Volume 208 — Massachusetts Reports

<p>Insurance, Life. Evidence, Presumptions and burden of proof, Opinion. Practice, Civil, Exceptions.</p> <p>At the trial of an action on a policy of life insurance, the plaintiff introduced evidence that the policy sued on was lost or destroyed and testimony in regard to statements of the insured and other oral testimony as to the contract of insurance contained in the lost policy, and the defendant introduced an instrument purporting to be an original application for the insurance, which the plaintiff denied was such, and an instrument which the defendant’s witnesses testified was a true copy of the policy, which referred to an application and had annexed to it a copy of the application put in evidence by the defendant, but the plaintiff denied that the instrument introduced by the defendant was a true copy of the policy, and asserted that the original policy had no copy of an application attached to it. The judge refused to make certain rulings requested by the defendant based on statements contained in the application which the defendant’s witnesses testified was attached to the policy. Held, that, as the question whether the application was attached to the policy was for the jury, the judge properly might refuse to make any ruling which assumed as a fact that the application was so attached.</p> <p>If, at the trial of an action upon a policy of life insurance, it appears that the mother of the insured died of consumption and that the insured previously had applied unsuccessfully to another company for life insurance, and these facts are contrary to statements made by the insured in his application for the insurance, which is attached to the policy, the questions, whether either of these misrepreservations was made with intent to deceive, or whether the risk of loss was increased by the fact that the mother of the insured died of consumption or by the fact that the insured made a previous unsuccessful application for life insurance to another company, are for the jury.</p> <p>At the trial of an action on a policy of life insurance, where the defendant contends that the policy is void because the insured made misrepresentations in the application, a copy of which is attached to the policy, it is right for the presiding judge to refuse to rule that “ the burden is on the plaintiff to show affirmatively that all the statements in the application material to the risk were true,” because this does not state correctly the rule of law now in force in this Commonwealth under our statutes.</p> <p>At the trial of an action on a policy of life insurance, where the plaintiff has introduced evidence that the policy sued on was lost or destroyed and testimony in regard to statements of the insured and other oral testimony as to the contract of insurance contained in the lost policy, and the defendant has introduced an instrument which its witnesses testify is a true copy of the policy, but this is denied by the plaintiff, and where the defendant does not put in evidence any proofs of death and there is no agreement as to the kind of proof of death required by the lost policy, and there is evidence that the defendant was satisfied with the proofs of death sent to it, whatever they were, it is right for the presiding judge to refuse to rule as matter of law that the proofs of death were insufficient.</p> <p>At the trial of an action to recover the amount of certain life insurance and also to recover certain premiums for such insurance paid in advance, which never became payable because the insured died before the dates when they were to become due, the declaration contained four counts, two upon the policy and two for the premiums prematurely paid. The plaintiff introduced evidence that the policy sued on was lost or destroyed and testimony in regard to statements of the insured and other oral evidence as to the contract of insurance contained in the lost policy. The defendant introduced an instrument which its witnesses testified was a true copy of the policy, but this was denied by the plaintiff. The defendant asked the presiding judge to rule that, “if the contract between the insured and the defendant was a policy like the one put in evidence by the defendant then the plaintiff is not entitled to recover.” The judge refused to make this ruling. Held, that the judge was justified in considering the ruling requested as intended to apply to the whole declaration, that being its natural interpretation, and so interpreted it clearly could not have been given in regard to the counts for the premiums prematurely paid, so that the refusal of the judge was right, whether or not the plaintiff had complied with the terms set forth in the copy of a policy which had been put in evidence by the defendant.</p> <p>At the trial of an action on a policy of life insurance, the plaintiff introduced evidence that the policy sued on was lost or destroyed and testimony in regard to statements of the insured and other oral testimony as to the contract of insurance contained in the lost policy, and the defendant introduced an instrument purporting to be an original application for the insurance, which the plaintiff denied was such, and an instrument which the defendant’s witnesses testified was a true copy of the policy, which referred to an application attached to it, but the plaintiff denied that the instrument introduced by the defendant was a true copy of the policy, and asserted that the original policy had no copy of an application attached to it. Unless the copies introduced by the defendant were true ones, there was ample evidence that the proofs of death either were satisfactory to the defendant or had been waived. The presiding judge refused to rule that the plaintiff was not entitled to recover. Held, that the refusal of the judge was right, because the questions, what were the terms of the contract and whether they had been performed by the plaintiff or waived by the defendant, were for the jury.</p> <p>Testimony, that a physician told the father of a certain girl that he thought that she had the consumption at a time when an insurance policy was taken out upon her life for the benefit of her father, is no evidence that she had the consumption at that time, and only tends to show that if she had that disease the father had been informed of the fact. In the present case the jury found that the insured did not have the consumption, so that the question whether the father thought that she had or represented that she had was rendered immaterial.</p>

Tort, by the administrator of the estate of Benjamin P. Anthony, for the conscious suffering and death of the plaintiff’s intestate, while in the employ of the defendant as a car inspector, from being run over by two cars of the defendant at its freight yard in Taunton on October 17, 1907, at about three o’clock in the afternoon, the suffering and death being alleged to have been the result of the negligence of some person in the service of the defendant who was in charge or…

<p>Tort, at common law, for negligently causing the destruction by fire of a cottage and its contents belonging to the plaintiffs at Tiverton in the State of Rhode Island. Writ in the Second District Court of Bristol dated May 12,1909.</p> <p>On appeal to the Superior Court the case was tried before Sanderson, J. After a part of the evidence had been heard the plaintiffs waived the original count of their declaration and the case was tried upon a second count, added by amendment, which was as follows: “ And the plaintiffs say that at Tiverton in the State of Rhode Island, on or about the fifteenth day of March 1909, they were the owners and possessors of certain personal property, and that the defendant was a railroad corporation owning and operating h railroad and using locomotive engines thereon in said town of Tiverton. And the plaintiffs further say that the defendant carelessly and negligently used its said locomotive engine so that a great quantity of fire, cinders, sparks and burning matter were thrown therefrom, and by reason of such negligence and carelessness on the part of the defendant, the plaintiffs being in the exercise of due care, fire was communicated to said property of the plaintiffs and destroyed the same. To the damage of the plaintiffs, as they say, in the sum of one thousand dollars.”</p> <p>The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the judge ruled that there was ho evidence of negligence of the defendant and ordered a verdict for the defendant. The plaintiffs alleged exceptions.</p>

<p>Way, Private. Easement. Equity Jurisdiction, Mandatory injunction, Damages. Words, “Drainage.”</p> <p>In a suit in equity by the owner of an equity of redemption of an apartment hotel adjoining on its rear an alleyway sixteen feet wide, against the owner of another apartment hotel also adjoining on its rear the same alleyway, to compel the removal by the defendant of certain bay windows projecting over the passageway, it appeared that the plaintiff had acquired by his deed an easement in the passageway sixteen feet wide back of the two buildings and that it was “ always to be kept open to its full width for the benefit of the abutters thereon for the purposes of light, way, drainage and the like,” that the defendant had constructed four horizontal rows of bay windows, the lowest of which started at a height of from eighteen to twenty-one feet above the surface of the passageway, that when the windows were constructed the plaintiff was not the owner of his property and that he did not acquire his title to it until a considerable time after the construction of the windows, that the nearest bay window on the defendant’s building was about one hundred and twenty feet from the plaintiff’s building, that the defendant’s bay windows did not affect the light of the plaintiff’s building, and did not noticeably dimmish the light which came to persons travelling on the passageway. All the abutters on the passageway other than the plaintiff had agreed to the maintenance of the defendant’s bay windows. When the defendant’s bay windows were constructed the plaintiff had a moral right to redeem the property, which afterwards became his, by reason of an oral agreement that could not be enforced, and a mortgagee in possession, who then was the owner of the property, assured the defendant that he should not object to the windows personally and told him that the plaintiff .was not likely ever to acquire any legal right to the property. Held, that equity did not require the enforcement of the plaintiff’s technical right by a mandatory injunction, and that he was entitled only to his legal right to nominal damages.</p> <p>In a suit in equity by the owner of an apartment hotel adjoining on its rear an alleyway sixteen feet wide, against the owner of another apartment hotel also adjoining on its rear the same alleyway, the plaintiff sought to restrain the defendant from maintaining coal bins under the passageway. It appeared that the plaintiff had acquired by his deed an easement in the passageway and that it was “ always to be kept open to its full width for the benefit of the abutters thereon for the purposes of light, way, drainage and the like.” It appeared also that before the first of the deeds creating the easement in the passageway was made the city had laid out and constructed a public sewer through the whole length of the passageway and that all the buildings on the passageway drained into this sewer. Held, that, if the word “ drainage ” in the description of the easement in the deed included anything more than surface drainage, it referred merely to drainage into and through the public sewer, that the easement included no right to have the land beneath the surface of the passageway remain unused, and that the plaintiff could not prevent the defendant from constructing and maintaining on his own land under the passageway a coal bin which did no damage to the plaintiff.</p>

<p>Nuisance, By reason of snow or ice. Ice and Snow.</p> <p>St. 1908, c. 305, declaring that the provisions of R. L. c. 61, §§ 20-22, “ so far as they relate to notices of injuries resulting from snow or ice, shall apply to actions against persons or corporations founded upon the defective condition of the premises of such persons or corporations, or of an adjoining way, whenever such defective condition is caused by, or consists in part of, snow or ice,” applies to an action for personal injuries caused by snow and ice which fell upon the plaintiff from the roof of the defendant’s building where the defendant negligently had permitted it to accumulate, and there is no liability unless the required notice was given within ten days after the injury.</p>

Tort by a workman employed in the defendant’s shoe factory at Newburyport, for personal injuries, consisting of the loss of a part of one of the plaintiff’s fingers, which was caught between the beam of a dieing out or “ dinking ” machine and the top of a metal die used for cutting leather into required shapes. Writ dated January 5, 1909. In the Superior Court the case was tried before Fox, J., who at the close of the plaintiff’s evidence ordered a verdict for the defendant.

<p>Equity Jurisdiction, For an accounting, To redeem mortgaged property.</p> <p>In a suit in equity by the owner of a vessel or by his trustee in bankruptcy, for an accounting, against the assignees of a mortgage on the vessel who had taken possession of her under an assumed foreclosure of the mortgage, which is found to have been fraudulent and void, and have repaired and made use of the vessel at a good profit, the defendants must be charged with the net amounts which they have received as the earnings of the vessel or which by the exercise of due diligence they ought to have received.</p> <p>In a suit in equity by the owner of a vessel or by his trustee in bankruptcy, for an accounting, against the assignees of a mortgage on the vessel who had taken possession of her under an assumed foreclosure of the mortgage, which is found to have been fraudulent and void, and repaired and made use of the vessel at a good profit, and who consequently are charged with the net amounts which they have received as the earnings of the vessel, if it is shown that one of the defendants rendered services in connection with the use of the vessel, which resulted in very successful voyages and very large earnings, and that a fair compensation for such services would be $500, such defendant is entitled to be credited with that amount, and is not to be deprived of it on the ground that he should not be allowed to profit by his wrongdoing, because the avoidance of the foreclosure does away with the effect of the fraud and the defendants are to be treated as mortgagees in possession, whose duty it was to put the vessel to a valuable use, and there is no reason why the plaintiff should take without compensation the benefit of the valuable services of the defendant which produced an advantageous result for the plaintiff's benefit.</p> <p>In a suit in equity by the owner of a vessel or by his trustee in bankruptcy, for an accounting, against the assignees of a mortgage on the vessel who had taken possession of her under an assumed foreclosure of the mortgage, which is found to have been fraudulent and void, and repaired and made use of the vessel at a good profit, and who consequently are charged with the net amounts which they have received as the earnings of the vessel, the defendants are not to be allowed for premiums paid for insurance, a part of which was upon another vessel, as the premiums for insurance, even on the vessel in question, constituted no part of the mortgage debt and were not paid under any provision of the mortgage, but were wholly independent matters.</p>

<p>Tort for personal injuries sustained by the plaintiff on August 31,1904, when she was a passenger on an electric street car of the defendant, which was derailed upon a disused railroad bridge on Dorchester Street, in that part of Boston called South Boston, at a place where that street was being widened and its grade lowered, went down a bank a distance of seven feet and turned over on its side. Writ dated December 27, 1904.</p> <p>At the trial in the Superior Court before Karris, J., the jury returned a verdict for the plaintiff in the sum of $11,800. The defendant alleged exceptions, all of which except the one considered in the opinion have been made immaterial by the decision of this court sustaining that exception.</p>

<p>Bill in equity, filed in the Superior Court on July 23,1909, seeking to reach and apply, in payment of a demand note for $2,500 of the defendant Dorey to the plaintiff, the defendant Dorey’s interest in a certain mortgage and mortgage note of one Mary A. Linnehan and in seventy-five shares of the capital stock of the American Sugar Refining Company, both of which the defendant Dorey was alleged to have conveyed without consideration to the defendant Bryné“upon a scheme between himself and said Dorey to prevent the same from being come at to be attached by the creditors of ” Dorey.</p> <p>The note of the defendant Dorey to the plaintiff was as follows:</p> <p>“ $2500. Boston, March 15, 1909.</p> <p>“ For value received I John J. Dorey promise to pay to John H. Burke or order the sum of twenty-five hundred dollars on demand from this date, with interest semi-annually at the rate of five per cent, per annum, during said term, and for such further time as said principal sum, or any part thereof, shall remain unpaid.</p> <p>“ Witness,</p> <p>“ John J. Dorey.”</p> <p>The agreement of the plaintiff with the defendant Dorey was as follows:</p> <p>“ Boston March 15 1909.</p> <p>“ Received of John J. Dorey a note and mortgage for twenty-five hundred dollars for retainer, for services rendered & to be rendered in the equity suit now pending in the County of Suffolk, wherein Nellie A Dorey & John W. Dorey are complainants & said John J. Dorey is defendant & in which there is a cross bill filed. I agree to press the case for final hearing as rapidly as possible and to make no compromise of any sort in said suit without the assent of said John J. Dorey. This note & Mortgage is rec’d in full payment for services rendered & to be rendered in all litigation now pending between said parties</p> <p>“ John H. Burke.”</p> <p>The suit was referred to Stephen H. Tyng, Esquire, as master. Findings in the report of the master which are material to the decision are stated in the opinion. Both defendants objected and excepted to the master’s report. The report was confirmed by Pierce, J., and a decree was made granting the prayers of the bill. Both defendants appealed. Only the defendant Bryne prosecuted his appeal in this court.</p>

<p>Municipal Corporations, Officers and agents.</p> <p>The selectmen of a town, which has accepted the provisions of R. L. c. 104, § 4, with regard to the appointment of “the superintendent of public buildings or such other officer as the . . . selectmen . . . may designate” to be inspector of buildings, have no power to fix the compensation of one whom they have appointed building inspector.</p> <p>It seems, that a person appointed to be an inspector of buildings in a town which has accepted the provisions of R. L. c. 104, § 4, with regard to the appointment of “ the superintendent of public buildings or such other officer as the . . . selectmen . . . may designate" to be such inspector, is not entitled to any additional compensation for the duties thus imposed upon him.</p>

<p>Payment. Bills and Notes. Contract, Rescission. Practice, Civil, Tender before suit.</p> <p>The mere sending, by a debtor to a creditor, of a check on a bank for an amount which the debtor contended was the amount due, and the receipt of the check by the creditor do not render the check effectual as a payment.</p> <p>Evidence, that a debtor in Worcester sent to a creditor in New York a check on a bank for a sum which the debtor contended was the amount of the debt, the check having written upon it the words “ In full ” and a reference to the subject matter of the debt, that the creditor received the check and immediately sent it to an attorney in Worcester, who, without presenting it for payment, went to the bank upon which it was drawn, asked if there were funds there to meet it and was told that there were, and that the creditor, twenty-four days after the check was sent to him, caused an action to be brought against the debtor for what he contended was the amount of his claim against the debtor, will not warrant a finding that the creditor treated the check as payment of the debt.</p> <p>If a creditor, to whom a debtor has sent a bank check for what the debtor contends is the amount of the debt, refuses to accept the check as payment and brings an action against the debtor for the amount which the creditor contends is the amount of the debt, such acts do not constitute a rescission of a contract, and therefore a return of the check, so as to place the debtor in statu quo, is not a condition precedent to the bringing of the action; but, even if it were, it is sufficient if the creditor produces the check at the trial and places it in the custody of the court.</p>

<p>Tort for personal injuries alleged to have been caused by the negligence of one Redding, who was alleged to have been a servant of the defendants, in starting a freight elevator without notice to the plaintiff, who was upon it, whereby the plaintiff’s foot was caught and crushed. Writ dated July 15,1903.</p> <p>The case previously had been before this court twice. After a verdict had been rendered for the plaintiff at the first trial in the Superior Court, exceptions of the defendant were sustained in a decision reported in 194 Mass. 362.</p> <p>At the second trial of the case, the presiding judge, Sherman. J., submitted certain questions to the jury, besides the general question of liability. The jury found for the defendants, and answered the special questions as follows :</p> <p>“1. Q. Was the plaintiff in the exercise of due care at the time of the accident ? A. Yes.</p> <p>“ 2. Q. Was Redding guilty of negligence at the time of the accident? A. No.</p> <p>“3. Q. Was Redding still using the elevator when the plaintiff came on to it with his truck substantially as testified to by Redding ? A. Yes.</p> <p>“ 4. Q. Had Redding finished using the elevator at the time the plaintiff came into it with his truck substantially as testified to by him ? A. No.</p> <p>" 5. Q. At the time the plaintiff was injured, was Redding acting for the defendants and within the scope of his employment? A. No.”</p> <p>The following colloquy then occurred between the judge and the foreman of the jury:</p> <p>“ Q. (By the Judge) There is one question I want to ask you and that is whether the arrangement was that each party was to. use it [the elevator] with regard to the rights of the other, or they were to use it together at the same time. Did you consider that? A. (By the Foreman) Yes.</p> <p>“ Q. What did you find ? A. Just say that again.</p> <p>“ Q. I told you that I wanted you to tell me whether the common use of the elevator meant in regard to the way in which it was used and in the way in which it was understood it was to be used, that one was to use it first and when they got through, then the other could use it, or whether they were to use it at the same time both together. A. Well, we came to the conclusion that both parties had the right to use it at the same time.</p> <p>“ Q. You came to that conclusion ? A. Yes.</p> <p>“ Q. That was what was meant by common use ? A. Yes.</p> <p>“ Q. That is the conclusion you came to? You talked that over and concluded that that was the way ? A. That was it.”</p> <p>The plaintiff then moved that the general verdict and the jury’s answers to the second and fourth questions be set aside, and the defendants moved that the oral answer in the colloquy with the judge be set aside. The plaintiff’s motions were denied and the defendants’ were allowed, the judge making the following memorandum as to the answer to the oral question : “ I am satisfied that the jury did not understand the question and the decision was against the evidence and the weight of evidence.” Exceptions of the plaintiff to such rulings, among others, were overruled in a decision reported in 202 Mass. 11.</p> <p>Thereafter the plaintiff filed the following motion: “ Now comes the plaintiff in the above-entitled action, after verdict and before judgment, and moves that judgment therein be arrested upon the ground that it appears from the record that a material issue of fact, — to wit: whether or not the plaintiff and Redding had the right to use the elevator at the time of the accident,— is not settled or decided; and no judgment can be entertained [entered] in - favor of the defendants until it shall have been found that the plaintiff or Redding had no right to use the elevator at the time of the accident.”</p> <p>At the hearing on the motion by Sherman, J„ the plaintiff asked for the following rulings:</p> <p>“1. No judgment can be entered upon the findings of the jury.</p> <p>“ 2. The findings in favor of the plaintiff nullified and invalidated the findings in favor of the defendants.</p> <p>“ 3. The finding that both parties had the right to use the elevator at the same time nullifies and invalidates the finding that Redding was not guilty of negligence.</p> <p>“ 4. The finding that both parties had the right to use the elevator at the same time nullifies and invalidates the finding that Redding was not acting within the scope of his employment.</p> <p>“ 5. The setting aside of the finding that both parties had ■ the right to use the elevator at the same time, does not validate the verdict or authorize judgment thereon. ”</p> <p>The rulings were refused and the motion was denied. The plaintiff alleged exceptions.</p>

