and the constitutionality of the statute under which it was made, here was not considered, because the taking was held to be valid and the statute to be constitutional.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a woman employed as a car cleaner by a corporation owning and maintaining passenger cars used by being attached to trains operated by railroad corporations, against her employer, for personal injuries sustained while the plaintiff was engaged in cleaning the interior of a car of the defendant standing in a railroad yard, the plaintiff was the only witness upon the question of the defendant’s liability. It was assumed by this court that her testimony warranted a finding that when she entered the defendant’s employ, one week before, it was understood and agreed that she should be warned when a coupling was to be made. The plaintiff testified that while she was working in the car “ an awful crash came and threw ” her, that things were overturned and “ the car was moved four or five or perhaps ten feet.” There was no further explanation of the accident. lie Id, that there was nothing to show that the accident was caused in making a coupling, or to show what caused the “ crash ” as the plaintiff described it, or to show that it happened under such circumstances as to entitle the plaintiff to a warning; so that there was no evidence for the jury of negligence on the part of the defendant.</p>

<p>Insurance, Fire. Waiver. Estoppel.</p> <p>A policy of fire insurance upon household furniture and other personal property in a certain dwelling house contained a condition that no extraordinary alterations, additions and repairs should be made upon the house containing the property insured without the consent of the company indorsed on the policy. The house and its contents were destroyed by fire after the insured had made extensive changes upon the house without the consent of the insurance company being indorsed on the policy. In an action by the insured on the policy, the defendant set up the defense that the policy had been avoided by the violation of the condition. The plaintiff contended that the condition had been waived. It appeared, that, after the plaintiff had kept the policy for about fourteen months he delivered it to the agent of the defendant for the purpose of having it rewritten, that the agent kept the policy until after the house and the insured property had been destroyed by fire, although at some time before the fire the plaintiff had demanded its return to him, and that, while the policy was in the possession of the agent, the plaintiff sent a letter to the agent, who had power to grant permits for additions to and changes of buildings and to indorse on the policy the consent of the defendant, informing him of the plaintiff’s intention to build an extension to the house containing the insured property, and asking him, if the notice was not satisfactory, to let the writer hear from him at once, but giving no definite information of the extent of the proposed additions or changes or of the time when the work was to begin, nor any estimate of the time required for its performance. Held, that there had been no waiver, and that the insurance company was not estopped from setting up the defense of the violation of the condition.</p> <p>A fire insurance company has the right to assume that the terms of a policy issued by it, which has been in the hands of the insured and which he afterwards has surrendered to an agent of the company to be rewritten, are known to the insured, and, if the agent wrongfully has retained the policy in his hands after , having been requested by the insured to return it, this does not excuse the insured from ascertaining the contents of the policy by a request for a copy or otherwise.</p> <p>Where a policy of fire insurance contains a condition that no extraordinary alterations, additions and repairs shall be made upon the premises insured or containing the property insured without the consent of the insurance company indorsed upon the policy, it is the duty of the insured in case such extraordinary alterations are made not only to obtain the consent of the company but to see that it is indorsed upon the policy.</p>

<p>Practice, Civil, Auditor’s report. Evidence, Relevancy and materiality. Contract, What constitutes.</p> <p>In considering an auditor’s report it is to be presumed, where the contrary does not appear, that the auditor has obeyed the order of the court by which the case was referred or recommitted to him and that he has based his findings only upon the evidence which he was directed to consider.</p> <p>Where, upon a recommittal of a case to an auditor, the auditor has based a supplemental report partly upon new evidence which he should not have beard under the order of court by which the case was recommitted to him, and the case again is recommitted to him with directions to disregard this evidence and to make a report based only on the evidence which was before him at the original hearing, and he thereupon files a second supplemental report, the question, whether the evidence which the auditor heard and considered improperly and afterwards was instructed to disregard has so affected his mind that he has “lost his judicial poise” and is no longer capable of performing his duty fairly, is one solely within the discretion of the trial judge, whose decision of it is final.</p> <p>Upon a recommittal of a case to an auditor, the auditor based a supplemental report partly upon new evidence which he should not have heard under the order of court by which the case was recommitted to him, and the case again was recommitted to him with directions to disregard this evidence and to make a report based only on the evidence which was before him at the original hearing, and be thereupon filed a second supplemental report. At the trial of the case, after the original report of the auditor and his second supplemental report properly had been read to the jury, the presiding judge refused a request that the order for the second supplemental report also should be read to the jury. Held, that the refusal was correct, because the order of court for the second supplemental report had no bearing on the issues before the jury.</p> <p>In an action by the proprietor of a foundry against an individual upon a contract for furnishing and setting up the ironwork in á certain building, it appeared that for some years before the making of the contract the defendant had carried on individually a department store under the name of S. and Company, that about four months before the making of the contract he had caused a corporation to be formed called the S. Company, to which all the business and property of S. and Company were transferred, that, about two weeks before the making of the contract with the plaintiff, the S. Company procured a lease for a term of years of a portion of the premises previously occupied by S. and Company, and determined to tear down the old building and erect a new one on its site, that this was the building for which the plaintiff furnished the ironwork under the contract, that the plaintiff’s proposal of the contract was in a letter addressed to the architect of the building and described the articles to be furnished for a building for the defendant individually, that the defendant failed to inform the plaintiff that he had caused his business to be incorporated, and, in negotiations in which the terms of the plaintiff’s proposal were modified and as modified were accepted, the plaintiff had no notice or knowledge that the defendant was acting as an agent of the corporation and not for himself personally. An auditor to whom the case was referred found “ that so far as the defendant had any intention at all, he intended in making the contract to act as the executive officer of the S. Company and not in his individual capacity.” The auditor found that by the defendant’s failure to inform the plaintiff about the corporation “ the plaintiff was actually misled into the belief that the actual owner of the premises upon which the work was to be done was the defendant . . . and not the S. Company.” Held, that, whether the defendant intended to deceive the plaintiff or not, he must be bound by the fair inference to be drawn from his conduct, and that, if the plaintiff believed and was justified in believing that the defendant was contracting in his individual capacity and not as an agent, the defendant must be held to have contracted thus; therefore that the question whether the contract was made by the defendant personally was for the jury and that a verdict for the plaintiff was warranted.</p> <p>In an action upon a contract under which the plaintiff furnished the ironwork for a building, where it appears that the defendant previously had carried on business individually and that shortly before the making of the contract with the plaintiff he had caused a corporation to be formed to which his business and all the property relating to it had been transferred, but that this was unknown to the plaintiff who believed that he was contracting with the defendant individually, and where the defendant contends that he is not liable on the contract individually because in making the contract he was acting only as agent for the corporation, the plaintiff may show that in previous years before the making of the contract he had done work for the defendant personally.</p>

<p>Practice, Civil, Auditor, Form of verdict by consent. Superior Court. Accord and Satisfaction. Pleading, Civil, Answer.</p> <p>In an action of contract for money had and received, where the defendant has filed an answer and a declaration in set-off upon an account annexed, to which the plaintiff has filed an answer, the power of a judge of the Superior Court to send the case to an auditor is beyond question.</p> <p>In an action of contract against attorneys at law, who had prosecuted an action for the plaintiff, the declaration alleged in substance that the defendants received for the use of the plaintiff about $11,000, that of this there remained in the hands of the defendants $2,500, of which they were entitled to hold $1,000 as the amount that the plaintiff owed them for services, leaving a balance of $1,500 in their hands as money due to the plaintiff. The answer set up, among other defenses, that the sum of about $11,000 was received by the defendants from one L., as the result of an action prosecuted by them, as the plaintiff’s attorneys, against L., “ that thereafter the plaintiff instructed the defendants to retain from said amount . . . compensation for the services rendered to the plaintiff as aforesaid; that the defendants did retain from the amount so collected from said L., as fair and reasonable compensation for the services rendered as aforesaid, the sum of ■ $2,600, and paid over to the plaintiff the balance.” It was pointed out by the court, that this portion of the answer was not a plea of accord and satisfaction, because it did not state that the plaintiff had assented to the defendants’ conclusion that $2,500 was a reasonable compensation for their services, and alleged no agreement of the plaintiff as to the amount, although, for the purposes of decision, the court assumed that this part of the answer might be treated as a plea of accord and satisfaction.</p> <p>In an action of contract against attorneys at law to recover a balance alleged to be due to the plaintiff from a sum collected by the defendants for the plaintiff, of which the defendants had paid to the plaintiff the greater part, after retaining the amount claimed by them for their services in its collection, where the defendants had filed an answer and a declaration in set-off upon an account annexed, to which the plaintiff had filed an answer, the plaintiff asked the presiding judge to rule that a certain portion of the defendants’ answer stated facts which, if true, constituted a settlement between the parties, and that whether it was true or not the defendants were bound by it because they had pleaded it in their answer and could not now ask for anything in addition to what they kept. The judge refused to make this ruling. Held, that the ruling was refused rightly; that, assuming that the portion of the defendants’ answer referred to could be regarded as a plea of accord and satisfaction, the statement in the ruling requested by the plaintiff that the defendants, having pleaded the settlement, could not ask for anything more than they had kept, whether the plea was true or not, was incorrect, because, if it was not true that there had been a settlement, the question of the amount due from the plaintiff to the defendants for their services, .at least upon their declaration in set-off, was to be determined by the jury.</p> <p>If the parties to an action of contract, in which there is a declaration in set-off, agree that the verdict may be returned in a certain form, which is a proper form of verdict for the court to receive with the consent of the parties, and this is done, neither of the consenting parties afterwards can complain that the verdict is irregular or is irresponsive to the pleadings.</p>

<p>Corporation, Promoter. Witness, Cross-examination. Equity Pleading and Practice, Conduct of hearing.</p> <p>A suit in equity by a corporation to obtain the cancellation of an issue of its entire capital stock to the defendant was referred to a master, who filed a report and a supplemental report covering one hundred and ninety printed quarto pages and containing findings of fact, made after extended hearings and upon conflicting evidence, that the entire capital stock of the corporation was issued to the defendant under a contract made in good faith and as the purchase price of valuable mining property, and that the defendant sold portions of such stock to others, who with him constituted the holders of the only real stock of the corporation, and in doing so did not withhold or conceal from them the material facts and did not make use of his position to obtain an unconscionable advantage over the stockholders. Exceptions of the plaintiff to the master’s findings of fact were overruled, the report was confirmed and the bill was dismissed; and the plaintiff appealed. Held, that the appeal must be dismissed, because the findings of fact by the master should not be disturbed, and because they required the dismissal of the bill.</p> <p>Where, at the hearing of a suit in equity, the plaintiff calls the defendant as a witness, it is proper to allow the defendant’s counsel to cross-examine him.</p>

Bill in equity, filed in the Superior Court on September 16, 1909, alleging in substance that on July 9,1909, the defendant sold to the plaintiff the household furniture in a lodging house which the defendant was maintaining at number 12 Union Park in Boston; that a bill of sale thereof was given by the defendant to the plaintiff; that the plaintiff paid to the defendant $400 in cash and gave her $500 in ten promissory notes secured by a mortgage on the same furniture; that…

<p>Equitable Restrictions. Equity Jurisdiction, To enforce equitable restrictions, Laches, Plaintiff must come into equity with clean hands.</p> <p>Relief in equity in a suit to restrain the violation of a building restriction and to compel the removal of so much of a building which the defendant had erected on his land as violated the restriction is granted only when it is sought with promptness and will not be granted if it appears that the plaintiff stood by in silence while the defendant in good faith and under an assumed right incurred considerable expense in erecting his building, when seasonable notice or other appropriate action on the part of the plaintiff might have prevented the wrong complained of.</p> <p>Ordinarily relief in equity in a suit to restrain the violation of a building restriction, imposed as a general scheme for the common benefit upon all the lots of land in a subdivided tract, will not be granted where it appears that the plaintiff, who owns land subject to the same restriction, is violating the very restriction which he seeks to enforce substantially to the same extent and in the same general way as is the defendant.</p> <p>In a suit in equity to restrain the violation of a building restriction, imposed for a period of thirty years as a general scheme for the common benefit upon all the lots of land in a subdivided tract, relief ordinarily will not be granted if the suit is begun after fifteen years of the period has run and it appears that there has been no uniform observance of the restriction and that substantially all the owners of lots in the tract have so conducted themselves as to indicate an abandonment of the right to have the neighborhood kept to the standard established by the original scheme, that the enforcement of the restriction against the defendant will not tend materially to restore to the district the character Impressed upon it by the scheme, and that the infraction complained of does not diminish the value of the other estates in the tract.</p> <p>In a suit in equity to restrain the defendant from violating a building restriction imposed upon all the lots of land in a subdivided tract for the common benefit, it appeared that the plaintiff and the defendant owned adjoining lots in the tract, the plaintiff having purchased in 1900 and the defendant in 1902. The restriction was imposed in 1895 upon all the lots of the tract, including those of the plaintiff and of the defendant, and was that “ all buildings shall be set back from the street line at least ten feet”; that on many of the lots in the tract buildings, which had been completed and occupied for several years previous to the alleged violation of the restriction by the defendant, had been erected within ten feet of the street lines without objection from any one; that in 1903 the plaintiff had built upon his lot a one story building flush with the street line which in 1907 he removed and in its place erected a three story building, the main part of which encroached a few inches, and bay windows of which projected over three feet into the prohibited area, and that he also had set up a wooden sign board four feet by nine feet, one end of which was within a foot of the street line. It also appeared that the defendant in December, 1908, set up batten boards for a building on his lot, which stood within three feet of the street line and remained about two months, that on February 18, 1909, the excavation of the cellar began, that the foundation, including that of a bay, was completed on March 11, that the house was boarded in on March 20 and work was continued until it was substantially finished on the outside with the exception of painting and a little work on the piazza, when, on April 9, 1909, the plaintiff began this suit. A small part of the main body of the defendant’s house at one corner and a bay window extending from the ground through the second story and a piazza and steps encroached within the restricted area. The defendant assumed that he had a right so to build, relying on the position of the plaintiff’s building and the general disregard of the restrictions by others. The plaintiff was in his building daily and had ample opportunity to protest to the defendant but did not do so, and did not consult counsel until April 6, 1909. Held, that the facts showed that the plaintiff had no right to equitable relief and that the bill should be dismissed.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 11, 1909, by trustees under the will of Augustus Hemenway, late of Milton, for instructions as to whether a certain dividend described in the opinion should be treated as income and distributed among certain life beneficiaries, or should be added to the trust fund as capital.</p> <p>The case was heard by Loring, J., at whose direction a decree was entered that the dividend should be distributed by the trustees as income. The remaindermen appealed.</p>

<p>Bill in equity, filed by more than ten taxable inhabitants of the town of Methuen on September 1, 1908, under R. L. c. 25, § 100, seeking to enjoin the payment of sums of money alleged to be in excess of lawful salaries to the defendants who held the offices of assessors, selectmen, overseers of the poor and members of the board of health of the town, and to compel the repayment to the town of sums already so paid.</p> <p>The case was heard by Fessenden, J., upon the bill, answer and an agreed statement of facts and was reserved for determination by this court. The facts are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Fraternal Beneficiary Corporation. Receiver. Judgment, Foreign. Constitutional Law, Full faith and credit to judgment of sister State. Interest.</p> <p>Where under R. L. c. 119, § 19, a receiver has been appointed to take possession of the property and effects of a fraternal beneficiary corporation"and to settle its affairs, and there comes into the hands of the receiver an emergency fund of the corporation, that fund by §§ 7, 8 of the same chapter can be applied only for the payment of death benefits, and if a judgment has been obtained in another State upon a membership certificate against the corporation before the appointment of the receiver, which includes a sum due for a death benefit and also other sums allowed for other matters, although the whole amount of the judgment is entitled to full faith and credit, only the part of it which is for the death benefit can.be paid by the receiver out of the emergency fund.</p> <p>Where a receiver appointed under R. L. c. 119, § 19, to take possession of the property and effects of a fraternal beneficiary corporation and to settle its affairs, has in his hands an emergency fund of the corporation, which by §§ 7, 8 of the "same chapter can be applied only for the payment of death benefits, and the amount of this fund is much greater than the total amount of all the possible death claims against it, so that after paying all death claims which matured before the date of the receivership there will be a large surplus, this is no reason for allowing interest to be paid on the amounts of death claims after the date of the appointment of the receiver, the delay in their payment being a necessary incident of winding up the affairs of the order, and such interest will not be allowed.</p>

<p> Fraternal Beneficiary Corporation. Receiver. Election. </p> <p>In a suit in equity by the beneficiary under a certificate issued by a fraternal beneficiary corporation against that corporation to collect a balance alleged to be due upon a death claim, a receiver, who after the suit was brought had been appointed in other proceedings under the provisions of R. L. c. 119, § 19, to take possession of the property and effects of the defendant and to settle its affairs, filed a suggestion informing the court of his appointment. The only defense relied upon was an alleged accord and satisfaction. This defense was not supported by the evidence. The judge so found, and ordered the entry of a decree that the receiver should pay to the plaintiff the amount claimed. The defendant alleged a single exception to the refusal of the judge to rule that the evidence did not warrant a finding for the plaintiff. Held, that the exception must be overruled, because a finding for the plaintiff was warranted, but that the only decree that could be entered was one that the corporation should make the payment to the plaintiff, the plaintiff having chosen to proceed with his suit after the appointment of the receiver instead of becoming an intervening claimant in the receivership suit.</p>

<p>Tort for personal injuries and damages to the plaintiff’s horse and buggy caused by an electric car of the defendant running into the buggy as the plaintiff was crossing the defendant’s street ear tracks in Charlestown near the Sullivan Square terminal of the elevated railway. Writ dated December 22, 1906.</p> <p>The case was tried before Brown, J. The material facts are stated in' the opinion. There was but one witness for the plaintiff, the plaintiff himself. At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions, it being “ agreed by the parties ” that if the ruling was wrong, judgment was to be entered for the plaintiff in the sum of #500, and that otherwise the verdict was to stand.</p> <p>The case was submitted on briefs.</p>

<p>Contract, the declaration as amended containing seven counts. Writ dated Novémber 26, 1906.</p> <p>The first count was for $1,899.42, alleged to be money had and received by the defendant to the use of the plaintiff. In the second count it was alleged in substance that the plaintiff had owed $1,899.42 to the Ironton Door and Manufacturing Company (hereinafter called the Ironton company) for lumber, that upon the defendant notifying the plaintiff that the Ironton company by fraud had procured from the defendant the lumber which it sold to the plaintiff and that the plaintiff should pay the defendant therefor, the plaintiff paid $1,899.42 to the defendant and the defendant agreed to repay that amount to the plaintiff if the plaintiff should be obliged to pay the Ironton company anything on account of the lumber. The third count was similar to the second, except that in the third count it was alleged further that the defendant represented to the plaintiff that both the Ironton company and the receiver of its property had agreed that the defendant might collect from the plaintiff for the lumber, and that the defendant’s promise therein was alleged to be to “ repay to the plaintiff all sums of money which the plaintiff might be compelled to pay to the ” Ironton company “or its receiver on account of the said lumber,” and it was alleged that the plaintiff paid, on a judgment of the Ironton company against it, $2,099. The fifth count was similar to the third, except that no mention was made of a receiver. The fourth and sixth counts alleged a promise of the defendant to save the plaintiff harmless “ against any claim of the receiver of the ” Ironton company, and alleged that the receiver brought suit and recovered a judgment against the plaintiff which the plaintiff was required to pay. These counts failed because, as will appear hereafter, it was not the receiver that brought suit.</p> <p>The seventh count, which was added by amendment after the hearing and arguments, alleged the facts as the plaintiff contended that the evidence had shown them to be, and closed as follows: “ Said sum of $1,899.42 was paid by the plaintiff to the defendant wholly because of its reliance upon the representations aforesaid and each of them, and because of mistake produced by said representations and each of them, and the plaintiff would not have paid said sum or any part thereof to the defendant except for its reliance upon each and every one of said representations. Nevertheless, though often requested, the defendant has wholly failed to pay said sum or any part thereof to the plaintiff. Wherefore the defendant owes the plaintiff the amount of $1,899.42 with interest from October 4,1904, as money had and received by the defendant to the plaintiff’s use.”</p> <p>The case was heard by Sanderson, J., without a jury. The judge made the following findings of fact:</p> <p>“ The plaintiff in April, 1904, made a contract to purchase eight car loads of lumber of the Ironton Door & Manufacturing Company. This lumber was delivered in four shipments in June and July, 1904. . . . Seven of these car loads had been purchased of the defendant by the Ironton Door & Manufacturing Company and the price for these seven car loads after making similar deductions was $1,642.18. When each shipment was made by the Ironton Door & Manufacturing Company to the plaintiff, the Second National Bank of Ironton, Ohio, advanced to the Ironton Door & Manufacturing Company a sum of money representing the net estimated value of the invoice, and these advances were secured by an assignment of the debt for said shipments, and by notes for the amounts advanced signed by the Ironton Door & Manufacturing Company and payable to the Second National Bank. The invoice in each ease was turned over to the bank with a carbon copy of an order which the Ironton Door & Manufacturing Company sent at the same time to the plaintiff requesting the plaintiff to pay the amount of the invoice when due to the bank. At the same time the bank sent the plaintiff notices to the effect that for advances made the Ironton Door & Manufacturing Company had given it orders for the shipments respectively and requesting the plaintiff to settle with the bank. . . . The bank took these assignments and made these advances in good faith in the regular course of business.</p> <p>“ On September 11, 1904, the plant of the Ironton Door & Manufacturing Company was burned and this was followed by the appointment of a receiver for the company and later by bankruptcy proceedings.</p> <p>“ In October, 1904, the defendant through its attorney, one Wilson, represented to the plaintiff that the Ironton Door & Manufacturing Company was insolvent when it ordered the lumber, and that the lumber which the plaintiff had purchased from the Ironton Door & Manufacturing Company was the property of the defendant and that the defendant alone was entitled to payment for the same from the plaintiff. The defendant further represented to the plaintiff that the supposed assignment of the debt for the lumber from the Ironton Door & Manufacturing Company to the Second National Bank, not having been accepted by the plaintiff, did not amount to anything in law. Thereupon the plaintiff paid the defendant through its attorney $1,899.42, being the net price for said eight car loads of lumber, one of which car loads had never been owned by the defendant, and the defendant, being requested by the plaintiff to give the plaintiff an agreement which would indemnify the plaintiff against loss in making said payment, the defendant in consideration of said payment gave the plaintiff an agreement in the following form and represented that this agreement would so indemnify it. ‘ Montgomery, Lycoming Co., Pa., 10/4, 1904. Montgomery Door and Sash Company, Montgomery, Pa. Gentlemen: We will hold you harmless in respect to claims against you of the Receiver of the Ironton Door & Manufacturing Co. to the amount of your indebtedness to them this day paid to us in accordance with the letter of attorney for said receiver, dated Oct. 3rd, 1904. Yours truly, The Atlantic Lumber Co. by Wallace Wilson.’ The plaintiff made said payment relying upon the defendant’s said representations and believing that said agreement bound the defendant to indemnify the plaintiff against loss by reason of making said payment to the amount of said payment. The letter referred to in this agreement is a letter which said Wilson obtained from the attorney for the receiver of the Ironton Door & Manufacturing Company and delivered to the plaintiff. It is as follows: 6 October 3, 1904. Mr. W. Wilson, Attorney for the Atlantic Lumber Co., My dear Sir: Under the peculiar conditions and circumstances under which your company sent its goods to the Ironton Door & Manufacturing Company, it appears to me that they are entitled to the return of their goods or the money. I will say to you therefore, that I shall not, as attorney for the receiver, contest any action that you may bring for the preference and if a judgment preference is obtained you will be paid out of the first distribution. Very respectfully, C. A. Thompson.’ The plaintiff was represented in all of these dealings with said attorney [Wilson] by one Henderson, its treasurer and business manager.</p> <p>“ Thereafter in the United States Circuit Court for the Middle District of Pennsylvania judgment was obtained by the Ironton Door & Manufacturing Company for the use of the Second National Bank of Ironton against the plaintiff, for the price of said eight car loads of lumber with interest and costs amounting to $2,163.71, which the plaintiff paid on January 27, 1906.</p> <p>“ The Ironton Door & Manufacturing Company was not insolvent when it ordered the lumber, the lumber when invoiced to the plaintiff was the property of the Ironton Door & Manufacturing Company, and the Ironton company and those holding under it were entitled to the proceeds of the lumber and the statement that the assignment to the Second National Bank did not amount to anything in law, was not true.</p> <p>“ At the time when said money was paid by the plaintiff to the defendant, the plaintiff was indebted for said eight car loads of lumber to the Ironton Door & Manufacturing Company subject to the rights of the Second National Bank under said assignment, and the defendant had no title to said lumber either legal or equitable which it could assert either against the said Ironton Door & Manufacturing Company or its receiver or its trustee in bankruptcy, or against the said Second National Bank.</p> <p>“ In making these findings as to the liability of the plaintiff "the court has not considered the judgment obtained against it in the United States Circuit Court. ^</p> <p>“ The plaintiff is entitled to recover under said agreement to the amount of the indebtedness paid the defendant by the plaintiff, which was 11,899.42, with interest from January 27, 1906, the date when the plaintiff actually paid for this lumber the second time. . . . The plaintiff, after the rendering of the judgment against it in the suit in . . . Pennsylvania, in a letter of January 17, 1906, made demand upon the defendant for the payment of the amount of said judgment, together with the attorneys’ fee of $150, which it had been required to pay in the defense of said action.”</p> <p>At the request of the plaintiff the judge made the following findings and rulings among others :</p> <p>“ Wilson was and was understood by Henderson to be an attorney having greater knowledge of the law than Henderson, who was not a lawyer and did not pretend to know the law, and in dealing with Wilson the plaintiff relied upon the legal knowledge which said Wilson claimed to have.</p> <p>“If Wilson told Henderson that the lumber sold by the Iron-ton company to the Montgomery company had never been in the possession of the Ironton company but was the property of the Atlantic company and that the Atlantic company was alone entitled to payment for it, and in reliance on said statement the plaintiff paid the money, and if said statements were not true the plaintiff is entitled to recover back said money.</p> <p>“ At the time when said payment was made, both Henderson and Wilson supposed that there had been no valid assignment by the Ironton Door & Manufacturing Company to the bank, and except for this supposition the plaintiff would not have made said payment.</p> <p>“ The assignment of the bills against the Montgomery Door & Sash Company for the lumber by the Ironton Door & Manufacturing Company to the Second National Bank was a complete legal assignment at least when notice had been given thereof to the Montgomery company, whether or not the Montgomery company had expressly indicated its assent thereto.”</p> <p>“The assignment of the bills for the lumber against the Montgomery company to the Second National Bank as an innocent purchaser for a valuable consideration without notice would cut off any equity that the Atlantic Lumber Company had, if any in such bills, as being the proceeds of lumber sold by the Atlantic Lumber Company to the Ironton company.</p> <p>“ The Ironton Door & Manufacturing Company did not obtain said lumber or any part of it from the Atlantic Lumber Company by fraud.”</p> <p>“ Henderson understood at the time when the contract of indemnity was made that it covered loss or damage by reason of any claims which might be made by the Ironton Door & Manufacturing Company, or by persons claiming under the Ironton Door & Manufacturing Company for the price of said lumber.</p> <p>“ If the contract of indemnity did not in fact cover claims of the Ironton Door & Manufacturing Company, and if Henderson thought it did cover such claims and acted in reliance on this belief in paying the same, the plaintiff is entitled to recover back the money paid, if Wilson told Henderson that the contract was sufficient to protect him from all damages or if Wilson also supposed it was sufficient, or if Wilson, knowing it was not sufficient and that Henderson supposed it was, failed to disclose the fact to Henderson. .</p> <p>“ The Montgomery Door & Sash Company duly notified the Atlantic Lumber Company of. the bringing of said suit and of the proceedings therein, and called upon the said Atlantic Lumber Company to defend said action, and duly notified the defendant, the Atlantic Lumber Company, that it would look to it for reimbursement for any judgment obtained in said suit. Such notice was given on December 7,1905, and at other times.</p> <p>“ The suit of the Ironton Door & Manufacturing Company for the usé of the Second National Bank of Ironton was a claim of the Ironton Door & Manufacturing Company, and was within the meaning of said contract of indemnity.</p> <p>“ Having been given due notice and an opportunity to appear .and defend the suit brought by the Ironton Door & Manufacturing Company, the defendant is bound by the judgment in said suit and cannot now contend that the claim made in that suit was invalid.”</p> <p>At the request of the defendant the judge made the following findings and rulings:</p> <p>“ There was no intention on the part of Wilson to deceive or defraud. The plaintiff has failed to prove that Wilson knew that any of said statements were false.</p> <p>“ There is no evidence that the receiver brought suit or recovered judgment against the plaintiff, and therefore the plaintiff is not entitled to recover on the fourth and sixth counts of its-declaration.</p> <p>“ The written paper is the contract of the parties.”</p> <p>The defendant asked for the following rulings, which, except as appears above, were refused.</p> <p>“ 2. There is no evidence that the Ironton Door & Manufacturing Company brought suit, recovered judgment and collected the same from the plaintiff, and therefore the plaintiff is not entitled to recover upon the first, second, third or fifth counts of its declaration.</p> <p>“ 2a. No suit has been brought or judgment obtained upon any claim which on September 4 the receiver held against the plaintiff, therefore the defendant’s liability has not been established upon the written agreement.</p> <p>“ 4. The paper given by Wilson to the plaintiff will be presumed to embody the entire agreement upon which the parties wished to stand. This paper must be construed according to the natural import of its language. Collateral explanations or contemporaneous conversations will not be received to extend or qualify it.</p> <p>“ 5. Plaintiff’s mistake of law or defendant’s misrepresentation of the legal effect of known facts afford no ground of relief, especially, as in this ease, there is neither allegation, proof, nor claim of fraud.</p> <p>“ 7. The burden is on the plaintiff to prove that on October 4 it was indebted to the Ironton Door & Manufacturing Company as alleged in each count. This burden is not sustained by proof that the Second National Bank obtained judgment.</p> <p>• “ 8. The judgment against the plaintiff could have been obtained by the Second National Bank, (which was named on the record as the real plaintiff,) only upon the theory that the account had been assigned to it. The agreement provides no indemnity against a claim of the bank. i</p> <p>“ 9. The plaintiff having alleged fraudulent representations inducing a mistaken belief as to fact and law caúnot be heard to rely upon honest misrepresentations resulting in a mutual mistake.</p> <p>“ 10. A finding that Wilson did not know that the material statements made by him were false as alleged in count 7 is a complete defense to that count.</p> <p>“ 11. There is no proof that any of the representations of Wilson set forth on page 2 of the amendment are false, or that they were made with intent to defraud, that under the circumstances Henderson was not justified in paying such a sum of money in reliance upon any of them or in reliance upon the statement alleged in said amendment to have been made by Wilson as to the meaning and legal purport of the agreement. ”</p> <p>Rulings which the plaintiff asked for and the judge refused were as follows:</p> <p>“1. On all the evidence the plaintiff is entitled to recover $1,899.42, with interest from October 4,1904, as money had and received.</p> <p>“ 2. On all the evidence the plaintiff is entitled to recover, under the contract of indemnity evidenced by the letter of the defendant of October 4,1904, the, sum of $2,163.71, with interest from January 27,1906.”</p>