<p>Practice, Civil, Exceptions.</p> <p>Under R. L. c. 173, § 110, a petition to this court to establish the truth of exceptions can be maintained only when the excepting party is aggrieved, and the grievance which the petition states must be a mistake of law or fact on the part of the judge or a neglect or failure to do his judicial duty properly. If the conduct of the judge was justifiable there is no grievance.</p> <p>Upon a petition to prove a bill of exceptions it appeared that a period of more than five years elapsed between the filing of the bill of exceptions and the death of the judge who made the ruling in question, that a further period of nearly three years intervened between the death of that judge and a formal presentation of the bill of exceptions to the judge who disallowed it more than eight years after the exception was taken, that the disallowance was because the judge was unable to find that it was conformable to the truth, and that in fact it was not conformable to the truth legally and technically and could not have been allowed properly without amendment. It further appeared that the judge who disallowed the exceptions had no knowledge of the case except from what appeared in the papers before him, which did not include a statement of all the evidence, and that the counsel for the defendant, in whose favor the ruling in question was made, had ceased to represent the defendant. Held, that, in dealing with the difficulties, which grew out of the failure of the excepting party to proceed with reasonable diligence to have his exceptions allowed, the judge was not called upon to institute measures of an extraordinary and unusual kind to find out what occurred at the trial and to give to the questions arising on the presentation of the bill of exceptions an amount of time and.labor that reasonably could not be spared from the other pressing duties of his office, and consequently that it did not appear that the petitioner had been aggrieved by the action of the judge.</p> <p>When an excepting party fails to proceed with reasonable diligence to have his exceptions passed upon until it has become impracticable to establish the truth of a bill of exceptions to the reasonable satisfaction of the judge to whom it is presented for allowance, such excepting party must suffer the consequences of his delay.</p>

<p>Intoxicating Liquors. Carrier, Of goods.</p> <p>Under R. L. c. 100, § 50, requiring that every person conducting a general express' business and receiving spirituous or intoxicating liquors for delivery in a city or town where licenses of the first five classes are not granted “ shall keep a book, and plainly enter therein ” the date of the reception of each package of such ' liquor and other matters, and that “ said book shall at all times be open to the inspection of” certain officers, the book must accompany the liquors and be in the possession of the person transporting them with the entries required at each stage of their transportation from their receipt to their delivery.</p>

Tort for the loss of an eye sustained by the plaintiff on May 29, 1907, while employed as a machinist in the south gallery of the machine shop of the defendant at Cambridge, where he was engaged in running a lathe when the accident occurred. Writ dated November 21, 1907. In the Superior Court the case was tried before Fox, J. At the close of the plaintiff’s evidence the defendant rested and asked the judge to order a verdict in his favor.

<p>Evidence, Opinion: experta, Admissions and confessions.</p> <p>At the trial of an indictment for the murder of a woman, whose body was found with the throat cut by some sharp instrument, which had passed almost to the spinal column, completely severing the gullet and the jugular vein, where it is an undisputed fact that the deceased was left-handed, witnesses properly qualified as experts may be allowed to testify that the character, depth and direction of the wounds were such that they could not have been self inflicted, this being a subject not so far within the ordinary experience of intelligent jurors that they would not be instructed and aided by the opinion of experts.</p> <p>At the trial of two defendants, called respectively Peter and James, on an indictment for a murder alleged to have been committed by them jointly, a police detective testified that when the defendants were in a police station the defendant Peter repeated a confession, which he had made previously, that during this confession at different times the defendant James called to Peter to stop, saying, “ Stop Peter! You lie! You lie ! Peter, stop ! ”, that the defendant Peter, after concluding his confession, rose from his chair and said to the other defendant “ Jim, tell the truth, tell the truth. You asked me not to tell, Jim, but I had to, for God’s sake Jim tell the truth. You know you cut her throat with a razor. You know her blood was on your hands,” that there was a silence of two minutes of everybody in the room, and that then the lieutenant of police in charge of the station said to the defendant James, “ What have you got to say to Peter’s story now, Jim?” whereupon the defendant James said, “Me no talk, me no talk. I want to see my lawyer, I want to see my lawyer.” The defendant James excepted to the admission of this evidence against him. Held, that the evidence was admissible against the defendant James as well as against the defendant Peter.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 16,1909, and amended on March 11 and April 1,1910, by the administrator with the will annexed of the estate not already administered of George F. H. Markoe, late of Boston, against the Joseph Burnett Company, Robert M. Burnett and Harry Burnett. The allegations of the bill were in substance as follows:</p> <p>The plaintiff’s testator was by profession an apothecary and chemist, the dean of the Massachusetts College of Pharmacy, and a member and officer of various scientific societies. He had for many years made a special study of food chemistry, especially that branch pertaining to the subject of essences, flavoring extracts, coloring matters for food staffs, which was at that time little known, and to the subject of perfumery, and had made valuable discoveries and had acquired expert knowledge and an international reputation in those branches of chemical science.</p> <p>The defendant the Joseph Burnett Company is a Massachusetts corporation, incorporated in 1895, with its principal place of business in Boston and is engaged in the manufacture and sale of flavoring extracts, essences, and coloring materials used in the preparation of foods, and in the manufacture of such extracts, essences, and coloring materials it was using at the time of the commencement of the suit, and since the time of its incorporation had used, certain secret processes and formulas acquired at or about the time of its incorporation from the copartnership, Joseph Burnett and Company, which had had its principal place of business in said Boston. The firm of Joseph Burnett and Company at the time of the incorporation of the Joseph Burnett Company was composed of the defendants Robert M, Burnett and Harry Burnett as surviving partners, who became the corporation’s president and treasurer, respectively, and a majority of its board of directors and the holders of a large part .of the capital stock. The capital stock of the corporation was issued to be used “in the purchase from the surviving partners of Joseph Burnett and Company (with the assent and ratification of the executors of Joseph Burnett, deceased) all of the merchandise, machinery, fittings, good will, proprietary property, trade marks, processes, secrets, cash, accounts receivable, claims and all other assets whatsoever of said firm. The corporation to assume all contracts and debts of said copartnership, and take over the business as from and after August 11, 1894, and to ratify all acts, and payments, and to bear all losses and to hold all profits since that time.”</p> <p>The plaintiff alleged on information and belief that some time about the year 1889 the plaintiff’s testator and the copartnership Joseph Burnett and Company (then composed of Joseph Burnett, now deceased, and the respondents Harry Burnett and Robert M. Burnett) entered into a contract whereby the plaintiff’s testator undertook and promised to devote his time, energy, skill, reputation, and special knowledge to experimentation in the subject of flavoring extracts, essences, coloring matters for food, and perfumery, and similar things, for the mutual benefit of himself and said copartnership; and to permit the copartnership to make use of any of the processes, recipes or formulas he might thereafter invent, discover or improve. And the firm undertook and promised to manufacture and put on the market such of these processes to be invented, discovered or improved by the plaintiff’s testator as they might believe capable of yielding a profit under proper business exploitation, and further promised to pay to him or his legal representatives a fair and equitable share of the net profits realized by the sales of flavoring extracts and . coloring matters for foods fnanufaetured under processes and formulas to be discovered by the plaintiff’s testator; and, in consideration of certain other work which he was to do for said firm in connection with their established manufacture under their own recipes and to enable him to carry on his experimentation until such time as the formulas to be devised by him might be put on the market and yield him a fair return, said firm agreed to and did pay the plaintiff’s testator a small monthly sum.</p> <p>Thereupon the plaintiff’s testator “ sold out and retired from a lucrative business as druggist and apothecary of which he had for many years been proprietor, gave up his established practice as consultant in pharmacy and food chemistry, and in accordanee with the terms of the contract from about 1889 until September 24, 1896, when he died, devoted his whole time, skill, energy, knowledge and reputation to experimentation in flavoring extracts and essences, coloring matters for foods, and perfumery, and discovered, invented and improved from time to time a variety of new, valuable and useful processes for the pro-Auction and manufacture of such flavoring extracts, essences, coloring matters for food stuffs and perfumery which were considered in the judgment of the defendants to be, and which in fact were, capable of profitable commercial exploitation, and the plaintiff’s testator in every respect fulfilled, and was at all times ready to fulfil, all obligations undertaken by him in consequence of said agreement.”</p> <p>In pursuance of the objects for which it was incorporated and with full knowledge of the agreement of the plaintiff’s testator with the firm and of all his rights in the processes and secrets invented, discovered and improved by him, the defendant Joseph Burnett Company acquired from the defendants Robert M. and Harry Burnett, as surviving partners of Joseph Burnett and Company and with the assent and ratification of the executors of the will of Joseph Burnett, all their proprietary property, trademarks, processes and secrets, including those for flavoring extracts and essences, coloring matters for food stuffs, and perfumery discovered, invented and improved by the plaintiff’s testator, and succeeded to the rights and assumed all the obligations and liabilities under the agreement between the plaintiff’s testator and the firm.</p> <p>On information and belief the plaintiff further alleged that, shortly after the making of the agreement with the plaintiff’s testator, the copartnership, and on and after August 11, 1894, the corporation, began to use, and continued to use down to the institution of this suit, a large number of secret processes and formulas discovered and invented by the plaintiff’s testator, and by means thereof to manufacture and sell flavoring extracts, essences, and coloring matters for food stuffs, and perfumery, continuously had been engaged extensively in the manufacture and sale of said products, and had made large profits thereby, and still had the exclusive use and benefit of certain of said secret processes and formulas; that such flavoring extracts, essences and coloring matters for food manufactured under the processes and formulas discovered, invented and improved by the plaintiff’s testator began to be widely marketed and to yield a large profit over the cost of production before his death, but that the defendants failed to disclose, concealed from the plaintiff’s testator and his executor and denied the fact that any profit whatever had been realized; that because of the representations of the defendants the plaintiff’s testator died ignorant of the fact that the products were being marketed at a profit and without having received from the defendants the share, or any part of the share, of such profits which ought to have been paid to him in accordance with said agreement.</p> <p>After the death of the plaintiff’s testator, the executor of his will requested that the defendants account for his share of the net profits due him and his estate, but the defendants denied that there were any profits.</p> <p>Shortly after his appointment as administrator the plaintiff requested the defendant Harry Burnett, as treasurer of the defendant corporation and as a surviving partner of the firm of Joseph Burnett and Company, to account to him for net profits due the estate of the plaintiff’s testator, but he, in behalf of the defendant corporation and the copartnership, though admitting that such profits had been made, refused to pay over any sum as profits or to make any accounting whatever.</p> <p>On information and belief the plaintiff further alleged that neither George F. H. Markoe nor the executor of his will nor any person interested in the testator’s estate ever .was informed or believed or had reason to apprehend that the defendants denied or intended to deny their obligations under their agreement with the said Markoe; and that neither the plaintiff nor any of the above named persons learned that the defendants intended to deny said obligations until their refusal to account as above stated. Soon after the death of the plaintiff’s testator the defendant Harry Burnett was appointed trustee of the residue of his estate, which was given by his will upon certain trusts, and continued to act as such trustee until July 16, 1908, when he resigned the office. Throughout the time of his trusteeship he acted as advisor to the executor of said will, and after the year 1900, when the executor went to .live permanently in New York, and until the appointment of the plaintiff as administrator, Harry Burnett assumed and exercised full control over the administration of the estate.</p> <p>On information and belief the plaintiff further alleged that the flavoring extracts, essences, coloring matters and perfumery manufactured under the processes, recipes and formulas discovered and invented by the plaintiff’s testator were placed upon the market by the defendants some time before his death; that they yielded a profit before his death; that the sales thereof had greatly increased since his death; and that all such articles have been sold in very large and increasing quantities throughout the United States and other countries, and have yielded to the defendants from time to time, and still are yielding, very extensive profits over and above the cost of production; that an accounting would be an extremely complicated and difficult matter, and the common law for that and for other reasons would afford the plaintiff no adequate and complete relief in the premises.</p> <p>The prayers of the bill were for an accounting, for injunctions restraining the defendants from selling, assigning, transferring, disposing of or making known to any person, firm or corporatian the processes, recipes and formulas discovered or invented by the plaintiff’s testator and previously described; that the right, title and interest of the plaintiff in the recipes, formulas and processes might be ascertained and established, and that the defendant corporation might be decreed to hold the same in trust for the plaintiff as administrator to the extent of his interest therein, or that the valué thereof might be ascertained and established and ordered to be paid over to him; and for general relief.</p> <p>The individual defendants and the defendant corporation demurred severally upon the ground that the bill disclosed no ground for proceedings in equity, and also on the ground that the bill was multifarious, “ in that it proceeds and relies upon two separate and distinct grounds of relief against separate and distinct defendants, namely, it proceeds and asks relief against these defendants upon an alleged agreement with them as co-partners, and it proceeds and asks relief against the Joseph Burnett Company upon an alleged contract between these defendants and said company, of which the plaintiff may be a beneficiary, but to which neither he nor his testator were parties.”</p> <p>The demurrers were heard by Sheldon, J., who overruled them, and, being of opinion that the questions involved so affected the merits of the controversy that the matters ought, before further proceedings, to be determined by the full court, he reported the questions raised by the demurrers for that purpose and stayed all further proceedings.</p>

<p>Small Loans Act. Mortgage, Of personal property. Statute, Construction. Release.</p> <p>R. L. c. 102, § 61, provides that “ a loan of less than one thousand dollars shall be discharged upon payment or tender by the debtor of the principal sum actually borrowed and interest at the rate of eighteen per cent per annum from the time said money was borrowed and a sum not exceeding five dollars for the actual expenses of making and securing the loan; but the lender shall be entitled to interest for six months at said rate if the debt is paid before the expiration of that period. All payments in excess of said rate shall be applied to the discharge of the principal, and the borrower shall be obliged to pay or tender only the balance of the principal and interest, at said rate, due after such application.” Held, that these provisions do not render it illegal for a lender to ask for and receive interest on a loan of less than $1,000 at a rate greater than eighteen per cent.</p> <p>If one, who had borrowed $405 and had given therefor his note bearing interest at four per cent per month and a mortgage on his household furniture as security, is unable to pay the note when it comes due and the lender insists upon foreclosing the mortgage unless the borrower will execute and deliver a new note payable in one month for the amount due on the former note, bearing interest at the same rate and secured by a new mortgage on the furniture, and also a release of all demands and particularly of all rights under R. L. c. 102, §§ 61, 52, and the borrower accedes to the lender’s requirements, such release, note and mortgage are valid, and although, in a series of such transactions the borrower may have paid to the lender a sum far in excess of the amount of the original loan plus eighteen per cent interest per year, and there still are outstanding a mortgage and mortgage note for §335 and interest at four per cent per month, the borrower cannot insist under R. L. c. 102, § 61, that all payments made under all the notes in excess of the rate of eighteen per cent per year “ shall be applied to the discharge of the principal,” since all the mortgages but the last were transactions which were closed by the releases, and therefore the borrower only can insist upon the statute being applied to the last mortgage.</p> <p>R. L. c. 102, § 51, provides that “ a loan of less than one thousand dollars shall be discharged upon payment or tender by the debtor of the principal sum actually borrowed and interest at the rate of eighteen per cent per annum from the time said money was borrowed and a sum not exceeding five dollars for the actual expenses of making and securing the loan ; but the lender shall be entitled to interest for six months at said rate if the debt is paid before the expiration of that period. All payments in excess of said rate shall be applied to the discharge of the principal, and the borrower shall be obliged to pay or tender only the balance of the principal and interest, at said rate, due after such application.” Held, that the statute was intended for the benefit of the borrower, who may if he chooses relinquish any rights that at any time may have accrued to him under its provisions.</p>

<p>Practice, Civil, Findings by trial judge, Exceptions. Mortgage, Of real estate: foreclosure. Evidence, Presumptions and burden of proof.</p> <p>Where a judge, who, without a jury, hears an action of contract, finds for the plaintiff, and the defendant alleges exceptions, such finding is to stand if it is warranted in law upon any possible view of the evidence.</p> <p>In an action by a mortgagee of real estate against the mortgagor to recover a balance remaining due upon the mortgage note after a sale of the mortgaged property under a power of sale in the mortgage, if the mortgagor contends that the sale was not made in good faith and was not properly conducted, the burden is upon him to establish that contention.</p> <p>The provision in a mortgage of real estate giving the mortgagee power to sell the mortgaged property in case of default by the mortgagor in the performance of the conditions of the mortgage did not require the mortgagee to give to the mortgagor notice of an intended foreclosure sale. The mortgagee foreclosed the mortgage under the power of sale and complied strictly with the provisions of the mortgage with regard thereto. The evidence as to whether there was a notice given to the mortgagor was conflicting, an attorney who acted for the mortgagee and purchaser in his behalf testifying that it was “ his remembrance " that such notice was given, and there being “ direct, affirmative and positive evidence ” that no such notice was given. There was no effort made to advertise the sale beyond the required foreclosure notice in a newspaper. There were but ten persons at the sale and only one bid, which was made by the attorney of the mortgagee. The property was sold for $7,200, and its fair market value at the time was $10,000. The mortgagor had sold his interest in the mortgaged property two years before the sale. After the sale there was still due to the mortgagee on the mortgage note $3,488 for which he brought an action against the mortgagor, who contended that the sale was not conducted properly or in good faith and that there should have been no deficiency. The case was tried before a judge without a jury and the foregoing facts were in evidence. The defendant made no special requests for findings but asked the judge to rule that as matter of law the plaintiff could not recover. The ruling was refused, the judge found for the plaintiff, and the defendant alleged exceptions. Held, that the exception must be overruled, since on the evidence the judge was warranted in finding that the sale was conducted by the plaintiff properly and in good faith.</p> <p>Where at the trial before a judge without a jury of an action for $3,488, a balance alleged to be due upon a note secured by a mortgage upon real estate after a sale in foreclosure of the mortgage, the defendant merely asks the judge to rule that as matter of law the plaintiff cannot recover, and, the ruling being refused and the judge finding for the plaintiff, alleges an exception merely to the refusai to give the ruling, no question as to whether an amount of $1,262, which was paid by the plaintiff as taxes upon the mortgaged property before foreclosure, properly was included in the finding, is brought before this court.</p>

Contract by an attorney at law for $3,500 for compensation for professional services alleged to have been rendered to the defendant on August 14 and 15,1907. Writ dated August 16, 1907.

<p>Negligence, Employer’s liability, In tearing down building. Evidence, Presumptions and burden of proof, Uncontradicted.</p> <p>At the trial of an- action by a workman against his employer for personal injuries alleged to have been received because of negligence of a superintendent of the defendant while the plaintiff was in charge of a portable engine and was helping to tear down a building, there was evidence tending to show that in the work being done it was necessary to raise a certain truss weighing two tons by the use of a derrick operated by the engine that the plaintiff was in charge of, that immediately above the truss was an iron pipe or brace, which, if it contained no flaw, would resist a strain of twenty tons, that the superintendent either saw the iron pipe or should have seen it and nevertheless communicated to the plaintiff a signal to start his engine, that thereby the truss was raised and the pipe was broken and fell upon the plaintiff, and that the plaintiff was not aware of the danger incident to obeying the order of his superior and starting the engine. Held, that the questions, whether the superintendent was negligent and whether such negligence caused the injury to the plaintiff, were for the jury.</p> <p>A jury are not bound to believe evidence merely because it is uncontradicted.</p> <p>An employee, who is in charge of a portable engine, which operates a derrick, and is assisting in the tearing down of a building, does not as a matter of law assume the risk of negligence of a superintendent in directing him to start his engine when doing so will cause a truss to be raised in such a manner as to strike an iron brace and cause it to break and fall upon the employee.</p> <p>If an employee, who is in charge of a portable engine, which operates a derrick, and is assisting in the tearing down of a building of a third person, is injured because his superintendent negligently directs him to start his engine and thus causes a truss to be raised against an iron brace, breaking the brace and causing it to fall upon the employee, his right of recovery against his emphyer is not affected by the fact that another cause of the breaking of the iron rod was a latent defect therein from crystallization or some other cause.</p> <p>If an employee, who was in charge of a portable engine, which operated a derrick, and was assisting in the tearing down of a building of a third person, was injured because his superintendent negligently directed him to start the engine and caused a truss to be raised against an iron brace, breaking the brace and causing it to fall upon the employee, his right of recovery against his employer is not affected by the fact that he saw the iron brace above the truss and yet raised the truss so that it hit the brace, if it also might be found that, when he set his engine in motion to raise the truss exactly as he was directed to do by the superintendent, and while the engine was in motion, he could not tell how high the truss was going or whether it would hit the brace.</p> <p>The mere fact that an employee knows or should know that, if he does an act which his superintendent directs him to do in the way in which he is directed to do it, he runs a risk of injury if the superintendent causes the work to be done in a negligent manner, is not fatal to his recovering from his employer in case he thereby is injured, because he has a right to expect the superintendent to Use due care in managing the work.</p>

<p>Contract, What constitutes. Evidence, Admissions, Presumptions and burden of proof. Words, “Charged.”</p> <p>In an action of contract upon an account annexed for goods sold and delivered to a third person upon an alleged original promise of the defendant to pay for them, there was evidence that, before the goods were delivered, the defendant had sent to the plaintiff a letter in which he had stated that any such goods delivered after a date then two^ months past should be charged to him personally, that after receiving the letter the plaintiff had delivered the goods in question and had sent bills to the defendant which did not have on them the name of the defendant, but only the names of the third person and of the plaintiff, that the defendant had paid some of the bills and had stated to the plaintiff that, if he had sent the plaintiff the letter above referred to, he “ supposed he would have to pay the bill." On the plaintiff’s book of original entry the goods stood charged to the third person. Held, that the facts that the charges purported to be made to tlie third person and that his name appeared on the bills were not decisive that credit was not given to the defendant, and therefore that the question of the liability of the defendant was for the jury.</p> <p>A statement in a letter to a tradesman that certain goods to be furnished by the tradesman to a third person should be “ charged ” to the writer of the letter is equivalent to a promise by the writer of the letter to pay the tradesman for goods so furnished.</p> <p>The conduct of a tradesman, in putting charges for goods, furnished to a third person on the original promise of another to pay for them, on his books under the name of the third'person, is merely an admission on the part of the tradesman to be considered with other evidence on the subject, including explanations by the tradesman of his reason for doing so; and therefore, in an action by the tradesman against the promisor, the judge need not charge the jury that such conduct is prima facie evidence against the plaintiff that he gave credit to the third person and not to the defendant.</p>

<p> Negligence. Street Railway. </p> <p>If after a street car has come to a full stop the conductor makes way for a woman passenger to get out and she starts to do so, but while she is stepping from the car it starts suddenly and she is thrown to the ground and is injured, these facts are evidence of due care on the part of the passenger and of negligence on the part of either the conductor or the motorman of the car.</p>

<p>Negligence, Employer’s liability, Invited person, In freight house. Railroad.</p> <p>A dealer in hay, who sends a teamster in his employ to a freight house of a railroad corporation for bales of hay, owes no duty to such teamster previously to inspect the piles of bales of hay in the freight house to ascertain whether they are piled carefully so as not to fall on the teamster when he is passing a pile.</p> <p>In an action by a teamster in the employ of a dealer in hay against a railroad corporation, for personal injuries sustained when the plaintiff had been sent by his employer to a freight house of the defendant for nine bales of hay and, after he had put two bales on his team and was rolling out the third, a bale of hay fell upon him from a pile of bales as he was passing it, where there is evidence tending to show that the manner in which the bales were piled was improper and dangerous and rendered them likely to fall, so that the question of the defendant’s negligence is for the jury, the questions, whether the plaintiff in the exercise of due care should have observed the manner in which the hay was piled and whether the way in which he took out the three bales was a proper one and, if it was not, whether it contributed to the accident, also are for the jury.</p>

<p>Negligence, Street railway, Licensee, Due care of plaintiff. Street Railway. Car. rier, Of passengers. Corporation, Officers and agents. Waiver.</p> <p>If a member of the fire department of a city, who is being transported free on an open electric car of a corporation operating a street railway, is injured by a collision while he is standing on the left hand running board of the car outside the side bar, which is lowered, having taken his place there knowing of a rule of the corporation that members of the fire department shall be transported free on open cars only on the rear platforms, and knowing also of another rule of the corporation that when the side bar of an open car is in use on the left hand side no person shall be allowed to stand on the left hand running board, is at most a licensee, to whom the corporation owes no duty except to refrain from injuring him intentionally or wantonly.</p> <p>It seems that, if a person, who is being transported as a passenger on an open electric car of a corporation operating a street railway, stands on the left hand running board of the car outside the side bar, which is lowered, knowing of a rule of the corporation, that when the side bar of an open car is in use on the left hand side no person shall be allowed to stand on the left hand running board, and is injured by a collision which would not have hurt him if he had not been standing on the left hand running board, he cannot recover from the corporation on showing that the accident was due to the negligence of the servants of the corporation, because his violation of the rule must be regarded as a negligent act which contributed directly to the injury which he received.</p> <p>It seems that, if the conductor of an open electric car of a corporation operating a street railway sees a member of the fire department in his uniform getting upon the left hand running board of the car outside the side bar, which is lowered, both of them knowing of a rule of the corporation that members of the fire department shall be transported free on open cars only on the rear platforms, and both of them also knowing of another rule of the corporation that when the side bar of an open car is in use on the left hand side no person shall be allowed to stand on the left hand running board, and under these circumstances the conductor nods to the member of the fire department as he gets upon the car, it does not matter whether the nod of the conductor was intended merely as a sign of recognition or whether it was intended as an acquiescence in the member of the fire department taking his position on the left hand running board, because it is not in the power of a conductor of a corporation operating a street railway to waive such rules of the corporation.</p>

Contract for the sum of $100 and interest as compensation for professional services as an attorney at law alleged to have been rendered to the defendant as administrator of the estate of William G. Russell, late of Boston, who had been a hotel proprietor and real estate dealer. Writ in the Municipal Court of the City of Boston dated January 15, 1909.

Tort for personal injuries alleged to have been sustained by the plaintiff on August 10, 1909, by reason of the negligence of the defendant’s servants in letting fall upon the plaintiff a side bar of an open car of the defendant in which the plaintiff was a passenger. Writ in the Municipal Court of the City of Boston, dated September 3, 1909. On appeal to the Superior Court the case was tried before Morton, J., without a jury.

<p>Negligence, Street railway.</p> <p>If one, who had been employed by a street railway company as a conductor for three years, becomes a passenger upon an open electric street car of the same company, takes his position upon the running board and, as the car passes through a very busy city street with which he is entirely familiar and in which there is a space of but eight feet and two inches from the running board to the curbstone, stands holding to the uprights of the car, facing the car's interior and not looking out to see whether he is in danger of coming into contact with teams or obstructions in the street, and is struck by the pole of a cart which he easily could have seen had he looked in the direction in which the car was going, and could have avoided by temporarily stepping into the car between the seats or drawing himself farther into the car, he cannot be said to have been in the exercise of due care, since, with a knowledge of the dangers attending his position, he disregarded them,.</p>

<p>Contract for the alleged breach of an agreement to buy a parcel of land with the buildings thereon numbered from 208 to 220 on Camden Street in Boston. Writ in the Supreme Judicial Court dated April 8, 1904.</p> <p>The case was referred to Frank N. Nay, Esquire, as auditor, who filed a report favorable to the defendant. Thereafter there was a trial before Hammond, J., who ordered a verdict generally for the defendant. The plaintiff alleged exceptions which were sustained in a decision reported in 202 Mass. 177.</p> <p>The case was tried again before Hugg, J.</p> <p>It appeared that in November of 1903 the plaintiff owned the premises in question subject to a mortgage for $57,000, which was overdue and was held by a corporation having its usual place of business in New York City, and subject also to a ten years’ lease to the defendant, which contained an option permitting the defendant to purchase the property at any time before August 8, 1908, for $200,010; that, previous to November 25, 1903, there had been negotiations from time to time looking toward a sale of the property to the defendant. On the morning of that day, according to the testimony of Maurice Douglas Flattery, Esquire, counsel for the plaintiff in the transaction, as a result of a conversation with officers of the defendant in which he said that, if the defendant would offer to purchase the property on certain terms for $110,000, he would do his best to get the plaintiff to accept the offer, one Phillips, the secretary of the defendant, wrote to Mr. Flattery the following letter: “ Boston, Nov. 25, 1903. Mr. Flattery, Dear Sir—I have been over the matter of offer for Camden St. property and our directors will not agree to pay a cent more than $100,000 and any other proposition would be useless. I herewith submit offer and beg to state that we could probably pay you for first payment 5000 more on a note if you wish to accept this offer. I can do no more with them. Sincerely, Ralph B. Phillips.”</p> <p>Enclosed with the letter was the “ offer ” therein referred to, which was as follows: “Boston, Mass., Nov. 25, 1903. Messrs. Beach & Clarridge Co., Boston, Mass. Gentlemen: I am authorized by our Board of Directors to offer you sum of one hundred thousand dollars ($100,000) for your property on Camden Street in Boston which we are now occupying on a lease, the terms to be as follows: — $5000.00 cash when signing papers, $5000.00 cash on delivery of the deed, Remainder to remain on mortgages, you to take a second mortgage with interest at 5% and arrange for renewal of first mortgage or extension of it until it can be placed for a term of years, you to pay a sufficient sum on the first mortgage in order to get it extended, payments to be arranged so that we will pay you the sum of $11,000 per year, you to pay interest on the mortgages and taxes, and the balance to be applied to the purchase price of the property, you to pay the insurance up to the time it is transferred to us, also the taxes for the year 1903. Respectfully submitted, American Steam Gauge & Valve Mfg. Co., by Ralph B. Phillips Sec’y.”</p> <p>Mr. Flattery further testified that, upon receiving the offer, he called a meeting of the plaintiff’s board of directors, that they accepted the offer, and that, from the room where the directors were present and in their hearing, he called up Phillips on the telephone. As to the ensuing telephone conversation, he testified : “ I told him that the board of directors, that were present in the room while I was speaking, they had formally voted to accept the offer and they so instructed me to say, — to notify the American Steam Gauge and Valve Company that we accepted the offer, but, as between him and me, — a personal matter, — I would look to him to try and get the extra $5,000 which he promised in the personal letter accompanying his offer.” The plaintiff’s board of directors were present when the telephone conversation took place and it was with their authority. Phillips replied, “ Now that we got together on the purchase and sale, I will do my best to get the $5,000. I think I will be able to fix that up this evening.”</p> <p>Mr. Flattery at once entered into negotiations with the mortgagee for an extension of the mortgage. On November 25, Mr. Flattery sent to the defendant a formal agreement, which contained provisions for the payment by the defendant of $5,000 on the signing of the agreement and $10,000 on the delivery of final papers. In conference later with Phillips and the defendant’s counsel, Walter A. Webster, Esquire, the counsel suggested a number of changes in the formal agreement, and Mr. Flattery testified that he said to Mr. Webster, “ What is the use of trying to change this now when you have made a written offer which we have accepted ? ” that Mr. Webster turned to Phillips and said, “ Have you made an offer on this property ? ” and he said, “ Yes ; we made an offer last Wednesday.” Shortly after that Mr. Flattery went to his own office and mailed to the defendant about one o’clock that day a letter as follows: “ Boston, Dec. 1, 1903. American Steam Gauge & Valve Co., 212 Camden St., Boston, Mass. Gentlemen:—In reply to your letter of November 25th 1903, offering us a sum of $100,000 (one hundred thousand dollars) for our property, which you now occupy — I am authorized by our Board of Directors to accept your offer on the terms proposed by you and we hold ourselves in readiness to sign formal agreements and make a deed of the property. Yours truly, Beach & Clarridge Co. of Boston by M. Douglas Flattery, Counsel for Beach & Clarridge Co.”</p> <p>Mr. Flattery further testified that he called at Mr. Webster’s office again that day, a little after three o’clock, and Mr. Webster and Phillips were there. Mr. Webster then handed to him a letter reading as follows: “ Boston, Mass. Dec. 1, ’03. The Beach & Clarridge Co., C/o M. Douglas Flattery, #8 Beacon St., Boston. Dear Sirs:—The offer which I made to the Beach & Clarridge Company on Nov. 25, 1903 regarding the purchase of their property on Camden Street, Boston, Mass., I hereby withdraw as this offer has not been accepted. Yours truly, Ralph B. Phillips.” Mr. Flattery refused to receive the letter on behalf of the plaintiff.</p> <p>Subsequently the defendant refused to purchase the property from the plaintiff unless an extension of the mortgage for three years could be obtained. Thereupon the mortgagee foreclosed the mortgage by sale and the defendant purchased at the sale</p> <p>Much of the testimony of Mr. Flattery was controverted by witnesses for the defendant.</p> <p>At the close of the evidence, the defendant asked for the following rulings, among others:</p> <p>“ 5. If the plaintiff accepts the offer (or makes an attempt to accept it) with any condition, change, or modification, this constitutes in law a new proposal, and is a rejection of the original offer.</p> <p>“ 6. The plaintiff, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it; a rejection puts an end to the original offer.</p> <p>“ 7. If you find that the plaintiff did not make an unequivocal oral acceptance of the defendant’s offer, the agreement executed by the plaintiff and sent to the defendant on November 25 was a counter proposition which put an end to the offer.</p> <p>“ 8. The continued negotiations of the parties after November 25 in an attempt to reach an agreement upon terms not included in the original offer put an end to the defendant’s offer.”</p> <p>“ 12. A term of years cannot mean less than two years, and three years is not an unreasonable interpretation.”</p> <p>“ 14. A refusal of the defendant to accept anything less than a three years’ extension of the mortgage was reasonable and did not constitute a breach of its agreement.”</p> <p>“ 27. The best test of the fair market value is the amount which the property would bring where the seller wants to sell and the purchaser wants to buy.</p> <p>“ 28. In considering the amount received for the property at the foreclosure sale you may consider the fact that the sale was not extensively advertised; that no effort was made to secure bidders and that there were only two bidders, as bearing upon the question whether it was a true criterion of the value of the property.</p> <p>“ 29. The price of §100,000, agreed upon by the parties, is evidence of the value of the property.</p> <p>“ 30. It is for you to find whether the defendant’s offer was given and continuing on December 1, or whether the parties, by their negotiations upon terms differing from those of the defendant’s offer, treated it as at an end and were trying to reach a new agreement upon other terms.</p> <p>“ 31. If you find that the defendant told the plaintiff before December 1 that it would not accept any extension of the mortgage for less than three years, then you may find that that was notice to the plaintiff that the defendant did not intend to be any longer bound by its offer for an extension for a less time.”</p> <p>The plaintiff asked for the following rulings:</p> <p>“ 1. If there was an acceptance by telephone on November 25 of the offer contained in the defendant’s letter of that day, that constituted a binding contract.</p> <p>“ 2. Neither the formal agreement signed by the plaintiff and sent to the defendant on November 25, nor the subsequent negotiations for an additional payment of $5,000, amounted, as a matter of law, to a rejection of the offer contained in the defendant’s letter of November 25.</p> <p>“ 3. Even if there were no oral acceptance of the offer, the letter of acceptance on behalf of the plaintiff on December 1 was a good acceptance and made a binding contract.</p> <p>“ 4. The letter of Mr. Phillips to Mr. Flattery on December 1 was not a revocation of the offer contained in the defendant’s letter of November 25.</p> <p>“ 5. If the letter of December 1, accepting the contract, was put into the mail before the letter of revocation was served on Mr. Flattery on that day, the attempted revocation was ineffective, and the defendant’s offer of November 25 became a binding contract.</p> <p>“ 6. By the terms of the contract the plaintiff was not bound to obtain an extension for three years of the existing mortgage, but only a temporary extension to enable a mortgage for a term of years to be arranged, and an extension for one year was sufficient.</p> <p>“ 7. Under the terms of the contract the defendant was not entitled to insist upon an extension for three years of the existing mortgage.</p> <p>“ 8. If the defendant refused to accept anything less than an extension for three years of the existing mortgage the plaintiff was excused from further performance and is entitled to recover.</p> <p>“ 9. That the jury be instructed to disregard those portions of the auditor’s report to the effect that the agreement prepared by Mr. Flattery and the modifications made on behalf of the plaintiff in the offer received from the defendant on that day amounted to a rejection of the offer so that the offer was no longer open, and that a direct and unequivocal acceptance would have left the plaintiff’s company in no position to seek this modification if the bargain had been previously closed, and also to disregard so much of the report as construes the offer of November 25, and particularly that part which says that the extension referred to in the offer cannot mean less than two years.</p> <p>“10. That upon the facts stated in the auditor’s report the ruling that there was no legal and binding contract was erroneous, and must be disregarded.”</p> <p>On the subject matter of the twelfth ruling asked for by the defendant, and the sixth ruling asked for by the plaintiff, the single justice charged the jury as follows: “If you find that there was an acceptance, either orally, or, if not oral, written, then you proceed to the consideration of the second branch of the case, which is whether the defendant broke this contract. And as that involves a consideration of just what each party was obliged to do under the contract, therefore I invite your attention somewhat critically to the terms of this offer. It was for a gross price of $100,000 — $5,000 to be paid down and $5,000 to be paid on the delivery of the deed, and the proceeds of the remainder to remain on mortgage, ' you to take a second mortgage with interest at five per cent and arrange for a renewal of the first mortgage, or an extension of it, until it can be placed for a term of years.’ Now that means either a renewal of the first mortgage for the term which it originally ran, — and about that there is no dispute, as I recall it now, so I think you need not trouble yourselves about that aspect of the case, but proceed to the second question which is ‘ either an extension or a renewal of it until it can be placed for a term of years.’ Now that does not mean that the plaintiff agreed to get continued this particular mortgage held by the Cannabis Company of New York. It simply means that this plaintiff agreed to get an extension of that mortgage until it could get either that mortgage extended for two years or a new mortgage for two years. That is, the plaintiff would have performed its contract if it had this New York lawyer’s client’s extension for a week or a day, provided within that time it could get the mortgage placed for a term of years somewhere else. It might have gone to another savings institution or to an individual and got a mortgage for two years. That would have complied with the terms of the contract. It was necessary that it should get this mortgage extended, which was overdue at the time the contract was made, or that it should get a mortgage for this amount placed for a term of years. I instruct you that than means not less that two years, and if it was able to get a mortgage for two years, — if you find upon all the evidence that it could, that was a compliance with the contract in that respect. Now it was to get the mortgage extended in view of this contract; that is, the mortgage was $57,000; the contract itself provided that there was at least $10,000 to be paid before it was obliged to get the mortgage extended; so that the defendant’s obligation was only to get a mortgage for $47,000, instead of the face value of $57,000 which existed at the time the contract was made. Of course, it would have complied with the contract by getting a mortgage for $57,000, but it was not obliged to do so, because if the other side performed its contract to pay $10,000 the plaintiff would have that in hand with which to reduce the principal of that second mortgage. So that you may find on the evidence that these New York parties would not extend for two years for $57,000, or more than one year or six months; it is still open for you to find that the plaintiff was able to perform its part by getting its mortgage placed somewhere else; so that the defendant would have had only a total mortgage indebtedness on the property for $90,000. Now it is necessary for you to find that the plaintiff was able, would have been able if the other side carried out its contract, to place mortgages in the aggregate for $90,000. So you see the first mortgage would have to run for at least two years. Now you are to find whether the plaintiff was in a position to do that. You have a right to take into account the fact that he wrote a letter for the purpose of getting $10,000 to carry out that part of its contract. You are to take that and all the other circumstances. There was some evidence as to the opinion of witnesses as to how easy it would have been to get a mortgage placed for that period of time for $47,000. Mr. Flattery gave some testimony on the stand. His opinion was about the ease with which he could do that had the contract been carried out by the other side.”</p> <p>The other rulings asked for by the defendant were refused.</p> <p>On the question of damages, the single justice charged the jury as follows in part: Now the rule of damages is this: The plaintiff is entitled to recover the difference between the contract price of $100,000 and the fair market value of the property, if it was less than $100,000. If you find, for instance, merely by way of illustration, if you find that the price this property brought at auction was $60,000, and was the fair market value of the property, then your verdict should be for the plaintiff for the difference between $100,000 and $60,000. If you find, on the other hand, the property was worth $100,000, or over, then the plaintiff has really suffered no damages because of that oral contract with the defendant, because the property was worth just as much to it. Therefore, if you find that, you would bring in only one dollar nominal damages. Now the fixed point on that side is the contract price of $100,000, and you are to find, upon all the evidence, what was the fair market price of this property. Now the fair market value is what an owner who is willing to sell, and is not obliged to sell, and a purchaser who is under no obligation to buy, but is willing to buy, — what price both would agree upon, — what one would sell and the other would buy for. You have various items of evidence respecting the market value of this property, which will aid you in coming to a conclusion on this point. You have, first, what the property brought at the foreclosure sale, and you have a right to take into account, and ought to take into account in weighing the worth of that evidence, the circumstances under which the sale occurred. It was a mortgagee’s sale. You know what that means; perhaps some arguments have been addressed to you about it. You are to take into account, in connection with this sale, the particular circumstances under which this sale was had, and you will recall the evidence from the mortgagee, from the attorney in New York, as to how extensively this sale was advertised.”</p> <p>The single justice also submitted to the jury the special question, “ Was the offer of November 25, 1903, accepted orally by the plaintiff?” The jury answered the question “Yes,” and found for the plaintiff in the sum of $46,446. The defendant alleged exceptions.</p>