<p>Equity Pleading and Practice, Agreement as to facts, Appeal. Fraternal Beneficiary Corporation. Trust.</p> <p>In the matter of seventeen appeals from a decree of a single justice disallowing the claims of beneficiaries under certificates of a fraternal beneficiary corporation to be paid the balances of death benefits alleged to be due upon their certificates out of an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, the receiver and the attorneys for the several claimants agreed “ that the foregoing statements of facts, as set out in this the fourth report of the receiver, together with the references therein made, contain all of the facts in the respective claims,” with certain additions there specified. At the beginning of his fourth report the receiver made the following statement: “ The facts of each claim as presented to the receiver . . . are specifically set out in the following pages of this report. All the evidence offered by claimants in proof of these several claims was presented in the form of affidavits, and was received subject to such objections as might be made thereto upon the filing of this report. The statement of facts of each claim has been submitted to counsel of record for correction and approval, and the same are filed as agreed facts.” In some of the claims, affidavits on both sides, or abstracts of them, were given after a statement of the facts and these affidavits were headed “Further Proof.” Held, that the agreement of the parties was that the facts thus before the court and called “ agreed facts ” should be taken to be admitted to be true, that the claims were submitted for decision upon these admissions and the affidavits, and that the claims were not to be treated as having been presented to the court for decision upon agreed statements of facts.</p> <p>Upon an information in equity coming to this court by an appeal from a decree of a single justice, where no witnesses appeared before the single justice and all the evidence consisted of statements of facts made in the report of a receiver, which were agreed by the parties to be true, and of affidavits or abstracts of them, this court stands where the single justice stood and his decision creates no presumption.</p> <p>The character and operation of fraternal beneficiary corporations described by Lobing, J.</p> <p>Even if a fraternal beneficiary corporation, on account of being a mutual organization, in some respects owes a fiduciary duty to its members, it does not owe such a duty to the beneficiaries under the certificate of a member after the member’s death, and the right of such beneficiaries to recover a death benefit is a right in contract, which must be proved as such.</p> <p>Although an emergency fund of a fraternal beneficiary corporation under R. L. c. 119, §§ 7, 8, is held as a trust for those who are entitled to death or disability benefits, there is no fiduciary relation to any person until his right to share in that fund has been established at law as a matter of contract.</p> <p>Upon a claim of the beneficiaries under a certificate of a deceased member of a fraternal beneficiary corporation to be paid a balance of $3,000 of a death benefit of $5,000 alleged to be due out of an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, it appeared that one of the beneficiaries had a conversation with the “local officers,” who told her that “ the assessment was lowered and they were obliged to reduce the $5,000 certificates to $2,000 or go into bankruptcy, or give it to a receiver and get nothing; that the beneficiary said she believed that if she did not take that amount she would not get anything,” and that thereupon the beneficiaries accepted a draft for $2,000 and gave a release under seal. It appeared that the above statements made by the “ local officers ” were substantially true. It further appeared that at the time the settlement was made and the release was given, there had been a decision of this court that the by-law under which the death benefit had been reduced from $5,000 to $2,000 was invalid, that three like decisions had been made in other jurisdictions, and that no one in behalf of the corporation had informed the beneficiaries of these decisions. Held, that the beneficiaries had not proved that the release was procured from them by misrepresentation, and that the release could not be set aside on the ground that the agents of the corporation had failed to disclose the material fact that the by-law had been held to be invalid, because the corporation did not stand in a fiduciary relation toward the beneficiaries which imposed upon it the duty of disclosing the fact to them.</p>

<p>Fraternal Beneficiary Corporation. Equitable Estoppel. Equity Jurisdiction, Laches.</p> <p>A fraternal beneficiary corporation, in order to avert impending insolvency, adopted in good faith a by-law, which afterwards was held to be invalid, cutting down the amount of the death benefit to he paid under its outstanding certificates from $5,000 to $2,000. The by-law contained the following clause: “Provided, that the face value of the benefit certificate shall be paid so long as the emergency fund of the order has not been exhausted.” This clause followed a clause providing that, if at the death of a member one full assessment upon each of the members should not amount to the full sum of $2,000, the sum to be paid should not exceed the amount collected by the assessment. Held, that the clause was inserted merely to give a right to the whole sum otherwise due as a death benefit where one full assessment fell short so long as the emergency fund was not exhausted, and that it did not give or preserve a right to the original sum of $5,000 so long as the emergency fund was not exhausted.</p> <p>A fraternal beneficiary corporation, in order to avert impending insolvency, after much discussion among its members adopted in good faith a by-law, which after-wards was held to be invalid, cutting down the amount of the death benefit to be paid under its outstanding certificates from $5,000 to $2,000. A member who knew of the provisions of this by-law paid twenty-eight assessments under it on the reduced amount of $2,000, without protest, during one year and seven months after the by-law went into effect, and then died. About four months later the corporation paid the beneficiary $2,000 and the certificate of the deceased member was surrendered to it. Over a year and nine months later the beneficiary brought an action in another State to recover the difference between the sum paid and $5,000. During a period of four years before and after the death of the member and the date of the settlement and up to the time of the bringing of the action the corporation had conducted its business, levied assessments and admitted new members on the basis that its liability under this certificate was $2,000 and that such liability had been settled by the payment of that sum. Upon these facts the beneficiary under the certificate presented a claim for the alleged balance of $3,000, and contended that he was entitled to share to that amount in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs. It appeared, from the facts reported by the receiver and agreed by the parties to be true, that the cutting down of the death benefits was all that kept the corporation from going into the hands of a receiver at the time the by-law was adopted, and that but for the by-law and the acquiescence in it of the members generally there would have been no emergency fund in existence at the time of the death of the member out of which this death benefit could be paid. Held, that a beneficiary ought not to be allowed to share in a trust fund on the ground that a by-law was void from the beginning when the existence of that fund at the date of the death of the member under whom he claims was owing to the acquiescence of the members generally, including that member, in the validity of the by-law and to the payment of assessments made by them on that basis, and that for these reasons the claim should be disallowed.</p>

<p>Fraternal Beneficiary Corporation. Equitable Estoppel. Equity Jurisdiction, Laches.</p> <p>A fraternal beneficiary corporation, in order to avert impending insolvency, adopted in good faith a by-law, which afterwards was held to be invalid, cutting down the amount of the death benefit to be paid under its outstanding certificates. A member knew of the provisions of this by-law and paid assessments under it on the reduced amount, without protest, during a period of five months and a half, and then died. About five months later the beneficiary was paid $1,900 in discharge of a certificate for $3,000, and as part of the transaction surrendered his certificate for cancellation, but gave no release. Nearly three years later the beneficiary brought an action for the balance of the death benefit. Upon these facts the beneficiary presented a claim for the alleged balance to the receiver of the property of the corporation appointed under'R. L. c. 119, § 19, to settle its affairs, and contended that he was entitled to share in an emergency fund in the bands of the receiver. It was admitted, that, during all the period of time which elapsed from the death of the member and from the date of the settlement down to the time of the bringing of the action, about three years later, the corporation continued to do business, levied assessments, admitted new members and made reports to the insurance department, all upon the basis that the liability which existed upon the certificate was for the reduced amount and had been discharged by the settlement. Held, that on equitable grounds, analogous to those on which the doctrine of loches is founded, the claim of the beneficiary to share in the equitable fund was barred, and should be disallowed. Upon the question whether a member of a fraternal beneficiary corporation acquiesced in a by-law, which was adopted by the corporation in good faith and afterwards was held to be invalid, a protest made by the member to the collector of the local council is not a protest to the corporation.</p>

<p>Fraternal Beneficiary Corporation.</p> <p>The relation of a local council of a fraternal beneficiary corporation to the corporation described by Loring, J.</p> <p>Upon the question whether a member of a fraternal beneficiary corporation acquiesced in a by-law reducing the amount to be paid for death benefits, which was adopted by the corporation in good faith and afterwards was held to be invalid, a protest against the reduction of the amount to be paid under his certificate made by the member to the collector of his local council, or even to the local council itself, is not a protest or a notice of a protest to the corporation.</p>

<p> Fraternal Beneficiary Corporation. Release. Interest. </p> <p>Upon the question whether a member of a fraternal beneficiary corporation had acquiesced in a by-law reducing the amount to be paid for death benefits, which was adopted by the corporation in good faith and afterwards was held to be invalid, so as to bar the beneficiary under his certificate from sharing, to the amount of the balance of the death benefit, in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs, it appeared that the deceased member paid to the collector of the local council an assessment “ or perhaps more than one ” on the old basis, and that the collector sent it to the corporation, and that it was, or they were, refused, that thereafter the member continued to tender to the collector full payment of every assessment on the old basis, and that the collector on his remittance blanks which he sent to the supreme secretary “ made a note of this tender.” It further appeared that the member died nearly two years before the appointment of the receiver and that about three months after his death the beneficiary was paid a death benefit at the reduced rate and surrendered the certificate for cancellation. Held, that the protest of the member was sufficient to preserve his right to share in the emergency fund for the difference between the amount paid on the certificate and the amount due by its terms before the adoption óf the by-law, and that this right had not been lost by the beneficiary by his surrender of the certificate on payment of the reduced amount. Held, also, that in determining the amount to whicii the beneficiary was entitled, there should be deducted from the full amount of the death benefit on the old basis, with interest thereon to the .date of the appointment of the receiver, (1) the amount of the difference between the assessments on the old basis (without interest where tenders had been made) and the assessments paid on the reduced basis, with interest from the several dates on which they were paid to the date of the appointment of the receiver, and (2) the sum already paid to the beneficiaries.</p> <p>The rule that the surrender of a negotiable instrument operates as a release does not apply to the surrender of a common law contract to pay money upon a certain event, such as is contained in a certificate of a fraternal beneficiary corporation.</p> <p>Upon the question whether a member of a fraternal beneficiary corporation or the beneficiary claiming a death benefit under his certificate had acquiesced in a bylaw reducing the amount to be paid for death benefits, which was adopted by the corporation in good faith and afterwards was held to be invalid, so as to bar the beneficiary from sharing, to the amount of the balance of the death benefit, in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs, it appeared that the member before his death paid without protest six assessments upon the reduced basis for a period of five months, but that no notice had' been given to the members of the local council to which he belonged of the by-law or of the “proposed or attempted reduction ” in the amount to be paid for death benefits, and that at the time of his death he was a feeble old man eighty-two years of age, who apparently transacted business only with his son. There also was evidence that previously there had been changes in the amount of assessments made by a change in the rates. It appeared further that the beneficiary accepted the reduced amount, stating at the time that it was taken as a payment on account and that he reserved all his rights, that this statement was made to a “local officer” but that it was brought to the knowledge of the corporation by the changes made by the beneficiary in the receipt signed by him which it was the duty of the “local officer” to procure, and which was sent by him to the corporation. Held, that the court were not satisfied that the member knew of the adoption of the by-law, and that the beneficiary was entitled to share in the emergency fund to the amount of the balance of the death benefit.</p>

<p> Fraternal Beneficiary Corporation. </p> <p>Upon the question whether a member of a fraternal beneficiary corporation or the beneficiary claiming a death benefit under his certificate had acquiesced in a bylaw reducing the amount to be paid for death benefits, which was adopted by the corporation in good faith and afterwards was held to be invalid, so as to bar the beneficiary from sharing, to the amount of the balance of the death benefit, in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs, it appeared that the member died about three years and seven months before the appointment of the receiver, after having protested against the reduction, that about four months later the beneficiary accepted the reduced amount and surrendered his certificate, without any misrepresentaton having been made to him, but gave no release, and that about seven and a half months later the beneficiary sued out a writ against the corporation but filed no declaration and failed to enter the action. Held, that the member preserved his rights by protesting and that at his death the beneficiary was entitled to share in the fund to the extent of the full amount of the death benefit before the by-law; and that such acquiescence as was' shown on the part of the beneficiary without a release of his rights was not a bar to his being paid the balance of the death benefit out of the emergency fund, although that fund had been kept in existence by the acquiescence of the members generally in the validity of the by-law.</p>

<p> Fraternal Beneficiary Corporation. </p> <p>Upon the question whether a member of a fraternal beneficiary corporation or the beneficiary claiming a death benefit under his certificate had acquiesced in a by-law reducing the amount to be paid for death benefits, which was adopted by the corporation in good faith and afterwards was held to be invalid, so as to bar the beneficiary from sharing, to the amount of the balance of the death benefit, in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs, it appeared that the member died about three years and seven months before the appointment of the receiver, after having paid “ without protest or objection ” assessments based on the reduced amount during a period of three months, and that about four months later the beneficiary was paid the reduced amount, gave a receipt in full and surrendered the certificate for cancellation, that about one year and five months later the beneficiary brought a suit against the corporation in another State, and that between the time of the settlement and the time of the bringing of this suit about three hundred new members had joined the order and about four hundred members had died. The beneficiary sought to avoid the settlement by reason of the further fact, reported by the receiver, that the local collector told the beneficiary “ that the financial condition of the order was not in good shape, and that if the $1,900, the amount due on the certificate under the then existing by-laws, was not taken the beneficiary might get nothing, as the amount coming into the order was not sufficient, and no new members were joining.” The facts reported by the receiver, which were admitted to be true, showed that, interpreting the statement that “no new members were joining ” to mean that new members to a sufficient number were not joining the order, the statements made by the local collector were true. It appeared also that the local collector, before making the statements quoted above, stated and explained to the beneficiary the by-laws “ with reference to the reduction of the amount of the certificate,” and told her of litigation pending in another State in which the effect of the by-law was involved, and stated that he did not know what it would amount to, although he could not see how they could get over the by-laws. This court found as a fact that the statements made by the local collector when the certificate was surrendered for cancellation, taken as a whole, were not untrue, and held, that the claim came within the principle of Doleac’s Claim, ante, 175, and that the beneficiary was not entitled to share in the emergency fund.</p>

<p> Fraternal Beneficiary Corporation. </p> <p>Upon the question whether a member of a fraternal beneficiary corporation or the beneficiary claiming a death benefit under his certificate had acquiesced in a bylaw reducing the amount to be paid for death benefits from $6,000 to $2,000, which was adopted by the corporation in good faith and afterwards was held to be invalid, so as to bar the beneficiary from sharing, to the amount of the balance of the death benefit, in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs, it appeared that about three years and ten months before the appointment of the receiver a member indorsed on the back of his certificate for $5,000 a statement that he surrendered and returned his benefit certificate and applied for a change to take effect on the date of the application, that about a month later a certificate for $2,000 was issued to him, and that about two months after its issue he died after having paid assessments as levied on the reduced amount, that about five months after his death $1,900 was paid to the beneficiary under his certificate and the $2,000 certificate was surrendered for cancellation. The beneficiary made affidavit, accepted as evidence, that the member, who was her husband, exchanged the certificate because he supposed that be was compelled to do so, and there was some evidence that at some time the member tendered the full assessment to the local collector, but there was no evidence on the books of any objection or protest on the part of the member as to the reduction of the amount of his certificate or the assessment thereunder. No objection to the reduction was made by the beneficiary until a suit was brought against the corporation three years and nine months after the application for the change of certificate and three and a half years after the death of the member, and it was stated in the receiver’s report, that during this period the order conducted its business, levied assessments and admitted new members on the basis that the liability under this certificate was for $2,000 and that such liability had been settled by the payment made. Held, that the case came within the principle of Doleac’s Claim, ante, 175, and that the beneficiary was not entitled to share in the emergency fund.</p>

<p>Fraternal Beneficiary Corporation. Contract, Consideration. Release.</p> <p>Upon the question whether a member of a fraternal beneficiary corporation or the beneficiary claiming a death benefit under his certificate had acquiesced in a by-law reducing the amount to be paid for death benefits from $5,000 to $2,000, which was adopted by the corporation in good faith and afterwards was held to be invalid, so as to bar the beneficiary from sharing, to the amount of the balance of the death benefit, in an emergency fund in the hands of the receiver of the property of the corporation appointed under R. L. c. 119, § 19, to settle its affairs, the facts in regard to the payment of assessments based on the reduced amount under protest were not made clear by the affidavits accepted as evidence and the statements in the report of the receiver. It appeared that the member died about two years and four months before the appointment of the receiver, that about four and a half months later the corporation tendered $2,000 upon the certificate, which the beneficiary refused, and that about two months later after conferences an agreement of compromise was made, under which the corporation paid the beneficiary $3,000, and the beneficiary gave a release under seal, but gave it in another State by the laws of which an agreement under seal stands on the footing of a simple contract, so that the release was binding only if given for a valid consideration. At the time of the compromise it was not clear what the facts were in regard to payments of assessments made under protest nor what the law was governing the rights of the parties. This court found as a fact that the corporation, in agreeing to pay $3,000 instead of the $2,000 which it offered at first, in good faith relinquished the right to litigate questions involved in the claim of the beneficiary, and consequently held that the compromise was founded on a valid consideration and that the beneficiary was not entitled to share in the emergency fund.</p>

<p>Practice, Civil, Exceptions, Conduct of trial. Agency, Broker’s commission. Broker. Evidence, Admissions and confessions. Joint Contractors.</p> <p>At the close of the evidence at the trial of an action before a jury, the counsel for the defendant presented to the presiding judge in writing twenty-four requests for rulings. The judge refused to give the first and, after glancing through the others cursorily but without reading them, said to counsel for the defendant that he might read them to the jury during his argument, and that he, the judge, would pass on them as counsel went along. The counsel declined to do this, stating his reasons, and the presiding judge said, “ Very well.” The judge in his charge did not deal specifically with the rulings asked for. At the conclusion of the charge, the defendant’s counsel asked to have saved exceptions by the defendant to the refusal by the judge to give the rulings asked for. The judge refused to allow exceptions on the ground that he had offered to permit counsel to read the requests to the jury, to be passed upon by the judge as the argument proceeded. The defendant took no further exception, but did not intend to waive his right to save an exception. The judge and the defendant’s counsel misunderstood each other. Upon the refusal of the judge to allow his exceptions, the defendant petitioned for the establishment of their truth. Held,, that, the suggestion that counsel should read the requests to the jury and that the judge would comment thereon as the argument proceeded not being made as a ruling of law nor as a direction as to the conduct of the trial, it was not necessary for the defendant to save an exception thereto; and, without determining whether a judge presiding at a jury trial ever can be excused from careful examination of requests for instructions, as to which no opinion was expressed, that the circumstances in this case afforded no justification for the action of the judge, that the defendant’s counsel did enough to preserve his exceptions to the refusal to give the rulings requested by him and that the truth of the exceptions was established.</p> <p>A magistrate presiding over a jury trial ought himself to state in his charge comprehensively, plainly and forcibly all the governing principles of law as to the issues raised by the pleadings and supported by evidence so that the jury may understand their duty clearly and be enabled to perform it intelligently; and such duty cannot be performed by the judge’s making a running commentary upon requests for rulings read to the jury by counsel for one of the parties in the case during his argument.</p> <p>It is not within the authority of a judge presiding at the trial of a case before a jury, nor within his discretionary powers, to compel counsel for one of the parties, who has presented in writing twenty-four requests for rulings, to elect between reading them to the jury in his argument for the judge to comment upon as he goes along, and waiving them.</p> <p>At the trial of an action of contract for a commission for the alleged procuring of a sale of land for the defendant, an insurance company, by the plaintiffs, two alleged real estate brokers, a material issue was whether there was any contract of employment of the plaintiffs hy the defendant. The plaintiffs did not contend that there was any express contract. There was evidence tending to show that, the plaintiffs having learned that the defendant had become the owner of the property by foreclosure, one of them sought out its president and had a conversation with him which came to nothing, but that the president gave him a price on the property and a detailed description and photographs of it, that the other plaintiff then was introduced and the two stated that they had a “ deal” or “ trade on” whereby they hoped to be able to get for the defendant its money out of the property, that later arrangements were made on several different occasions for some representative of the defendant to be on the property for the purpose of showing it, that the plaintiffs employed two other real estate brokers to assist them, and that a mortgage finally was negotiated upon the estate of which the defendant received the benefit. Held, that, although the case was close, the foregoing facts could not be said to fail utterly to support the conclusions that the defendant knew that the plaintiffs were undertaking to get for the property the price the defendant had fixed, and that the defendant was willing to take advantage of their efforts, and therefore that the defendant fairly ought to have expected to pay to the plaintiffs reasonable compensation therefor.</p> <p>At the trial of an action by two real estate brokers for a commission for procuring a sale of land of the defendant, there was evidence tending to show that the plaintiffs procured the sale and that the defendant fairly ought to have expected to pay them a reasonable compensation therefor, and there also was testimony by one of the plaintiffs that, in his only conversation with the defendant, he said “ We would put up some sort of a deal” or “trade” by which the price fixed by the defendant could be obtained, and that the other plaintiff testified in substance that they expected to get a mortgage and with the money thus obtained to buy the property from the defendant and make for himself the difference between the amount of the mortgage and the price which he would pay the defendant for the land. In this aspect of the evidence the defendant asked the judge to instruct the jury to the effect that, if it was the intention of the plaintiffs in what they did to buy in their own interest and at the same time to mortgage for a large amount and thus to profit by the difference between the purchase price and the amount of the mortgage, then they were not acting as brokers for the defendant but for themselves as principals, and were not entitled to recover; and further, that the relations of broker and purchaser were incompatible, and that, if the plaintiffs intended to become purchasers, they could not at the same time be brokers for the defendant. The judge refused to give the instructions requested. Held, that the instructions should have been given, because they were correct statements of rules of law applicable to the evidence.</p> <p>In an action by two real estate brokers for a commission for selling land of the defendant, there was evidence that there was no general partnership between the plaintiffs but that they were at the least joint participants in the alleged contract upon which recovery was sought, and one of them admitted that the transaction was not one of agency as between the plaintiffs and the defendant, but was one in which the plaintiffs were acting for themselves as purchasers. The testimony of the other plaintiff did not amount to such an admission. The defendant asked for a ruling, which was refused, to the effect that upon the undisputed evidence the plaintiffs stood in the position of prospective purchasers, and not of brokers, and that therefore they could not recover. Held, that the ruling properly was refused because, while the admission of the first plaintiff was competent evidence against his associate, it was not binding upon him and did not conclude him.</p>