<p>Tort for personal injuries received by the plaintiff from being run into by an electric street car as described in the opinion. Writ dated April 26, 1907.</p> <p>In the Superior Court the case was tried before Harris, J. The material facts are stated in the opinion. At the close of the plaintiff’s evidence, the presiding judge ordered a verdict for the defendant and reported the case to this court for determination, the parties agreeing that, “ if, upon all the evidence, including any evidence excluded against objection and exception which should have been admitted, and excluding any evidence admitted against objection and exception which should have been excluded, the plaintiff was entitled to go to the jury, then a judgment should be entered for the plaintiff in the sum of $1,300; otherwise judgment to be entered on the verdict for the defendant.”</p>

<p>Negligence, In use of automobile. Automobile. Sale. Corporation. Evidence, Opinion, Best and secondary, Competency, Presumptions and burden of proof. Words, “Sold.”</p> <p>A person driving an automobile on a country road and approaching a grade crossing of a railroad with the road, which has no gates or a flagman, is not in the exercise of due care unless he looks and listens for approaching trains in a reasonable way before attempting to cross the railroad, and the fact that he can stop near the track for this purpose with greater convenience than can the driver of a horse will be considered in passing upon the question of the reasonableness of the way in which he looks and listens.</p> <p>If the driver of an automobile, who is approaching an open grade crossing of a railroad with the highway on which he is travelling, is perfectly familiar with the crossing and knows that a train may come from either direction at any moment, and with this knowledge drives his car within about fifteen feet of the track before he perceives that a train is approaching on it and then attempts to cross and is run over by the train, he is not in the exercise of due care, even if he was running his car at the rate of only from twelve to fifteen miles an hour until he was very close to the track when he reduced his speed to eight miles an hour, and even if it is possible, although not probable, that the train was running faster than twenty-five miles an hour and that no bell was -rung or whistle blown as the train approached the crossing.</p> <p>Where a manufacturing corporation, which as a part of its business conducts an automobile department, transfers by a bill of sale to another corporation, newly organized by the officers and stockholders of the older corporation for the purpose of accepting such transfer and of carrying on the automobile business, such of its assets as belonged to such department in return for capital stock of the new corporation which at once is distributed among the stockholders of the older corporation as a stock dividend, the tranfer constitutes a sale of sucii assets, although there is no change in the location of the property transferred, and although a single person, acting in accordance with proper votes of the boards of directors of the respective corporations, on behalf of the older corporation delivers the bill of sale and receives for it the certificate of shares of capital stock of the new corporation, and on behalf of the new corporation receives the bill of sale and delivers therefor the certificate of shares of its capital stock, and although one provision of the bill of sale is that a settlement between the two corporations, as to what under certain of its provisions is due to or should be paid by the new corporation to the old on account of past business of the automobile department of the older corporation, is not to occur until a future time; and therefore in accordance with the requirements of St. 1903, c. 473, § 2, an automobile which was included in the assets so transferred and had been registered by the older corporation by a manufacturer’s number, should be registered again by the new corporation, and any one using or riding in it upon the highway before it is again registered is using the highway unlawfully and cannot recover for injuries resulting from ordinary negligence of third persons.</p> <p>Perhaps the word “ sold,” as used in St. 1903, c. 473, § 2, providing that, after registration in a certain way of an automobile or motor cycle by a manufacturer or dealer, the automobile or motor cycle “ shall be regarded as registered ” “ until sold or let for hire or loaned for a period of more than five successive days,” should be held to mean “sold and delivered,” per Knowlton, C. J.</p> <p>At the trial of an action in which a material question was the ownership of an automobile which the defendant contended had been sold by one corporation to a second, the plaintiff, who was the president of both corporations, in direct examination testified that the automobile belonged to the second corporation. In rebuttal, he testified that, after an examination of the books and papers of the corporation, he desired to change his testimony as to which corporation owned the automobile. All the books and papers which determined the question were in evidence and were undisputed, and, in the opinion of this court, showed that the automobile belonged to the second corporation. Held, that the testimony in rebuttal, being a mere expression of opinion, was not competent evidence on the question of the title to the automobile, when everything upon which the determination of that question depended was established by evidence from records and undisputed facts.</p> <p>At the trial of an action in which a material question was, whether on a certain day one corporation had sold an automobile to another, all the books, papers and corporate records bearing upon the question were in evidence and were undisputed. The grantee corporation had been organized to take over the property and business of an automobile department of the grantor corporation, which manufactured firearms and machinery. The plaintiff was at the same time the president of both corporations. From the documentary evidence it appeared that a bill of sale of property including the automobile had been executed by the plaintiff by authority of a vote of the board of directors of the grantor corporation and later had been approved and that stock had been issued therefor by the board of directors of the grantee corporation. There was a provision in the bill of sale giving the grantee corporation the rights of the grantor corporation in all accounts of its automobile department at the date of the sale and that the grantee corporation should assume all the debts of the business at that date, and a further provision that at a date later than that of the bill of sale an accounting should be had and the balance adjusted as between the corporations. The plaintiff testified that he handed the bill of sale to his bookkeeper and told him to keep it until the time when the accounting should be had and then to turn it over to the grantee corporation. Held, that such testimony was not competent to show that the contract of sale did not take effect when the shares of stock of the grantee corporation were issued and delivered for it.</p> <p>It is at least doubtful whether action of the board of directors of a business corporation at a meeting, of which a record was kept, can be proved by oral evidence, per Knowlton, C. J.</p> <p>At the trial of an action in which a material question was, whether on a certain day one corporation had sold an automobile to another, all the books, papers and corporate records bearing upon the question were in evidence and were undisputed. The grantee corporation had been organized to take over the property and business of an automobile department of the grantor corporation, which manufactured firearms and machinery. The plaintiff was at the same time the president of both corporations. From the documentary evidence it appeared that a bill of sale of property including the automobile had been executed by the plaintiff by authority of a vote of the board of directors of the grantor corporation and later had been approved and that stock had been issued therefor by the board of directors of the grantee corporation. There was a provision in the bill of sale giving the grantee corporation the rights of the grantor corporation in all accounts of its automobile department at the date of the sale and that the grantee corporation should assume all the debts of the business at that date, and a further provision that at a later date an accounting should be had and the balance adjusted as between the corporations. The recording officer of the board of directors of the grantee corporation testified that at the meeting of that board at which the bill of sale was approved and stock was authorized to be issued therefor, the plaintiff had said “ that the bill of sale would be held by ” the grantor corporation “ until the ” time for the accounting and “ at that time the books would be balanced and the bill of sale turned over to the ” grantee corporation, and that “ the directors said that would be all right.” There was a formal record of the meeting which contained no mention of such action. Held, that, aside from the question whether action of the board could be proved by oral evidence under the circumstances, the testimony had no tendency to prove that the title to the automobile had not passed before the date of accounting, and could only be interpreted as referring to the complete surrender of the books and papers when the balances had been made up on the books, as contemplated by the bill of sale, after the instrument had taken effect and the property had passed.</p> <p>The statutes requiring signals to be given by locomotive engines approaching crossings at grade of railroads with public ways are intended only for the protection of persons who rightfully are upon the public ways.</p> <p>A person driving or being transported upon a highway in an automobile which is not registered according to statutory requirements has not the rights of a traveller lawfully upon the public way.</p>

<p>Tort for personal injuries to the plaintiff and damage to his horse and wagon alleged to have been caused by a collision with a street car of the defendant on January 26, 1909, as described in the opinion. Writ dated July 15, 1909.</p> <p>In the Superior Court the case was tried before Morton, J.</p> <p>The “ observations ” as to temperature, cloudiness and snow fall, to the admission of which the plaintiff excepted, were taken at Blue Hill observatory, five miles from the scene of the accident and six hundred feet higher.</p> <p>The evidence of “experiments,” referred to in the opinion, was in the testimony of one Tupper, a civil engineer called by the defendant. It appeared that the accident had occurred at about 6,30 p. M. Tupper testified that between 7.30 and 8 o’clock of the same evening, he had stood in the vestibule of a car coming from the same direction as had the car which ran into the plaintiff, while a man was stationed at the point where the collision had occurred; that “ as he came down hill he first caught sight of the man at a point which, on measuring, he found to be one hundred and thirty feet from the point where the man was standing. The car upon which he was riding had both an incandescent and an oil headlight, which assisted him in seeing. At the time this experiment was made he thought the moon was obscured by the clouds.” There was evidence that the car which struck the plaintiff was equipped with an incandescent electric headlight.</p> <p>Other facts are stated in the opinion. The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Mandamus. Superior Court. Practice, Criminal, Change of place of trial, Venue.</p> <p>A judge of the Superior Court made an order denying motions of the defendants in a criminal case in the following words : “ I refuse to hear the parties on the several motions of the defendants that the court order a trial of these indictments in some county other than the county of Suffolk believing that I have no jurisdiction to entertain or grant such motions.” Held, that this order did not mean that the judge of the Superior Court had considered the subject matter of the motions and ruled as matter of law that that court had no jurisdiction of such motions, in which case the only remedy of the defendants would have been by exception or appeal under R. L. c. 219, §§ 32, 34, 36, but that the order was a refusal to act at all upon the motions, and therefore that the defendants had a right to resort to the extraordinary remedy of mandamus to compel the justices of the Superior Court to exercise their judicial faculty and either to deny the motions as matter of law or to determine whether they ought to be granted.</p> <p>The Superior Court as created by St. 1859, c. 196, possessed, as to the subjects within its original jurisdiction, the powers which the Court of Kings Bench, the Court of Common Pleas and the Court of Exchequer had at common law in England in 1699, and such as had become a part of our body of common law before our separation from England, as well as those powers expressly conferred upon it by statute.</p> <p>It is within the jurisdiction of the Superior Court to order a change of the place of trial of a person charged with a felony from one county to another, when satisfied that a fair and impartial trial cannot be had within the county where the venue is laid in the indictment.</p> <p>When it is plainly shown that an impartial trial of a person indicted for a crime cannot be had in the county where the venue is laid in the indictment, a record should be made of that fact, and an order should be made transferring the case for trial to another county at a regular sitting of the court there; but the indictment remains unaltered as to venue, and all proceedings upon the indictment except the trial by jury should be in the county where the indictment was found.</p> <p>The power of the Superior Court to order a change of the place of trial in a criminal case from one county to another is one which should be exercised with great caution and only after a solid foundation of fact has been established showing that the ends of justice require such a change.</p>

<p>Negligence, In use of highway, Due care of plaintiff.</p> <p>A traveller on foot, who is passing over a crosswalk near the junction of two city streets, where the conditions are not such as to call for unusual care, is not necessarily negligent in failing to look and listen for approaching horses and wagons.</p> <p>H a traveller on foot, when passing over a crosswalk near the junction of two city streets, sees an electric car approaching at his right hand and there is nothing so near on his left hand as to require him to take precautions against it, and while thus proceeding he is run over by a horse which is being driven rapidly from the left hand side by an inattentive driver, in an action by the traveller against the employer of the driver for the injuries thus caused, the question of the due care of the plaintiff is for the jury.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff on April 20, 1907, through the negligence of the defendant. Writ dated July 17, 1907.</p> <p>At the trial in the Superior Court before Harris, J., it appeared that the defendant was a corporation, that it conducted a large dry goods store in Boston at the corner of Washington Street and Winter Street, occupying several floors; and that thousands of persons thronged there daily.</p> <p>The plaintiff testified that in the middle of the day she went to the store as a customer, entered on the first floor and went up in the elevator to the second floor, and that, after attending to her wants on the second floor, she returned to the elevator to descend and found it full and was shown by an employee in the store a stairway which led from the second floor to the first floor.</p> <p>From the second floor to the first platform of the flight of stairs were fourteen steps with seven inch risers and ten inch treads with a nose on each tread of one and one quarter inches. The first platform was about eight feet long and the full width of the stairs was five feet and three eighths inches in the clear. Descending from the platform were two steps similar to the fourteen and then there was a turn of a quarter of a circle which was made by three steps called winders, radiating from a post, the three steps coming to a point at the post and filling the quarter circle at about the same width as that of the other stairs. The step from which the plaintiff fell, being the first winder, varied from a point at the post to a width of two feet and eight inches, five feet and three eighths of an inch from the post. After the three winders came three steps leading down to another platform and from that platform down to the floor of the store were four more steps similar to the fourteen previously described. There was a hand rail down the left hand side of the stairs, and about one foot from the corner was a brass railing about two inches in diameter. At the left of the lower platform of the steps near the ceiling was a large arc electric light, which the plaintiff said that she looked at just an instant before the time of the accident and that it was rattling and flickering. At a point about two feet from the ceiling and about ten inches in front of a perpendicular drop from the ceiling to the first winder was a pasteboard sign about two and a half feet long and eight inches wide on which was written “ Keep to the right.” People on the stairway were coming up on what was the right hand side of the plaintiff and as she descended she went down on the left hand side. She came down to the first landing and looked at the stairs as she was about to descend and they appeared to her all right and she started down holding on to the brass rail. After taking one or two steps down she put her left foot out to step upon the step and found that only her heel was supported; that she fell, still holding on to the hand rail, went down to the next platform and from there to the floor.</p> <p>• The plaintiff offered to show, as bearing upon the question of her due care, that the brilliant light in its position dazzled her eyes and that consequently the stairs, which she was looking at at the time, failed to show the narrow part where she fell. The judge excluded the evidence, and the plaintiff excepted. This evidence also was offered as showing one of the conditions immediately surrounding the stairway which rendered the place dangerous.</p> <p>The plaintiff further offered to show by expert testimony that stairs, such as were found there and under conditions such as were found there, were not regarded as safe in a store where large throngs of people constantly were going up and down. The judge refused to admit the opinions of the expert and limited him to describing the architectural features and the conditions. To this the plaintiff excepted.</p> <p>At the close of the evidence the judge ruled that the plaintiff had shown no negligence on the part of the defendant, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been sustained by the plaintiff on June 17,1907, by reason of the sudden starting of an open electric street car of the defendant when the plaintiff was in the act of boarding it as a passenger on Hanover Street near the corner of Battery Street in Boston. Writ dated August 14,1907.</p> <p>In the Superior Court the case was tried before Bond, J. There was evidence in behalf of the plaintiff tending to show that the plaintiff was in the exercise of due care and that the conductor of the defendant was negligent in ringing two bells and causing the car to start suddenly after it had come to a stop for the purpose of taking on passengers and when the plaintiff was in the act of getting upon the car and had put one foot on the running board. In behalf of the defendant there was evidence tending to show that the plaintiff was injured solely by reason of his own negligence in attempting to get upon the car while it was moving. The jury returned a verdict for the plaintiff in the sum of $2,500; and the defendant alleged exceptions relating solely to the conduct of the trial by the judge, as stated in the opinion.</p> <p>A portion of the judge’s charge, referred to in the opinion as correct, was as follows : “ It is suggested that I say this to you, as to what the witness said; the answers of the witness to any questions and to all questions are matters solely for the jury. If you did not hear what was said, some of you may have heard, and you can learn in that way what .the others heard. Expressions by counsel as to what a person said, if they help you to remember, are of some use to you, but you do not take the statement of counsel, you do not take the statement of the court, as to what the testimony was if it does not help you to remember that it was the testimony. You take your own recollection, helped by counsel or in any other way, and act upon your own recollection of the testimony.”</p>

<p>Contract, by the executors of the will of John Blackie, for $4,990.68 paid to the defendant under protest as taxes assessed to the plaintiffs as such executors for the year 1909. Writ dated December 27, 1909.</p> <p>In the Superior Court the case was submitted to Jfardy, J., upon an agreed statement of facts, containing the facts which are stated in the opinion. The judge found for the defendant and ordered judgment accordingly. From the judgment entered pursuant to this order the plaintiffs appealed.</p>

<p>Municipal Corporations. Nuisance. Way, Public: defect. Fireworks.</p> <p>A town, which, exclusively for the gratuitous amusement of the public, undertakes the celebration of the fourth day of July under the authority of R. L. c. 25 as amended by St. 1908, c. 91, providing that a town may appropriate money for that purpose, is not liable in an action by one who sustains personal injuries through the negligence of servants of the city in discharging fireworks from a public playground in conducting the celebration.</p> <p>If a town undertakes exclusively for the gratuitous amusement of the .public a celebration of the fourth day of July under the authority of R. L. c. 25 as amended by St. 1908, c. 91, providing that a town may appropriate money for that purpose, and its servants negligently discharge fireworks upon a public playground, the town cannot be said to be maintaining a nuisance so as to be liable to one injured because of such acts of its servants.</p> <p>The setting off, by a town in conducting a celebration of the fourth day of July, of fireworks from a highway or across a highway is not a defect or want of repair in the way.</p>

<p>Evidence, Declarations of deceased persons.</p> <p>At the trial of an action against a street railway company for personal injuries alleged to have been received by the plaintiff when leaving a car of the defendant, a letter, bearing a date over seven months before the commencement of the action and written by one to whom as a witness of the accident the defendant hod addressed a letter making inquiries regarding the circumstances under which the accident occurred, is admissible in evidence as a declaration of a deceased person under R. L. c. 175, § 66, upon proof of the death of the writer, if the letter bears internal evidence that the answers to the inquiries were made in good faith and upon the personal knowledge of the writer,</p> <p>A street railway company, within six days after an accident to a passenger, addressed a letter to a certain person stating that his name had been returned to it as a witness of the accident, and asking him to fill out answers to questions on a blank inclosed. The person addressed did as requested and sent the blanks thus filled out, to the company dated the day after that of the company’s letter to him. The paper was as follows: “ Did you see the accident ? Yes. Where did it occur ? Near Vine street on Dudley. What day and at what hour did this accident occur? About 6.18 o’clock p.m! on 20th of July. Where were you when it occurred ? Sixth seat from the front of car on right hand side. Was car standing or moving ? If moving about how fast ? Car was moving about 2 miles an hour. Give full account of accident as witnessed by you. Saw lady signal Conductor he puled bell to stop car was comeing to a stop when lady started to get off conductor said wait until car stops didn’t wait but steped off backwards and fell. What is your full name and address? Francis J. Reid, 42 Leonard St., Dorchester, Mass. My Business Address is Dated, July 26th 1905.” Seven months later the passenger brought an action against the company, at the trial of which, the witness having died, the defendant offered and the judge admitted the paper in evidence under R. L. c. 175, § 66, as a declaration of a deceased person made in good faith before the commencement of the action and upon the personal knowledge of the declarant. Held, that the action of the judge was warranted.</p>

<p>Attorney at Law. Practice, Civil, Costs.</p> <p>An attorney at law, who as sole counsel has prosecuted an action at law to final judgment in behalf of his client, does not thereby become the owner of so much of the judgment as is taxable costs.</p> <p>While, under R. L. c. 165, § 48, an attorney at law, who has prosecuted a suit to final judgment in favor of his client, has a lien on the judgment for the amount of his fees and disbursements, he has no rights in the judgment except those created by the statute, and therefore, subject to the lien, the entire judgment, including taxable costs, is the property of the client and not of the attorney.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by a longshoreman against his employer for personal injuries alleged to have been received, while the plaintiff was assisting in unloading bales of cotton from a vessel into the second story of a warehouse, by reason of negligence of a superintendent of the defendant or of a defect in the ways, works or machinery used by the defendant, there Was evidence that the plaintiff in the course of his duties was upon a staging built under the direction of the superintendent opposite the second story of the warehouse and that a crosspiece near the outer end of the staging was not fastened to the standards; that the bales under the superintendent’s direction were being hoisted from the deck of the vessel by a winch, the hoisting cable from a boom running down so near to the end of the staging that the bales had to be given a swinging push by the “ hooker-on ” from the deck of the vessel to prevent their hitting the staging, that the use of a guy rope would have prevented the bales from hitting the staging, and that no guy rope was used. The accident was caused by an ascending bale striking the end of the staging, lifting or tipping it and causing it to fall with the plaintiff. There also was evidence that the plaintiff had helped to put up the staging and knew of its supports; but there was no evidence that a similar accident ever had occurred before, and the plaintiff testified that he never before had seen such an accident. Held, that the questions, whether the superintendent of the defendant was negligent, whether there was a defect in the ways, works or machinery for which the defendant was chargeable, and whether the plaintiff had assumed the risk of the injury, all were for the jury.</p> <p>An employee cannot be held to have assumed the risk of an injury which he receives unless he knew and appreciated, or ought reasonably to have known and appreciated, the danger of it.</p>

<p>Negligence, In use of electricity.</p> <p>In an action by an administrator against an electric lighting company for the death of the plaintiff's intestate, there was evidence tending to show the following facts: The plaintiff’s intestate, when killed, was an employee of a telephone company, and, for the purpose of working upon wires of his employer which were in a cable box, was upon a pole which also held a high tension wire of the defendant so placed that when the cover of the cable box was opened and raised, it would strike the defendant’s wire which was on the left of the box as one faced it. The cable box ordinarily was kept closed. The plaintiff’s intestate was seen to fall from the pole, and was found to be dead with electricity burns on the back of his left hand between the second and third fingers. The wire of the defendant immediately after the accident was found to be exposed through the insulation at the point where the box cover would come in contact with it, and to have a piece of flesh “ sizzling ” upon it, while the cable box was found with its cover unfastened, but without anything having been done to its interior. There was no other evidence as to what the plaintiff’s intestate was doing when he was killed. Held, that there was no such evidence of due care on the part of the plaintiff's intestate as to warrant a verdict against the defendant.</p>

<p>Conspiracy, To bribe. Evidence, Against different defendants indicted jointly, Admissions and confessions. Jury. Practice, Criminal, Challenge of jurors.</p> <p>At the trial of an indictment against a mayor of a city and five other defendants for a conspiracy to bribe three members of the board of aldermen of the city to vote to approve the removal by the mayor of a certain person from the office of chief engineer of the fire department, although the statements of the different defendants, considered as admissions, are competent evidence only against the persons who made them, yet, if a material transaction, like the acceptance of a bribe or an attempt to influence one of the aldermen by the gift of a bribe, was accomplished wholly or in part by words, proof of the transaction by stating the words is competent against any of the defendants in whose trial the transaction is a circumstance proper to be proved.</p> <p>At the trial of an indictment against a mayor of a city and .five other defendants for a conspiracy to bribe three members of the board of aldermen of the city to vote to approve the removal by the mayor of a certain person from the office of chief engineer of the fire department, there was evidence of conversations and acts of the mayor which tended to show that he took part in such a conspiracy and of many circumstances tending to show that the mayor had knowledge that attempts at bribery were going on and participated in them. Upon exceptions alleged by the defendant mayor alone, it was held, that there was evidence warranting a finding that that defendant conspired with the persons who were engaged in the bribery to accomplish, if possible, the removal of the chief engineer of the fire department by that means, which was sufficient to sustain a conviction under the indictment.</p> <p>At the trial of an indictment against a mayor of a city and five other defendants for a conspiracy to bribe three members of the board of aldermen of the city to vote to approve the removal by the mayor of a certain person from the office of chief engineer of the fire department, a witness, called by the Commonwealth, testified that, at the time that this removal was being most actively agitated, the mayor and two of the persons who were shown to have been active in attempting bribery were in the mayor’s office together, and that the mayor’s private secretary asked the witness to retire, saying that “ they wanted to have a private conversation.” The presiding judge allowed the jury to consider this evidence against the defendant mayor if they found that the remark was made with the knowledge and consent of that defendant. Upon exceptions alleged by the defendant mayor alone, it was held, that there was no error; that something reasonably might be inferred as to authority to make the remark from the fact that the private secretary of the mayor assumed to give a direction to a visitor in the mayor’s presence, and that on the evidence the jury might have found that the defendant mayor heard the remark and from his silence might infer his assent to it.</p> <p>Under B. L. c. 176, § 29, which is the only statute on the subject, there is nothing requiring the Commonwealth in a criminal case to exercise its right of challenging jurors before the defendant or to prevent the Commonwealth from challenging jurors peremptorily after the defendant has exhausted all his challenges. In the absence of a direction by the court defining the order and manner of making the challenges, the right to challenge continues on both sides until the jurors are sworn.</p>

<p>Two petitions, filed on November 30,1910, respectively for a writ of mandamus and for a writ of certiorari against the assessors of the town of Nahant.</p> <p>To the petition for the writ of mandamus the respondents demurred. In the second case the respondents filed a motion to dismiss the petition.</p> <p>The cases were heard together by Braley, J. In the first case he sustained the demurrer of the respondents, and ordered that the petition be dismissed. Upon the petition for a writ of certiorari he ruled that that remedy would not lie upon the allegatians contained in the petition, and ordered that the petition he dismissed.</p> <p>At the request of the petitioners, the justice reported the cases for determination by the full court. If the rulings were right the petitions severally were to be dismissed. If the rulings were or either of them was wrong, such orders were to be made as the full court might determine.</p>

<p>Contract, Construction, In writing. Evidence, Oral affecting writings.</p> <p>An order in writing, filled in upon an order blank of the seller, for a large number of silver and gold Christmas and New Year post cards, which is dated and is addressed to the seller and is signed by the purchaser, and states the number of cards to be shipped, the descriptive trade number by which they are known and the number of designs, and under the word “ Remarks ” has the figures and words, silver |- gold,” and which also states the price per thousand and the total amount to be paid, the terms of payment and the transportation line by which the cards are to be shipped, is not a mere bill of parcels but is a complete contract in writing without ambiguity, which cannot be varied or explained by oral evidence.</p>

<p>Contract for $10,050 upon a policy of accident insurance issued by the defendant on October 22, 1907, insuring the plain-, tiff for the period of one year against bodily injuries effected solely through external, violent and accidental means, with a provision that the amount otherwise payable should be doubled in case of certain injuries, including injuries sustained “ while, in a burning building,” the plaintiff having lost his right hand, which was amputated in consequence of its injury by fire in a burning building, near works operated by the defendant about eight miles from the city of St. John in New Brunswick, on November 18, 1907. Writ dated April 21, 1908.</p> <p>In the Superior Court the case was tried before Hardy, J. The matters relied upon in defense are stated in the opinion. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions relating to the acts and rulings of the presiding judge in admitting certain evidence and allowing the jury to inspect a certain model as described in the opinion.</p>

<p>Two actions oe contract upon certain promissory notes, described in the opinion, which were alleged to have been indorsed by the defendants Willoughby H. Stuart and his wife Susan M. Stuart. Writs in the Supreme Judicial Court dated September 17, 1904, and July 20, 1903.</p> <p>The cases were referred to Arthur Lord, Esquire, as auditor. He filed a report in which he found for the defendant Susan M. Stuart in both cases. The cases first were tried together before Morton, J., who ordered verdicts for the defendant Susan M. Stuart, the defendant Willoughby H. Stuart making no defense. The plaintiffs alleged exceptions, which were sustained by this court in a decision reported in 201 Mass. 288. In that report the name of the plaintiff in the second case is stated as being the same as that of the plaintiff in the first case. That was an error. The plaintiff in the second case then was and now is the Newton Centre Savings Bank.</p> <p>After that decision there was a second trial of the cases before Sheldon, J. The liability of the defendant Willoughby H. Stuart was admitted, but the defendant Susan M. Stuart denied that she signed or indorsed any of the notes or that she was liable upon them. The jury returned a verdict for each of the plaintiffs for the amount of the notes with interest; and the defendant Susan M. Stuart alleged exceptions, raising questions as to the admissibility of evidence which are stated in the opinion.</p>

Tort for personal injuries alleged to have been received, as stated in the opinion, while the plaintiff was employed in the defendant’s furnace factory, and to have been caused by negligence of a superintendent of the defendant. Writ dated January-18, 1907. In the Superior Court the case was tried before White, J. The facts which could have been found upon the evidence are stated in the opinion.

<p>Agency, Agent’s commission. Contract, Construction. Evidence, Relevancy and materiality. Practice, Civil, Conduct of trial: judge’s charge, Exceptions.</p> <p>Where, at the trial of an action by a broker for a commission for procuring a sale of merchandise for the defendant, it appeared that the commission was agreed upon and that the contract of sale was made; but it also appeared that a part of the merchandise was not delivered because the customer refused to accept it, and the defendant contended that no commission was due the plaintiff as to such undelivered merchandise because of the course of dealings between the parties and introduced evidence tending to show that on previous occasions of sales to other customers procured by the plaintiff he had not received commissions for such merchandise as was not delivered, the plaintiff should be allowed to testify as to peculiar facts regarding such previous occasions in order to rebut the inference which otherwise might be drawn from the fact that in those instances he did not receive his commissions.</p> <p>At the trial of an action by a broker for a commission for procuring a sale of merchandise for the defendant, it appeared that the commission was agreed upon and that the contract of sale was made; but it also appeared that a part of the merchandise was not delivered because the customer refused to accept it, and the defendant contended that no commission was due to the agent as to such undelivered merchandise because of the course of dealings between the parties, and introduced evidence that on previous occasions of sales to other customers procured by the plaintiff he had not received commissions for such merchandise as was not delivered, and the plaintiff’s counsel, in questioning the plaintiff regarding one of such occasions, asked what were the “ reasons ” why he did not then claim a commission. In reply, the plaintiff stated in substance that the failure of the defendant to deliver the merchandise on that occasion was due to freight car complications which were no fault of the defendant’s, and that he, the plaintiff, “ told [the defendant he] need not ship it,” and added, “ Under the circumstances I thought it would be very poor taste on my part to demand a commission.” The defendant excepted to the question and to so much of the answer as gave a “ description ... of opinions and feelings with regard to the facts,” and the plaintiff’s counsel stated that he was “ willing to have such portions of the answer stricken out.” The defendant made no motion for such purpose. Held, that under the circumstances the exceptions must be overruled although it was not accurate to ask for the plaintiff’s “ reasons,” because so much of the answer as was incompetent the plaintiff had offered to have stricken out.</p> <p>Where, at the trial of an action by a broker for a commission for procuring a sale of merchandise for the defendant, it appeared that the commission was agreed upon and that the contract of sale was made ; but it also appeared that a part of the merchandise was not delivered because the customer refused to accept it and the defendant contended that no commission was due the plaintiff as to such undelivered merchandise because of the course of dealings between the parties and introduced evidence tending to show that on previous occasions of sales to other customers procured by the plaintiff he had not received commissions for such merchandise as was not delivered, and the plaintiff testified as to facts, which must have been known by the defendant and which, if believed, showed that the plaintiff’s failure to receive commissions on the occasions in question did not affect his right to accept a commission for the sales which were the subject of the action, it is proper for the presiding judge to refuse to rule that “ No reason of the plaintiff for not claiming commission on balances contracted for but not shipped is evidence unless accompanied by evidence that it is disclosed." '</p> <p>Where at a trial an exception was taken to about ten lines of the judge’s charge and in this court the excepting party objected to only two of the ten lines, which appeared to be somewhat' obscure although susceptible to a construction that made the instruction correct, and it did not appear in the bill of exceptions that the trial judge’s attention was called at the close of the charge to the objection to the specific two lines, the exception cannot be sustained.</p>

<p>Equity Jurisdiction, Specific performancé. Contract, Construction. Bond, Construction, To convey land. Deed, Acknowledgment, Recording. Agency. Waiver. Tender.</p> <p>If one has agreed in writing to purchase certain land and to receive a quitclaim deed thereof, “conveying a good and clear title to the same free from all incumbrances, excepting restrictions of record, if any now in force and applicable, and taxes ” for the current year, it is no defense to a suit in equity against him for specific performance of the agreement that he insisted upon a title which the owner’s attorney would absolutely guarantee never would cause him trouble and that such guaranty was refused, since equity requires him to accept a title which is good only beyond a reasonable doubt.</p> <p>In a suit in equity to enforce specific performance of an agreement in writing whereby the defendant agreed to purchase certain land from the plaintiff, the following facts appeared: On an April 7 the owner of two parcels of land, one of which was the land in question, gave a bond conditioned upon the conveyance of the two parcels for $7,000, of which $2,000 was to be paid on the execution of the bond and $5,000 was to be paid by the obligee’s assuming an outstanding mortgage on the land, “ the deed to be delivered within sixty days ” from the date of the bond. It also was provided in the bond that the obligor reserved the right “ to convey the premises to any person other than the obligee upon payment to him of the said sum of $2,000 with interest ... at any time within sixty days from the date of the bond.” The parcel not in question was conveyed to the obligee by a deed dated the twenty-seventh of the same month, which was not recorded until the following August 9. On August 6 of the same year, by a deed recorded on. the twentieth of that month, the parcel in question was conveyed to a predecessor in title of the plaintiff. The defendant contended that a defect in the title appeared in that the record did not show that the condition of the bond had been performed and that therefore he was warranted in refusing to perform his agreement. Held, that there was no defect, since the bond did not affect the obligor’s right to convey the land away, but was merely an agreement to pay back the $2,000, which had been paid on the execution of the bond, in case the obligor conveyed both parcels of land under the right reserved to him in the deed.</p> <p>By the provisions of St. 1895, c. 460, nothing contained in St. 1894, c. 253, with regard to the recognition of the validity of the proof or acknowledgment of deeds and instruments in other States before any officer thereof authorized to take such acknowledgment, provided the authority of such officer is authenticated in a certain manner therein specified, should prevent the acknowledgment of such deeds or instruments in the form and manner lawfully used before . the passage of that act or the recording of instruments so acknowledged, and therefore deeds regarding land in the Commonwealth, acknowledged in 1894 and 1898 before a justice of the peace in Maine in accordance with the requirements of Pub. Sts. c. 120, § 6, were entitled to be recorded and recognized here without having appended to them the authentication of the title of the acknowledging officer to his office which St. 1894, c. 263, required.</p> <p>The owner of certain land agreed in writing to sell and convey it at noon on a certain day and at a certain place, free from all incumbrances, to one, who with the owner’s assent employed to examine the title for him the attorney at law who he knew was acting for the owner in the transaction. The agreement also provided that the time and place for passing papers should not be changed “unless the parties hereto agree in writing to some other time and place.” On the afternoon of the day before that appointed, the attorney found that he needed to examine a certain bond before coming to a conclusion as to the title, and he thereupon notified the owner that he need not attend at the time and place appointed. On the morning of the day appointed the attorney told the purchaser that he needed to see the bond. The attorney procured a copy of the bond in the afternoon of that day and tried in vain to reach the purchaser. The next morning he reported the title clear to the purchaser, who refused to accept a deed unless he could be " absolutely guaranteed ” that there would be no trouble to him later because of the existence of the bond. Held, that the fact, that the attorney who was examining the title for the purchaser notified the owner, for whom he was acting in other matters regarding the transaction, that he had not finished his examination of the title and would not be ready to report upon it by the time set in the agreement, constituted a waiver by the purchaser of the requirement of a conveyance at that time, notwithstanding the provisions of the contract requiring an agreement in writing for a change in such time.</p> <p>Where by a contract in writing one agrees to accept a conveyance of certain land "free from all incumbrances/' and thereafter refuses to accept such conveyance unless he is “ absolutely guaranteed ” that there would be no trouble to him later because of the existence of a certain bond, the requirement of a formal tender of a deed by the owner before the bringing of a suit in equity for specific performance of the contract is dispensed with.</p>

<p>Res Judicata. Devise and Legacy, Power. Power. Rule against Perpetuities.</p> <p>A finding of fact or a ruling of law aa to the meaning of a provision in a will, made by a justice hearing a suit in equity and stated in a memorandum of his findings, does not become res judicata unless such finding or ruling is embodied in a decree.</p> <p>A testatrix, who died in 1859 leaving a son and two daughters, G., who then had a son and two daughters, and R., a spinster, by her will left one third of her estate to her son for life with power to appoint such third “ among my lineal heirs [meaning descendants], to have and enjoy the same upon such terms ” as the son might prescribe. The testatrix’s son died in 1875 and by his will appointed the estate in question to trustees for G. and R. during their respective lives, and, in case of the death of G. before-R., to divide G.’s shares into as many portions as she had children at the date of the will making the appointment and also at the time of the son’s death, to pay one third of such portion to a son of G. outright, and to pay to her two daughters respectively the income of their shares during their lives and on their deaths to pay the principal to and among such daughters’ children and the issue of any deceased child by right of representation. A similar appointment to G.’s children and their issue was made of R.’s share on her death. S., one of G.’s daughters, at the time of the death of the testatrix’s son had one child and later, by a subsequent marriage, had eight more children. Upon the death of S. the trustees under the appointing will filed a bill for instructions, and it was held that the will of the son of the testatrix operated as an effectual appointment of one third of the estate which was subject to the power to the nine children of S.</p>