<p>Contract, Construction. Agency, Insurance agent. Evidence, Extrinsic affecting writings. Words, “Predicated on the yearly profits,” “Reinsurances,” “Reserve.”</p> <p>A fire insurance company made with an agent a contract which, with regard to the agent’s compensation, provided that, in addition to certain stipulated commissions, the agent should receive “ a contingent commission of ten per cent . . . predicated on the yearly profits of the agency, computed in the following form, — the first computation to be as of September 1,1904, i. e. — The first year you will be credited with the gross amount of premiums written, less cancellations, reinsurances and returns of every nature on the one hand, and debited with commissions, postage and other incidental agency charges, . . . losses incurred during the year and 40 % reserve on the net premiums written during the current year, and upon the profit balance, if any, thus shown the contingent commission will be predicated.” The contract contained no provision for its termination. The company terminated it on February 15,1907, by a notification to the agent and reinsured all its risks in other companies, and, the parties not being able to agree upon an adjustment of their accounts, brought a suit in equity for an accounting, at the hearing of which evidence was introduced tending to show that the word “ reinsurances ” as used in dealings between fire insurance companies and their agents had a technical meaning and excluded reinsurances by the home office, and that in their accounts of the previous years the parties had so confined its meaning and also had adopted, as the meaning of the word “reserve,” an approximation of the actual cost to the company of carrying the insurance written by the agent during a certain period. Held, that the words in the contract, “ predicated on the yearly profits,” did not indicate an intention that the agent should receive no “ contingent commission ” if the contract were terminated between the annual dates, but that the agent was entitled to a “ contingent commission ” calculated on the basis indicated in the contract as applied to the portion of the year between August 31, 1906, and February 15, 1907 ; that the evidence as to the meaning of the words “reinsurances ” and “ reserve ” was admissible as solving any doubt that existed with regard thereto, and that the expense to which the company was put in reinsuring the risks originally insured through the agent should not be considered in reaching the basis for the calculation of the “ contingent commission.”</p>

<p>Grade Crossing Acts. Railroad. Practice, Civil, Report of commission under grade crossing act.</p> <p>By St. 1906, c. 463, Part I. § 34, the jurisdiction of a commission appointed by the Superior Court under § 29 of the same chapter to decide whether public security and convenience require the abolition of a grade crossing of a railroad with a public way and to prescribe the manner and limits of such change, is confined to matters relating to the abolition of the crossing or crossings which the commission are appointed to consider, and they have no authority to provide for the general improvement of the public ways in the neighborhood or to provide increased facilities for the transaction by the railroad company of its business by means of additional tracks and structures, except so far as general improvements of public ways in the neighborhood or increased facilities for the transaction by the railroad company of its business are the result of or are incidental to the separation of the grades at the crossing or crossings in question.</p> <p>Under St. 1906, c. 463, Part I. § 34, where a commission has been appointed by the Superior Court to decide whether the public security and convenience require the abolition of certain grade crossings of a railroad with public ways and to prescribe the manner and limits of such change, and where it appears that the principal station of the railroad company is in the section of the railroad in which the crossings are to be abolished, that a branch railroad joins the main line there, that extensive changes in the immediate locality have been made necessary and have been ordered in consequence of the abolition of the grade crossings, that the place is the centre of a city and is one where numerous trains stop and pass and are made up and arrive and depart, this court will not say that the "commission are not warranted in directing that, as a part of or as incidental to the changes made necessary by the abolition of the grade crossings, the roadbed should be widened so as to accommodate a fourth track in addition to three already existing at the place where the grade crossings were abolished, not for the purpose of four-tracking the railroad or of meeting future needs, but for the purpose of meeting a situation arising out of the abolition of the grade crossings.</p> <p>Under St. 1906, c. 463, Part I. § 34, a commission appointed by the Superior Court to decide whether the public security and convenience require the abolition of certain grade crossings of a railroad with public ways and to prescribe the manner and limits of such change, have no jurisdiction to order that, for more than one half the distance included in the proposed change, the roadbed of the railroad shall be widened so as to accommodate four tracks where before there were only two, if their only reason for making such an order is that “in the near future the requirements of traffic will make it reasonably necessary to provide four tracks on the main line” to a certain city and beyond.</p> <p>"Where a commission appointed by the Superior Court under St. 1906, c. 463, Part I. §§ 29, 34, to decide whether the public security and convenience require the abolition of certain grade crossings of a railroad with public ways and to prescribe the manner and limits of such change, have made a report which includes an order, which is beyond the jurisdiction of the commission, that a portion of the roadbed of the railroad where there are only two tracks shall be graded to a width sufficient for four tracks on the ground that four tracks will be required in the near future by the traffic conditions on the railroad, if this order of the commission constitutes an integral part of the report and of the scheme or plan which the commissioners have devised for the abolition of the crossings and therefore cannot be separated from the rest of the report, the whole report must be set aside, and a decree of the Superior Court confirming it must be reversed.</p>

<p>Contract against the indorser upon two promissory notes. Writ dated June 28, 1895.</p> <p>The first note read as follows:</p> <p>“North Attleborough, Mass., Oct. 15,1892. 14000.</p> <p>Two months after date the Attleborough, North. Attleborough and Wrentham St. Ry. Co. promise to pay to the order of ourselves Four Thousand Dollars at First Nat. Bank, Attleborough.</p> <p>Value received,</p> <p>Attleborough, No. Attleborough & Wrentham St. Ry. Co.,</p> <p>By C. T. Guild, Treasurer.</p> <p>Countersigned,</p> <p>Peter Nerney, President.”</p> <p>On the back of the note were the following indorsements:</p> <p>“ For value received I hereby waive my right of demand and notice on the within note.</p> <p>W. A. Walton.</p> <p>W. A. Walton.</p> <p>Attleborough, No. Attleborough & Wrentham St. Ry. Co.</p> <p>By C. T. Guild, Treasurer.</p> <p>Clemons Electrical Mfg. Co.</p> <p>M. E. Clemons, Treas.”</p> <p>The second note was the same as the first, excepting that the amount was $3,714.12.</p> <p>The case was before this court at previous stages, as reported in 168 Mass. 304, and 173 Mass. 286, in both of which reports the first word of the plaintiff’s name is spelled incorrectly with an “ e ” in the last syllable, that letter having been used in the writ. After the second rescript it was heard by Bell, J., without a jury, who found for the defendant; and the plaintiff alleged exceptions.</p> <p>The facts are stated in the opinion.</p>

<p>Insurance, Against liability. Words, “ Bodily injuries.”</p> <p>A policy insuring an employer against liability “ imposed by law upon the insured for damages on account of bodily injuries or death . . . accidentally suffered by any employee,” covers the amount paid by the insured in satisfaction of a judgment for reasonable damages obtained against the insured by one employed by him as a hostler for having negligently and without warning put him at work upon horses suffering with glanders and having made him clean up their stalls, whereby the hostler became infected with the disease and suffered injuries.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action "by an administrator, to recover for the conscious suffering and death of the plaintiff's intestate while employed in the dyeing room of a mill of the defendant, it appeared that the intestate was twenty-one years of age and was “ quick to learn,” and that his injuries and death were caused by the slipping of one of two planks laid across the top of a vat of boiling dye water, on which the intestate was standing for the purpose of pitching wool from a rack to a truck, after it had been taken from the vat and thrown upon the rack in order that the dye water might drain off from it. A fellow workman of the intestate, who was standing on the rack helping the intestate to throw the wool from the rack to the truck, testified that at the time that the intestate was throwing the wool upon the truck “ the boards moved back and forth,” that one of them “ slipped from the edge of the tank and fell right in," and that the intestate " fell in himself.” It appeared that the board which fell in had been placed in position by the plaintiff’s intestate and that the end which fell was the end next the rough outer wall of the building. Along this wall ran a two-inch pipe to let boiling water into the vat, and it could have been found, that the space between the pipe and the inner edge of the vat, which was all the space that the end of the plank had to rest on, was only three and a half inches or perhaps only two inches, that this edge of the vat had become somewhat worn and rounded from the planks being placed on it and pulled off and that it was wet and slippery from the oily water of the vat. The planks were six feet nine inches long, eleven inches wide and two inches thick, and were plain boards without cleats. The vat had been there for twelve years, the planks for four years and the pipe for one year before the accident, which was but three weeks after the plaintiff’s intestate entered the defendant’s employ. Held, that, assuming that there was evidence of due care on the part of the plaintiff’s intestate, which was doubted, there was no evidence of negligence on the part of the defendant.</p>

<p>Practice, Civil, Exceptions, Agreement as to facts. Negligence, Employer’s liability. Street Railway.</p> <p>In an action by an administratrix, against a corporation operating a railway by electricity, to recover damages for conscious suffering of the plaintiff’s intestate and for causing his death, while he was in the employ of the defendant as a conductor, at the close of the plaintiff’s evidence the defendant rested its case and the presiding judge ordered a verdict for the defendant. At the end of a bill of exceptions alleged by the plaintiff was the following: “ The foregoing comprises a statement of facts not in dispute, and all the evidence and proceedings material to the questions of law raised by these exceptions.” Held, that by reason of this statement there could be no question whether the plaintiff’s uncontradicted evidence should be accepted as true.</p> <p>In an action, by an administratrix, against a corporation operating by electricity a railway in a tunnel, to recover damages for conscious suffering of the plaintiff s intestate and for causing his death, while he was in the employ of the defendant as the conductor of a trolley car running separately, it appeared that at the terminus in the tunnel there was a single track, in leaving which the last car in, after the motorman and the conductor had changed ends, was necessarily the first car to go out, that when the car on which the plaintiff's intestate was the conductor reached the terminus there was a car there ready or nearly ready to go out, and that the intestate’s car was stopped five or six feet short of the car "then in, that the intestate went to what had been the front end and was to be the rear end of his car and was-standing between the rails adjusting the trolley when the other car started forward, crushing him so badly that he died. At the close of the plaintiff’s evidence the defendant rested and the presiding judge ordered a verdict for the defendant. By the evidence it appeared that on the car which started and caused the accident there were from eleven to seventeen persons on the back platform and that the hand brake operated from this platform, which had been set by the motorman before he changed ends, was not released by the conductor, who after the car had started made a dash to it through the crowd and found that it then was not on, and that it must have been released by a third person, but whether this was done accidentally or intentionally was left by the evidence a matter of conjecture. There was evidence that before the accident third persons had been caught releasing the band brakes intentionally, and there also was evidence that the hand break could be released by a passenger’s accidentally striking its handle, especially when the pressure of the brake shoe had been somewhat diminished by its dropping a fraction of an inch under the weight of a crowd of passengers. It appeared that before and at the time of the accident other cars of the defendant were furnished with a leather strap which went down from the top of the brake handle to prevent the hand brake from being released accidentally, and that there was not such a strap on the car that started. Held, that, if the hand brake was released by" a third person intentionally there was no negligence on the part of the defendant, that, if the hand brake was released accidentally, it might have been held to be evidence of negligence that the car was not furnished with a strap to prevent the brake from being released accidentally, but that, as it was wholly a matter of conjecture whether the brake was released accidental!)', there was no evidence that it was thns released, and the question in regard to negligence in failing to provide a strap did not arise; therefore that it was right to order a verdict for the defendant.</p>

<p>Equity Jurisdiction, Equitable pledge, Rights of loria fide purchaser from fraudulent seller. Fraud. Equity Pleading and Practice, Bill, Issues to jury, New trial.</p> <p>In order for one, who owned a mortgage note and mortgage and, having indorsed the note in blank and executed an assignment of the mortgage, delivered both of them to one as security for a loan, to recover them after payment of the loan from one who holds them by virtue of a conveyance by the assignee for value, he must show that the holder did not receive them in good faith, and, while he need not in all cases show that the holder when he received them actually knew of the lack of title on the part of the assignee, nevertheless it is not sufficient for him to show that the holder when he took them had reasonable cause to believe that they were held by the assignee as collateral security only.</p> <p>When in a suit in equity issues are framed for a jury and the findings of the jury thereon do not dispose of all the issues necessary to a decision of the suit, the proper course is for the judge to hear the remaining issues unless on application he in his discretion should frame further issues to be tried by a jury.</p> <p>A bill in equity against two defendants alleged that the plaintiff was the owner of a certain mortgage and mortgage notes for §6,700, that he assigned them to one of the defendants as security for a loan of $1,200, that the assignee wrongfully assigned them to the second defendant, who at and before the time of such assignment “knew or had reasonable cause to believe that said notes and mortgage were not the absolute property ” of the first defendant, “ and that they were the property of the plaintiff held by ” the first defendant “ as security only ”; that the §1,200 loan had been paid, and that the notes and mortgages should be returned to the plaintiff. Issues were framed upon which a jury found that the first defendant had received the notes and mortgage as security only, and that at the time of the assignment to the second defendant the second defendant did “ know or have reasonable cause to believe that the notes and mortgage were held ” by the first defendant “ as collateral security.” Thereafter, upon the second defendant objecting that the fact that the second defendant had “ reasonable cause to believe ” that his assignor held the notes and mortgage as security only was not enough to make him a party to the fraud and that the finding of the jury was consistent with such being the fact, the judge before whom the issues were tried, without setting aside the jury’s findings, heard further evidence on the question whether the second defendant had actual knowledge of the fraud and, having found that he had such knowledge, ordered a decree for the plaintiff and reported the case. Held; that the issue upon which the judge heard the additional evidence was not inconsistent with those upon which the jury already had passed, and therefore, since the findings of the jury did not dispose of the case on the merits, it was proper for the judge to hear and to pass upon the additional evidence without setting aside the findings of the jury.</p> <p>In this suit in equity by a mortgagee to redeem the mortgage and the mortgage note, which had been transferred by the plaintiff as security for .a loan by an assignment absolute in form and had been assigned fraudulently by the assignee to an alleged purchaser, a finding was warranted by the facts which appeared in evidence that the alleged purchaser from the fraudulent assignee was not a real purchaser, but that the alleged sale to him was colorable only; or it might have been found that such alleged purchaser supplied the money with which the fraudulent assignee paid for the assignment to him from the plaintiff, that the entire transaction was on his account, and that the knowledge of the fraudulent assignee was the knowledge of the alleged purchaser from the beginning, so that the plaintiff was entitled to the relief which he sought.</p>

<p>Negligence, In use of highway.</p> <p>In an action by a boy six or seven years of age, when injured, against a transportation company for personal injuries, it appeared that the plaintiff while “ sitting about the middle of a dirt sidewalk in front of his home ” was hit by the end of a derrick lashed on a caravan, driven by a servant of the defendant, that the street was thirty-two feet wide, and the sidewalk eight feet four inches wide, that the derrick was sixty-five feet long and the caravan on which it was lashed was sixteen feet long, that there were parallel car tracks in the street, that the caravan was being driven with its left hand wheels on the right hand rail of the right hand track, that an electric car came up from behind and the gong was rung, that the defendant’s driver pulled over to the left, and as he did so the wheels “ sort of slid ” on the car tracks and the rear part of the wagon swung around toward the sidewalk on the right hand side of the street where the boy was, causing the end of the boom of the derrick to swing over the sidewalk and strike the boy’s leg, pinning it to the ground. The teams of the defendant were employed in moving the plant of a general contractor from his yard in one city to his yard in a neighboring city, and a foreman of this contractor was on the caravan at the time of the accident, sitting on the derrick with another employee of the contractor. This foreman of the contractor testified that he gave no directions to the driver as to how or where to drive the horses except that they should be driven from the one yard of the contractor to’the other, and that he exercised no control or direction in any way over the drivers of the caravans. He also testified that he told the agent of the defendant “ to send two two-horse caravans; he did not tell him what drivers to send and he did not go out into the yard or pick out the horses or harnesses.” The defendant contended that the accident was caused by the negligence of the contractor's foreman in the management of the caravan. It also contended, and introduced evidence to show, that the real cause of the accident was the negligence of this foreman in selecting a sixteen foot caravan instead of a twenty-four foot caravan. Held, that the jury were warranted in finding that the defendant was in sole control of the caravan, and also were warranted in finding that the contractor’s foreman did not select the sixteen foot caravan.</p>

<p>Five actions oe contract upon six policies of insurance in the Massachusetts standard form insuring the plaintiff’s pickle factory, supplies and stock of pickles in Deerfield. Writs dated April 20, 1907.</p> <p>The cases were tried together before King, J., who at the close of the evidence made the following ruling: “ There is no evidence that the provision of the policy requiring a statement of loss to be forthwith rendered was complied with. That was a condition precedent to any obligation on the defendant, and I therefore direct a verdict for the defendant in each case.” Verdicts accordingly were ordered for the defendants; and the plaintiff alleged exceptions.</p>

<p>Mortgage, Of real estate, Partial release, Redemption. Contract, Construction.</p> <p>An agreement of a mortgagee inserted after the description of the real estate and before the habendum clause in a mortgage deed of a tract of real estate subdivided into a large number of lots was in the following language: “ The grantee hereby agrees to release and quitclaim any lot upon the payment of §150 per lot of 7,000 sq. ft.” Held, that the agreement must be regarded as a personal agreement for the benefit of the mortgagor only and not for the benefit of those claiming through or under him, and conferred upon the mortgagor personally a privilege to be exercised before the mortgage became due.</p> <p>The fact, that a second mortgage upon certain among a large number of lots in a tract of land is recorded in the registry of deeds of the district in which the land comprising all the lots is situated, is not constructive notice of its existence to the holder of a first mortgage upon all of the lots in the tract, and, in the absence of actual notice, does not entitle the purchaser at a sale in foreclosure of the second mortgage, in redeeming from the first mortgage, to a deduction because of lots released by the first mortgagee from that mortgage after the date of the recording of the second mortgage.</p> <p>The owner of a tract of land which was subdivided into one hundred and forty lots mortgaged it to secure the payment of a loan of $10,500. Under a personal agreement with the mortgagor, the mortgagee had released one hundred of the lots from the mortgage when the mortgagor without the knowledge of the first mortgagee gave a second mortgage on six of the lots. The second mortgagee assigned his "mortgage to one who gave notice thereof to the first mortgagee. At the time of such notice $5,480 still was due on the first mortgage. The value of the forty lots which still were subject to the first mortgage was $7,250. Thereafter the first mortgagee released from his mortgage twenty-eight more ot the lots of a total value of $5,019, and received in part payment of his mortgage $1,800. One, who at a sale in foreclosure of the second mortgage had purchased the six lots covered thereby, brought a suit in equity to redeem from the first mortgage, in which a decree was made that he would be entitled to an assignment of the first mortgage upon payment to the first mortgagee of an amount ascertained by deducting from what was due on that mortgage when the mortgagee first received notice of the second mortgage, $5,480, such proportion thereof as the value of the twenty-eight lots released by the mortgagee after he received notice of the second mortgage, $5,019, bore to the value of the forty lots then remaining subject to' the mortgage, $7,250. The plaintiff appealed. Held, that the plaintiff was entitled to redeem only upon payment of such amount as remained due upon the first mortgage after some abatement on account of the lots that the holder of that mortgage had released after receiving notice of the second mortgage; and also that under the decree appealed from the plaintiff had received all the abatement he was entitled to.</p>

<p>Coxtbact by the members of a firm of publishers against the members of a firm of booksellers to recover damages for an alleged breach of contract in failing to accept certain books alleged to have been delivered under an agreement in writing dated February 20, 1900, whereby the defendants agreed to purchase from the plaintiffs two hundred sets of the $3.50 edition of George Sand; with a second count in which the plaintiffs sought to recover the contract price of the books delivered. Writ dated June 18, 1903.</p> <p>• The answer, as amended, contained, first, a general denial; second, alleged that the signing and delivery of the alleged contract was conditional upon the orders being approved in writing by the defendant Chatman and upon the plaintiffs giving to the defendants the exclusive right to sell certain editions of Hogarth; third, that there was an unreasonable delay on the part of the plaintiffs in delivering the books; and, fourth, that a corporation formed by the defendants had assumed certain other indebtedness of the defendants to the plaintiffs and that the plaintiffs in consideration thereof had agreed to release the defendants from liability on account of the agreement sued upon.</p> <p>In the Superior Court the case was tried before Bond, J. Robert Barrie, one of the plaintiffs, was allowed to testify, against the exception of the defendants, in regard to a usage of trade referred to in the opinion, as follows: “ That it is the custom to allow an interval between the publishing of an expensive edition and a cheaper edition in order to market the expensive edition before issuing the cheaper.”</p> <p>The instructions of the judge in regard to the effect of the usage were in part as follows:</p> <p>“ Now, these books were not issued immediately — right along in connection, I should say, with the Japan edition — not until some time afterwards. Now, the testimony there is that the custom of book publishers of this class—subscription books — here in this locality where this trade was made, was to publish the more expensive edition first, and give time to make sales of that before they commenced with the cheaper edition, and that that is what they did in this case. The pertinency of that is this, — that where there is a well known custom in the trade with refference to certain business, that the parties are presumed to make their contract with reference to that custom; and the claim is here that these parties all understood that the first or expensive edition was to be sold first, and then they would begin the publication of the cheaper edition, and they say that is what they did, and that that is what was understood by all the parties was to be done, as much as though that had been written in the contract. Now, if that was so, then consider whether there was any delay in the publication of the cheaper edition, which was different from what was fairly understood by the parties.”</p> <p>He also further instructed the jury as follows: “They are entitled to recover that [the contract price with interest from the date of the writ] provided you believe that the claim of the plaintiffs here is maintained, that is, that this contract was entered into and that the books were manufactured and that they were sent for some considerable time to these defendants, and in every instance returned, and they were, therefore, retained by them, with the balance of the two hundred sets, for the defendants, whenever they wanted them. If that is true, then they are entitled to recover for the amount of goods, unless there was some unreasonable delay in the publication of them and the delivery of them ; and the publication of them depends upon what you say as to the custom of book publishers of this class here in Boston with reference to printing two editions, one expensive one and one cheaper one. There has been no evidence to contradict the evidence of Mr. Barrie in reference to that, so far as I recall. If there is any, you may recall it, but I don’t now recall it.”</p> <p>The judge made certain rulings as to the admission of evidence subject to the exception of the defendants. He refused, among other rulings requested by the defendants, to rule that upon all the evidence the plaintiffs could not recover. The jury returned a verdict for the plaintiffs in the sum. of $7,476, which was the contract price for all the books covered by the contract. The defendants alleged exceptions, raising the questions which are considered in the opinion.</p>

Two ACTIONS OE TORT, by the administratrix of the estate of Maurice J. Levins against the New York, New Haven, and Hartford Railroad Company, the first action at common law for injuries and conscious suffering sustained by the plaintiff’s intestate on July 14,1897, near a station or stopping place of the defendant called Surfside. in the town of Hull, alleged to have been caused by the negligence of the defendant, and the second action under R. L. c. Ill, § 267, for causing…

<p>Assignment. Bankruptcy. Receiver. Practice, Civil, Exceptions. Bond. Damages,</p> <p>An assignment executed by the receiver of the property of a corporation appointed by the United States District Court in bankruptcy proceedings, which transfers to the assignee “ all bills receivable,” includes a judgment obtained by the bankrupt corporation in'an action for the price of a machine sold by it, where the judgment was obtained before the assignment but neither the receiver nor the assignee knew that the claim had been reduced to a judgment at the time the assignment was executed.</p> <p>An assignment executed by the receiver of the property of a corporation, which under the general term "all bills receivable” transfers to the assignee a judgment for the amount of the price of a machine sold by the corporation, also transfers the right to sue on a bond to dissolve an attachment given in the action in which the judgment was obtained, the bond having taken the place of the lien acquired by the attachment and passing to the assignee as an incident of the bill receivable.</p> <p>Where an assignment executed by the receiver of the property of a corporation under the general term “ all bills receivable ” transfers a judgment for the price of goods sold by the corporation, and thereby transfers to the assignee the right to sue on a bond to dissolve an attachment given in the action in which the judgment was obtained, it seems, that, this incidental transfer of the security not being in writing, which is necessary under R. L. c. 173, § 4, to give the assignee the right to sue in his own name, in an action on the bond to dissolve the attachment brought by the assignee in his own name the objection that he lias sued in his own name without authority will be sustained, if taken properly. In the present case the objection was not taken.</p> <p>A common law assignment for the benefit of creditors made by a corporation within four months before the filing of a petition in bankruptcy is extinguished by an adjudication that the corporation is bankrupt.</p> <p>Under the bankruptcy act of 1898, § 2 (3), the court of bankruptcy can appoint a receiver to take possession of all the property of a bankrupt, the title to which would vest in the trustee in bankruptcy, and may order a sale of the property in the hands of the receiver, if it is perishable. In the present case a sale of all the property in the hands of the receiver was made on the ground that it was perishable, and afterwards upon the petition of the trustee in bankruptcy the sale was confirmed by the court, so that no question could arise as to the ground on which the property of the bankrupt taken as a whole was considered to be perishable.</p> <p>When a presiding judge, after having received evidence upon the subject, submits to a jury as a matter of fact the question whether upon the evidence a certain chose in action is included by the terms of an assignment in writing, it does not matter whether the judge in submitting the question to the jury misstates the evidence, because the question is one of law which should be determined by the judge, and, if the jury answer rightly the question of law which the judge should have decided, no one is harmed and there is no ground for an exception.</p> <p>If a defendant in an action at law, against whom proceedings in bankruptcy are pending, goes to trial before obtaining a discharge in bankruptcy and without moving for a continuance until it can be determined whether he is entitled to a discharge, after a judgment has been obtained against him without his pleading a discharge in bankruptcy as a defense, it does not matter whether or not the debt sued upon was provable in bankruptcy so that a discharge would be a bar to it, because no discharge was set up as a bar.</p> <p>In an action against the sureties on a bond to dissolve an attachment, of which the penalty was $1,000, after the jury had returned a verdict for that amount, the presiding judge ordered that execution should issue for a sum of about $900 with interest thereon from the date of the breach of the bond by the sureties, which was about two years and a half before the date of the writ, so that the amount for which execution was ordered to issue with interest thereon from the date of the breach exceeded the amount of the penalty of the bond with interest from the date of the writ. The defendant excepted to the order for the issuing of execution. Held, that, unless the plaintiff should remit the amount of the excess for which execution was ordered beyond the amount for which judgment could be entered, the exception to the order must be sustained.</p>

<p>Wagering Contracts. Contract. Stock Exchange. Clearing House. Stockbroker.- Words, “ Actual purchase or sale.”</p> <p>Although the method of settling balances on a stock exchange through the medium of a clearing house is recognized as a commercial custom and convenience, in a suit in equity to compel redelivery to the plaintiff of bonds on the ground that he had delivered them to the defendant on account of marginal transactions in securities or commodities of the nature described in R. L. c. 99, §§ 4-7, in which the plaintiff intended that there should be no actual purchase or sale and the defendant had reasonable cause to believe that such intention existed, the defendant cannot make out the defense under § 4, that he had made an actual purchase or sale, merely by showing purchases and sales upon a stock exchange and settlements by adjustments of balances through the clearing house, but he must go further and prove in addition that as a result of the transactions he or his agents, in cases of purchases, had within his or their immediate control and ready at all times to deliver to the plaintiff if called for by him certificates of the particular stocks- dealt in equal to those purchased,.and, in cases of sales, similar certificates ready for delivery to the purchasers.</p> <p>The provision of R. L. c. 99, §4, with regard to an action to recover'payments alleged to have been made by the plaintiff to the defendant on account of marginal transactions in securities or commodities in which the plaintiff intended that there should be no actual purchase or sale and the defendant had reasonable cause to believe that such intention existed, that the defendant should not be liable if he “makes, in accordance with the terms of the contract or employment, personally or by agent, an actual purchase or sale of said securities or commodities, or a valid contract therefor,” protects from the remedy of the statute only purchases and sales honestly made in pursuance of a true intent to consummate a veritable change of title to definite property, the words, "actual purchase or sale,” meaning a real and tangible transfer of a full and complete title to an existing, defined and certain security or commodity.</p>