<p>Bill ht equity, filed in the Supreme Judicial Court on March 24, 191Q, by Horace Chase individually and as administrator of the estate of De Forest Woodruff Chase against the trustees under the “ Culliton Trust ” and under the “ Phillips Trust,” so called.</p> <p>The allegations of the bill in substance were as follows :</p> <p>In 1884 Jeannie P. Culliton and her husband, William H. Culliton, conveyed certain real and personal property to the defendants and Daniel K. Phillips (since deceased) in trust, one provision of the trust (called the “ Culliton Trust ”) directing the trustees, on the death of Jeannie P. Culliton, “ to convey, transfer and deliver the whole of the trust property to her heirs at law, providing, however, that if the said William H. Culliton shall survive her, so much of the property described in [a designated] schedule as shall be amply sufficient to secure said annual income of eighteen hundred dollars, and not less in any event than sixty thousand dollars shall be retained by said trustees during his life, and upon his death the property so retained shall be conveyed, transferred and delivered to the same persons who received the residue of the property distributed at the death of said Jeannie P. Culliton, and in the same proportion; it being distinctly understood that the said William H. Culliton is not to be included among her heirs-at-law, and that neither he nor his legal representatives are to receive upon the death of said Jeannie P. Culliton any portion of said trust property, which upon her death is to be divided precisely as if the said Jeannie P. Culliton had then died unmarried, intestate and possessed of said property in her own right, first, however, deducting the proper expenses and charges of the trustees upon such termination of the trust.”</p> <p>The “ Phillips Trust ” was a trust under the will of the mother of Jeannie P. Culliton (afterwards Jeannie P. Chase) and con-tamed a provision that, as the children of the testatrix died, the trustees should give the property, as to each child, “ to his or her lawful issue upon their arriving at the full age of twenty-one years, and in the event of the death of any of my said children, without lawful issue living, or if living, and not arriving at the full age of twenty one years,” to testatrix’s other children.</p> <p>In 1888 Jeannie P. Culliton obtained a divorce and in 1889 married the plaintiff and in the same year a joint petition of herself and the plaintiff for the adoption of DeForest Woodruff Chase was granted. Jeannie P. Chase died on September 13, 1905, leaving no children unless DeForest Woodruff Chase was such. DeForest Woodruff Chase died on December 19 of the same year.</p> <p>The plaintiff demanded of the defendants that they turn the property held by them under both trusts over to him, and they refused.</p> <p>The allegations of the tenth paragraph of the bill were that, on petition of those, “ who but for said adoption would have been heirs and next of kin of Jeannie P. Chase, to revoke said decree of adoption, and on February 19, 1906, a decree purporting to revoke said decree of adoption was made by said Probate Court; that on appeal to a single justice of this court said decree was on June 28, 1909, affirmed; and that on November 23, 1909, on appeal to the full court, said decree was affirmed.”</p> <p>The allegations of the eleventh paragraph were that “ when said decree purporting to revoke said decree of adoption was made both Jeannie P. Chase and DeForest Woodruff Chase were dead, and therefore said decree of revocation and said decrees affirming the same were made without jurisdiction in said courts and were null and void and of no effect and not due process of law within the meaning of the Fourteenth Amendment of the Constitution of the United States, and should be disregarded; and said decrees, if regarded and given effect according to their tenor, would deprive the complainant of his property without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States.”</p> <p>The prayers of the bill were that the decree of the Probate Court described in the tenth and eleventh paragraphs of the bill be declared null and void for the reasons there stated: that the plaintiff be declared entitled to take under the Phillips Trust as administrator of the estate of DeForest Woodruff Chase “ sole lawful issue ” of Jeannie P. Chase; that he be declared to take under the Culliton Trust as administrator of DeForest Woodruff Chase, “sole heir at law” of Jeannie P. Chase, and individually as statutory heir at law of Jeannie P. Chase.</p> <p>The answer admitted all the allegations of the first ten paragraphs of the bill, and denied those of the eleventh, reciting the circumstances of the suit there referred' to, which are reported in 203 Mass. 556, and stating further that the plaintiff sued out a writ of error to the Supreme Court of the United States, alleging that by the revocation of the decree of adoption he was denied due process of law and his property was taken without due process of law in violation of the Constitution of the United States, and that a federal question was thus involved in the proceedings, that such alleged federal question was in truth without color of merit and accordingly, under the decisions of the Supreme Court of the United States, was not a genuine federal question, and that the plaintiff’s writ of error was dismissed; and concluding with an allegation that the matters set out in the eleventh paragraph of the bill were res judicata.</p> <p>The case was heard on the pleadings and an agreed statement of facts by Bugg, J. A final decree was entered dismissing the bill with costs. The plaintiff appealed.</p>

<p>Contract for the alleged breach of a contract in writing in failing to deliver to the plaintiff six automatic time table clocks, operated by electric batteries, in accordance with the terms of the agreement printed, below. Writ dated August 12, 1909.</p> <p>The contract declared upon, of which a copy was attached to the declaration, was as follows:</p> <p>“ Know all men by these presents, that the Automatic TimeTable Company, a corporation duly organized, having its principal place of business at Lowell in the County of Middlesex and Commonwealth of Massachusetts, in consideration of $4800.00, paid by the Automatic Time Table Advertising Company, a corporation duly organized, and having its principal place of business at said Lowell, in said County and Commonwealth, the receipt whereof is hereby acknowledged, does hereby grant, sell, transfer and defiver unto the said Automatic Time-Table Advertising Company, the following goods, and chattels, viz., to wit:</p> <p>“12 automatic time-table machines complete, together with all printed matter, time-tables, electro-plates, printed goods and advertising matter, and advertising contracts, relating to said machines which were sold, assigned and transferred to the said Automatic Time-Table Company by the said Automatic Time-Table Advertising Company under agreement, dated July 13, 1909. Said machines are described and located as follows.</p> <p>“1 machine located at Merrimack Square, in Lowell, Mass.</p> <p>1 “ “ in Lawrence, Mass.</p> <p>1 “ “ “ Haverhill, Mass.</p> <p>1 “ “ “ Salem, Mass.</p> <p>1 “ “ “ Lynn, Mass.</p> <p>1 “ “ “ Chelsea, Mass.</p> <p>6 machines now standing in the shop of the Automatic TimeTable Company, 58 Middle Street, Lowell, Massachusetts, and numbered on door on battery side of case, respectively as follows: — 8, 9,10,11,12 and 13.</p> <p>“The machines above described as located in Merrimack Square, Lowell, Mass., Lawrence, Haverhill, Salem, Lynn and Chelsea, Mass., include all parts and appliances that are now enclosed within or fastened upon their respective cases, and the machines now located in the shop at 58 Middle Street include Gordon batteries and all other essential parts in new and first-class condition that are now used in connection with the above mentioned machines.</p> <p>“$2400.00 of above consideration is allowed said Automatic Time-Table Advertising Company as a credit by value of demonstration.</p> <p>“To have and to hold all and singular the said goods and chattels to the said Automatic Time-Table Advertising Company, and its successors and assigns to their own use and behoof forever.</p> <p>“And the said Automatic Time Table Company hereby covenants with the said Automatic Time Table Advertising Company that it is the lawful owner of the said goods and chattels, and that they are free from all encumbrances and that it has good right to sell the same as aforesaid, and that it will warrant and defend the same against the lawful claims and demands of all persons.</p> <p>“ In witness whereof the said Automatic Time Table Company has caused its corporate seal to be hereto affixed, and these presents to be signed in its name and behalf by Delmar Gr. Hurd, its Treasurer, this sixteenth day of July, 1909.</p> <p>“ Automatic Time Table Co.,</p> <p>“ Delmar Gr. Hurd, Treas.” (Seal)</p> <p>In the Superior Court the case was tried before Hardy, J., without a jury. The defendant was engaged in the manufacture of machines known as automatic time table clocks, which were so constructed as to show the hour of departure of electric cars from the point where the clock was placed to the different destinations of such cars, and also were constructed in such a manner as to afford space wherein business or other advertising could be displayed, and the clocks were intended to be placed in the various street railway stations and other places where people congregated to become passengers on street railway cars. The defendant owned the patents for the manufacture of such mar chines and no other person could manufacture or sell them. The plaintiff was engaged in the business of securing contracts for the advertising upon such clocks.</p> <p>The facts shown by the evidence are stated briefly in the opinion. Upon August 8, 1909, an accidental fire greatly damaged the six machines standing in the defendant’s premises, and a dispute then arose between the parties as to whether there had been such a sale of these six machines as would vest the title in the plaintiff and subject the plaintiff to the damage thus occasioned to the six machines.</p> <p>The defendant contended that by reason of the execution of the contract and its delivery to the plaintiff, the property in and title to the machines described in that instrument were conveyed by the defendant to the plaintiff, and that on the day of the fire the title to the machines in question was vested in the plaintiff. The plaintiff contended that the title to the machines remained in the defendant until the machines were completed and delivered, or were accepted, as provided for by the terms of the agreement of sale.</p> <p>At the close of all the evidence the defendant asked the judge to rule as follows:</p> <p>“ 1. That proof of all the allegations pleaded in the plaintiff’s declaration does not entitle the plaintiff to recover in this action.</p> <p>“ 2. Upon the pleadings and all the evidence in the case the plaintiff is not entitled to recover.</p> <p>“ 3. Upon all the evidence in the case the plaintiff is not entitled to recover.”</p> <p>The judge refused to make any of these rulings, and found for the plaintiff in the sum of $2,471.20. The defendant alleged exceptions.</p>

<p> Dower. Husband and Wife. Wild Land. </p> <p>Twenty-seven sea shore lots on or near the waters of Vineyard Sound, which belonged to a deceased husband, consisting of land which formerly was part of a pasture used for pasturing cattle during the summer months, and which, except for sale as cottage lots to be occupied during the summer season, have little value and are not productive of much, if any, income, can be set off as dower to the widow of the deceased and can be occupied and improved by her without committing waste, because they are not wild land in which she could not be entitled to dower within the meaning of R. L. c. 132, § 3.</p>

<p>Devise and Legacy. Annuity. Interest. Equity Pleading and Practice, Parties.</p> <p>A bequest of $76,000 to trustees " to be used to purchase an annuity or annuities for C., my niece, the payments thereof to be paid to her quarterly, if that can be done,” gives the niece the right to receive the money outright and to require that no annuity shall be bought.</p> <p>Where there is a bequest of a sum of money to trustees “ to be used to purchase an annuity ” for a certain person, and the beneficiary requires that the money shall be paid to him outright without the purchase of an annuity, interest on the amount of the bequest should be paid to the beneficiary from the expiration of one year from the death of the testator.</p> <p>In a suit in equity by the executors of a will for instructions as to a bequest of a sum of money to them as trustees “ to be used to purchase an annuity ” for a certain person, where the beneficiary has demanded that the money shall be paid to him outright without the purchase of an annuity, and he is entitled to have this done, and where it affirmatively appears that no question is made as to the interest to be computed upon the sum to be paid to the beneficiary, the residuary legatees under the will have no possible interest in the matter passed upon and there is no occasion for making them parties defendant.</p>

<p>Contract, Construction, "Validity, In writing. Landlord and Tenant. Evidence, Extrinsic affecting writings. Practice, Civil, Ordering verdict.</p> <p>A contract in writing, which reasonably can he performed in such a way as to violate no law, will not be held to be invalid because it can be performed in such a way as to commit a criminal offense, especially where it contains a provision that no unlawful act shall be performed.</p> <p>In an action to recover rent upon a covenant in a lease, it appeared that the lease contained elaborate provisions defining the rights of the respective parties, and contained a covenant on the part of the lessee that he would use the premises solely for the retail liquor business and would not use them for any other purpose, that the defendant failed to obtain a license for the sale of intoxicating liquors on the premises, and thereupon gave notice to the plaintiff, and refused to occupy the premises or to pay rent, contending that it was an implied condition of the lease that the lessee should be able to procure a license, and that if he failed to do so upon a proper application he was not bound by the lease. Held, that no such term of the lease was to be implied, that the defendant’s obligation to pay rent was an absolute one, and that he was not excused from his obligation by the refusal of a public board, for whose action the plaintiff was in no way responsible, to act favorably on the defendant’s application for a license.</p> <p>In an action on a covenant to pay rent contained in a lease in writing, evidence of conversations between the plaintiff’s agent and the defendant in regard to the terms and conditions of the lease, which took place before its execution, is not admissible to vary the unambiguous terms of the instrument.</p> <p>In an action on a covenant to pay rent contained in a lease in writing, where the execution and delivery of the lease are admitted and it appears that the defendant refused to pay rent in accordance with its terms without any just ground for such refusal, the only correct conclusion possible as matter of law is that the plaintiff is entitled to recover, and a verdict for the plaintiff should be ordered.</p>

<p>Sale. Evidence, Materiality, In rebuttal. Witness, Cross-examination. Practice, Civil, Conduct of trial, Exceptions. Estoppel.</p> <p>In an action for the price of goods sold, where on the undisputed evidence it appears that there was a completed sale and that the title to the goods passed to the defendant, and the only question is whether the price was payable in money or in goods, on which the evidence is conflicting, it is right for the presiding judge to refuse to instruct the jury that they must find for the defendant.</p> <p>Where a party who has called the adverse party as a witness proceeds to cross-examine him, as permitted by R. L. c. 176, § 22, the regulation of the scope to he allowed in such cross-examination, as well as the order of evidence, is within the discretionary power of the presiding judge.</p> <p>In an action for the price of goods sold and delivered, where there is no dispute as to the amount finally agreed upon by the parties as the price and the only questian is whether that price was to be paid in money or in other goods, it is proper to exclude as immaterial evidence that the defendant offered to the plaintiff’s broker or to other persons a price less than that which he ultimately agreed to pay.</p> <p>In an action for the price of goods sold, where on the undisputed evidence it appears that the title to the goods had passed to the defendant and the only questian on conflicting evidence is, whether the price was to be paid in money or in other goods to be selected by the plaintiff from the defendant’s stock on hand, which the plaintiff had not done, if the presiding judge instructs the jury that if the payment was to be made in merchandise the plaintiff cannot recover, the defendant cannot be harmed by the exclusion of evidence offered by him to prove the prices at which he was selling his own goods.</p> <p>Where a plaintiff calls the defendant as a witness and cross-examines him as permitted by R. L. c. 176, § 22, this does not estop him from introducing evidence in rebuttal to contradict the testimony of the defendant which he elicited in the cross-examination.</p>

<p>Negligence, Elevated railway: care of station.</p> <p>the trial of an action against an elevated railway company to recover for personal injuries received by the plaintiff and due-to his slipping upon a banana peel on the upper platform of a station of the defendant as he was following an employee of the defendant who was directing him to another car, there was evidence tending to show that it was the duty of certain employees of the defendant, one of whom was at the station all the time, to observe and to remove whatever was upon the platform to interfere with the safety of travellers. The description of the banana peel by different witnesses was that it “ felt dry and gritty as if there were dirt upon it,” as if “ tramped over a good deal,” as “ flattened down, and black in color,” “ every bit of it was black, there wasn’t a particle of yellow,” that it was “black, flattened out and gritty.” Held, that the question of the defendant’s liability was for the jury, who might have found that the banana peel had been upon the platform for a considerable period of time and had been left there negligently by employees of the defendant in violation of the defendant’s duty to keep its station reasonably safe for its passengers.</p>

<p>Negligence, Wanton or reckless misconduct.</p> <p>Evidence that the driver of a caravan drawn by two horses ordered a boy five years of age, who was upon the caravan without his permission, to leave it, that he stopped the caravan for the boy to do so and that, with the reins in his hands, he stood looking at the boy, and not at the horses, as the boy was getting over one of the rear wheels, when the horses started and the boy was run over, has no tendency to show that the injury to the boy was caused by reckless or wanton misconduct on the part of the driver, and therefore will not support an action by the boy against the driver’s employer to recover for the injuries thus received.</p>

<p>Tort for personal injuries received by the plaintiff from being run over by a horse and wagon of the defendants, as he was crossing North Beacon Street in that part of Boston called Brighton at its intersection with Market Street. Writ dated June 21, 1907.</p> <p>At the trial in the Superior Court before White, J., it appeared that Market Street runs easterly and westerly and North Beacon Street northerly and southerly, the two crossing at right angles.</p> <p>The plaintiff testified in substance that at noon on May 11, 1907, he walked northerly along the westerly side of North Beacon Street, crossed Market Street almost to the northwesterly corner, turned and started to cross North Beacon Street on the crosswalk toward the northeasterly corner, saw an automobile coming toward him from the north and stopped, just before he got to a car track which was on North Beacon Street, to let it pass, and that, after the automobile passed “before he knew it ” he was struck by the defendant’s team; that he did not see the team before it struck Mm. In cross-examination he testified that he looked both ways before crossing the street.</p> <p>Other witnesses for the plaintiff testified that the defendant’s team came westerly down Market Street “ quite fast,” and “pretty fast,” and turned into Market Street, that after the plaintiff was run over the team “ went down North Beacon Street,. . . was caught, turned around, came back, and then went down Market Street in the direction in which it was coming prior to turning the corner and striking ” the plaintiff.</p> <p>At the close of the plaintiff’s evidence the presiding judge ordered a verdict for the defendants and by agreement of the parties reported the case to this court for determination, judgment to be entered for the defendants if his ruling was right; otherwise, judgment to be entered for the plaintiff for $400.</p>

<p>Agency, Existence of relation. Negligence, Employer’s liability.</p> <p>At the trial of an action where a material issue is, whether the plaintiff was employed by the defendant, if there is evidence tending to show that the plaintiff, before going to work, asked the defendant, who “ was engaged in building three houses on a parcel of land, the title to which stood in his wife’s name,” “ Are you the boss?” and that, receiving an affirmative reply, he asked further “Is it all right to go to work? ” to which the defendant replied, “ Sure, I want three or four men. This is a hurry job ”; that the defendant furnished to the foreman of the job pay envelopes which the foreman handed to the men and that the defendant gave some directions as to the way in which the work should be done, the jury is warranted in finding that the plaintiff was in the employ of the defendant.</p> <p>A carpenter who is injured by the fall of a staging upon which he is at work, due to a decayed condition of a bracket, may be found to have been in the exercise of due care if he had nothing to do with the putting up of the staging and if the defect which caused it to fall was not one which a reasonable external examination by him would have revealed.</p> <p>At the trial of an action at common law by a carpenter against his employer to recover for personal injuries caused by the falling of a staging upon which the plaintiff was working, there was evidence tending to show that the staging fell because of a decayed condition of one of the brackets of which it was built, that the defendant had owned a number of brackets, among which was the decayed one, for several years, and that his foreman had told him, before the staging was built, that they were “ very bad brackets,” to which the defendant had replied “You will have to patch them up the best way you can”; that the brackets then were tested, several were rejected, others were repaired and all of those not rejected necessarily were used; that fellow employees of the defendant subjected the brackets used to a test, which might have been found to have been inadequate to discover the defect which existed or to have been applied negligently. Held, that the duty to provide the plaintiff with a reasonably safe place to work was one personal to the defendant, which he could not delegate to another, and therefore that it was no defense that the accident was caused by the negligence of a fellow servant of the plaintiff and the question of the defendant’s liability was for the jury.</p>

<p>Tort for personal injuries received as stated in the opinion while the plaintiff was in the employ of the defendant at its machine works. Writ dated January 16, 1908.</p> <p>The declaration contained three counts, the first count alleging negligence of a superintendent of the defendant under B. L. c. 106, § 71, cl. 2, the second alleging a defect in the ways, works or machinery of the defendant under cl. 1, and the third alleging a cause of action at common law in that, among other things, the defendant furnished the plaintiff with unsafe and unsuitable tools, appliances and apparatus to work with.</p> <p>The case was tried before Hitchcock, J. The facts are stated in the opinion. At the close of the evidence, the defendant made four requests for rulings, the first being a request for a ruling that upon all the evidence the plaintiff could not recover, and the second, third and fourth being a like request as to each count in the declaration.</p> <p>The judge refused to make any of the rulings asked for. The jury found for the plaintiff in the sum of $7,500 on the third count of the declaration; and the defendant alleged exceptions.</p>