<p>Petition, filed in the Land Court on September 22, 1906, for registration of the title to a tract of land on the northeasterly side of Windsor Street in that part of Boston called Roxbury.</p> <p>In the Land Court the case was referred to Henry M. Spelman, Esquire, as master. Later the case was heard by Davis, J., upon the master’s report and exceptions thereto, and also on certain evidence introduced by the respondent, which was uncontroverted and which the judge found to be true. The respondent claimed under two tax deeds given respectively under sales for the non-payment of taxes assessed for the years 1892 and 1895. The judge overruled the exceptions to the master’s report, confirmed that report, and ordered that a decree be entered for the petitioner. At the request of both parties, the judge reported the case for determination by this court. If the rulings of the judge were right, a final decree for the petitioner was to be entered as ordered; otherwise, there was to be such a disposition of the case as this court might direct.</p> <p>The case was submitted on briefs.</p>

<p>Bill in EQUITY, filed in the-Supreme Judicial Court on November 2, 1909, by the executors of the will of Eugene Lynch, late of Boston, for instructions.</p> <p>The case was heard by Sheldon, J., who reported it for determination by the full court.</p> <p>Eugene Lynch died on January 26, 1909. The material portion of his will was as follows:</p> <p>“ All the rest and residue of my etate shall, as soon as practicable, be divided into two equal parts, one of which shall be known as and designated ‘The Mary E. Lynch Trust Estate,’ the other of which shall be known as and designated ‘ The LynchBickford Trust Estate.’</p> <p>“ Said part known as and designated ‘ The Mary E. Lynch Trust Estate ’ I give, devise and bequeath to my said trustees for the/ purposes and upon the trusts following, that is to say: —</p> <p>“ To invest the same in good and safe investments, with power to change investments, real and personal, as they may think fit, at public or private sale, no purchaser to be held responsible for the application of the purchase money, and to pay the net income of this Trust Estate in quarter yearly payments to my said wife, Mary E. Lynch, for the term of her natural life.</p> <p>“ As soon as practicable after the death of my said wife, the then trustees hereunder shall make two equal divisions of this ‘ The Mary E. Lynch Trust Estate ’ and one of said equal divisions shall be, as soon as practicable, paid and delivered free and discharged from any and all trusts under this my Will, as my said wife shall in and by her last Will and Testament devise and bequeath the same.”</p> <p>Here followed provisions for the disposition of the remaining division of “ The Mary E. Lynch Trust Estate ” after the death of the testator’s wife.</p> <p>Mary E. Lynch died three days before her husband, on January 23,1909. She left a will, of which the residuary clause was in part as follows: “ All the rest and residue of my property, including my stocks ... I give, devise and bequeath to my nieces and nephews, there being seven in number. . . .”</p> <p>The will of Mary E. Lynch was made on January 15, 1909, and the will of Eugene Lynch was made on January 19,1909.</p> <p>At the hearing, testimony was introduced by those claiming under the will of Mary E. Lynch, tending to show that Eugene Lynch before he made his will read his wife’s will and expressed satisfaction with it, and that a day or two later he said to his wife, “ Mary, I have made my will, and I think you will be pleased with it.”</p> <p>The presiding justice admitted this testimony, subject to the exception of the other parties in interest, upon the question whether Eugene Lynch knew of his wife’s will when he made his will, and found that he did know of the provisions of her will when he made his own will. If the evidence was admissible and was competent, this finding was to stand; otherwise not.</p> <p>Certain paragraphs of the plaintiffs’ bill were admitted to be true, and it was agreed that the only questions involved in the case were whether a valid power of appointment was given to Mary E. Lynch during her life by the will of her husband, and whether she could, or did, by her will make a valid appointment under such power; and also whether her nephews and nieces took under the wills of Eugene Lynch and Mary E. Lynch any interest in his estate.</p> <p>The case and all questions of law therein, including the question raised by the exception to the admission of the testimony mentioned above, were reserved and reported to the full court upon the pleadings and the admissions and agreements of the parties so far as material, such orders and decrees to be entered therein as to the full court should seem proper.</p> <p>The case was submitted on briefs.</p>

<p>Bill in equity, filed in the Superior Court on April 22,1907, against a Massachusetts fraternal beneficiary corporation and one Lucy D. McGraw, to obtain $2,000 payable under a benefit certificate issued to one Frederick H. Davis, alleged to have been paid wrongfully by the defendant corporation to the defendant McGraw, who was named in the policy as the beneficiary, but was a stranger in blood to the member Davis and was not dependent upon him nor otherwise within the class of persons permitted to be beneficiaries by R. L. c. 119, § 6.</p> <p>In the Superior Court the case was heard by Richardson, J. Among the facts reported by him were the following: On February 21,1891, Davis, then living in Boston, took out a certificate-in the defendant the Grand Lodge, Ancient Order of United Workmen of Massachusetts, he being then a member of the subordinate lodge called Winter Hill Lodge, Ho. 118, which was located in Somerville. The certificate was for $2,000, payable on his death to his father, Henry Davis. The plaintiff, Elizabeth E. Davis, was then, and down to the time of his death continued to be, the wife of Frederick H. Davis, and at the time of the filing of the bill was his widow. There was no minor child. For the last twelve years of his life Frederick H. Davis did not live with his wife, but did support her, and for the last few months of his life at least he lived at the house of the defendant McGraw, and died there.</p> <p>In February, 1906, Henry Davis, the father of Frederick H. Davis, died. Early in the same year it was discovered that Frederick H. Davis, who since he first became a member of Winter Hill Lodge had been financier of that subordinate lodge, was in default in the sum of $518 for money which he had collected and had not turned over to his lodge. A surety company which had signed his bond was called upon to make up the deficit of $518, and did so before he died.</p> <p>In the early part of 1906, and after the deficit had been discovered, Frederick H. Davis filed a petition in the Probate Court for the county of Suffolk for the adoption of the respondent Lucy D. McGraw as his daughter, and on March 29, 1906, a decree of adoption was obtained upon the petition. Subsequently, upon the petition of the plaintiff, the decree of adoption was revoked by the Probate Court. At the time of the filing of the petition for adoption both Davis and the defendant McGraw knew that Davis had a wife then living, although he had always represented to the defendant McGraw that he had no wife, but the wife did not join in nor assent to the petition for adoption, and no notice thereof was given her, nor did she know or hear of the adoption until after the decease of Frederick H. Davis, which occurred on September 21,1906.</p> <p>The judge found that the surety company, the defendant McGraw and Davis, with the knowledge of some of the officers of the subordinate lodge, among them the financier, one Wheeler, the recorder, one Spinney, and the treasurer, one Desmond, who also knew that Davis had a wife then living, participated in an arrangement by which the adoption was to be procured, a new certificate was to be taken out in which the beneficiary should be “ Lucy D. McGraw, daughter,” that certificate was to be assigned to the surety company, and, upon the death of Davis and the payment of the amount due on the certificate, the amount of the deficit was to be paid to the surety company by the defendant McGraw. The attorney for the surety company, shortly after the decree of adoption was obtained, went to the grand treasurer of the grand lodge, one Temple, told him of this arrangement, informed him that such assignment of the certificate had been or was about to be made to his company, and inquired as to the steps he should take to secure the security company’s rights thereunder. Temple referred him to Spinney, but said that he, Temple, did not think that such an assignment was good. The attorney filed with the recorder, Spinney, a formal notice of the assignment to the security company, with the request to notify him of the death of Davis when it should occur. The assignment, however, was not offered in evidence.</p> <p>The judge found that all designations and changes of beneficiaries in certificates are made through the officers of the subordinate lodge, on whom the grand lodge relies for all information relative thereto, subject to the approval of the grand lodge executive committee, in the manner provided by the bylaws and general,laws of the order.</p> <p>After the death of Frederick H. Davis, the defendant McGraw furnished due proofs of his death, and on October 8, 1906, the sum of $2,000 was paid by draft to her order. This draft was signed by Temple, as grand treasurer, as required by the laws of the order providing that the grand treasurer shall sign all drafts drawn in accordance with the laws of the grand lodge. Out of the $2,000 the defendant McGraw paid to the surety company the amount which that company had paid to the subordinate lodge.</p> <p>The plaintiff testified that immediately after the death of Frederick H. Davis she had interviews with some of the officers of-the Winter Hill Lodge and before the money was paid informed them that she had not been a party to the adoption of the defendant McGraw arid had known nothing whatever about it until after her husband’s death.</p> <p>The judge reserved and reported the case upon his findings, the facts and the evidence as reported by him and all questions of law therein for determination by this court, such decree to be entered as law and justice required.</p>

Contract for the alleged breach of a contract in writing which is printed below. Writ dated December 10, 1907. In the Superior Court the case was tried before Sherman, J. The plaintiff lived in Peoria, Illinois, and the defendant lived in Quincy, Massachusetts, and had been a builder of both racing and cruising yachts for about twenty years. The contract sued upon was as follows: “ Boston, Mass., October 19tli, 1906. “ Mr. Thos.

<p>Tort for personal injuries received by the plaintiff on April 21, 1904. Writ dated October 3, 1904.</p> <p>In the Superior Court the case first was tried, together with a like action brought by the same plaintiff against the Fitchburg Steam Engine Company, before Richardson, J., who in each case ordered a verdict for the defendant. Exceptions alleged by the plaintiff were sustained by this court in a decision reported in 200 Mass. 571.</p> <p>The cases were tried again before BeCourcy, J., who allowed the case against the Fitchburg Steam Engine Company to go to the jury,* but in the case against the Coffin Valve Company ordered a verdict for the defendant. The plaintiff in that case alleged exceptions.</p> <p>The plaintiff’s injuries were received while he was assisting in the erection of an engine in the new engine-room of the defendant. The engine was being installed by the Fitchburg Steam Engine Company under a contract with the defendant.</p> <p>The defendant contracted with the Fitchburg Steam Engine Company for the erection of an engine at the defendant’s works in that part of Boston called Neponset. The Fitchburg Steam Engine Company agreed to furnish the engine, superintend its erection and deliver it in running order. It sent a man named Daniels to superintend the erection, and all the work done about the engine was under his sole supervision and control. He was not subject to the control of the defendant as to the manner in which he set up the engine. The accident happened on account of the negligence of Daniels in directing the work to be done. The engine was being erected in a new building which was not yet completed, one side being unfinished.</p> <p>The plaintiff testified that one Chadbourne, the general manager of the defendant, took him to the new engine-room and told him to do what Daniels ordered. The plaintiff thereafter worked entirely under the directions of Daniels.</p> <p>The plaintiff also called Chadbourne as a witness, and through him introduced in evidence a contract in writing between the Fitchburg Steam Engine Company and the Coffin Valve Company, of which the following abstract contained the only portion material to the issue in this case. “ We will furnish foundation plan and deliver the engine on cars here supplying man’s time for three days, or less, to superintend the erection of engine ready for steam connections and, if connections are made without delay, to start engine under steam, turning it over to you in running order you paying his expenses and furnishing laboring help as needed, all for the sum of thirteen hundred fifty and no one hundredths ($1350) dollars. . . .”</p> <p>This witness testified that he was, at the date of the accident, the general manager of the Coffin Valve Company; that Daniels was sent by the Fitchburg Steam Engine Company and was received by the Coffin Valve Company under the terms of this contract to superintend and set up the engine; that the engine had been shipped from Fitchburg, and the witness did not know whether or not the contract price for the engine had been paid; that the engine had been unloaded from the cars in Neponset at the factory of the Coffin Valve Company by workmen in the employ of the Coffin Valve Company and that the various parts had been placed by them in the engine room; that the Coffin Valve Company built the bed on which the engine was to rest; and that one Perry, a superintendent of the Coffin Valve Company, gave Daniels directions where to set up the engine but did not give him any directions as to the details of setting it up; that Daniels superintended the erection of the engine; that Perry came there occasionally and looked at the engine; that Perry did not talk with the workmen at all, but that he spoke once or twice with Daniels; and that Daniels stayed there until the engine was completely set up.</p>

<p>Negligence, In use of highway- Bicycle.</p> <p>If one, who is riding a bicycle on a straight, broad, smooth and unincumbered road in open daylight, is proceeding on the right hand side of the road near the curbstone, and an automobile is behind him going in the same direction but so far behind him that he reasonably may expect its driver to see him turn in time to avoid a collision, it is not negligence as matter of law for the rider of the bicycle to turn in front of the course of the automobile and begin to cross the road for the purpose of going back in the opposite direction, and, if under these circumstances the automobile runs him down, causing injuries which result in his death, in actions by the administrator of his estate against the driver and the owner of the automobile for such injuries and death, the question of the due care of the plaintiff’s intestate is for the jury.</p>

Tort by a workman in the employ of the Fore River Ship Building Company, a corporation, against his employer for personal injuries. Writ dated July 19,1907. The plaintiff’s declaration originally contained three counts.

<p> Deceit. Frauds, Statute of. </p> <p>In an action of tort for deceit, if the plaintiff shows that the defendant with an intent to deceive the plaintiff made false representations for the purpose of inducing him to pay money for the benefit of the defendant and others, and that the plaintiff, relying upon these representations, made the alleged payments, the plaintiff is entitled to recover.</p> <p>Raise representations as to the business and profits of a certain corporation, made to induce a person to become a stockholder in the corporation and to put money into the treasury of the corporation in payment for his stock, are not representations made to induce such person to enter into a transaction which will result in a debt due to him from a third person concerning whose,character, conduct, credit, ability, trade or dealings the representations were made, and therefore are not within the provision of the statute of frauds contained in R. L. c. 74, § 4. Roliowing Walker v. Russell, 186 Mass. 69.</p> <p>In an action of tort for deceit it is not a defense for the defendant to show, in regard to false representations made by him on whicli the plaintiff relied to his loss, that the defendant used due diligence to ascertain the truth in regard to the matters which were stated by him as facts within his own knowledge, and that he believed the statements which he made to be true.</p>

<p>Malicious Interference. Damages, In tort. Evidence.</p> <p>In an action for maliciously inducing a corporation to break a contract with the plaintiff, whereunder he was to be the sole agent for selling the goods of the corporation for one year within a designated territory and to receive a certain commission on such sales, it appeared that the defendant caused the contract to be broken, and induced the corporation to appoint him as its sole agent for the territory in question in place of the plaintiff. The plaintiff’s contract with the corporation was made in the month of March of the year in question and the breach of the contract occurred either in August or earlier than that time. The plaintiff had been the sole agent of the corporation in the designated territory for the two years preceding the year covered by the broken contract. He introduced evidence to show the sales made by him in the year previous to the contract and also evidence to show the sales made by the defendant in the year in which he caused the contract to be broken. The defendant asked the presiding judge to instruct the jury that in estimating the damages they were not to consider sales made by the plaintiff or the defendant in the years before the year covered by the contract, and that they were not to consider sales made by the defendant in the year for which the contract was made. The judge refused to give the instructions requested. Held, that the refusal was right; that, although the evidence of the sales made by the plaintiff before the year of the contract, and of the sales made by the defendant in the year in which the contract was broken, was not admissible to fix the rule of damages, or even to show conclusively the amount of the damages, yet it was admissible as having some bearing upon the value of the contract to the plaintiff and the amount of the damage suffered by reason of its breach; and that the fact that the evidence as to the sales made by the defendant covered sales for the whole year of the contract, while the breach possibly might be found not to have occurred until August, affected only the weight of the evidence.</p>

<p>Way, Defect in highway. Coal Hole. Evidence, Judicial notice.</p> <p>In an action against a city for personal injuries from an alleged defect in a highway of the defendant, consisting of a coal hole in a sidewalk, the cover of which slipped when the plaintiff stepped on it, causing the accident, it appeared that the cover was safe if adequately fastened from the inside, but that, if not so fastened, it would slip when stepped on from a certain direction, and that it was fastened properly a month before the accident. There was no evidence as to its condition from that time until the accident happened. There was no evidence as to the kind of person who occupied the building to which the coal hole belonged during the month before the accident. The same cover had been on the coal hole for more than nine years, and there was evidence that a police officer of the defendant, whose duty it was to report defects in the highways on his route which included this place, knew of the condition of the coal hole and its cover at least a month before the accident. Held, that there was evidence for the jury that the injuries of the plaintiff were sustained by reason of a defect in the highway of which the defendant had reasonable notice.</p> <p>It is a matter of common knowledge, of which the court takes cognizance, that coal hole covers set in iron collars can be made to fit so that they will remain firm and in place when trodden upon without being fastened from within.</p> <p>A coal hole cover in the sidewalk of a public street, which when trodden upon in a certain way will tip up unless it is fastened from within, is so likely to be unfastened, that a jury is warranted in finding that a city, which, after it had notice of sucli a condition of a coal hole and its cover, allowed it to continue, is liable for injuries sustained by reason of such a tipping up of the cover.</p>

<p>Sale, Passing of title. Carrier, Of goods, Liability on shipping receipt.</p> <p>Where a dealer in certain goods delivers to a railroad company a shipment of such goods and takes from the railroad company a non-negotiable shipping receipt by which the company agrees to transport the goods to a certain person named as consignee, who is in the habit of receiving consignments of these goods from the consignor and having the consignor draw upon him at the time of each consignment for a sum approximating the market value of the goods shipped, and the consignor thereupon draws on the consignee for such a sum representing the market value of the shipment and attaches the non-negotiable receipt to the draft, which he indorses to a local bank through which it comes to a bank at the city in which is the place of business of the consignee, who on its presentment accepts the draft and detaches and retains the shipping receipt, no title to the goods thus shipped passes to the consignee before his acceptance of the draft, by which he accepts the offer of the consignor to sell him the goods, and if, before such acceptance, the consignor asks the railroad company to deliver the goods to a person other than the consignee, and the railroad company at once complies with the request and delivers the goods to the third person before the draft has been presented to the consignee for acceptance, the consignee cannot hold the railroad company liable, either for a conversion of the goods, to which he has no title, or upon the shipping receipt, which contains no agreement with him.</p>

<p>Equity Jurisdiction, To follow funds misappropriated by trustee. Trust. Assignment, Of money. Bona Fide Purchaser.</p> <p>One, who was one of two trustees of one trust and also one of two trustees of a second trust and was managing trustee of each, sold securities of the first trust for $11,000 and deposited a check which he received in payment in a bank account of the second. Although, at the time of the deposit, he owed the second trust over $9,000, he did not intend to pay his debt to the second trust with the check, nor to borrow the money for the second trust from the first; but the deposit of the check in the bank account of the second trust was made as the most convenient way of cashing it, and he at the time intended to use part of the proceeds thereof for a personal speculation. Before his co-trustee or any of the beneficiaries in the second trust knew of his acts, he drew out the entire bank account of the second trust and applied $3,864 thereof to personal uses. Thereafter he paid his debt to the second trust, rendered an account therein which was allowed, and resigned as trustee, and his successor was appointed. He afterwards was removed as trustee of the first trust. In a suit in equity by the remaining trustee and the beneficiaries of the first trust against the trustées and beneficiaries of the second trust to compel repayment of the entire $11,000, it was held, that under the circumstances the $11,000, while it was on deposit in the bank account of the second trust, belonged in equity to the first trust as the property into which its $11,000 had been converted, and that the defendants were not liable to repay the $3,864 appropriated therefrom by the fraudulent trustee to his own uses before they knew anything about the matter.</p> <p>If a stolen check is deposited by the thief in the bank account of a third person, who does not know thereof, as a convenient way for the thief to collect the amount of it, and thereafter, before the owner of the bank account knows of the deposit, the thief draws out the entire sum so deposited, the owner of the bank account is under no liability in equity to the person from whom the thief stole the money.</p> <p>One, who was one of two trustees of one trust and also one of two trustees of a second trust and was managing trustee of each, with the purpose of misappropriating funds, sold securities belonging to the first trust for $11,000 and deposited a check which he received in payment in a bank account of the second trust as the most convenient way of cashing it so that he could use the funds for his purposes. At the time of such deposit, he owed the second trust over $9,000. Thereafter he drew from the bank account and applied to his own uses $3,864, and drew and applied in payment of interest upon mortgages and of taxes, which were overdue from the second trust with regard to land belonging to it, and of simple unsecured debts of the second trust, $6,623. The debts of the second trust thus paid should have been paid by the trustee when they became due with funds placed in his hands for the purpose, but he had misappropriated such funds. Afterwards, in payments to the beneficiaries and to the co-trustee of the sec- and trust of amounts rightfully due to them, the bank account of the second trust was exhausted, and at that time the fraudulent trustee had stolen from the second trust the further sum of $8,042, which indebtedness he paid in some way not known, and then filed accounts which on their face were regular and disclosed none of his fraudulent transactions, and resigned as trustee of the second trust and his successor was appointed. The accounts were assented to by the co-trustee and beneficiaries, and were allowed, and no one knew of any of the fraudulent trustee’s misdeeds for more than two years thereafter, when, they being discovered, he was removed as trustee of the first trust. Thereafter the remaining trustee and the beneficiaries of the first trust brought a bill in equity against the trustees and beneficiaries of the second trust to compel repayment of the $11,000. As to the $6,523 applied in payment of secured and unsecured debts of the second trust, it was held, that the $11,000 still belonged in equity to the first trust while it was on deposit in the bank account of the second trust; and also, Knowlton, C. J., dissenting, that, when.the fraudulent trustee drew therefrom $6,523 and paid debts of the second trust, whether thereby he directly paid debts of the second trust or in legal contemplation was to be considered as having undertaken to pay his debts to the second trust with the money of the first and thereafter to have used that money in paying debts of the second trust, the money so used was the plaintiffs’ and they were entitled in equity to recover from the defendants the amount so paid, and that such right of the plaintiffs was not affected either by the subsequent accounting of the fraudulent trustee with his co-trustee and the beneficiaries under the second trust or by the fact that the debts of the second trust, which the fraudulent trustee paid with the money of the first trust, should have been paid by him with funds of the second trust placed in his hands for that purpose. As to the sums paid to the co-trustee and beneficiaries of the second trust, it was held, that they became purchasers for value in good faith without notice of the fraud of the trustee, and that the plaintiffs could not recover such amounts.</p> <p>An assignee of money receives no better title than the assignor had, unless the assignee is a purchaser for value in good faith without notice of any defect in the title of his assignor.</p> <p>One, who had stolen $11,000, placed it in the bank account of a trust of which he was a trustee, in which bank account there already was $1,381. Thereafter he drew from the bank account $2,000 and fraudulently appropriated it for his own purposes, then drew $7,903, which he applied in payment of debts of the trust which then were overdue because of previous stealings on his part from the trust, and later drew the balance of the account and paid it out to beneficiaries of the trust and to a co-trustee for his commissions. In a suit in equity by the owner of the stolen money against one, who succeeded the fraudulent trustee, and the beneficiaries, to compel repayment of the amount of the plaintiff’s money which was applied for the payment of trust debts, it was held, that, since it was the trustee’s duty to use the $1,381, which was in the bank account of the trust before the $11,000 was deposited, for the purposes of the trust, he must be taken to have done so, and that no part of it was included in the $2,000 fraudulently appropriated by the trustee to his own use, although that amount was the first drawn; and therefore that the owner could recover from the defendant only $6,522.</p>

<p>Mortgage, Of real estate, Action by mortgagee for waste. Board of Health. Waste. Smallpox. Damages, To real estate from maintenance of smallpox hospital. Practice, Civil, Exceptions, New trial.</p> <p>The mortgagee of land lias such an interest in the property and its preservation as enables him to maintain an action in his own name for injury to it, and such right exists irrespective of whether or not he is in possession of the premises or has a right to possession because of a breach of the conditions of the mortgage, and notwithstanding he is a junior mortgagee and his security remains ample for his protection after the injury to the mortgaged premises.</p> <p>If a mortgagor of real estate, after the rights of the mortgagee have become fixed by the proper making and recording of the mortgage deed, makes a lease of the mortgaged premises without the consent of the mortgagee, the rights of the mortgagee are not affected thereby.</p> <p>Discussion by Rugg, J., of the nature of waste committed upon real estate.</p> <p>Waste is an unreasonable or improper use, abuse, mismanagement or omission of duty touching real estate by one rightfully in possession thereof, which results in its substantial injury.</p> <p>Mere injury to the reputation of real estate or the supposed diminution of its value resting on whimsical or emotional grounds or arising from dictates of custom or taste do not constitute waste.</p> <p>The owner of certain real estate, consisting of a house of three tenements and a stable, which was subject to two mortgages, in 1901, without obtaining the consent of the second mortgagee, leased the premises to the members of the municipal board of health for use as a smallpox hospital, and the board, without “ taking up” the premises in the manner provided in Pub. Sts. c. 80, § 43, so used the premises for the treatment of forty-two persons, six of whom died there. The second mortgagee brought an action of tort against the members of the board of health as individuals for waste. Held, that it was a question for the jury whether the disease germs of smallpox, which through the action of the defendants were deposited within the premises, could be removed by disinfection or otherwise . without material physical change in the premises, so as to make the premises as safe for residence as before their use as a hospital, and that, if the jury found that the germs could not be so removed and that the premises were damaged thereby, the action of the defendants might be found to constitute waste.</p> <p>In submitting to the jury an action of tort in the nature of waste by the mortgagee of real estate against the members of a municipal board of health, to whom the mortgagor without the consent of the mortgagee had leased the mortgaged premises for use as a smallpox hospital and who had used the premises for that purpose, instructions should be given by the presiding judge which would permit the plaintiff, provided the jury were satisfied that it was not reasonable and proper to let the building for that purpose, to recover the amount of material diminution, arising from the occupancy for a smallpox hospital, in the value of the mortgaged property for every use which among ordinarily intelligent men is deemed valuable, having reference to the probable effects upon the property’s future growing out of the presence of disease-producing conditions, in view of the existing state of the art of disinfection or other ways of making the premises healthful, and excluding all sentimental or fanciful notions affecting only its reputation. In this case, in which the bill of exceptions stated that the presiding judge ruled that as matter of law the plaintiff was not entitled to recover, but submitted the case to the jury only upon the question of damages “ under instructions to which no exception was taken by the defendants,” it being stipulated that, if the ruling of the presiding judge was wrong, judgment should be entered for the plaintiff in an amount assessed by the jury, this court, being of the opinion from an inspection of the record that the case was tried throughout upon the theory that recovery was sought and could be had for injury to the reputation of the estate apart from any physical waste, and although they were of the opinion that the ruling of the presiding judge was wrong, instead of ordering a judgment for the plaintiff according to the stipulation, ordered that such judgment should be entered unless within sixty days from the filing of the re-script the judge before whom the case was tried should decide after a hearing that justice required a new trial, and should enter an order to that effect.</p>

<p>Trustee Process, What are “goods, effects or credits.” Equity Jurisdiction, To reach" and apply property not attachable at law. Broker. Sale. Words, “ Goods, effects or credits.”</p> <p>A wool broker, who has received on account of his principal, residing in a distant city, a non-negotiable bill of lading of wool which has been consigned to the broker, but who, although he has been notified by the carrier of the fact that the wool has arrived on a wharf in the city where the broker does business, has not taken possession thereof, neither at common law nor under the provision of the sales act, St. 1908, c. 237, has in his possession “ goods, effects or credits ” of his principal, so that under R. L. c. 189, § 19, lie can be adjudged a trustee in an action by trustee process against his principal.</p> <p>Where, in a suit in equity against a New Mexico corporation, which had no place of business in this Commonwealth, and which was the owner of certain wool, and its broker in Boston, to reach and apply under R. L. c. 159, § 3, cl. 7, in satisfaction of a debt alleged to be due to the plaintiff, property which, it was alleged, could not be reached to be attached or taken on execution in an action at law, it appears that the defendant corporation has not been served with process and that the only property of the debtor in the control of the broker at the time of the bringing of the suit was a certain quantity of wool, the suit should be dismissed, since such property could be reached to be attached by trustee process in an action at law.</p>

<p>Mortgage, On real estate, Rights oí junior mortgagee upon payment by him of overdue taxes. Equity Jurisdiction, Subrogation. Tax.</p> <p>The taxes upon certain real estate, which was subject to two mortgages, being overdue and unpaid, the property was advertised for sale by the collector of taxes. The first mortgagee thereupon gave notice to the second mortgagee that, if the taxes were not paid, he would foreclose the first mortgage, and the second mortgagee, “in consequence of the situation disclosed by this notice,” paid the taxes and received from the tax collector the certificate described in R. L. c. 13, § 65, which he recorded. Over two years later, for. breach of the conditions of the mortgage in non-payment of interest and taxes of later years, the first mortgagee foreclosed his mortgage by sale under a power of sale therein, and the property was sold to him for a price not more than enough to satisfy the first mortgage debt. Before the sale the second mortgagee demanded repayment of the amount which he had paid for taxes, or to be secured therefor out of the proceeds of the sale. Upon the first mortgagee’s refusing to comply with the demand, the second mortgagee by a bill in equity against him .sought either payment to him of the amount he had paid to the tax collector or subrogation to the lien of the tax collector upon the land for the amount which he had paid. Held, that the suit could not be maintained, since in paying the taxes the second mortgagee had acted, not for the purpose of preventing a sale by the collector of taxes, but for the purpose of preventing the first mortgagee from foreclosing his mortgage, and therefore the payment was voluntary as to the first mortgagee and had extinguished the tax lien.</p>

<p>Municipal Corporations. Revere. Tax, Abatement. Mandamus.</p> <p>While two citizens and taxpayers of a town might maintain a petition for a writ of mandamus to compel the assessors of taxes of the town to comply with a valid by-law of the town, even though the selectmen of the town had declined to act in the matter and the Attorney General had declined to intervene, such a petition cannot be maintained by two citizens and taxpayers of the town of Kevere against the assessors of taxes of that town to compel them to comply with a by-law of the town which provides that the assessors shall keep a record of all abatements of taxes, the names of the persons taxed and the reasons for and amounts of abatements, and shall annually make a full report to the town thereof and of the valuation of “ real and personal and total the rate of taxation, the amount of money raised, and amount of money received as taxes from other sources than taxation by the town,” because such by-law is invalid, the Legislature only, and not the town, having power to lay such duties upon the assessors, and the Legislature not having done so.</p>

<p>Practice, Civil, Exceptions, Conduct of trial. Negligence, Street railway. Evidence, Competency, Opinion: experts.</p> <p>In an action of tort for personal injuries, a bill of exceptions by the defendant, setting forth exceptions to rulings by the judge presiding at the trial as to the admission and striking out of evidence and a refusal to rule that on all the evidence the plaintiff was not entitled to recover, did not contain any statement to tlie effect that there was a verdict for the plaintiff, and therefore did not show that the defendant was aggrieved by the rulings excepted to; but, since copies of papers transmitted to this court with the bill showed that there was a verdict for the plaintiff, the omission was considered by the court as “ inferentially supplied.” The exceptions, however, after consideration, were overruled.</p> <p>In an action against a street railway company by a woman who, while she was a passenger upon one of the defendant’s cars and was passing to a seat, was thrown down because of an alleged negligent sudden starting of the car, the plaintiff, in describing how the car started, testified, "It [the car] went right up like that. At least, I thought the car was going to stand right up, the way it struck me at that time. ... It didn’t start at all until it gave the jump. When it started, it gave a jump like.” Held, that such testimony, being a plain description without the use of mere expletive or declamatory words, was competent evidence, and, together with evidence tending to show that the plaintiff was in the exercise of due care and that, if the controller of the car had been properly operated, there would not have been such a movement of the car as . the plaintiff had described, and that the plaintiff was thrown down by the motion and was injured thereby, warranted a verdict for the plaintiff.</p> <p>At the trial of an action of tort against a street railway company by a woman who, while she was a passenger upon one of the defendant’s cars and was passing to a seat, was thrown down because the car was started in a manner which she alleged to have been negligent, there was evidence of the plaintiff’s due care and that the car was started with’ an unusual and unwarranted jerk. An electrical expert called by the plaintiff, after being duly qualified, described in detail the workings of a “K controller,” with which, the plaintiff’s counsel stated to the presiding judge, he would show the car in question was equipped, and also testified as to the proper method of operating the controller, and that, if a “ K 10 controller ” were thus operated, the car would not start in the way the plaintiff had described that the one in which she was thrown down had started. The plaintiff later introduced evidence tending to show that all the cars which the defendant used at the time of the accident had “ K controllers.” Later, the plaintiff’s expert having been recalled, testified that there were many kinds of “ K controllers,” of which the “ K 10 controller” was one, but that his testimony was true as to alhof them, and, after the defendant’s motorman had testified that the controller upon the car in question was a “ K 28 B, four-motor controller,” the expert again testified, being called in rebuttal, that his previous testimony applied thereto. The defendant excepted to the admission of all of the testimony of the expert, and at the close of all the evidence moved to strike out all of the testimony of the expert. The motion was denied. Held, that, the testimony given by the expert being germane to the issues on trial and the order in which witnesses should be examined being in the control of the presiding judge and subject to his discretion, the evidence properly was admitted and the motion properly was denied.</p> <p>At the trial of an action of tort against a street railway company by a woman who, while she was a passenger upon one of the defendant’s cars and was passing to a seat, was thrown down and injured because the car was started in a manner which she alleged to have been negligent, the plaintiff was the only witness on her own behalf who described the accident, and she testified that the car started with such a jerk that she got the impression that it “ was going to stand right up, the way it struck me at that time. ... It didn’t start at all until it gave the jump. When it started, it gave a jump like.” An electrical expert, testifying for the plaintiff, after stating what in his opinion was the proper way for the motorman to operate the controller in starting such a car; was asked whether, if the car had been so started, it “ would . . . jump in the way that has been described.” Subject to an exception by the defendant, the expert was allowed to answer the question, and answered it in the negative. Held, that it must be assumed that the witness knew the description which the plaintiff had given of the starting of the car, and that the form of the question was permissible.</p>

<p>Conversion. Deceit. Fraud. Negligence. Sale, Caveat emptor. Evidence, Presumptions and burden of proof, Mes gestae, Competency. Agency.</p> <p>After the first trial of this action of tort for conversion by means of fraud, in which the plaintiff was a married woman who contended that she and her husband, who acted as her agent, were induced to sell her farm and certain personal property thereon to the defendant by false representations on his part that certain mortgages which he assigned to her as the purchase price were first mortgages, and that it would not be necessary to have the title examined or to employ a lawyer, exceptions by the plaintiff to a ruling of the presiding judge ordering a verdict for the defendant were sustained. At the second trial of the case, although there was much more evidence, and that of the plaintiff was stoutly controverted, and there was much stronger ground for a contention of the defendant that the plaintiff and her husband were not so ignorant as they represented themselves to be in regard to business matters and real estate 'transactions, it was held, that there still was evidence from which the jury were warranted in finding in accordance with the contentions of the plaintiff, and that the presiding judge was right in refusing to rule that as matter of law the plaintiff and her husband were guilty of negligence in relying on the defendant’s representations. Following Rollins v. Quimby, 200 Mass. 162.</p> <p>In an action of tort for conversion by means of fraud, in which the plaintiff, a married woman, alleged that she and her husband, who acted as her agent, were induced to sell and convey to the defendant her farm and certain personal property thereon in return for the assignment of certain mortgages which the defendant falsely and fraudulently represented to be first mortgages, further inducing her not to employ a lawyer or to have the title or papers examined, there was evidence tending to show that one S. had acted for the defendant in the transactions; that, upon the plaintiff’s husband objecting that he could not take the purchase price all in mortgages, but must have some money, the defendant had said, “ I will have a man there [at the time of passing of papers] to cash it,” meaning one of the mortgages, and that at the time referred to one W. was introduced to the plaintiff’s husband as “the man who was to cash the mortgages.” Under such circumstances, subsequent conversations between the plaintiff’s husband and W., in the course of which W. at first delayed the day for procuring the cash and then stated that he did not desire to cash the mortgages, but that “they were all right from the description that S. and” the defendant had given him, were admitted in evidence subject to exceptions by the defendant. Held, that there was no error in the admission of the evidence, since it bore on the general contention of the plaintiff, and since, although the defendant was not present, S. might have been found by the jury to have been acting for him.</p>

<p>Three appeals from a decree of the Probate Court for the county of Bristol, allowing the will of Elizabeth F. Noble, late of Mansfield.</p> <p>Two months after the entry of the appeals in the Supreme Judicial Court for the county of Bristol the petitioners filed in that court interrogatories to the respondents, and also filed interrogatories for the taking of the depositions of nineteen other persons, who resided outside of this Commonwealth. The respondents thereupon filed a motion that they be not required to answer the interrogatories propounded to them by the petitioners, “ for the reason that said interrogatories should have been filed in the Probate Court ”; and also a motion that no commissions issue for the taking of the depositions of the nineteen non-resident persons, on the grounds that the applications therefor should have been made to the Probate Court, and because the applica- • tians were “ not made in good faith, nor with any bona fide intention on the part of the petitioners of using the testimony so obtained, but for the purpose of discovering the respondents’ case and testimony.”</p> <p>Thereafter a stipulation of the parties was filed as follows: “ It is stipulated that if the interrogatories to parties and the interrogatories for depositions filed in the above entitled causes are filed in the Probate Court for Bristol County no objection will be made that said court is not now the proper court in which to file them, and any depositions taken in pursuance of such interrogatories may be read in the Supreme Judicial Court only to such extent as they are legally relevant. The respondents reserve the right to contend in the Probate Court that it is now too late to file interrogatories to parties in any court, and the right to make all other objections not dependent on the place of filing.”</p> <p>Thereupon by order of a single justice an interlocutory decree was entered that “ now upon the filing of the written stipulation of the appellants, the court does not pass upon either of the motions, the executors preferring, under the terms of the stipulation, to file their interrogatories and take the depositions under commissions to be issued by the Probate Court, and no commissions are to be issued by this court and no answers to interrogatories are to be required in this court.”</p> <p>The petitioners then having filed in the Probate Court interrogatories to the respondents and also interrogatories for the taking of the depositions of the nineteen non-resident persons, and having filed petitions that the respondents be ordered to answer the interrogatories and that commissions for the taking of the depositions should issue, a decree was made by the Probate Court dismissing each petition on the ground that it appeared that the proceeding was not then pending in that court. There then was a hearing in the Supreme Judicial Court before Braley, J., upon the motions of the petitioners and of the respondents as to the interrogatories and the commissions for the taking of the depositions at which the respondents asked the single justice to rule as a matter of law that it appeared from the questions addressed to the various witnesses that the application for commissions was not designed to secure evidence for use at the trial. The ruling was refused, and the single justice “ found as a fact upon the evidence, namely the statements of counsel, that the questions for depositions were filed in good faith for the purpose of procuring evidence to be used at the trial, and thereupon ruled that the interrogatories to the respondents were properly filed in this court, and that the petitioners were entitled to answers thereto, and without passing on the competency of any of the interrogatories to the respondents,” he “ further ruled that commissions should issue to take the depositions of witnesses who were not respondents,” and, deeming the questions raised to be of sufficient importance, at the request of the respondents reported them to the full court for determination.</p> <p>The cases were submitted on briefs.</p>

<p>Equity Jurisdiction, To rescind contract with unauthorized agent of defendant, To compel removal of plaintiff’s name from list of stockholders of corporation. Contract, Construction, Rescission. Equity Pleading and Practice, Bill, Variance.</p> <p>A woman was approached by one P., who sought to sell to her shares of the capi- - tal stock of a certain corporation. Upon her objecting that she desired to make an investment in a security which could be readily sold on the market, P. promised that, if she would buy the shares, the corporation upon thirty days’ notice would agree to resell the shares for her for the price that she paid for them. At the woman’s request that such agreement be put in writing, P. produced a letter containing such agreement, written on what purported to be paper bearing the letter head of the corporation with the names of the corporation’s officers thereon, and of “ R., Fiscal Agent.” The letter was signed simply, “ R.” The woman thereupon purchased and paid for the shares. Thereafter, desiring to take advantage of the agreement as to resale of the shares, she gave to the officers of the corporation the requisite notice. The officers refused to recognize the agreement as valid because R. had no authority to make it. The woman thereupon by a suit in equity against the corporation sought a rescission of the sale, a repayment of what she had paid for the shares, and that her name be stricken from the list of stockholders of the corporation, and in her bill of complaint averred, “ The defendant company employed an agent to sell its treasury stock, and said agent in the course of said employment ... in order to induce the plaintiff to buy some of said stock, promised, on behalf of” the corporation as above stated, and that the defendant “ neglected and refused ” to carry out the agreement as to resale of the shares, and “further denied that it had ever made any ” such agreement as to resale “ and has repudiated said agent’s contract or promise that the company would so do.” The defendant demurred to the bill on the ground that the plaintiff, while alleging in the language above quoted that R. was the authorized agent of the corporation, contended that she ' was entitled to maintain her suit because his acts were unauthorized by the corporation. The demurrer was overruled, and the defendant appealed. Upon the above facts being agreed to by the parties, the defendant further contended that there was a variance between the allegations of the bill and the proof, and the presiding judge reserved the case for determination by the full court. Held, that as matter of construction the letter signed by “ R. Fiscal Agent,” purported to be the undertaking of the defendant, that upon the allegations of the bill it was evident that the plaintiff meant to allege that, while R. was employed by the defendant to sell stock, in the course of his employment he undertook without authority to make the agreement as to resale, and therefore that the demurrer rightly was overruled; also, that there was no variance; also, that there was no adequate remedy at law, and also, that a decree should be entered for a rescission of the contract and ordering that' the plaintiff's name be stricken from the list of stockholders of the defendant.</p>

<p>Landlord and Tenant, Landlord’s liability to member "of tenant’s family. Warranty. Contract, What constitutes. A ctionable Tort.</p> <p>The declaration in an action of tort against the owner of a house by the wife of a tenant therein, to recover for personal injuries received by the plaintiff by reason of a chair upon which she was standing on the back piazza of the house, while washing a window, breaking through the floor of the piazza because of a rotten condition of the floor, alleged “ that the defendant expressly warranted the premises to be fit and safe for the occupancy of the plaintiff’s husband and family.” The onty evidence as to such an express warranty was in the testimony of the plaintiff and of her husband. The plaintiff testified that the defendant before the contract of letting was made “said he fixed the house all right; it was fit for any one to live in it,” that he said “ he would fix it up to live in, fix it up in good shape. My husband asked him what kind of a house it was, if it was all right; he said, ‘Yes.’ ... He said it be all right and a good place to live.” The husband’s testimony was of a like purport. It appeared that the floor was open to inspection from above and below, that its condition could have been discovered at any time as easily by the plaintiff and her husband as by the defendant, that the defendant had no knowledge that the floor was not safe at the time of the letting, and that the plaintiff and her husband occupied the premises forfive months before the accident and never made any complaint to the defendant. Held, that there was no implied duty or contract on the part of the defendant to keep the premises in a safe condition while .they were in the possession of the defendant, that there was no implied warranty that the house or the piazza floor was safe and fit for occupancy at the time of the letting, and that the evidence would not warrant a finding that there was an express warranty by the defendant of such soundness and strength of every part of the house, including the floor of the piazza, that it would not give way in any place under the strain that the plaintiff put upon it.</p> <p>Whether, in case the owner of a certain dwelling house expressly warrants to a tenant that the back piazza will stand the strain caused by one standing to wash windows upon a chair, the legs of which are near the edge of the piazza which is against the wall of the house, and the wife of such tenant, while so using the ' piazza five months after the time of letting, is injured by a chair leg breaking through the floor, she can maintain an action of tort against the owner for the injury, here was not decided.</p>

<p>Writ oe error to reverse a judgment of the Municipal Court of the City of Boston issuing a new execution in an action of contract in which on March 2, 1900, the defendant in error recovered judgment against the plaintiffs in error, the defendant in error not being able to hold certain real estate which under a former execution was levied upon as belonging to the plaintiff in error Richardson but standing in the "name of one Cora L. Richardson, and the plaintiff in error, in response to a writ of scire facias issued at the request of the defendant in error under the provisions of R. L. c. 178, § 51, having been found after a hearing not to have shown sufficient cause why the new execution should not issue.</p> <p>The assignment of errors by the plaintiff Perkins was as follows:</p> <p>“ (1) As an error of fact, that it did not appear to the said Mary A. Bangs that the land levied upon could not be held thereby, but, on the contrary, that the said Mary A. Bangs voluntarily abandoned to levy thereon and procured said judgment to be entered against her in said Superior Court on said sixth day of December, 1909, well knowing that she could maintain the writ of entry brought by her, and not desiring to prevail therein, but preferring otherwise to collect the amount of the judgment obtained by her on the second day of March, 1900, rather than to obtain a judgment for the possession of the land levied upon and sold on execution to her.</p> <p>“ (2) As an error of fact, that by reason of the loches of the said Mary A. Bangs, and the long delay occasioned by the said Mary A. Bangs failing to prosecute her said writ of entry, the situation of the parties has been changed, and your petitioner is now unable to enforce an agreement to save himself harmless from any liability as a copartner entered into between your petitioner and the said Henry Richardson.</p> <p>“ (3) As an error of law, that it still appears of record that the execution under which said land standing in the name of Cora L. Richardson was levied upon and sold was satisfied thereby, no order discharging the return of the execution as satisfied having been made.</p> <p>“ (4) As an error of law, that the delay of the said Mary A. Bangs was so great as to deprive her of the right to maintain the writ of scire facias and to obtain judgment thereon against your petitioner and the said Henry Richardson-.”</p> <p>The plaintiff Richardson was admitted as a party to the proceedings after the writ of error issued, and filed the following assignment of errors:</p> <p>“ (1) The original judgment appears of record fully satisfied by levy on the execution issued thereon, without any reversal of said levy or any part thereof.</p> <p>“(2) No reversal of the levy or any part thereof on the execution issued on the original judgment whereby said judgment was satisfied as appears by the return on said execution was made by the court before entering the judgment complained of as required by statute.”</p> <p>The writ of error issued to the Chief Justice of the Municipal Court pf the City of Boston on March 30, 1910. From the return thereon, it appeared that both the plaintiffs in error filed answers in the scire facias proceedings, and that, after a trial, the following decree was made: “ This is a scire facias under R. L. c. 178, § 51. Trial was had, all parties being present, and, it appearing that the plaintiff recovered judgment against the said defendants for $661.89 damages, and $13.25, costs of suit, on the second day of March, A. D. 1900, and that execution duly issued thereon on the fifth day of said March, 1900, (and that upon said execution, certain real estate, standing in the name of Cora L. Richardson, was duly levied upon and sold on execution as the property of said Henry Richardson, and a deed thereof duly executed, to said Mary A. Bangs, May 19, 1900, said sale being for the amount of said execution and costs, and that said execution was returned to court as satisfied, yet it now appears by a judgment rendered by the consideration of our justices of our Superior Court, holden for and within our said county of Suffolk, at Boston, December 6,1909, that the property levied upon cannot be held, and therefore execution for said debt or damage doth yet remain to be made, and the said Mary A. Bangs having made application to us to provide remedy for her in that behalf)</p> <p>“ It is ordered, adjudged and decreed, that the plaintiff have a new execution on said judgment and that judgment be entered therefor.” Judgment accordingly was entered on February 18, 1910.</p> <p>The plaintiffs in error on February 19, 1910, filed the following document in the office of the clerk of the Municipal Court of the City of Boston:</p> <p>“ Motion to appeal & extend time.</p> <p>“ And now the Defts come and appeal and move that time to perfect the same by surety be extended to and include Feb. 24, 1910.”</p> <p>It did not appear that any action was taken by the municipal court upon the motion, or that the appeal of the plaintiff in error was perfected.</p> <p>The defendant in error demurred to the assignment of errors.</p> <p>. The demurrer was heard by Bugg, J., who filed the following memorandum:</p> <p>“ This is a writ of error brought to secure relief against a judgment on a scire facias in the Municipal Court of the City of Boston under R. L. c. 178, § 51. The first two assignments of errors relate to matters of fact, which were in issue upon the pleadings at the trial in said municipal court upon the scire facias. Such matters cannot be retried on a writ of error. As to these assignments of error the demurrer is sustained. As to the third and fourth assignments of error, and additional assignments of error of the petitioner Richardson numbered 1 and 2, the demurrer raises only questions of law. The case appears, therefore, to be wholly an issue in law under R. L. c. 156, § 6, and hence should be immediately transferred to the full court. If, however, this view is not sound, this memorandum is tó be treated as a report of the case for the determination of the full court.”</p> <p>The case was submitted on briefs.</p>

<p>Complaint received and sworn to in the Third District Court of Eastern Middlesex on October 29, 1909, under St. 1906, c. 463, Part II. § 155, against the New York Central and Hudson River Railroad Company, for obstructing Cambridge Street in Cambridge with cars for more than five minutes at one time on the day of the complaint.</p> <p>In the district court the defendant appeared specially, and filed a motion to quash the complaint oh the ground that the court had no jurisdiction either of the offense or of the defendant. This motion was denied. The defendant was convicted, and took an appeal to the Superior Court without giving a bond.</p> <p>In the Superior Court the case was tried before Bond, J. The defendant renewed its motion to quash and also filed a motion to dismiss the complaint. The judge denied both motions, and the defendant excepted.</p> <p>At the trial in the Superior Court it was admitted that the cars of the defendant obstructed Cambridge Street on the day alleged in the complaint for more than five minutes at one time. The judge ruled that the case was properly in the Superior Court on the appeal from the Third District Court of Eastern Middle-sex, and that upon the evidence the jury were warranted in finding the defendant guilty under the complaint.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in March, 191Q, before Knowlton, C. J., Morton, Boring, Braley, & Rugg, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Constitutional Law, Police power. Small Loans Act.</p> <p>The provisions of St. 1908, c. 605, §§ 1-6, regulating the business of making small loans of $200 or less upon which a rate of interest greater than twelve per cent per annum is charged and for which no security other than a note or contract with or without an indorser is taken, and prohibiting the carrying on of ■ such business without first obtaining a license in the city or town in which the business is to be transacted, are constitutional as a proper exercise of the police power.</p> <p>The provisions of St. 1908, c. 605, §§ 1-6, regulating the business of making small loans of the class there described and prohibiting the carrying on of such business without first obtaining a license in the city or town in which the business is to be transacted, are not made unconstitutional by the requirement of § 2 that the licensing officer or board shall from time to time establish regulations respecting the business carried on by the persons so licensed and the rate of interest to be charged by them, having due regard to the amount of the loan and the time for which it is made, or by the fact that under this section the rate of interest prescribed may be different in one city or town from that in another.</p> <p>The provisions of St. 1908, c. 605, §§ 1-6, regulating the business of making small loans of the class there described and prohibiting the carrying on of such business without first obtaining a license in the city or town in which the business is to be transacted, are not made unconstitutional by the exemption from the provisions of that act by § 6 of “ national banks, all banking institutions which are under the supervision of the bank commissioner, and loan companies and loan associations established by special charter and placed under said supervision." Eollowing Mutual Loan Co. v. Martell, 200 Mass. 482.</p>

Summary process, under R. L. c. 181, for the possession of land at the corner of Huntington Avenue and Tremont Street in Boston. ■ Writ in the Municipal Court of the Roxbury District of the City of Boston dated February 4,1910. On appeal to the Superior Court, the case was heard by Sanderson, J., without a jury.