<p>Two actions of replevin by the same plaintiff against different defendants, each to recover possession of two furnaces with their accompanying pipes and registers, which were in the possession of the respective defendants at the time of the service of the plaintiff’s writs. Writs in the Municipal Court of the City of Boston dated March 23,1909.</p> <p>On appeal to the Superior Court the cases were tried together before Sanderson, J. It appeared that the defendant Greenwood sold two parcels of land in Dorchester to one Cossett, who was a builder and bought the land for the purpose of constructing upon each of the lots a two family apartment house in conformity with the general character of houses in that locality. Cossett gave to one Babcock a first mortgage upon each parcel for $5,000 advanced to him as a construction loan, and gave a second mortgage to the defendant Greenwood upon each parcel for $1,000 as security for the payment of the purchase price.</p> <p>The deed of the two lots to Cossett and these four mortgages by Cossett were given and recorded simultaneously on June 16, 1908. Cossett started to build the houses immediately and constructed them with the intention of putting in portable hot air furnaces as a heating plant, building into the walls, before they were lathed or plastered, pipes for conducting heat to the various rooms.</p> <p>On October 17, 1908, Cossett purchased from the plaintiff, under a contract of conditional sale called a lease, the four portable hot air furnaces in question and they were delivered and set up by the plaintiff, two in each house. They were portable furnaces, removable from place to place, and all that was necessary to do to remove them was to disconnect the smoke pipes and the heat pipes as one would the pipes of a stove or range. All that the plaintiff did in installing these furnaces was to slip the smoke pipes running from the furnaces into the chimney and the heat pipes running therefrom into the joints of the pipes which already had been installed in the walls of the houses. The plaintiff had nothing whatever to do with placing these pipes in the walls of the houses, which carried the heat through the house, or with building the cold air boxes.</p> <p>Greenwood foreclosed both of his second mortgages by entry on December 10, 1908, and by an auction sale on January 4, 1909, at which he himself became the purchaser of both parcels with the two houses which had been constructed and completed by Gossett. The defendants Skelton probably held under Greenwood, although this does not appear from the report.</p> <p>By the terms of the contract of conditional sale the furnaces were to remain the property of the plaintiff until they were paid for in full, with the right to take and remove them upon a failure by the purchaser, Gossett, to make the payments required by the contract. It seems to have been assumed that the plaintiff brought the two actions of replevin to take possession of the furnaces on account of a breach of condition in the contract of sale but this is not stated in the report.</p> <p>At the close of the evidence the judge with appropriate instructions submitted the cases to the jury, who in each case returned a verdict fat the plaintiff. Thereupon the judge, by agreement of the parties, reported the cases for determination by this court of the question whether or not upon all the evidence the cases should have been submitted to the jury. If the action of the judge in submitting the cases to the jury was right, the verdicts were to stand ; if it was wrong, judgment was to be entered for the defendants in both cases.</p>

<p>False Imprisonment. Estoppel. Waiver. Joint Tortfeasors. Carrier, Of passengers.</p> <p>A person, who has been arrested without a warrant for drunkenness and after he has recovered from his intoxication has made a statement in writing and a request for release under the provisions of St. 1905, c. 384, and who upon such request has been released, cannot sue the officer who arrested him for illegal arrest or imprisonment, this being expressly provided by § 2 of the statute, which in this provision is merely declaratory of the common law.</p> <p>If a person arrested is discharged upon his voluntary request to be freed from arrest without arraignment, he waives any claim for damages which he otherwise might have had against the officer who arrested him.</p> <p>If an arrest for drunkenness is made without a warrant by two persons jointly, one of whom is a police officer and the other of whom is not, and the person arrested after he has recovered from his intoxication makes a statement in writing and a request for release under the provisions of St. 1905, c. 384, and is released upon such request, this not only discharges the police officer from liability for illegal arrest or imprisonment, but also discharges from such liability the person not an officer who joined in making the arrest, because the discharge of one of two joint tortfeasors discharges both.</p> <p>In an action against a carrier of passengers for an illegal arrest and false imprisonment alleged to have been committed by its servants, if it appears that the servants alleged to have committed the illegal acts are not liable for them or have been released from such liability, this exonerates the carrier and is a defense to the action.</p>

<p>Three libels for divorce, between the same parties, the first filed on July 26, 1904, and the third on June 1, 1908, the papers in the second case having been lost.</p> <p>In the Superior Court Lawton, J., in each of the three cases found for the libellee and ordered a decree dismissing the libel. The libellant alleged exceptions, raising the questions described in the opinion.</p>

<p>Evidence, Presumptions and burden of proof. Surety. Bond, To dissolve attachment. Practice, Civil, Amendment of writ, Ad damnum.</p> <p>Where in a bill of exceptions it is stated that on the day a writ was entered in a municipal court the ad damnum of the writ was.increased to an amount named “ by agreement of counsel,” yet, if a statement of the increase of the ad damnum appears as one of the docket entries in a certified copy of the record of the court in which the case was pending, it will be assumed that the amendment by agreement of counsel received the approval of the court.</p> <p>Where a bond to dissolve an attachment has been given for the penal sum of $500, and the ad damnum of the writ in the action in which the attachment was made is only $300, a surety on the bond is not released from liability by an amendment of the writ after the execution of the bond increasing the ad damnum to $500, the penal sum of the bond.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by an administrator against the employer of the plaintiff's intestate, for causing his conscious suffering and death by reason of a heavy iron porter bar striking him or falling upon him when a steam hammer crushed a brass casting, in one of the holes of which the bar had been left protruding, it was conceded that there was evidence of due care on the part of the intestate, and there was evidence that an acting superintendent of the defendant in charge of the work gave an order which caused the hammer to descend before the bar had been removed from the casting, knowing that there was danger to the workmen in crushing the casting before the bar was removed. The foreman testified that he intended to follow the usual and safer way and to have the hammer come down only far enough to hold the casting in place without resting the weight of the hammer upon it. It appeared that the order he gave was “ Hold it, Billy,” Billy being the operator of the hammer, and there was evidence that the words "hold it" meant that the hammer should be left or held down after it had been lowered upon the metal or casting to be crushed. It also appeared that the casting had been made brittle by subjecting it to great heat in the usual manner, and that when this order was given “ the hammer descended down slowly until it came on the end of the casting and then in a little while the casting all crumbled away,” and the accident happened. Held, that the giving by the acting superintendent of this order, the possible execution of which under the circumstances he must have known might be attended with grave danger to the defendant’s workmen under his command, would justify a finding that he was negligent.</p>

<p>Contract, What constitutes. Statute of Frauds. Agency.</p> <p>In a suit in equity against the owner of certain real estate for the specific performance of an alleged agreement of the defendant to sell the property to the plaintiff, the following facts appeared: An agent of the defendant offered the property to the plaintiff for a certain price in a letter which contained no reference to any rights of way. The plaintiff replied by the following telegram: “Letter received Close deal understand Rights of way are included as we talked.” Replying to the telegram the agent wrote, in a letter dated on a September 2 but not received by the plaintiff until September 3, “ The matter is closed and the rights of way, as I understand, are included as we talked over.” On September 2, by a letter received by the plaintiff on the same day, the defendant declined to sell the property. There was no evidence to show that the agent’s letter of September 2 was mailed before the plaintiff received the defendant’s letter of that date. Held,, that the plaintiff’s telegram was not an acceptance of the offer of the agent, but was a counter offer, and that it did not appear that the acceptance by the agent of the counter offer was made before the defendant had declined to sell, and therefore that on that ground the suit properly might be dismissed.</p> <p>In a suit in equity against the owner of certain real estate called “ the marsh ” for the specific performance of an alleged agreement of the defendant to sell the property to the plaintiff, the following facts appeared: An agent of the defendant offered the property to the plaintiff for a certain price in a letter which contained no reference to any rights of way. The plaintiff replied by the following telegram: “ Letter received Close deal understand Rights of way are included as we talked.” Replying to the telegram the agent wrote: “ The matter is closed and the rights of way, as I understand, are included as we talked over.” The “ rights of way ” constituted an important part of the property being purchased. On evidence which warranted the findings, the justice who heard the case found that, while it was possible to ascertain by oral evidence what was meant by the “ rights of way" referred to, it was not possible to ascertain by any other means, that “no rights of way had become so connected with the marsh as to have acquired a definite meaning,” and that “ this language was not employed by the parties to designate rights of way in a technical sense, but to indicate the fee of certain land outside the marsh subject to rights of passage owned by other people.” Held, that there was no sufiicient memorandum under the statute of frauds, R. L. c. 74, § 1, cl. 4, as to the rights of way; and therefore that the suit must be dismissed.</p>

<p>Negligence, Employer’s liability.</p> <p>Sugar barrels piled one upon another at the side of a passageway in a grocery, where they are placed temporarily among other goods, are not a part of the ways of the proprietor of the store as that word is used in R. L. c. 106, § 71, cl. 1, now St. 1909, c. 514, § 127, cl. 1.</p> <p>At the trial of an action against the proprietor of a grocery by an employee therein to recover for personal injuries caused by the falling upon the plaintiff of a sugar barrel which was at the side of a passageway along which the plaintiff in the performance of his duties was rolling another barrel, there was evidence tending to show that the barrel was piled end for end upon another, its bottom not resting on the rim of the lower barrel, but at an angle upon its head, that the usual way of piling sugar barrels was upon their sides, that the floor where the barrels stood was being jarred by heavy trucking at the time when the barrel fell, and was so jarred whenever there was heavy trucking, that the piling of goods in the defendant’s store was in charge of a superintendent and that the plaintiff first noticed just before the accident that the barrel which fell upon him was piled in an unusual way. There was no evidence that the superintendent was present when the barrel that fell upon the plaintiff was piled, but it appeared that it had been delivered at the store five days before. Held, that the questions, whether the plaintiff assumed the risk of the injury, and whether the superintendent was negligent, were for the jury.</p>

<p>Way, Public: defect.</p> <p>If a city, while constructing a trench in the highway beneath the tracks of a street railway, does not close the street to travel and relies on an employee of the corporation operating the street railway to warn travellers against falling into the trench and to keep it properly guarded, the city is liable under B. L. c. 51, § 18, to a traveller who is injured from falling into the trench by reason of a failure of the employee of the street railway company to do his duty.</p> <p>At the trial of an action under B. L. c. 51, § 18, by a traveller against a city for personal injuries caused by the plaintiff falling into a trench dug by the defendant in a public street, there was evidence tending to show that the defendant had not closed the street to public travel, that for several days it had been excavating the trench along a street through which the plaintiff passed daily, that the plaintiff had observed that as the. work progressed the trench approached street railway tracks on an intersecting street, and that on the morning of the accident he noticed that it was dangerous to walk between the ditch and the tracks; that during the day of the accident the trench had been dug under the street railway tracks, that lights and barriers had been placed to warn persons approaching from every direction, that a barrier had been placed across the tracks where the trench was and that an employee of the street railway company had been left on guard to remove and replace the barrier for the passing of cars and to warn travellers on the street. It did not appear whether there was any arrangement between the city and the street railway company as to the guard’s employment. The plaintiff returned from work early in a December evening in a street car which the guard, having removed the barrier, stopped fifteen feet before it reached the trench. The guard did not replace the barrier at once after the car had passed, but stopped to watch some travellers approaching from an- ' other street about three hundred and forty feet away. The plaintiff in the meantime had left the car and was walking behind it to reach a place where he could gain access to the sidewalk when, not seeing the trench, he fell into it. Held, that the questions, whether negligence of the plaintiff contributed to the accident, or whether the accident was caused solely by a defect arising from negligence of the watchman, for which the city was responsible, were for the jury.</p>

<p> Charily. Devise and Legacy. </p> <p>If a gift is made by will to a certain charitable, benevolent, literary or educational corporation and the gift constitutes a public charity irrespective of whether the corporation designated accepts it or not, the charity will not be allowed to fail for want of a trustee to administer it.</p> <p>Each of two sisters owned a one half interest in certain real estate and personal property. Each made a will, which, without mentioning the will of the other, gave all of her property to her sister for life, and, after her sister’s death, by a paragraph containing over seven hundred words which excepting for trifling variations were identical with the words used in her sister’s will, gave her one half interest in the real estate and personal property above mentioned to a certain corporation for charitable purposes. After the death of both sisters, in suits in equity by the executor of the will of one and the administrator with the will annexed of the estate of the other for instructions, it was held, that there was no doubt that a joint scheme was contemplated by the two sisters, and that it was not impossible to administer the separate gifts as one public charity.</p> <p>The mere fact that a gift for a charitable purpose is intended by the donor also as a private memorial to members of his family does not impair its public character or legal validity.</p> <p>The owner of a house, which, although to some extent remodelled, was a good example of the architecture of the Revolutionary period, which stood in the midst of ample grounds and gardens and was furnished with many articles constituting a collection of household antiques, the house and its contents being of educational interest and value as a kind of museum and the grounds being so . situated and of such character as to be adapted for use as a small park or open space and, so used, of substantial benefit to the public, by his will gave the house and grounds, gardens and contents of the house to a corporation, directing that “ the house may not in the least degree be dismantled, but stand forever as a memorial to the family of ” an ancestor of the testator, that it be kept open to visitors who might wish to see the collection of household antiques, with a custodian and caretaker in charge, that there be no public meetings or crowded receptions, that the gardens be used for the cultivation of what might be useful in the study of botany and that the grounds be kept open for the enjoyment of the public so far as practicable and be freely used by all students of botany whether in public or private schools. Provision was made for a possible extension of the grounds by purchase of land adjoining, and for the employment of an instructor and for free lectures in botany subject only to such rules and conditions as might be deemed necessary for the best interests of the classes. Held, that the gift was for educational and other purposes and came within the scope of what constitutes a public charity, although the motive in making it was to establish a perpetual memorial to the testator’s family.</p> <p>Gifts for public educational purposes constitute public charities.</p>

<p> Devise and Legacy. Trust. Rule against Perpetuities. </p> <p>A clause in a will directed the executor in substance to carry on the testator’s business as the testator previously had carried it on, that one seventh of the profits of each year’s business should “be credited to the account of” each of five persons, one of whom was a son and one a daughter of the testator, and to pay one seventh of the annual profits each to the son and the daughter; that the amounts credited in the accounts specified should be allowed to accumulate until the accumulation in each account should equal one seventh of the appraised value of the business, when each of the three persons other than the son and the daughter should receive a one seventh undivided interest in the business “ provided that if either of said parties should die or desire to retire from said business, he or his executors or administrators shall be entitled to draw the amount of profits then credited to his account.” Held,, that the clause was not void as contrary to the rule against perpetuities.</p> <p>A clause in a will directed the executor in substance to'carry on the testator’s business as the testator previously had carried it on, that one seventh of the profits of each year’s business should “ be credited to the account of” each of five persons, one of whom was a son and one a daughter of the testator, and to pay one seventh of the annual profits each to the son and the daughter; that the amounts credited in the accounts specified should be allowed to accumulate until the accumulation in each account should equal one seventh of the appraised value of the business, when each of the three persons other than the son and the daughter should receive one seventh undivided interest in the business “ provided that, if either of said parties should die or desire to retire from said business, he or his executors or administrators shall be entitled to draw the amount of profits then credited to his account.” The son and the daughter survived the testator. One of the other three persons designated ceased to be connected with the business before the testator’s death, a second survived the testator but died before the debts of the estate were paid ; and the third, after the debts of the estate were paid but before the accumulation of one seventh of the profits of the business equalled one seventh of the appraised value of the business, demanded a transfer of a one seventh interest in the business. Held, that no such transfer should be made.</p> <p>A clause in a will directed the executor in substance to carry on the testator’s business as the testator previously had carried it on, that one seventh of the profits of each year’s business should “ be credited to the account of ” each of five persons, one of whom was a son and one a daughter of the testator, and to pay one seventh of the annual profits each to the son and the daughter; that the amounts credited in the accounts specified should be allowed to accumulate until the accumulation in each account should equal one seventh of the appraised value of the business, when each of the three persons other than the son and the daughter should receive one seventh undivided interest in the business “ provided that, if either of said parties should die or desire to retire from said business, he or his executors or administrators shall be entitled to draw the amount of profits then credited to his account.” The son and the daughter survived the testator. One of the other three persons designated ceased to be connected with the business before the testator’s death, and a second survived the testator but died before the debts of the estate were paid. Held, that neither the first nor the estate of the second of such two beneficiaries was entitled to any share of the business or of its profits.</p> <p>A clause in a will directed the executor in substance to carry on the testator’s business as the testator previously had carried it on, that one seventh of the profits of each year’s business should “be credited to the account of” each of five persons, one of whom was a son and one a daughter of the testator, and to pay one seventh of the annual profits each to the son and the daughter; that the amounts credited in the accounts specified should be allowed to accumulate until the accumulation in each account should equal one seventh of the appraised value of the business, when each of the three persons other than the son and the daughter should receive one seventh undivided interest in the business “ provided that, if either of said parties should die or desire to retire from said business, he or his executors or administrators shall be entitled to draw the amount of profits then credited to his account. . . . All book accounts, stock, &c., appertaining to said business are to be included in the appraisal of it, subject to the payment of my debts, which are to be first paid from said business.” Held, that the son and the daughter were not entitled to draw anything from the profits of the business until the debts were paid.</p> <p>A clause in a will directed the executor in substance to carry on the testator’s business as the testator previously had carried, it on, that one seventh of the profits of each year’s business should “ be credited to the account of " each of five persons, one of whom was a son and one a daughter of the testator, and to pay one seventh of the annual profits each to the son and the daughter; that the amounts credited in the accounts specified should be allowed to accumulate until the accumulation in each account should equal one seventh of the appraised value of the business, when each of the three persons other than the son and the daughter should receive a one seventh undivided interest in the business' “ provided that, if either of said parties should die or desire to retire from said business, he or his executors or administrators shall be entitled to draw the amount of profits then credited to his account. I direct my said executors to invest any surplus profits not needed in said business for the benefit of said parties in some safe and secure manner. All book accounts, stock &c., appertaining to said business are to be included in the appraisal of it, subject to the payment of my debts, which are to be first paid from said business.” The son and the daughter survived the testator. One of the other three persons designated ceased to be connected with the business before the testator’s death, a second survived the testator but died before the debts of the estate were paid. The third remained in the business. On a bill by the executor for instructions as to how the profits should be credited and in what manner the accounts should be kept, it was held, that debts of the testator first should be paid, that thereafter five accounts should be kept, each of which should be credited each year with a one seventh part of the profits until the last of the three persons other than the son and daughter dies or retires from the business, or until the amount so credited to his account equals one seventh of the appraised value of the business. Upon the happening of either of those contingencies and the conveyance to him of one seventh part or interest in the business or the drawing out by him or by his estate of the amount of profits credited to his account, the trust will terminate. In the meantime, if the shares of the income to be credited as aforesaid are not needed in the business, they must be invested, in accordance with the direction of the testator, in some safe and secure manner for the benefit of the parties interested.</p>

<p>Equity Pleading and Practice, Master’s report.</p> <p>In a suit in equity, where the case has been referred to a master under an order in the usual form and the master lias filed a report in which he finds that the allegations of the bill relied upon by the plaintiff as the ground for relief are not true and does not report the evidence, and no exceptions are taken to the master’s report, the only action possible for the judge who hears the case is to make a decree that the bill be dismissed.</p>