<p>Appeal, dated February 11, 1910, from a decree of the Probate Court for the county of Berkshire, upon the petition of Jane A. Nesbit, administratrix of the estate of Julia A. Slater, late of Pittsfield, alleged to be also an heir at law of the intestate, for the distribution of a balance in her hands as such administratrix, such decree ordering the petitioner to pay the whole of such balance to the administrator of the estate of Henry Slater, the husband of Julia A. Slater, who survived her and afterwards died intestate.</p> <p>The case on appeal was presented to Knowlton, C. J., upon an agreed statement of facts, as follows:</p> <p>Julia Slater died on September 20, 1905, leaving a husband, Henry Slater, and no issue. Her next of kin were four sisters and a brother, and eight nephews and nieces, the children of deceased sisters. Julia Slater died seized and possessed of certain real estate appraised at $600 and of no greater value than $1,000. She left no other property save a deposit in the Berkshire County Savings Bank in the names of Julia and Henry Slater amounting to $300. There was also personal property to the amount of $75, the ownership of which may have been in either Julia or Henry Slater. After the death of Julia A. Slater, Henry Slater, her surviving husband, continued to occupy and use the real estate and treated it in all ways as his own, but the real estate was never set off to him or sold under the provisions of Sts. 1905, c. 256. Henry Slater died on April 29, 1906, leaving no heirs in this Commonwealth or elsewhere so far as known.</p> <p>On May 17, 1906, Frank H. Cande, a public administrator, was appointed administrator of the estate of Henry Slater. On September 12, 1906, Frank H. Cande, as such administrator, petitioned the Probate Court for leave to sell the real estate owned by Julia Slater at the time of her decease at private sale in accordance with an offer named. This petition was allowed on December 4, 1906, but the sale was not made. In the meantime, on September 24, 1906, Jane A. Nesbit was appointed the administratrix of the estate of Julia A. Slater.</p> <p>On September 27, 1906, Frank H. Cande as administrator of the estate of Henry Slater petitioned for the assignment of said real estate in fee under the provisions of St. 1905, c. 256, but this petition was never acted upon by the court, and on December 18, 1906, Jane A. Nesbit, as administratrix of the estate of Julia A. Slater, petitioned for the sale of said real estate, her petition was allowed on January 1, 1907, and the real estate was sold at public auction for the sum of $750. The final account of Jane A. Nesbit showed the receipt of no other property than the proceeds of this sale, and according to that account, which was allowed on November 29, 1909, there was a balance in the hands of the administratrix of $352.84.</p> <p>On December 3,1909, Jane A. Nesbit, as administratrix of the estate of Julia A. Slater, filed a petition for an order for the distribution of the balance among the next of kin of Julia A. Slater, and upon this petition the Probate Court made the decree appealed from, that the balance should be paid to Frank H. Cande, as administrator of the estate of Henry Slater.</p> <p>The Chief Justice ordered that a decree should be entered affirming the decree of the Probate Court and remitting the case to that court for further proceedings. From the decree entered in accordance with this order the petitioner appealed.</p>

<p>Practice, Civil, Verdict, New trial. Supreme Judicial Court. Insurance, Life. Evidence, Admissions by conduct, Offer of compromise.</p> <p>If, at a trial in the Superior Court, there is a verdict for the plaintiff, this court, on exceptions by the defendant to a refusal of the presiding judge to order a verdict for the defendant, can consider only whether there was at the trial any evidence in support of the verdict, and has no power to set aside the verdict upon the ground that it was against the evidence and the weight of evidence, such power being vested solely in the judge who presided at the trial.</p> <p>On exceptions by the defendant to a refusal by the judge, who presided at a second trial of the case of Lee v. Prudential Life Lns. Co. after the decision of this court reported 208 Mass. 299, to rule that there was no evidence which would warrant a verdict for the plaintiff, the former decision was reaffirmed, and it was held, that evidence that an insurance company, after an investigation satisfactory to itself, wrote, issued, received payment of a first premium upon, and delivered a policy insuring the life of one in whose application for insurance was a stipulation that the policy should not take effect “ until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application,” in which .the condition of his health was described as “good health,” and that the agent of the company, who to a certain extent was charged with the duty of ascertaining whether the policy ought to be delivered, called at the home of the applicant on the day of the payment of the first premium, and, not finding the applicant at home, made some inquiries of and had some talk with the daughter of the insured about the insured’s health, and that she answered his inquiries, after which the agent delivered the policy and received the premium, together with testimony of the daughter that at that time the physical condition Of her father was good, would warrant a jury in finding that, at the time of the payment of the first premium, the applicant was in good health.</p> <p>A contract of life insurance, which provided that on the death of the insured the insurance company would pay the amount thereof to the daughter of the insured, contained an agreement that the policy should not take effect “until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while [the insured’s] health is in the same condition as described in this application,” and the condition described in the application was “ good health.” At the trial of an action brought by the beneficiary against the company after the death of the insured, the plaintiff testified that an agent of the defendant brought the policy to the home of the insured on an evening when the insured was absent but the plaintiff was present, that she had some talk with the agent at that time about the health of the insured, that the agent inquired as to the health of the insured and that she answered his inquiry, and that the policy then was delivered to her. At the close of the evidence the defendant asked the presiding judge to rule that the jury were not entitled to infer anything in regard to the true condition of the health of the insured from the fact that the defendant’s agent delivered the policy to the plaintiff. In his charge to the jury, the presiding judge stated in substance that the ruling asked for was true so far as it related to the delivery of the policy in and of itself, but that, in connection with the evidence as to the conversation between the agent and the plaintiff and the evidence as to such investigation as the agent made before delivering the policy, such delivery was evidence to be considered as to the health of the insured. Held, that the modification of the ruling by the judge was not objectionable.</p> <p>A contract of life insurance, which provided that on the death of the insured the insurance company would pay the amount thereof to the daughter of the insured, contained an agreement that the policy should not take effect “ until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while [the insured’s] health is in the same condition as described in this application,” and the condition described in the application was “ good health.” At the trial of an action brought by the beneficiary against the company after the death of the insured, the plaintiff testified that an agent of the defendant brought the policy to the home of the insured on an evening when the insured was absent but the plaintiff was present, that she had some talk with the agent at that time about the health of the insured, that the agent inquired as to the health of the insured, and that she answered his inquiry, and that the policy then was delivered to her. At the close of the evidence the defendant asked the presiding judge to rule that “ the statement made by the plaintiff to the defendant’s agent, as to the condition of her father’s health, was not evidence from which the jury might infer that he was in good health at the date of the delivery of the policy.” The presiding judge refused to rule as requested on the ground that there was no evidence as to what statement the plaintiff made to the defendant’s agent. Held, that the refusal was proper.</p> <p>A contract of life insurance, which provided that on the death of the insured the insurance company would pay the amount thereof to the daughter of the insured, contained an agreement that the policy should not take effect “ until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while [the insured’s] health is in the same condition as described in the application,” and the condition described in the application was “ good health.” At the trial of an action brought by the beneficiary against the company after the death of the insured, the plaintiff testified in cross-examination that the company through its attorney made an application to her for a post mortem examination of her father, that she “ consulted with her attorney and refused to have it done. I would have refused anyway, but after consulting with my attorney I refused to have it done.” In redirect ex-animation she testified that she “ knew the conditions which were attached to the disinterment or some of them.” Later in the trial the defendant offered in evidence a letter from the attorney of the defendant to the plaintiff and her attorney, dated one month and twelve days after the death of the insured and a month and ten days before the bringing of the action, in which was a request for the post mortem examination, and the following: “ If as a result of such post mortem, it should appear that the deceased was in good physical condition or if it should not be definitely determined that he was not [at the time of the delivery of the policy] in good physical condition and was not in a consumptive state, the claim would, not be contested, but paid without delay. I . . . ask . . . that I may be present with physicians representing the company . . . [and] . . . suggest that two physicians for the claimant and two for the company be present.” The letter was excluded. Held, that, the plaintiff having chosen to decline the offer contained in the letter without intimating any other reason therefor than her knowledge of the conditions attached to the proposed disinterment, the letter should have been admitted as showing the jury what those conditions were, so that they could determine whether any and what weight should be given to them and whether the plaintiff’s refusal did not result solely or chiefly from a desire on her part to keep from the jury what might be, not only the best, but decisive evidence upon the issue before them.</p> <p>A contract of life insurance, which provided that on the death of the insured the insurance company would pay the amount thereof to the daughter of the insured, contained an agreement that the policy should not take effect “ until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while [the insured’s] health is in the same condition as described in the application,” and the condition described in the application was “ good health.” At the trial of an action brought by the beneficiary against the company after the death of the insured, the plaintiff testified in cross-examination that the company through its attorney made an application to her for a post mortem examination of her father, that she “ consulted with her attorney and refused to have it done. I would have refused anyway, but after consulting with my attorney I refused to have it done.” In redirect examination she testified that she “ knew the conditions which were attached to the disinterment or some of them.” At the close of the evidence, the defendant asked the presiding judge to rule that the jury were entitled to draw an adverse inference as to the condition of health of the insured on the date of the delivery of the policy from the refusal of the plaintiff to permit a post mortem examination of the body. With regard to such ruling the presiding judge charged the jury: “ If you find that such a refusal was due to the desire on the part of this plaintiff to prevent the truth being known, then you will consider and give it such weight as you may deem it entitled to in determining whether or not he [the insured] was in good health at the time this policy was delivered. If you find that upon the evidence in the case such refusal was for other reasons entirely disconnected with the question whether or not he was or was not in good health at the time of the delivery of the policy, then such refusal would not be of any significance.” Held, that the ruling asked for should have been given, and that the charge to the jury with regard thereto was erroneous, because the refusal by the plaintiff of the defendant’s request was itself, if not satisfactorily explained, evidence tending to show a desire on the plaintiff’s part to prevent the truth as to her father’s health from being known.</p> <p>A promise by an insurance company to a beneficiary claiming the amount of a policy after the death of the insured, contained in a letter delivered before the bringing of a suit, to cease to object to the payment of the amount of the policy if the beneficiary would allow the production of competent and material evidence, which was in the beneficiary’s control, and if that evidence should be in favor of the beneficiary, is not an offer of compromise, where there is no proposition that the beneficiary shall be bound by the evidence so obtained.</p>

<p>Marriage and Divorce, Appeal, Nature of proceedings. Superior Court.</p> <p>An appeal from a decree dismissing a libel for divorce must be taken within twenty days under the requirement of Rule 44 of the Superior Court, which fixes that limit in cases “ for which no time is fixed by statute.”</p> <p>A libel for a divorce is not a suit in equity, and the provision of R. L. c. 159, § 19, which allows thirty days after the entry of a final decree in a suit in equity for taking an appeal, has no application to such a libel.</p> <p>The provision of R. L. c. 162, § 29, that “the Superior Court may, if the course of proceeding is not specially prescribed, hear and determine all matters coming within the purview of this chapter [relating to divorce] according to the course of proceeding in ecclesiastical courts or in courts of equity, and may issue process of attachment and of execution and all other proper and necessary processes,” merely authorizes methods of hearing and determining divorce cases and the issuing of process in a way adapted to the nature of the proceeding, and does not make libels for divorce suits in equity.</p>

<p>Tort under R. L. c. 106, § 71, cl. 2, for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant and to have been caused by negligence on the part of one Locks, alleged to have been a superintendent of the defendant. Writ dated December 22,1906.</p> <p>The case previously was before this court and was reported in 200 Mass. 360, when exceptions by the plaintiff to a ruling ordering a verdict for the defendant were sustained.</p> <p>■The case was again tried before Sanderson, J., when there was a verdict for the plaintiff; and the defendant alleged exceptions.</p> <p>The facts are stated in the opinion.</p>

<p>Contract under R. L. c. 33, § 7, for $37.50 as the value of a portion of a partition fence erected by the plaintiff on and between adjoining lands of the plaintiff and the defendants in Worcester, which was alleged to have been assigned by the fence viewers to the defendants to repair and maintain. Writ in the Central District Court of Worcester dated May 29, 1907.</p> <p>On appeal to the Superior Court the case was submitted to Richardson, J., upon an agreed statement of facts, as follows:</p> <p>“ That on or about September 10, 1906, the plaintiff and the defendants were owners of adjoining lands, the plaintiff being the owner of the premises numbered 82 Lamartine Street, Worcester, Mass., and the defendants were owners of the premises numbered 76 Lamartine Street in said city.</p> <p>“ That no partition fence existed between said adjoining lands on said date. .</p> <p>“ That on or about said date, the plaintiff being aggrieved by the neglect of the defendants to build a partition fence together with the plaintiff, the plaintiff made a complaint to Maurice L. Katz, A. 0. Buttrick and James A. Gallager, duly appointed fence viewers of the city of Worcester of such neglect, who after notice to each party viewed the said premises and afterwards made a decree in writing that a partition fence was required between the' lands of the plaintiff and Paulina M. Jaffe, one of the said defendants, said complaint having been made against the said Paulina M. Jaffe and directing her, the said Paulina M. Jaffe, to build that portion of the fence assigned to her to be built described in the copy of the decree annexed to the pleadings, and also directing the said plaintiff to build that portion of the fence assigned to her to be built as described in said copy of the decree, which decree was duly recorded in the office of the city clerk of Worcester, Mass.</p> <p>“ That in accordance with the said decree the said Paulina M. Jaffe was ordered to build a portion of the fence within fifteen days of the date of the decree, which she failed to do, and the plaintiff therefore built the entire fence and made demand for the sum of $47, which was one-half of the value of the erection of said entire fence, and which amount had been ascertained by a certificate under the hands of said fence viewers as the value of said one-half of the building of said fence.</p> <p>“ Upon the defendant Paulina M. Jaffe refusing to pay the same for one month after demand, said plaintiff instituted a suit in the Central District Court on the fifth day of December, 1906, to recover said value of $47, which suit was returnable in said court on the twenty-second day of December, 1906.</p> <p>“ Said cause was tried on the sixteenth day of February, 1907, and the court rendered a verdict for the defendant in said action; that subsequently on or about the thirteenth day of March, 1907, the said plaintiff requested the said fence viewers to appraise, and apportion said fence and assign to the plaintiff and said defendants their share of said fence respectively; that due notice was given to the plaintiff and also to the said defendants of the hearing, which notice was received by said defendants and said plaintiff ; that said fence viewers viewed said premises and afterwards made a decree in writing, which decree was duly recorded in the office of the clerk of the city of Worcester, and a copy of which is annexed to the pleadings in the case, in which decree said fence viewers assigned to the plaintiff and the defendants the share of the partition fence, which was to be' maintained and repaired by each of the parties to this action respectively and ordered said defendants to pay the value of said portion thereof as was assigned to them to repair and maintain, which amounted to the sum of $37.50, which sum the said defendants were ordered to pay to the said plaintiff.</p> <p>“ Said fence viewers also in said decree made a certificate of the amount of fees, which were to be paid by said plaintiff and the said defendants; that said plaintiff made a demand for said sum of $37.50 and upon the refusal of the said defendants to pay the same for one month after demand, the plaintiff brought this action to recover said amount; that before said demand was made by the said plaintiff, the fence viewers sent copies of the decree to the said defendants; that neither one of the parties to this action lived in the houses on the respective premises but the tenants had possession of their respective tenements; that there were three tenements, one store and bakery in the building owned by the said defendants; that there were seven tenements in the building owned by the said plaintiff; that in each of said respective buildings, said tenements were rented of the plaintiff and the defendants, at a monthly rental by tenants at will. The respective premises were enclosed by fences with the exception that there was no fence on the dividing line between said premises until the fence was erected by the plaintiff as herein stated and there was no fence in front of said Jaffe premises, and that said premises owned by the plaintiff and the defendants were improved land having buildings on them as aforesaid.</p> <p>“ It is also agreed that, if the finding should be for the plaintiff, damages are to be assessed in the sum of $37.50.”</p> <p>The judge ordered that judgment should be entered for the defendants. From the judgment entered in accordance with this order the plaintiff appealed.</p>

Tort under the employers’ liability act by the administratrix of the estate of Peter J. Wicklund, for the death and conscious suffering of the plaintiff’s intestate, alleged to have been caused by the negligence of a superintendent of the defendant. Writ dated March 23,1909. In the Superior Court the case was tried before Aiken, C. J., who reported it for determination by this court.

<p>Tort against the Boston and Maine Railroad for personal injuries sustained while the plaintiff was in the employ of the defendant as a painter, alleged to have been caused by the falling of a staging on which the plaintiff was standing while painting the outside of a freight car in a repair shop of the defendant. Writ dated April 16, 1909.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The portion of the evidence material to the decision is described in the opinion.</p> <p>In the course of the trial the plaintiff offered as experts two contractors, who had done a general building business but never had had any experience in building or painting freight cars. These men were in court, and had listened to the description of the staging. They then were asked, subject to the objection of and an exception taken by the defendant, what in their opinion caused the accident. The admission of their answers to this question has been made immaterial by the decision of this court.</p> <p>At the close of the evidence the Chief Justice refused to rule that the plaintiff was not entitled to recover and to order a verdict for the defendant. He also refused to make other rulings requested by the defendant, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,880. The defendant alleged exceptions.</p>

Tort for personal injuries alleged to have been sustained while the plaintiff was employed as a carpenter by the two defendants Napoleon M. Deschenes and Joseph Charron jointly, by reason of the breaking of a defective bracket, which supported a staging on which the plaintiff was standing while at work upon a house in process of erection at the corner of Clarendon Street and Randolph Street in Fitchburg. Writ dated August 14, 1907.

<p>Contract for services in taking care of rooms occupied by Charles W. Felt, the father of the defendant, and also for washing and mending clothes of Charles W. Felt. Writ dated April 8, 1908.</p> <p>In the Superior Court the case was tried before Bishop, J. The following facts appeared in evidence.</p> <p>On May 1, 1902, the plaintiff and her husband, Asa F. Ellis, went to live on a farm in Northborough, occupied by the defendant’s father, Charles W. Felt. Asa F. Ellis first hired the farm from one William H. Sampson, who sublet it to him during the year 1902, and from 1903 Asa F. Ellis hired the farm from Charles W. Felt until he died on March 10, 1907, and paid rent therefor at the rate of $6 and $7 a month. Charles W. .Felt reserved two rooms on the second floor in the house on the farm for himself; and the plaintiff took care of those two rooms.</p> <p>In May, 1902, Charles W. Felt told the plaintiff that he would pay her $6 a month, or $1.50 a week, if she would take care of his rooms and wash and mend his clothes. Under the above promise the plaintiff did this work until some time in May, 1905, the date not being definitely stated; but she received no money from Charles W. Felt for this work.</p> <p>Charles W. Felt was seventy-two years old when he died in 1907. He had been somewhat feeble. Up to the time of his death he had boarded with Asa F. Ellis, paying fifteen cents a meal.</p> <p>Charles W. Felt paid Ellis for his meals, but never had paid for the care of his rooms and the washing and mending of his clothes, although he several times had promised to pay the plaintiff up to May, 1905.</p> <p>The plaintiff’s husband testified as follows: “ In the latter part of May, 1905,1 don’t know just the date, George Felt drove into my yard, or into the yard premises where I lived, with his automobile in the afternoon, and wanted to know if his father was at home. I told him he was not, I thought he had gone to Worcester. He asked after his father as usual and got ready to go away, and I says, ‘ Mr. Felt, I would like to speak with you a minute.’ ‘ Very well, what is it? ’ ‘ Mr. Felt, when we came here,’ I says, ‘ my wife made a trade with your father to do his work.’ 6 Is that so ? what was the trade ? ’ So I told him a dollar and a half a week, to take care of his two rooms, washing, ironing and mending. Those rooms were separate from our department. I says, ‘ From that time to now she has never got anything for doing the work, and she says she will do it no longer without she has pay for it.’ — Q. That would be a period of how long? A. That would be a period of three years. — Q. How you may go on. A. ‘ Well,’ he says, thinking it over, {Father has got to stay somewhere, and this is his home, he is better off here than anywhere else, really, I can’t have him.’ He says, ‘ You tell your wife if she will continue to do the work she has done for father, I will pay her.’ 6 Yes,’ I says, ‘ but how about this back time she has been doing the work and no pay for it ? ’ 1 Well,’ he says, ‘ I will pay that too if she will continue looking after father.’ Then I says, 6 My wife will look to you for the bill instead of your father?’ He says, 1 Yes, she can, I will pay it.’ ”</p> <p>This testimony was corroborated by one Smith, a witness for the plaintiff, who heard the conversation between the defendant and the plaintiff’s husband.</p> <p>The plaintiff testified that she did not hear the conversation between her husband and the defendant, but saw the defendant talking to her husband in the yard, and afterwards was told what the defendant said. A day or two later, Charles W. Felt, the father of the defendant, having returned home, told Mr. and Mrs. Ellis that he intended to have some money for Mrs. Ellis, but did not get it. Mr. Ellis then told Charles W. Felt that he had spoken to his son George, the defendant, in regard to it, and he said, “You need not give it any more thought or worry, that he, George, said he would pay the back bill, and from now on his wife would look to him, George, and not to you for her pay.” Charles W. Felt seemed to be pleased and satisfied.</p> <p>The plaintiff testified that she took care of the rooms of Charles W. Felt and did his washing and mending from May 1,1902, to December 1, 1906, when Charles W. Felt was taken to the defendant’s home. He died on March 10, 1907.</p> <p>There was evidence of the defendant tending to controvert that of the plaintiff.</p> <p>William H. Sampson, a witness for the defendant, testified as follows: “ Q. Did you ever hear Mr. Charles W. Felt say anything about the arrangement with Mr. and Mrs. Ellis about his board and room rent? — The plaintiff’s counsel. I object.— The Judge. You may state this to me and not the jury. — Q. Where was it? A. At my house in Horthborough. ■—Q. One conversation or more ? A. Several conversations. He used to come to my house. — Q. What did he say about this matter ? A. My wife wanted to take a few boarders to make a dollar or two, and Mr. Felt came down to the house and I said, ‘ How are' you getting along up to the house?’ and he says, ‘Fairly well.’ I says, ‘Are you satisfied up there?’ ‘Well, fairly so.’ I thought he wasn’t quite satisfied, and so I says, 6 What are you paying Mr. Felt, any way?’ I understood him to say three or three and a half dollars a week. I says, ‘ Does this include your washing and everything all through?’, and he says, ‘Yes, everything.’ ” The judge refused to allow the testimony oi this conversation to go to the jury, and the defendant excepted.</p> <p>At the close of the evidence the defendant asked the judge to rule as follows:</p> <p>“1. On the law and all the evidence the plaintiff is not entitled to recover.</p> <p>“ 2. The defendant did not acquire any benefit from the plaintiff for the promise that the plaintiff claims the defendant made, and therefore the statute of frauds applies to the case.</p> <p>“ 8. The evidence shows that the promise claimed to be made by the defendant is to pay the debt of another and must be in writing to hold the defendant.</p> <p>“ 4. The promise to pay the plaintiff for past and future services rendered to Charles W. Felt was within the statute of frauds.</p> <p>“ 5. On the evidence, the plaintiff cannot recover for services that may have been rendered after May, 1905, because it does not appear that the defendant agreed to have the charges made to him.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury with other instructions. The jury returned a verdict for the plaintiff in the sum of $349; and the defendant alleged exceptions, which after the death of Bishop, J., were allowed by Sanderson, J.</p>

<p>Tort against the Old Colony Street Railway Company, as a common carrier of passengers, for injuries from an assault alleged to have been committed upon the plaintiff by the conductor of a car of the defendant on which the plaintiff was a passenger. Writ dated December 30, 1904.</p> <p>The pleadings are described in the opinion.</p> <p>In the Superior Court the case was tried before Bell, J. The defendant admitted that the car belonged to the defendant and was in charge of its employees. The plaintiff testified in substance that he got on the car in Whitman; that after the car had gone about a quarter of a mile the conductor came in and said to him, “ I will fix you before I get through with you. . . . Here, this is as far as you can go ”; that in two lengths the car stopped on-a turnout; that the plaintiff got up and started to get out; that as he was stepping down, when he had one foot on the platform and one on the step, the conductor yanked him off and knocked him down ; and that just as he was getting up the conductor hit him again and he became unconscious. He then described his injuries and the expense to which he had been put; and he later introduced evidence that the conductor ¿ontinued to strike him until he was stopped by the witness Goughian. On cross-examination he said that he had had three drinks of whiskey, but was not under the influence of liquor; that he mistook the conductor for another conductor named Grady; that he paid his fare; that he went in and sat down on the long seat near the rear; that he asked the conductor and found that he was not Grady; that he had come to the place where he intended to get off; that the conductor was on the ground when he got up to get out. The plaintiff further testified on cross-examination as follows : “ When I first got on the car I told the conductor he was a liar. The conductor said that I had not been on that car before that. I called the conductor a liar three times. I told the conductor he was drunk. He said I was drunk, and I said I was not any drunker than he. The conductor said ‘ You would not dare to say that to me if I was off the car. ’ I said, ‘ I would say it to you anywhere.’ The conductor did not call me a liar.” On redirect examination the plaintiff testified in substance : “ I said first, ‘ Here is my fare.’ The conductor said ‘ Go and sit down ; you are drunk.’ Then I said 6 You are a liar, haven’t I been on the car before ? ’ He said ‘No.’ I said again ‘You are a liar.’ That was all. He said he would put me off. I said he could not do it.”</p> <p>The conductor testified in substance as follows: “I did not know the plaintiff before. He got on near the Hobart House. He passed me a nickel. He said ‘ What is the matter with you ? ’ I said ‘ Why ? ’ He said, ‘ I came over with you at five o’clock.’ I said ‘ No.’ He then called me a liar three times. He said I was drunk. I said that if I was not on the car I would not stand for it. I stopped to throw a signal light. When I returned from throwing the light the plaintiff was standing on the ground opposite me, and called me ‘ a son of a bitch,’ and then I struck him.” On cross-examination the conductor testified in substance: “ The place where I struck him was not more than three or four feet from the car. I did not motion for him to get off. I did tell the plaintiff that if he had got further to go I would put him off. He said I was a liar, and that he had got one to settle with me.”</p> <p>The plaintiff denied that he was on the ground when the assault began, and denied that he used the expression “ a son of a bitch.”</p> <p>There was evidence of other witnesses on each side tending to corroborate more or less fully the evidence of the plaintiff and of the conductor respectively. Several witnesses testified that the plaintiff talked loud and appeared to be under the influence of liquor. On the other hand one of the witnesses testified that he heard no loud, profane or indecent language, and that the plaintiff did not appear to be under the influence of liquor, although he had been drinking. There was evidence that the conductor told the plaintiff to shut up or he would put him off the car, and that the conductor beckoned to him to get off. This last the conductor denied. There was no evidence of any threats by the plaintiff or of attempts on his part to use violence, or to assault the conductor or anybody else. There was evidence, although it was contradicted by a witness for the plaintiff, that after the conductor struck him the plaintiff made a pass at the conductor and that the plaintiff got the conductor by the knees and said “ You could not have done that if I had not been drunk.” There also was evidence that all the conversation above related on the part of the plaintiff was during the first half of the trip, and that the last half of the time that he was on the car he made no talk whatever.</p> <p>The plaintiff asked the judge for six rulings. Of these the judge gave the third, which was as follows: “ If the conductor while acting as the servant of the defendant commits an assault and battery on a passenger while the passenger is in the act of riding on the car, before the passenger has let go of the handle bar which he has to use for the purpose of alighting, he is guilty of an assault. ”</p> <p>The other rulings requested by the plaintiff were as follows:</p> <p>“ 1. If the conductor, while acting as a servant of the defendant, got off the car and waited intending to commit an assault and battery upon the plaintiff when the plaintiff alighted from the car, and did commit an assault and battery upon the plaintiff immediately upon his alighting to the ground and, before he started his journey across the street, then the defendant is liable.</p> <p>“ 2. If the conductor, while acting as a servant of the defendant, acting under his authority to expel passengers from a car orders the plaintiff off the car, the conductor intending to commit an assault and battery upon him immediately upon his leaving the car and does in fact commit an assault and battery upon him immediately upon the passenger’s stepping from the car and before he started his journey across the street, then the company is liable.”</p> <p>“ 4. If the conductor, while acting as a servant of the defendant, commits an assault and battery upon a passenger who has alighted from a street car immediately upon his reaching the ground and before he has had time to start his journey across the street, the defendant is liable.</p> <p>“5. If the conductor has words with a passenger on a car while the conductor is acting as such and the conductor thereupon makes up his mind to assault the passenger as soon as the passenger alights upon the ground and does, in fact, commit an assault and battery upon the passenger immediately upon his alighting upon the ground, it is all one assault and battery having its origin upon the car.</p> <p>“ 6. That mere words would not constitute a provocation for an assault and battery that the conductor committed upon the passenger some minutes after the words were spoken and while the passenger was minding his business and making no show of threats.”</p> <p>The judge refused to make any of these rulings. He also refused to rule that the burden of proof was on the defendant to show provocation, and ruled and instructed the jury that the burden was on the plaintiff to show that the company had violated some duty which it owed to him or that by its agents it had injured him without justification; saying, “ That is, if the act was done by its agents in pursuance of their duties as agents, the conductor in pursuance of his duty as conductor in ejecting a man from the car and using unreasonable violence in doing so, that has to be proven by the plaintiff by a fair preponderance of evidence. On the other hand, if the plaintiff has not been protected by the defendant as they ought to have protected him as one of its passengers, that also is for the plaintiff to prove by a fair preponderence of the evidence. ”</p> <p>The judge added, “ When I said they were obliged or bound to protect the passengers, what I meant was, not that they are absolutely insured by them, that they are bound to use the highest degree of care of which their business is capable to protect their passengers from insult and assault which the nature of their business permits.”</p> <p>To these rulings and instructions on the matter of provocation and the burden of proof thereof and to the above refusals to give the instructions which he requested, the plaintiff excepted.</p> <p>The judge submitted four questions to the jury, as follows:</p> <p>“1. Had the plaintiff ceased to be a passenger when the assault upon him was committed ? ”</p> <p>“ 2. Did the plaintiff provoke the assault ? ”</p> <p>“3. Was the assault committed in an attempt to eject the plaintiff from the car?”</p> <p>“ 4. What were the damages if the plaintiff should be entitled to recover?”</p> <p>The jury returned the questions into court unsigned by the foreman with the word “ Yes ” after question 2 and the word “ No ” after question 3 and were unable to agree upon an answer to question 1 or question 4. Their answers were affirmed as usual. No objection was taken or suggested to the form in which the answers were made.</p> <p>The judge “ thereupon, in order that the questions in the case might so far as possible be determined, ordered the jury to return a verdict for the defendant ” and reported the case for determination by the full court, judgment to be entered upon the verdict or a new trial to be granted or such other order to be made as law and justice might require.</p>

<p>Guardian. Infant. Trust. Contract, Validity. Probate Court.</p> <p>Where, after the termination of the period of guardianship of an infant by his coming of age, the property of the ward remains with his consent in the possession and under the management of the guardian, although the guardianship . has ceased as to the person of the ward, the trust is continued as to the property, and the guardian is bound to account for the property in the Probate Court.</p> <p>Where a mother is the guardian of her son, and upon his coming of age continues with his consent to hold his property in her possession and under her management, and thereafter the guardian and the ward make an agreement with each other that upon a payment by the guardian of a certain sum in cash and the acceptance by the ward of certain services to be rendered by her in the future all her indebtedness as guardian to her son as ward shall be considered as discharged, there is no reason why the agreement in the absence of fraud or deceit should not be held to be valid.</p> <p>Where a mother was the guardian of her son and after his coming of age con- • tinned with his consent to hold his property in her possession and under her management, and a valid agreement was made between them whereby the mother as guardian was discharged from all indebtedness to her son as ward, upon the filing of the final account of such guardian in the Probate Court, the guardian properly can be credited with so much of the items as show a fulfilment of the agreement, but she cannot be allowed to charge the ward with amounts of money, alleged to be due for services rendered by her to the ward,</p> <p>■ in excess of the amount of the trust property in her hands, because as to those transactions the relations of the parties are those of debtor and creditor, and the Probate Court has no jurisdiction over the collection of such debts.</p>

<p>Negligence, Contributory, Imputed. Agency, Scope of authority, Existence of relation. Evidence, Relevancy and materiality, Opinion.</p> <p>Where two persons suffer personal injuries while they are engaged in a joint enterprise, if the negligence of one of them contributed to the accident which caused their injuries, such negligence is a bar to an action brought by the other against a third person for such injuries, provided such contributory negligence was in a matter within the scope of the joint enterprise.</p> <p>In actions of tort by two plaintiffs for personal injuries sustained in the same accident, when they were together in a motor car upon a trip, the expenses of which they had agreed to share, it appeared that the defendant was the proprietor of a garage, whose business included towing disabled cars for hire, that the car in which the plaintiffs were making their trip became disabled, and that they sent to the defendant’s garage for a tow, that a person was sent by the defendant with a towing car, to which he hitched the car of the plaintiffs by a rope, and that while the towing was in progress at an alleged high rate of speed the car of the plaintiffs ran or was thrown against a telephone pole, causing the plaintiffs’ injuries. The plaintiffs sought to hold the defendant liable on two grounds, first, because of the negligent manner in which the cars were hitched together, and, second, because of negligence in the management of the towing, either in the way of excessive speed or otherwise. The evidence was conflicting, and it could be inferred from the record that there was sufficient evidence to warrant a finding in favor of either party as to each of these kinds of negligence. There also was evidence on which it could be found that one of the plaintiffs protested against the manner of hitching the cars together as unsafe “ and with a full appreciation and knowledge of the dangers involved in riding in the machine under those circumstances.” The judge instructed the jury in substance to find for the defendant if one of the plaintiffs knew and appreciated the risk attendant upon the negligent hitching. The jury returned verdicts for the defendant. Held, that the instruction of the judge was erroneous, because no appreciation of the risk of the manner of hitching by one of the plaintiffs could affect his right or that of the other plaintiff to recover for negligence in the operation of the cars, to which alone the jury might have found the accident to have been due.</p> <p>If the authorized agent of the proprietor of a garage, whose business includes towing disabled motor cars for hire, when he is asked to send a towing car to tow a disabled car, sends a man out with a towing car to do this, giving him authority to hire as many men to help him as he thinks necessary, and the man thus sent, thinking his brother necessary, takes him as a helper, the brother while engaged in this employment is the servant of the proprietor of the garage, whether he actually is needed or not.</p> <p>For the purpose of showing that an automobile was moving at a high rate of speed, it is not proper to ask a witness whether the coming of the machine aroused any concern in him, because the fact that a person is concerned or frightened by the speed of a vehicle furnishes no trustworthy guide as to the rate of speed.</p> <p>For the purpose of showing that the person who answered a certain telephone call at a garage was the agent of the proprietor of the garage, it is not proper to ask a witness whether he can state “ who was in charge there,” it being the province of the jury to draw inferences as to the scope of the agency of the person in question from the testimony of the witness as to what he saw such person do.</p>

<p>Tort for personal injuries sustained by the plaintiff on May 15,1907, while she was passing through a hallway to reach a furnished room hired and occupied by her in a lodging house at North Adams, owned by the defendants and conducted by them under the care and control of their representative, alleging that the defendants were bound to.keep the hallways and approaches of the building safe and well lighted, and that, by reason of the negligence of the defendants in not doing so and on account of the consequent darkness, the plaintiff fell and was injured. Writ dated March 25, 1908.</p> <p>In the Superior Court the case was tried before Crosby, J. The evidence tended to show that the defendants conducted a public lodging house which was in charge of a matron employed by the defendants, a syndicate of five men; that the defendants retained the control and management of the hallways and the lighting of them; that the plaintiff early in the year 1907 hired at a weekly rent a room on the second floor; that the hallway on the second floor leading to this room was a dark hall, which was not lighted by windows and had to be lighted artificially by a gas light near the bath room, which the plaintiff testified was kept burning continually every night and which it had been the custom during all the time that she had occupied the room to keep burning all night; that the second floor hallway was reached by a stairway from the floor below and also by a door at the head of these stairs leading from the apartments adjoining the lodging house on the south, which also were owned by the defendants; that the plaintiff was a practising physician, sixty-seven years of age, in good health and active, and was employed as the regular physician of the Viavi Company which had offices in the adjoining apartments on the second floor; that the doorway leading from the offices of the Viavi Company opened directly into the hallway of the lodging house on the second floor and upon the landing at the head of the stairs; that the door swung toward the rooms of the Viavi Company with a knob on the side next to the head of the stairs; that the width of the landing, at the head of the stairs was three feet ten inches and the distance from the edge of the casing of the door to the edge of the landing was fourteen inches; that on the night in question the plaintiff left her room in the lodging house at about 9.30 p. m. and, as was her custom, passed through the hallway into the offices of the Viavi Company by way of the door at the head of the stairs; that as she passed through she found the gas light in the hallway burning as usual; that she remained in the offices of the Viavi Company transacting her business duties until a quarter before twelve o’clock, and then arose and immediately started for her own room, returning as she came by way of the door at the head of the stairs, this being the only way to reach her room from the offices of the Viavi Company and the one she always had used since occupying her room; that this door hung on the side of the partition next to the offices of the Viavi Company and swung toward the hallway of the Viavi Company instead of into the hall of the lodging house; that she found this door closed, and testified that it always was kept closed; that she opened it, drawing it toward her a sufficient distance, and passed through, closing the door after her; that immediately upon withdrawing her hand from the knob and - while she was in the act of taking her first step toward her own room, she suddenly noticed for the first time that the light was out and that she was in utter darkness; that she brought her foot down, thinking that it would strike the landing, but that it went over to the stair below and immediately she found herself falling into space; and that she was badly injured. The plaintiff testified that she passed through this hallway to and from her room to the offices of the Viavi Company several times each day and night and always had found the gas jet burning every time she used the hallway at night except on the night of the accident. She also testified that at the time of the accident she was greatly surprised to find herself in darkness when she had closed the door after her; that she had expected to find the hall lighted and had closed the door and had taken her first step before she noticed that the light was out; that instead of striking the landing, her foot when it came down went over the edge to the stair below and she fell forward; and that it was so sudden she had no time to think.</p> <p>After the close of the plaintiff’s evidence, the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Two actions OP TOBT for damages alleged to.have been caused by false and fraudulent representations of the defendant, whereby the plaintiff Thomson was induced to purchase certain live stock from the defendant and with the plaintiff Stone to take a lease from the defendant of a dairy farm in Northfield, called the Maples Dairy, and the plaintiff Stone was induced to give up a profitable business in which he was engaged in order to become one of the lessees and to manage the dairy. Writs dated March 16, 1907.</p> <p>In the Superior Court the cases were tried together before King, J.</p> <p>The plaintiff Thomson testified that she had lived in North-field for thirteen or fourteen years; that at some time in July or August, 1906, she had a talk with the defendant; that he Said to her, “I hear you are interested in dairies and have been looking at places in Bernardston ” ; that she told him she was interested, and the defendant asked why she didn’t look at his; that she had never kept a dairy before this and did not know anything about keeping one; that later in consequence of the above conversation and in consequence of the defendant’s son in law coming to see her, she went to see the defendant and asked him about his dairy; that he said his was as good a one as there was in the county, modern, up to date, with new machinery and good stock, and that he would like to talk with her about it; that she asked the defendant if he was making anything and he said he could not tell much about that; that he would have to consult the books; that she told him that she would have to have a statement as she was getting the place for her brother, the plaintiff Stone, who had a good position in Chelsea, and that she would have to have facts to put before him; that her brother would not want to leave that position unless he knew for a fact that this, the dairy, was as good as that; that she asked for a statement off the books to take to her brother of what the defendant had made and was making; that the defendant said he would get it from his manager, from his books, and send it to her; that he later sent her a letter and a statement; that after receiving these she took the statement to the defendant, showed it to him and asked if it was his statement of facts that she should take to her brother to show him what the dairy was doing, and that he said he took it off the books; that she said, “ then it will warrant my going to Boston and presenting it to my brother,” and he said, “ Yes”; that he said it was the statement he took off the books of what the farm had done.</p> <p>The letter and the statement referred to by the plaintiff Thomson and put in evidence as exhibits were as follows:</p> <p>“The Maples, Northfield, Mass., Aug. 14, 06. Dear Miss Thompson: As promised I send you an estimate of the products and expenses of my dairy farm which I think is conservative. I think well managed the farm at present will net $2000.00 and carefully and systematically handled in 2 years time will add from $500. to $1000. to the amount as the natural fertilizers from the cow stables will so increase the productiveness of the land as to easily reach that figure. Yours truly,</p> <p>“ Geo. F. Pentecost.”</p> <p> </p> <p>“ This is a very conservative estimate making no allowance for the heavy business in June, July, August and September during wh months we sell an average of 200 extra quarts at a profit of 2 c = $4.00 per day for 90 days = $360.00. In two years time we should sell enough hay to pay for the extra feed = $250.00, wh would add $500.00 to net profit = $2665.00.”</p> <p>The plaintiff Thomson went to see the plaintiff Stone and on October 9, 1906, the plaintiffs took a lease of the farm from the defendant for the period of one year, with the privilege of a further term of years, if mutually agreed upon, and purchased the live stock and other personal property at a figure arrived at by an appraisal, the appraisers being agreed upon by the parties, paying in all $2,725.50. The plaintiffs retained as manager one Beers, who had managed the place for the defendant, and also retained an Italian who had worked on the place. They continued to run the dairy for about three months; and then saw that they were losing money and began to sell off some of the stock. They ran the place in all about six months, when they gave up the lease.</p> <p>The plaintiff Stone was the brother of the plaintiff Thomson and worked on the place. He testified that he gave up a position paying him $1,500 a year; that he relied on the statement printed above; that he made no money on the place, stayed there six months and was put to expense in securing a new position; and that the defendant told him that he was making approximately $2,000 a year from the dairy.</p> <p>Beers, the defendant’s manager, testified that he first heard of the proposed sale in September, 1906; that the defendant said that the plaintiff Thomson was going to buy out the dairy at an appraisal of men and take a lease of it for one year, with the privilege of five years; that he, Beers, said, “I guess she won’t take it for the other four” ; that the defendant then said, “ That is none of our business. If she wants to take it, let her have it ”; that he, Beers, said, “ If Miss Thomson knew as much about running the business as I did, she wouldn’t have bought it”; and that then the defendant said, “ Well, if they come to ask you anything about it, you are not obliged to tell them what you know.”</p> <p>Beers, also testified that he had charge of the books and that the dairy never made any money while the defendant had it; and that under the conditions existing, the lack of pasture and the fact that they could not raise enough stuff to feed out, the dairy was not worth the appraisal; that he told the defendant, before the plaintiff Thomson leased the dairy, that he could not make any money on the place; that the defendant showed him some figures before the plaintiff Thomson leased the dairy, representing a profit for the place per year, and that he told the defendant that he had not got the figures right and that he could not make $2,000 a year on the dairy.</p> <p>The defendant contended that the letter and statement contained merely an estimate of what the dairy would do, not a statement of what it had done; and that he told the plaintiff Thomson that she could not make any profit on the farm the first year.</p> <p>The plaintiff Thomson testified, in regard to what happened upon the occasion of a visit to the dairy made by her and her brother, the plaintiff Stone, shortly before they leased the dairy, as follows: “ The next time I saw him [the defendant] was at his house adjoining the dairy in company with my brother. I think my brother did most of the conversing then. We started out together to go over the place and I remember when we got under the grape arbor, Mr. Pentecost said, 61 don’t want my man, Beers, to know anything about this. You appear like city people looking over my dairy.’ Turning to my brother, ‘ You will be coming to look the place over.’ ”</p> <p>The admissions of testimony by the judge to which the defendant excepted are described sufficiently in the opinion.</p> <p>At the close of the evidence the defendant asked the judge for twelve rulings, of which the judge gave as instructions to the jury all but the four following:</p> <p>“ 5. If the defendant told the plaintiff the sources of his information concerning the matters as to which the misrepresentations are alleged to have been made, and gave her opportunity to investigate for herself, of which she did not avail, the plaintiff cannot recover.”</p> <p>“ 9. That a false statement as to profits made by the seller to a purchaser is not actionable.</p> <p>“ 10. That upon all the evidence in this case the plaintiff cannot recover.”</p> <p>“ 12. That the measure of damages if any there be in this case is the difference between the income which the defendant represented that the farm had produced and the income which the farm with careful and economical management could be made to produce.”</p> <p>The judge refused to make any of these rulings, and gave other instructions. The defendant excepted especially to that part of the charge relating to the measure of damages, which is described sufficiently in the opinion.</p> <p>The jury returned a verdict for the plaintiff Thomson in the sum of $1,359.09 and a verdict for the plaintiff Stone in the sum of $268.77. The defendant alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Nuisance, What constitutes. Way, Public, Ancient steps in public way. Easement, By prescription. Municipal Corporations, Officers and agents.</p> <p>The superintendent of streets of a city, acting under an order of the city council, has no right, for the purpose of relaying a sidewalk upon a public street whose boundaries are defined and certain, to remove stone steps which stand within the limits of the street, if the steps have stood there continuously for forty years and were designed and are used as an entrance from the street to a building, although there is a space of from three quarters of an inch to an inch between the wall of the building, which stands on the line of the street, and the top step.</p>

<p>Tort for personal injuries to the plaintiff and damage to his horses, wagon and harness, alleged to have been caused by hiif horses becoming frightened and running away because of the negligent way in which an automobile, alleged to belong to the defendant, was driven by one who was alleged to have been a servant of the defendant. Writ dated April 8, 1909,</p> <p>The case was tried before Raymond, J. The plaintiff testified that at about four o’clock in the afternoon of March 17, 1909, as he was driving on the Wilbraham road, he saw an automobile approaching; that when it was about one hundred feet away he motioned to the driver to stop; that the driver did not stop, but proceeded past him within two feet of his wagon and continued fifteen feet beyond him; that there were twenty feet of good highway on the side of the road beyond the automobile; that the plaintiff’s horses were frightened by the automobile and ran away, injuring the plaintiff and damaging his horses, wagon and harness.</p> <p>• One Greene, who was present at the time of the accident, testified as to the number on the registration tag on the automobile, and the plaintiff put in evidence the certificate of registration I of that number, showing that the automobile was registered in the name of the defendant.</p> <p>Excepting evidence as to the amount of the damage, there was no further evidence for the plaintiff, and, the defendant having rested at the close of the plaintiff’s evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Agency, Existence of relation, Ratification, Revocation, Agent’s commission. Husband, and Wife. Damages, In contract.</p> <p>At the trial of an action by a real estate broker against a married woman for a commission for procuring a sale of real estate of the defendant, it appeared that the negotiations of the plaintiff were entirely with the defendant’s husband, and the defendant contended that there was no evidence that her husband was authorized by her to act for her in the employment of the plaintiff. The husband testified that the land in question had been bought by him and the title taken in his wife’s name, that he put up a building upon it, occupied it for his business and never paid any rent to his wife “or anything of that kind,” that he paid taxes, water rates, expenses for repairs, painting, plumbing and insurance out of his own money, that he did not always consult his wife about such tilings although he did sometimes, that all negotiations for the sale of the premises were conducted by him and that the money received therefor went into his bank account; and there was evidence tending to show that, when the husband transmitted to the defendant an offer in writing for the property which the plaintiff had procured for her acceptance, she then being temporarily absent at a distance, the husband told her not to sign until her return, and that she did not do so, that upon the wife’s return the husband stated to the plaintiff that his wife would not sign the deed, saying, “ What can I do 1 ” Held, that there was evidence which warranted a finding that, although the legal title of the land stood in the defendant’s name, she left the entire management of it to her husband.</p> <p>At the trial of an action by a real estate broker against a married woman for a commission for procuring a sale of real estate of the defendant, it appeared that the negotiations of the plaintiff were entirely with the defendant’s husband, and there was evidence from which a jury would have been warranted in finding that the husband had caused the real estate in question, which he himself paid for, to be conveyed to the defendant as a gift to her. Evidence of the plaintiff tended to show that, the property having been called to the plaintiff’s attention by the defendant’s husband, the plaintiff on July 23 of a certain year procured an offer for it at a price which the husband had named, and gave to the husband a form of option made out for the defendant’s signature; that, in response to a question by the husband at that time, the plaintiff stated that his commission would be two per cent, which the husband said would be satisfactory; that the defendant was absent at the time in a distant city and that the husband stated that he would send the option to her; that the wife did nothing until her return about two weeks later, and upon her return refused to sign the option, and that the -husband then said to the plaintiff, “ If my wife won’t sign the deed, what can I do ? ” The husband testified in cross-examination that he had told his wife, when he sent the option to her by mail, not to sign it until she returned. The property was sold to the plaintiff’s customer on August 29. There was no evidence that the defendant notified the plaintiff that she repudiated the arrangement as to a commission made with her husband. The defendant and her husband testified that she was not told of the plaintiff’s employment. Held, that the fact, of the existence of the relation of husband and wife between the defendant and him with whom the plaintiff dealt, in connection with the other facts in evidence, warranted a finding by the jury that the husband told the defendant of the arrangement made with the plaintiff as to commission, and that, therefore, since the defendant did not repudiate the arrangement, a finding was warranted that the defendant ratified it, the jury being at liberty to disbelieve the testimony to the effect that the defendant was not told of the plaintiff’s employment by her husband.</p> <p>At the trial of an action by a real estate broker against a married woman for a commission for procuring a sale of certain real estate, it appeared that negotiations as to the employment of a broker had been carried on between the broker and the husband of the defendant, that the broker procured a customer who was willing to pay §15,000, the price set by the husband, that, the purchaser preferring that his name should not be known in the transaction, the plaintiff, without disclosing the name of the customer, proposed that the defendant should sign an option to sell the property to the plaintiff, and that the defendant refused to sign an option for a sale at the price mentioned. The plaintiff testified that the defendant’s husband said to him that the defendant had been looking over his books which showed the business which he had been doing as a blacksmith on the real estate in question and was of the opinion that, if he moved to a location which he proposed to move to, he would lose money, and that the husband said to the plaintiff, " She says that she won’t do any business at present,” that the plaintiff then disclosed to the husband the name of his customer, and that the husband said, “ I admit the price is good and everything is satisfactory as far as you and I are concerned, but if my wife won’t sign the deed, what can I do ? ” There was evidence that afterwards the plaintiff was told to do nothing further about procuring a customer, and that in about a month the defendant sold the property to the same customer for §18,000. Held, that the jury might have found that the defendant did not revoke the plaintiff’s authority to sell before the plaintiff disclosed the name of the customer, but that the conversation of the husband with the plaintiff amounted only to a refusal to sell for §15,000; and that a finding, that the revocation afterwards made was a revocation in bad faith, was warranted.</p> <p>If the owner of real estate employs a broker to sell it for him for §15,000 and agrees to pay him “the usual two per cent commission,” and the broker procures a purchaser at the price named and then the owner in bad faith revokes the broker’s authority and himself sells the real estate to the customer whom the broker had procured for §18,000, what was done after such revocation is in legal contemplation done while the broker’s authority remains unrevoked, and the broker is entitled to a commission of two per cent of §18,000, not of §16,000 only.</p> <p>If, through the efforts of a broker employed by the owner to sell real estate, negotiations between the owner and a customer reached a point where, except for a revocation of the broker’s authority by the owner, a sale would have been consummated, and if subsequently the owner sells the property to the same customer at a higher price under circumstances which would warrant a finding that the previous revocation of the broker’s authority was made in bad faith, in an action by the broker against the owner for his commission, the question of whether the broker was the efficient cause of the trade finally made does not arise, because it does not affect the broker’s right to his commission.</p>

<p>Bill in equity, filed in the Superior Court on June 27, 1896, and amended on August 20, 1907, seeking to redeem a certain farm from a mortgage held by the defendant, because of a breach in the conditions of which the defendant on June 28, 1893, had entered upon and taken possession of the premises.</p> <p>On July 8, 1897, an interlocutory decree was made, referring the suit to Henry H. Bosworth, Esquire, as master. The master filed his report on June 17,1908, in which he found that at the time of the filing of the report there was nothing due on the mortgage note, but that the defendant, for the reasons stated in the opinion, should pay the plaintiff $702.63, the rental value of the farm during the time that he was in possession less certain deductions for payments made by the defendant for taxes. A final decree accordingly was made by Fessenden, J., and was entered on February 24,1909, ordering the defendant to convey the farm to the plaintiff discharged of the mortgage, directing the defendant to pay to the plaintiff $795.66, being the amount found by the master to be due to the plaintiff with interest from the date of the filing of the report, and awarding “ no costs to either party.” The defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Tort, for personal injuries caused by the plaintiff falling into a pit in the defendant’s car barn as he was walking in the barn from one car to another. Writ dated October 4,1907.</p> <p>The case was tried before Schofield, J.</p> <p>The “day sheets” of two conductors, Foster and Murphy, offered in evidence by the defendant and excluded by the presiding judge as stated in the opinion, were sheets upon which the conductors were accustomed to record among other things any change of cars made during a trip. The sheets offered by the defendant were those kept by conductors on trips made during the time when the plaintiff testified that he was injured. The defendant offered the sheets as tending to show that there was no record thereon of a change of cars on either sheet, and, inferentially, that no change was made on any trip which occurred during the time when the plaintiff contended he was injured while such a change was being made.</p> <p>As to the sheet kept by Foster, Foster himself testified, and the presiding judge ruled, after Foster had said that the sheet did not refresh his memory in any way, as follows: “ Under our decisions the record can’t be used as independent evidence, as a piece of paper which is evidence and admitted as such, but I think the witness can use it for the purpose of testifying, and he can use it in two ways. He can use it for the purpose of examining it, and if it revives his actual recollection he can testify now as to what his recollection is, using that as a memorandum to refresh his memory. I understand him to say that it doesn’t revive any recollection, that his mind is a blank in regard to it. Very well, there is another way in which he can properly use it. If a witness on examining a paper made in the usual course of his duty and business, after the transaction has gone by and faded out of his mind, if, upon looking at this record, he knows that it was then correct, and can so testify after looking at his record, he is entitled to do so.”</p> <p>Murphy, the other conductor, was not a witness. A witness testified, “ I heard he was in Hew York. I wouldn’t swear to it.” There was no other testimony or statement in regard to his whereabouts. His handwriting was identified.</p> <p>Other facts are stated in the opinion.</p> <p>The jury found for the plaintiff in the sum of $800; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs;</p>

<p> Negligence. Railroad. </p> <p>In an action against a railroad corporation by a girl twelve years of age for personal injuries, there was conflicting evidence on which it could have been found that the plaintiff1 in lawfully travelling on a highway entered upon a grade crossing of the defendant’s railroad, that the gates were up, that the plaintiff’s foot was caught between two rails which intersected near the crossing, that, while she was trying in vain to extricate her foot, an engine was standing more than two hundred feet away preparing to back over the crossing, that the gateman put down the gates, thus indicating to the tower man that the crossing was ready for the passage of the engine, and that the tower man communicated this information by signal to the engineer, that the engineer, relying upon the signal, proceeded to back over the crossing and in doing so the engine cut off the foot of the plaintiff, that the tower man would not have given the signal to the engineer if the gateman had not indicated to him that the crossing was clear by lowering the gates, and that, if the gateman had looked at the crossing before lowering the gates, he would have seen the plight of the plaintiff. Held, that there was evidence warranting a finding that there was negligence on the part of the gate-man which contributed to the plaintiff’s injury.</p>

<p> Negligence. Street Railway. </p> <p>It is not necessarily negligence for a passenger while being transported on an open electric street car to stand on the running board with one hand grasping a stanchion and the other holding a bundle.</p> <p>If a passenger on an open electric street car chooses to stand on the running board when there is room for him on the rear platform or in the seats of the car, it is not the duty of the conductor to warn such passenger that he may be exposed to jerks or lurches incidental to the ordinary motion of the car when passing over switches or around curves.</p> <p>If the conductor of an open electric street car knows that one of the passengers is standing on the running board with one hand grasping a stanchion and the other holding a bundle, and with this knowledge allows the car to be run over a switch and around a curve at "an unreasonable rate of speed, which causes the passenger to lose his grip on the stanchion and whirls him from the car, it seems, that, in an action brought by the passenger against the corporation operating the car for his injuries thus caused, these facts are evidence of negligence on the part of the defendant.</p> <p>In an action by a passenger against a street railway corporation for personal injuries alleged to have been caused by negligence of the servants of the defendant in running an open car over a switch and around a curve at an unreasonable and excessive rate of speed, which threw the plaintiff from the running board on which he was standing, if the plaintiff introduces in evidence a rule of the defendant that “ the speed of cars on sharp grades, frogs, switches and crossovers must not exceed three miles an hour,” and testifies that after the car reached the switch it “ started up faster,” that “ the car ran fast,” that “ the car was going too fast ” and that he was “ whipped off the car after it got a little over the switch,” without any direct estimate of the speed and with no description fairly warranting an inference that the rate of speed was unusually great or was dangerous, there is no evidence of negligence on the part of the defendant.</p>

<p>Contract, What constitutes. Damages, In contract. Evidence, Opinion, Of profits. Practice, Civil, Exceptions. Witness, Examination.</p> <p>In an action by a grocer against a trading stamp company for the breach of an alleged contract in writing by which the defendant agreed to furnish the plaintiff witli trading stamps at a fixed rate for exclusive distribution in connection with sales on a certain street of a certain city, there was evidence that the daughter of the plaintiff, who was his bookkeeper, acting in behalf of the plaintiff and the defendant’s manager acting in behalf of the defendant signed an agreement in writing containing the terms of the alleged contract and naming the district in which the distribution was to be made, and that, after the contract was signed, the defendant’s manager took it away saying that he was going to have printed on the back of it a statement that the plaintiff was to have the exclusive right to distribute the trading stamps on a certain street, which constituted, or was in, the district named in the contract, and that he would return the contract to the plaintiff in a few days, but'that he did not return it, and that, after the plaintiff had used one thousand trading stamps which he bought from the defendant under the terms of the contract, the defendant refused to sell him any more. The jury, by their verdict under the instructions given them, found that it was the understanding of the parties that the contract as signed should become operative and binding upon the parties at the time of the signing, irrespective of the time when the indorsement should be printed upon the back of it. Held, that the question whether there was a completed contract was one of fact for the jury, and that their decision of it could not be said as matter of law to be unwarranted.</p> <p>In an action for a breach of contract the plaintiff may be allowed to recover as damages a loss of prospective profits, where it appears that such loss was the natural, primary and probable consequence of the breach, that the profits arising from the performance of the contract and the loss likely to result from its non-performance were within the contemplation of the parties and that the anticipated profits are not so uncertain or contingent as to be incapable of reasonable proof.</p> <p>In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, upon the question of damages there was evidence that the plaintiff before his contract with the defendant had been carrying on a retail grocery business in a small way, that his sales were small in amount and mostly on credit, that after he began to use the trading stamps his sales increased greatly in amount with a greater proportion of cash sales, that this change continued during the time that he distributed stamps purchased from the defendant under the contract, and that, when the defendant in violation of the contract refused to sell him any more stamps, his sales returned rapidly in amount and kind to the condition in which they had been before the contract. There also was evidence that the consideration held out by the defendant to induce the plaintiff to enter into the contract was that by the distribution of stamps the plaintiff’s business would be more profitable, and that the plaintiff entered into the contract with that expectation and for that purpose. Held, that upon this evidence the jury had the right to find, in the absence of evidence of any other sufficient cause, that the sudden rise in the amount of sales was due to the distribution of stamps and the sudden fall was the natural, primary and probable consequence of the breach of the contract, and that such a loss was within the contemplation of the parties as likely to result from the non-performance of the contract.</p> <p>Where in an action for a breach of contract the plaintiff seeks to recover a loss of anticipated profits, he does not lose his right to recover such damages merely because he fails to prove with precision the whole amount of the profits which he would have made if the defendant had performed his contract. If the plaintiff can show by reasonable proof that he certainly has lost some profits by reason of the defendant’s breach of the contract and that a fairly accurate estimate can be made of the portion thus lost, he is entitled to have such loss of profits included in the damages.</p> <p>In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, where it appeared that the plaintiff had made a purchase of trading stamps from the defendant under the contract and had used them while they lasted and that the defendant then had refused to sell him any more of the stamps, there was evidence that before the plaintiff made the contract with the defendant his sales were small in amount and mostly on credit, that after he began to use the trading stamps his sales increased greatly in amount with a greater proportion of cash sales, and that when the defendant refused to sell him any more stamps his sales returned rapidly in amount and kind to the condition in which they were before the contract, and a finding was warranted that the sudden rise in the amount of the plaintiff’s sales was due to the distribution of the stamps and that the sudden fall was the natural, primary and probable consequence of the breach of the contract and was contemplated by the parties as likely to result from its non-performance. It did not appear that, in order to attend to the increased sale caused by the use of the trading stamps, the plaintiff had hired any additional employees or had incurred any additional expense, and there was testimony that in the grocery business the profit upon the sales “if you give trading stamps ” is “ about fifteen per cent.” Held, that it could not be said that the anticipated profits which the plaintiff sought to recover were so far conjectural or contingent that the question of their amount should not be submitted to the jury or that the jury were bound to confine themselves to giving nominal damages.</p> <p>In an action by a grocer against a trading stamp company for the breach of a contract in writing, by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, where it appears that, after the plaintiff had made a purchase of trading stamps from the defendant under the contract and had*used them to the great advantage of his business while they lasted, the defendant refused to sell him any more of the stamps, the daughter of the plaintiff, who was the bookkeeper in his grocery, may testify as to the effect of the distribution of the stamps upon the trade in the store and as to “ the result [she] observed of lessening or increasing the number of customers after the stamps were exhausted,” these being facts and not matters of opinion.</p> <p>An objection of form to an answer of a witness as not being responsive to the question or as being in the nature of hearsay must be made specially. In the absence of any such special objection, an objection to the answer of a witness will be taken to relate only to matters of substance.</p> <p>In an action by a grocer against a trading stamp company for the breach of a contract in writing by which the defendant agreed to furnish the plaintiff with trading stamps at a fixed price for exclusive distribution in connection with sales on a certain street of a certain city, where it appears that, after the plaintiff had made a purchase of trading stamps from the defendant under the contract and had used them to great advantage in his business while they lasted, the defendant refused to sell him any more of the stamps, and the plaintiff seeks to recover damages for the loss of the profits reasonably anticipated from the use of the stamps, the plaintiff may show that the profit upon the sales in the grocery business “if you give trading stamps ” is “ about fifteen per cent,” this being one way and a proper way of estimating the profits of the plaintiff.</p>

<p>Tort under R. L. c. Ill, § 267, as amended by St. 1906, c. 463, Part I. § 63, by the administratrix of the estate of Máxime Renaud to recover damages for the death of the plaintiff’s intestate, while a passenger of the defendant, alleged to have been caused by reason of the negligence of the defendant and by the unfitness or gross negligence of its agents or servants. Writ dated November 8,1906.</p> <p>In the Superior Court the case was tried before Dana, J. The accident which resulted in the death of the intestate occurred on the premises of the defendant in front of its South Fitchburg station at about 7.08 p. M. on October 26, 1906. The intestate was struck and instantly killed by an express train upon alighting from a local passenger train. South Fitchburg is a flag station about a mile south of the Fitchburg station. In front of the station the tracks run practically north and south for a distance of seven hundred feet in, each direction, beyond which the view is cut off by curves. The station building itself is situated on the westerly side of the tracks, and between the building and the westerly track is a plank platform about twenty-four feet wide and sixty feet long. The track nearest the station is the south bound track on which the express train which struck the intestate approached. The space between the plank platform and this track is filled with gravel even with the platform. Between the rails of the westerly track planking is laid extending about twenty-five feet north and south in front of the station. The next track is the north bound track on which the local train from which the intestate alighted approached South Fitchburg. The space between the two tracks is filled in with gravel even with the top of the rails. East of the north bound track is a third track leading to a coal shed and used only as a freight siding. A passenger getting off a north bound train has to alight upon the west side and cross the south bound track in order to get to the station. The rule of the defendant, the violation of which was relied upon by the plaintiff as showing gross negligence on the part of the defendant’s servants, is quoted in the opinion. There was evidence that the express train was going very fast, and that it did not slacken its speed as it went by the station.</p> <p>At the close of the evidence, the defendant asked the judge to rule (1) that upon all the evidence the plaintiff could not recover, (2) that there was no evidence of negligence on the part* of the defendant, and (3) that there was no evidence of gross negligence on the part of the agents or servants of the defendant. The judge refused to make any of these rulings, and instructed the jury that “ in order for the plaintiff to recover he must prove either negligence of the corporation or the gross negligence of the servant or agent, or both,” with further instructions which left it open for the jury to find either of these kinds of negligence.</p> <p>The jury returned a verdict for the plaintiff in the sum of S3,791.66; and the defendant alleged exceptions.</p>

<p>Contract against the administrator de bonis non of the estate of Elizabeth Fotherby, otherwise known as Elizabeth Batty, afterwards, by an amendment allowed on October 9,1908, changed into a suit in equity, to recover certain property alleged to have been obtained from the plaintiff by the fraud of the defendant’s intestate in wilfully concealing from the plaintiff, with whom she went through a form of marriage on September 18, 1889, the fact that she then had a husband living and in continuing such fraudulent concealment until the death of her lawful husband in April, 1902, during which time she lived with the plaintiff as his wife. Writ in the Superior Court in the action at law dated December 5, 1905.</p> <p>The case was referred to John Alden Thayer, Esquire, as master, who filed a report, and, after the case had been recommitted to him, filed a supplemental report in which he found that the plaintiff was entitled to receive six-fifteenths of $14,642 amounting to $5,856.80 with interest at six per cent from October 13, 1902, subject to- a deduction of $1,000, leaving the net amount of $4,856.80 with interest as above. The facts which appeared by the master’s report are stated in the opinion.</p> <p>The case was heard by Sanderson, J., upon the defendant’s exceptions to the master’s report. The judge made a decree overruling the exceptions and confirming the master’s report. Later a final decree was entered in accordance with the master’s report, and the defendant appealed.</p> <p>The former proceeding of Hargraves v. Batty, mentioned at the end of the opinion, was an appeal to the Supreme Judicial Court from a decree of the Probate Court ordering that the plaintiff in the present case be removed as the administrator of the estate of Elizabeth Fotherby, otherwise known as Elizabeth Batty. The appeal was heard by Loring, J., who made a decree that the present plaintiff was not the lawful husband of Elizabeth Fotherby, that his appeal from the decree of the Probate Court should be dismissed and that such decree removing him as administrator should be affirmed.</p> <p>In the present suit the defendant moved that, if it should be determined that anything was due to the plaintiff from the estate of his intestate, the amount of costs and expenses incurred by the estate in the trial of the case of Hargraves v. Batty in the Supreme Judicial Court should be deducted from the amount of damages awarded to the plaintiff, and that no interest should be allowed him for the time the settlement of the estate was delayed by the court proceedings wherein the plaintiff was declared to be in the wrong. Sanderson, J., made an order denying the motion without prejudice to the defendant’s right to collect from the plaintiff the costs therein referred to if he was entitled to them.</p>

<p>Bankruptcy, Rights oí trastee. Assignment, For benefit of creditors. Conflict of Laws. Conversion. Practice, Civil, Parties, Report, Rescript.- Supreme Judicial Court.</p> <p>Although, under the provisions of the bankruptcy act of 1898, where a corporation is adjudicated a bankrupt within four months after it has made an assignment for the benefit of its creditors, the trustee appointed in the bankruptcy proceedings has a right to the proceeds of an action of tort brought by the assignee for the conversion, after the assignment, of personal property which formerly was the bankrupt’s and which had been transferred by the assignment, if the trustee attempts to prosecute that right in a State court, he is bound by the rules of procedure therein established.</p> <p>A corporation made a common law assignment for the benefit of its creditors and, after the assignee had taken possession of certain personal property, the property was converted by a third person, and the assignee brought an action of tort for the conversion in the courts of this Commonwealth. Thereafter and within four months of the common law assignment, the corporation was adjudicated a bankrupt and a trustee was appointed, who, upon his own motion, was substituted as plaintiff in the place of the assignee in the action for conversion. Held, that the trustee could not maintain the action as trustee, since the only person who had the possession or the right to possession of the property at the time of the conversion was the assignee, which right the trustee could not claim under the bankrupt because it never was the bankrupt’s, nor under the assignee because the trustee held adversely to the assignee.</p> <p>A trustee in bankruptcy filed, in an action of tort for conversion brought by one who was appointed a common law assignee of the bankrupt by an assignment made within four months previous to the adjudication in the bankruptcy proceedings, a motion “ that he be admitted as party plaintiff . . . and be allowed to prosecute said case ” and the motion was allowed. At the trial of the action and upon the argument in this court of the question whether the trustee could recover for such conversion, the trustee acquiesced in the interpretation of his motion as a motion substituting him as plaintiff in the place of the assignee. The case was reported to this court by the trial judge, who found for the plaintiff with the stipulation that, if a ruling by him, that the trustee could not maintain the action under the circumstances, was wrong, judgment should be entered for the defendant. There was no question as to the act of conversion. This court, being of the opinion that the trustee had no right of action for the conversion, and that the language of the motion for substitution was equivocal and that under the circumstances of the case the motion might have been construed to be a motion by the trustee to be allowed to prosecute the action in the name of the original plaintiff, by its rescript ordered that the trustee be given an opportunity to move to amend the writ in accordance with such construction, but that, if no such amendment was allowed within thirty days, judgment should be entered for the defendant.</p>

<p>Evidence, Of previous statements made by witness, Relevancy and materiality. Fire. Railroad. Practice, Civil, Conduct of trial, Exceptions.</p> <p>The general rule, excluding evidence, offered at a trial for the purpose of corroborating a witness, of statements made by the witness previous to and of the same purport as his testimony at the trial, should be adhered to unless when it is offered it is clearly apparent from the course of the trial that the circumstances call for the application of one of the exceptions to the general rule. Whether the circumstances are such as to call for the application of such an exception is a question of fact to be decided primarily by the presiding judge, whose decision thereon should not be set aside by this court unless it is plainly wrong.</p> <p>In an action of tort against a railroad company for the loss of buildings of the plaintiff by fire, it appeared that the fire was communicated to the plaintiff’s buildings from buildings of a third person between the plaintiff’s buildings and the railroad, which evidence of the plaintiff tended to show were ignited by fire from a locomotive engine of the defendant, while the defendant contended that the origin of the fire was inside the buildings. The plaintiff produced only one witness who testified to seeing a fire start outside the buildings. It appeared that immediately after the fire the witness was advised to see the attorney for the defendant. In cross-examination he stated that all the circumstances of the fire always had been clear in his mind, and that he did not think that it was notice of a suit that made him think of seeing the defendant’s attorney. ’ A letter written by him to the attorney of the defendant was introduced in evidence, which among other things stated that the witness understood that his name had been given “ as a witness,” and that his idea in writing the letter, “ after seeing the notice of suit ” was to learn whether he was “ to be called in the case. If so, by whom and when 1 ” He also stated in cross-examination that he interviewed the defendant’s attorney, but denied that he then stated in substance that he was not clear as to the circumstances of the fire. A second letter from him to the defendant's attorney, written about eleven months after the first one, then was introduced in evidence, in which he again asked whether he was to be called as a witness in the case, and stated, “ I want to refresh my memory in quite a few little things that I have forgotten since the night it [the fire] happened.” The witness in cross-examination told the same story as to the fire that he had told in direct examination. The plaintiff, “ to cut off any possible argument” that the witness’s testimony was “ of recent contrivance, or was the result of bias or of any suggestion made to him from any source, or that he was willing to testify for either side, depending upon the inducements held out to him,” offered to show that immediately after the fire the witness related to a police officer the same account of it that he had given in his testimony. When the offer was made, the defendant’s counsel stated, “All I have done is to simply read two letters.” The evidence offered was excluded. Held, without deciding whether the exclusion was or was not proper, that, if under the circumstances the presiding judge thought and was justified in thinking that one of the purposes of the defendant in introducing the letters was to show that the witness was corrupt and willing to vary his testimony according to the interest of the party by whom eventually he might be called, the corroborative evidence offered by the plaintiff should have been admitted, unless such purpose was disavowed; and that otherwise it should have been rejected.</p> <p>In an action of tort against a railroad company for the loss of buildings of the plaintiff by fire, it appeared that the fire was communicated to the plaintiff's buildings from buildings of a third person between the plaintiff’s buildings and the railroad, which evidence of the plaintiff tended to show were ignited by fire from a locomotive engine of the defendant, while the defendant contended that the origin of the fire was inside the buildings. The building of the third person which first caught fire was provided with electric light wires. A witness for the plaintiff, qualified as an expert, testified that he had inspected the wiring a few weeks before the fire, had made some few changes in it, and considered it perfectly safe. The owner of the building testified to changes and additions which had been made in the electric lighting before those made a few weeks before the fire, and stated that there had been no inspection of the additional lights by the city inspector, that the city inspector had not been notified of his intention to make the changes, and that he, the owner, knew nothing about the requirements of any city ordinance in that regard. The defendant then offered an ordinance which required notification of the city supervisor of wires before the making of any changes in wiring, and that such supervisor be given an opportunity to examine the wiring before it was covered or enclosed. The plaintiff’s attorney objected, in the hearing of the jury, to the evidence, stating that he understood it to be “ offered so far as it has any tendency to control, if it does, the ■ evidence that has been offered by the plaintiff that the electric wiring there is safe and as eliminating one probable cause of the fire.” The defendant’s attorney said nothing. The presiding judge admitted the evidence, stating, “I should say it didn’t have any broader scope than that, and I think ... it is competent in cross-examination of this witness without finally deciding what its limitations are.” There was a verdict for the defendant; and the plaintiff alleged exceptions. Held, that the ordinance had no bearing to show the actual condition of the electrical apparatus in the building in question, that it was inadmissible to characterize the act of the owner bf the building as illegal, or as an admission by him, since he was not a party to the action, and that it had no bearing on any of the issues of the trial and should have been excluded; and, also, that its admission harmed the plaintiff, because the jury properly might have understood from the statements of the plaintiff’s attorney and of the presiding judge, and from the silence of the defendant’s attorney, that the evidence was admitted as bearing at least in some way on the probabilities whether the wires were in a safe condition.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Presumptions and burden of proof. Pleading, Civil, Declaration.</p> <p>At the trial of an action of tort against a street railway company to recover for personal injuries received by the plaintiff while a passenger upon a car of the defendant, there was evidence tending to show that, while the car, upon which the plaintiff was a passenger, was running rapidly on a portion of the defendant’s track which was rough and uneven and unsafe to pass over except at a low rate of speed, the forward truck left the track, shot across the travelled highway and, the rear truck remaining on the track, swung around and followed the rear truck until the car stopped. The presiding judge refused to rule that on all the evidence the plaintiff could not recover. The jury answered affirmatively each of the following questions: " Was the accident caused in whole or in part by reason of the negligence of the defendant or of its servants and agents in the operation and management of the car 1 ” and “ Was the accident caused in whole or in part by reason of a defective or unsafe condition of the track and roadbed 1 ” Held, that the refusal of the ruling requested was proper, and that the answers of the jury were warranted by the evidence.</p> <p>The declaration in an action of tort against a street railway company to recover for personal injuries received by the plaintiff while a passenger on a car of the defendant was in a single count, and, having stated that the defendant owed the plaintiff the duty to carry him safely, alleged that the defendant wholly neglected to perform that duty and then stated three particulars in which the defendant was negligent, one in regard to the management of the car, one in regard to the condition of the car, and one in regard to the condition of the railway. Then followed averments that the plaintiff was in j ured by reason of this negligence and that she was in the exercise of due care. At the trial the plaintiff introduced evidence tending to show that the car ran off the track. The presiding judge, subject to exceptions of the defendant, instructed the jury that the doctrine of res ipso loquitur applied. The defendant contended that, because the plaintiff in the declaration alleged particular acts of negligence, the doctrine did not apply. Held, that the instruction was correct, because, each of the particular kinds of negligence being included in a general averment in a single count, which constituted the entire declaration, the judge was warranted in treating it as a general allegation of negligence and the plaintiff was not bound to prove the existence of any particular kind of negligence to establish the defendant’s negligence.</p> <p>Where a declaration in an action of tort against a street railway company to recover for injuries received by the plaintiff while a passenger upon a car of the defendant, caused by the car running off the track, contains a single count charging negligence generally or all possible kinds of negligence that could have caused the accident, which together constitute general negligence, and where the plaintiff at the trial of the action introduces evidence of the accident and relies on the doctrine of res ipso loquitur, it seems, that it is improper for the presiding judge to rule without qualification, as to any one of the particular kinds of negligence, that there was no evidence that in that respect the defendant was negligent.</p>

<p>Lien, From construction of public works. Contract, Construction. Equity Jurisdiction, To enforce lien.</p> <p>By a provision of a contract made in 1907 between 'a city and a contractor as to the construction for the city of a dam, reservoir and intake tunnel for its water supply system, the contractor agreed “ to furnish sufficient security by bond or otherwise for payment by the contractors and sub-contractors for labor performed, or furnished, and for materials used in said construction in accordance with the provisions of the Acts of 1904, chapter 349.” The bond given by the contractor with a surety company as surety for the performance of the contract by the contractor contained the provision, that the contractor and the surety company and their successors bound themselves “ to repay to said city any sum which said city may be compelled to pay to any contractors or sub-contractors for labor performed or furnished and for materials used in such construction under the provisions of the Acts of 1904, chapter 349.” No other bond was given to the city by the contractor. One who furnished dynamite to the contractor, which was used in carrying on the work under the contract, upon the contractor’s failing to finish the performance of the contract sought by a suit in equity to compel, the surety company to pay him for the dynamite. A master, to whom the suit was referred, upon the foregoing facts found that the parties intended that the giving of the bond should be a compliance with the requirement of St. 1904, c. 349, to the effect that officers contracting in behalf of any county, city or town for the construction of a public work “shall obtain sufficient security, by bond or otherwise, for payment by the contractor and subcontractors for labor performed or furnished and for materials used in such construction.” Held, that by the reference to the statute in the contract and the bond the statute was incorporated therein with the same effect as if it were -repeated, and that the plaintiff might maintain his suit.</p> <p>One, who has furnished fuses to a contractor constructing a part of a city’s water supply system under a contract with the city made in 1907, which were used to explode dynamite in doing blasting for the work and which were totally destroyed when used, may compel a surety on the bond given by the contractor to the city in accordance with the requirement of St. 1904, c. 349, as security for the payment by the contractor for labor performed or furnished and for materials used in such construction, to pay for the fuses so furnished.</p>

<p>Insurance, Fire, What is insurable interest, Insurance of equity of redemption, Statement of claim, Application. Execution. Mortgage. Tax, Redemption of tax title. Devise and Legacy, Rights of residuary legatee. Practice, Civil, Auditor’s report. Evidence, Presumptions and burden of proof.</p> <p>On October 15,1904, certain land was sold at a tax sale to one J. On November 29,1904, the owner of the land subject to the tax title mortgaged it. On August 10, 1905, all such owner’s interest in the land was sold at a sale under an execution issued in an action of J. against him, in which the owner’s interest had been attached on March 1, 1904, and J. was the purchaser, and on the same day J. applied for and later received a policy of insurance upon his interest in a dwelling house upon the property purchased at the sheriff's sale. On May 19, 1906, the owner mortgaged the premises to a second mortgagee, who on October 11,1906, redeemed them from the tax sale to J., J. giving him a deed of all the interest he “ acquired by ” the tax collector’s deed “ and by reason of paying intervening taxes but conveying no other rights in and to said property, if any I have.” The dwelling house was destroyed by fire on December 5, 1906. In an action by J. against the insurance company, the insurance company contended that, for certain reasons, the second mortgage was invalid, that for that reason J., by his conveyance of the tax title to the second mortgagee, conveyed to a stranger to the title and not to one entitled to redeem, who therefore as holder of a tax title more than two years old was entitled to hold against J.’s title acquired at the sale under execution, and therefore that J.’s title was of no value, and that he had no insurable interest in the house at the time of the fire. Held, that, whether the second mortgage was valid or not, the tax title conveyed by J. to the second mortgagee could not be set up to defeat the title acquired by J. at the execution sale, because the second mortgagee had intended to redeem from the tax title, not to buy it.</p> <p>The owner of certain land with a dwelling house upon it died, leaving other property besides the land and a will which, besides certain pecuniary legacies, contained a residuary clause giving all the rest of his property to his widow, who was appointed executrix. Eleven days after the death of the testator the interest of the widow in the land was attached in an action by one J. against the widow, and, at a sale under an execution issued on a judgment for him in that action, J. was the purchaser. Thereupon J. insured the interest in the dwelling house which he thus had purchased. The dwelling house was destroyed by fire and the insurance company refused to pay the amount of the insurance, whereupon J. brought an action on the policy. At the trial, which occurred more than two years after the executrix had filed her bond, it appeared that no account of the executrix ever had been filed and that she never had filed an affidavit that she had given notice of her appointment, and in his report an auditor to whom the case had been referred stated that “ it is perhaps impossible to predicate the value, if anything, of the residuary estate. There is nothing before the court to suggest that the estate was insolvent.” The defendant contended that nothing passed to the widow under the will until it was ascertained that there was a residue of the estate of the testator, and therefore that nothing passed to the plaintiff at the execution sale which gave him an insurable interest. Held, that the fee in the land passed to the widow on the death of the testator, subject to its being divested by the sale of it to pay debts if such a sale should become necessary and should take place in the administration of the estate, and, there having been no such sale, that the fee remained in the widow until its conveyance to the plaintiff at the execution sale.</p> <p>In an action upon a policy of insurance, it appeared that the plaintiff had insured with the defendant his interest in the equity of redemption of a dwelling house, the title to which he held subject to a mortgage, that the dwelling house was totally destroyed by fire, and that it “was reasonably worth more than the amount of insurance written on it.” There was no evidence as to the value of the equity of redemption. Held, without intimating that in any event it would have been open to the defendant to go into the question of the value of the equity of redemption, that in this case in the absence of evidence of such value the plaintiff could recover the full value of the policy, because the owner of such an equity is entitled to recover a sum equal to the amount of the physical damage done to the property insured, except where such sum is greater than the amount named in the policy, when he can recover the amount of the policy.</p> <p>A policy of fire insurance required that, after damage by fire to the premises insured, the insured “ forthwith ” should file with the insurance company a sworn statement. In an action upon the policy to recover for a loss sustained by fire, the defendant contended that the plaintiff did not file such statement “ forthwith.” An auditor to whom the case had been referred, without a report of the evidence, found that the statement was “ filed within such time as was demanded under the terms of the contract of insurance.” The auditor’s report was in evidence at the trial of the case before a judge without a jury, when it also appeared that the fire occurred on a December 5, and that the statement was filed the following January 23. The judge found for the plaintiff. Held, that the finding of the auditor was prima facie evidence that the requirement as to the filing of the statement was complied with, and that the judge was warranted in finding that the mere fact that the statement was not filed for a month and eighteen days after the fire did not overcome the finding of the auditor.</p> <p>A certain policy of fire insurance required that, after a loss under the policy, the insured should render to the company a statement in writing of “ the interest of the insured.” A loss occurring, the insured filed a statement that at the time of the fire “ the property insured belonged to [the insured] and no other person or persons except . . . ,” the blank not being filled out further. The property belonged to the insured subject to two mortgages. Held, that the statement was not a misrepresentation, since it should not be construed to mean that there was no incumbrance upon the property.</p>

<p>Mortgage, Of real estate. Estoppel, By deed. Equity Jurisdiction, Estoppel.</p> <p>The owner of the equity of redemption of a parcel of real estate subject to a certain mortgage, who acquired his title by a quitclaim deed conveying to him all the right, title and interest of his grantor in the property and reciting that the grantee by his acceptance of the deed assumed and agreed to pay the mortgage named, is under no obligation to the holder of this mortgage to refrain from purchasing and holding a prior mortgage, the existence of which was unknown to him and to his grantor when he took his quitclaim deed, and he will not be restrained in equity from enforcing such underlying mortgage against the holder of the mortgage which he agreed with his grantor to assume and pay, he having made no agreement of any kind with such holder, and having made, even with his grantor, no agreement in regard to the underlying mortgage.</p>