<p>Equity Jurisdiction, Interpleader, Multiplicity of interests, Taxes illegally assessed, Submission to jurisdiction. Tase, Assessment. Municipal Corporations.</p> <p>Even if exclusive remedies had not been given by statute for contesting the amount and determining the validity of taxes, a bill of interpleader would not lie to determine whether personal property belonging to the estate of a testator was assessable for taxation in the hands of the executors of his will in the city of his domicil or whether it had passed to the trustees under the will and was assessable in another city and two towns, where different beneficiaries lived and where a tax upon their respective interests in the property had been assessed. /</p> <p>Even if exclusive remedies had not been given by statute for contesting the amount and determining the validity of taxes, it is at least very doubtful whether a bill in equity could be maintained under R. L. c. 159, § 3, cl. 3, on the ground of multiplicity of interests which cannot be justly and definitely decided and adjusted in one action at law, to determine whether personal property belonging to the estate of a testator was assessable for taxation in the hands of the executors of his will in the city of his domicil, or whether it had passed to the trustees under the will and was assessable in another city and two towns, where different beneficiaries lived.</p> <p>In this Commonwealth, where the remedies given by statute for contesting the amount and determining the validity of taxes are exclusive, equity will not interfere to determine the validity of a tax.</p> <p>The assessors of a city or town have no authority to consent in behalf of the city or town to proceedings in a court of equity to determine the validity of a tax. Nor has the collector of taxes of a city or town such authority.</p> <p>Even if the inhabitants of a town or the city council of a city should attempt by á vote in regular form to consent to proceedings in a court of equity to determine the validity of a tax assessed by the assessors of the town or city, it seems that such action could have no effect, because there can be no waiver in behalf of the public except by legislative authority. Expression of opinion in Forest River Lead Co. v. Salem, 165 Mass. 193, 202, explained.</p>

<p>Agency. Custom. Equity Jurisdiction, Accounting. Evidence, Presumptions and burden of proof. Equity Pleading and Practice, Master’s report.</p> <p>If an agent in charge of property belonging to his principal takes a secret profit or commission in regard to the matter in which he is employed, he loses his right to his agreed compensation, although the result may be to give the principal the benefit of valuable services rendered by the agent without compensation.</p> <p>If an agent in charge of property belonging to his principal takes a secret commission, by which he loses his right to compensation for his services, he cannot avoid this result by showing that it was the custom for agents to take such commissions without the knowledge of their principals, because such a custom would be contrary to sound public policy.</p> <p>In a suit in equity for an accounting, brought by the owner of certain real estate against his agent, in whose hands the property had been placed for management and sale at a profit, with an agreement that on the sale of the property by the defendant as agent, after paying the incidental expenses, the plaintiff should be paid the money advanced by him for the purchase of the property with interest at the rate of six per cent and that the net balance should be divided equally between the plaintiff and the defendant, it appeared that the defendant sold the property at a profit, but that in rendering an account to the plaintiff of incidental expenses he charged $50 as paid to an attorney for examining the title, when in fact he had paid the attorney only $25. Held, that this secret discount, whether taken with a corrupt intent or not, was a failure of duty on the part of the defendant which deprived him of his right to retain his stipulated portion of the net proceeds of the sale or to receive any compensation for his services.</p> <p>In a suit in equity for an accounting, brought by the owner of certain real estate, which he had put in the hands of the defendant for management and sale, where the plaintiff contends that an item of a certain amount, which was charged in the defendant’s account as paid to the plaintiff, was so charged improperly and that the defendant should not be credited with it, the burden is not on the plaintiff to prove that the amount was credited to the defendant improperly, but is on the defendant to account for the money or property of the plaintiff that had come into his hands.</p> <p>In a suit in equity a finding of a master on a question of fact cannot be revised unless the evidence on which the finding was made is reported or described in his report.</p>

<p>Equity Jurisdiction, To enjoin unlawful strike, Unlawful interference with contract. Strike. Labor Union.</p> <p>A strike by workmen engaged in a certain trade, to compel their employers to submit to an attempt to obtain for a labor union a complete monopoly of the labor market in this kind of business, by forcing all laborers who wish to work at the trade to join the union and by forcing the employers to agree not to employ workmen unless they are members of the union or have agreed to become members, is not for a lawful purpose, and a suit in equity may be maintained to enjoin it.</p> <p>Conduct of workmen which directly affects an employer to his detriment by interference with his business is not justifiable in law unless it is of a kind and for a purpose that tend to procure benefits tiiat the workmen are trying to obtain.</p> <p>The purpose of adding to the power of a labor union, in order to put it in a better condition to enforce its demands in controversies with employers that may arise in the future, does not justify an attack on the business of an employer by inducing his workmen to strike.</p> <p>A suit in equity may be maintained to enjoin the defendants from unlawfully interfering with the plaintiff’s business by inducing persons under contract with the plaintiff for future service to break their contracts.</p>

<p>Tort for injuries received by the plaintiff on April 18, 1907, while in the employ of the defendants as a teamster, by reason of a fall caused by the breaking of a strap attached to the plaintiff s wagon which he was tightening around two or three barrels on the tail board. Writ dated May 9,1907.</p> <p>In the Superior Court the case was tried before Brown, J., who at the close of the plaintiff’s evidence ruled that there was no case to go tó the jury, and ordered a verdict for the defend- . ants. By agreement of the parties the judge reported the case for determination by this court, with the stipulation, that, if his ruling was correct, judgment was to be entered for the defendants, and that, if his ruling was wrong, judgment was to be entered for the plaintiff in the sum of $500.</p>

Tort for personal injuries caused by the plaintiff slipping upon some soap on the floor of the defendant’s spinning factory where he was employed. Writ dated August 6,1908.

<p>Tax, On inheritances and successions. Statute, Construction.</p> <p>The limitation of the exemption from the imposition of a succession tax upon bequests to “ a city or town for public purposes ” to bequests for such purposes to “a city or town within this Commonwealth,” which existed before the enactment of St. 1909, c. 627, § 1, was not changed by that statute, which is merely declaratory of the previous statutes on the subject.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action for personal injuries received while the plaintiff was working in the defendant’s foundry, there was evidence tending to show that, under the immediate supervision of a superintendent of the defendant, the plaintiff and two other men were engaged in rolling from a sand mould an iron wheel weighing fifteen hundred pounds which still was hot, they being supplied with cloths for handling it, when the superintendent called away one of the three who was walking backward holding the wheel in front of him, that the plaintiff and his remaining fellow workman continued to roil the wheel, but that the two “ couldn’t keep hold of the wheel and it fell ” crushing the plaintiff’s foot. Held, that there was evidence warranting a finding that the plaintiff was in the exercise of due care and that the superintendent was negligent in leaving an insufficient number of men to roll the wheel while it was hot.</p>

<p>Tax, Sidewalk assessment. Sidewalk. Brockton,</p> <p>The board of aldermen of the city of Brockton, which had accepted the provisions • of R. L. c. 49, §§ 42-44, relative to the establishment of grades for and to the construction of sidewalks, “ if in their judgment the public convenience so requires,” and to the assessment of one half of the cost thereof upon the abutters, adopted the following order which was approved by the mayor: “ Ordered, that the superintendent of streets be and he is hereby directed to lay and construct a granolithic sidewalk in front of ” certain estates “ and report to the board a schedule of the cost thereon.” After the construction of the sidewalk, an abutter was assessed for one half the cost of so much as was constructed in front of his premises. Held, that, because of the omission from the order of the board of aldermen of a statement that in their judgment public convenience required the building of the sidewalk, it was not apparent whether the order was made under R. L. c. 49, § 44, or was an order for specific repairs, which the board had power to make under R. L. c. 48, § 65, St. 1881, c. 192, § 1; and therefore that the order could not be made the foundation of an assessment.</p>

<p>Sale. Custom,. Evidence, Of custom, Relevancy and materiality.</p> <p>Where, at the trial of an action of contract brought by a purchaser of certain mackerel against the seller for damages caused by an alleged failure of the defendant to deliver what the contract of sale called for, it appears from correspondence between the parties that the contract was for the purchase of three hundred and ninety-one barrels of large, medium and small mackerel, three hundred and fifty barrels of which had been seen and partially examined by an agent for the purchaser, the plaintiff may show that the custom in the fish trade “ is, when a party purchases a lot of mackerel he is supposed to receive clean fish ” and not “ rusty ” fish.</p> <p>Where, at the trial of an action of contract by a purchaser of mackerel against the seller for damages caused by an alleged failure of the defendant to deliver what the contract of sale called for, it appears from correspondence between the parties that the contract was for the purchase of three hundred and ninety-one barrels of clean mackerel, three hundred and fifty of which had been seen and partially examined by an agent for the purchaser, the plaintiff may show that the custom in the fish trade is that, when a purchaser finds that fish purchased as clean are “rusty,” the purchaser “is entitled to cull out the rusty fish and have an allowance of half price for the rustles.”</p> <p>In the sale of specific goods as goods of a specified description, the description amounts to a warranty that the goods are as described, and the mere fact that the specific goods were open to inspection and were in fact inspected by the purchaser does not deprive him of his right to rely on such a description as a warranty if the difference between the specific goods and the description of them would not have been and was not detected on the inspection.</p> <p>At the trial of an action of contract by a buyer against the seller of mackerel, where it appears that many of the mackerel, which were purchased as clean, were “ rusty ” and the defendant contends that before the purchase an agent of the plaintiff made such an examination of the mackerel as to preclude the plaintiff from maintaining the action, testimony of the agent that he would "have made a further examination if he had not been told that the mackerel were sold to a third person, is competent as tending to show that he did not make a thorough examination.</p> <p>At the trial of an action by a buyer against the seller of a large number of barrels of mackerel, where the plaintiff contends and introduces evidence tending to show that the custom of the fish trade is that, “ when a party purchases a lot of mackerel he is supposed to receive clean fish,” and that the fish delivered to him by the: defendant were not clean but “ rusty,” the presiding judge properly may refuse to rule that “ a warranty as to quality or condition of the mackerel cannot be implied into this case by evidence of custom or usage,” since the ruling is not applicable to the case, the custom tending to prove, not that clean mackerel and “ rusty ” mackerel are in the trade different qualities of the same grade of mackerel, but that they are different grades of mackerel. Dickinson v. Gay, 7 Allen, 29, distinguished and commented on.</p> <p>A purchaser availing himself of a custom, which became a part of a contract of sale to him of “ clean ” mackerel, that if the purchaser finds that the fish delivered to him “ are rusty fish he is entitled to cull out the rusty fish and have an allowance of half price for the rustles,” must bear the expense of the culling out; and, if the fish were delivered to him in Boston and, under the circumstances, in order to make them salable except as “ rusty ” mackerel, it was necessary to re-sort and repack them, which could not be done economically in Boston, the purchaser in order to avail himself of the custom must bear the expense of transporting the fish to a place where they could be re-sorted and repacked economically as well as the expense of such re-sorting and repacking.</p>

<p>Damages, In tort." Practice, Civil, New trial.</p> <p>In an action of tort by a woman for personal injuries, an instruction by the presiding judge, that the plaintiff has a right to have the jury consider the possibility that by reason of the plaintiff’s injuries an operation in the future may be necessary, is erroneous, when it is not limited by a further instruction that the plaintiff can recover only for such consequences of her injuries as it is proved by a reasonable preponderance of the evidence reasonably may be expected to follow.</p> <p>In an action of tort for personal injuries, where, after a verdict for the plaintiff, an exception of the defendant was sustained on account of an erroneous instruction by the presiding judge upon the matter of damages, a new trial was ordered on the question of damages only.</p>

<p>Contract for the price of coal sold and delivered, as stated in the opinion. Writ in the Municipal Court of the City of Boston dated April 15, 1907.</p> <p>On appeal to the Superior Court the case was tried before White, J. The questions which arose at the trial are stated in the opinion.</p> <p>A portion of the charge of the judge, which included the parts to which the defendants objected and excepted, was as follows:</p> <p>“ Here is the scheme of the plaintiff’s argument. ‘ This order came to me. In the regular course of business it was put on my books, it there remains. I sent it out with drivers who knew the place, and the drivers say they knew the place, and they delivered it at the place.’</p> <p>“ On the other hand, the defendant is claiming that his memory is sufficient against the record and against the evidence; that his remembrance ought to govern, and that is, that out of his memory he says that he is able to say that the coal was not delivered. There is a suggestion made by the introduction of Freeman as the trustee, or one of the trustees of the Everett Real Estate Association, that it might have gone there. Freeman has not testified. When a witness is introduced as knowing something about the possible outcome of a trial, and as being able to bring some information and he is not brought by the party who would naturally bring him, whom you would naturally expect to' bring him, you have a right to infer from his absence that if brought his evidence would not be favorable. Uow, Freeman being an associate of Fuller, if there is any intimation that the coal went to Freeman’s building instead of to Fuller’s building, whether there was any obligation to bring him here to inform you of that fact is for you to determine. If you say there was no obligation, you will disregard it. If you say he is getting up such a claim .as that and Freeman should be brought here, you have the right to draw whatever inference you say you ought to draw from the fact that he is not brought here. Whether you say he ought to have brought him or not is entirely for you to judge.</p> <p>“ There are on the one hand the books, a record made of a sale, and on the other part the memory of man, and it is for you to determine with the burden of proof upon the plaintiff. The burden is upon the plaintiff in this as in every other case to establish the fact of a sale and delivery by a fair preponderance of the evidence; and that, as I have told you in previous cases and as the counsel for the defendant has reiterated here, if it leaves you in just a balanced state of mind, that does not sustain the burden of proof. The burden of proof is only sustained when the scales tip in favor of the propositions that one party or the other must establish in order to maintain the action.”</p> <p>“ On the matter of the record, I said a record made in the ordinary course of business. In so far as that is any instruction to you that this record was made in the ordinary course of business, so much as I said of that, I withdraw and leave it to you to say whether the charge was made in the ordinary course of business, and if it was, what effect you ought to give it.”</p> <p>The defendants’ exceptions were, first, to the sentence of the charge which is quoted in the opinion, second, to the portion of the charge referring to the failure to produce Mr. Freeman as a witness, and, third, to the charge as being argumentative.</p> <p>The jury returned a verdict for the plaintiff in the sum of $75.15; and the defendants alleged exceptions.</p>

<p>Negligence. Railroad. Evidence, Presumptions and burden of proof.</p> <p>If a railroad corporation receives a freight car, which is loaded with fixtures for a restaurant conducted by a lessee of the corporation in its station, and places the car on the track third from the station opposite the door of the restaurant, which is the most convenient place for unloading the fixtures but also is a place attended with great danger because the two intervening tracks are the main tracks of a division of the railroad, on which trains pass frequently in opposite directions, it becomes the duty of the railroad corporation to take the precautions necessary to protect the men engaged in the work of unloading the car after the unloading begins and while it lasts, but this responsibility does not arise until the time for unloading comes, and, if before the consignee of the fixtures or the seller of the fixtures, who has agreed to unload and install them, has been notified by the railroad corporation that the car is ready for unloading, the seller of the fixtures orders his workmen to start to unload it and one of the workmen on his way to the car is run over by a train on one of intervening main tracks, there is no negligence or evidence of negligence on the part of the railroad corporation. In such a case the fact that the car has been brought up to the place from which it ultimately is to be unloaded does not justify the consignee in inferring that the time for "unloading has come.</p> <p>The fact that a jury have a right to disbelieve certain testimony does not make such disbelief affirmative evidence to the contrary, its only result being to eliminate the testimony disbelieved.</p>

<p>Mortgage, Of real estate, foreclosure sale. Estoppel.</p> <p>A mortgagee, who has foreclosed a mortgage of real estate under a power of sale contained therein, is not estopped by a recital in an affidavit made by him under R. L. c. 187, § 15, as amended by St. 1906, c. 219, § 2, and annexed to his deed given under the power of sale, that he sold the real estate for $12,500, from showing, in an action on the mortgage note for the balance due after crediting the proceeds of the sale, that the property was sold at the foreclosure sale for only $10,000.</p>

<p>Equity Jurisdiction, To enforce bond given under Pub. Sts. c. 16, § 64, or R. L. c. 6, § 77. Surety.</p> <p>At a former stage of this case it was decided, as reported in 202 Mass. 326, that the plaintiff who furnished for a contractor labor and materials used for the construction of an aqueduct under a contract made for the Commonwealth by a public board, could enforce for his benefit the bond given by the contractor to the Commonwealth in compliance with the requirement of Pub. Sts. c. 16, § 64, now R. L. c. 6, § 77. After the filing of the bill in equity upon which that decision was rendered the Commonwealtli paid to the plaintiff and others, from the funds in its hands reserved by it from moneys due to the contractors, thirty-five per cent of their respective claims against the contractors, and the contractors assented to these payments. Upon receiving the payment made to him, tlie plaintiff, with the assent of the surety, released the Commonwealth. The plaintiff applied about half of the money thus received from the Commonwealth to paying for powder which had been used in blasting for the public work, for which the plaintiff was entitled to have the liability of the surety on the bond of the contractor enforced. The rest of the money so received from the Commonwealth the plaintiff applied in paying for fittings of machinery, tools and other supplies, for which the surety on the bond of the contractor was not liable, all of the claims thus discharged having been filed in the office of the board which made the contract for the public work. The surety contended that the whole of the money received from the Commonwealth should be applied toward the payment of the bill for powder and thus reduce the surety’s liability to that extent. Held, that, there having been no agreement between the parties as to the application of the money, the plaintiff could apply the payment as he saw fit, and the fact that the surety was liable only on a part of the plaintiff’s claim against the contractor did not give the surety the right to have the whole of the money received by the plaintiff applied to that portion of the plaintiff’s claim.</p>

<p>Tort for personal injuries received by the plaintiff, as stated in the opinion, while in the defendant’s employ. Writ dated September 14,1909.</p> <p>In the Superior Court the case was tried before ITardy, J. The material parts of the evidence are stated in the opinion. At the close of all the evidence, the defendant asked the presiding judge “ to rule that there was no evidence of negligence . . . for the jury and to order a verdict in its favor.” The judge refused so to rule. There was a verdict for the plaintiff; and by agreement of parties the judge reported the case for determination by this court.</p>

<p>Eight actions of CONTRACT, the first and second and certain counts of the declarations in the seventh and eight actions being upon policies of insurance against loss or damage by fire of premises numbered 34 on West Third Street in Chelsea, and the third, fourth, fifth and sixth and the remaining counts of the declarations in the seventh and eighth actions being upon policies relating to premises numbered 92 on Arlington Street in Chelsea. Writs dated December 26, 1908.</p> <p>In the Superior Court the cases were tried together before Morton, J., without a jury, upon an agreed statement of facts, the judge, being given cower to draw inferences from the facts agreed upon.</p> <p>Besides the facts stated in the opinion, it was agreed that the buildings insured were destroyed in “the Chelsea fire” on April 12, 1908. On June 9, 1908, the plaintiffs rendered to the respective defendants sworn statements, setting forth the matters and particulars required by the condition relating to such statements contained in each of said policies. Thereafter, the amount of loss and damage not being agreed upon, the matter was submitted to referees under the terms of the policies, who thereupon awarded that the amount of loss and damage on the building, 92 Arlington Street, was $5,000, and that on the premises, 34 West Third Street, was $4,600. None of the defendants made any payment nor requested any assignment of the plaintiff’s mortgages. After the award of the referees was made, the defendants refused to pay the amount of the award or any part thereof to the plaintiff's. The plaintiffs never have offered to assign their mortgages to the defendants, but at all times have been and are now ready and willing to assign them to the defendants upon receipt of the amounts due. them thereon, but never have informed the defendants of their willingness previous to the bringing of the actions.</p> <p>The provision in the Massachusetts standard policy, which was in all the policies here involved and under which the plaintiffs claim, is as follows: “ and whenever this company shall be liable to a mortgagee for any sum for loss under this policy, for which no liability exists as to the mortgagor, or owner, and this company shall elect by itself, or with others, to pay the mortgagee the full amount secured by such mortgage, then the mortgagee shall assign and transfer to the companies interested, upon such payment, the said mortgage, together with the note and debt thereby secured.”</p> <p>In each of the first and second actions, the judge found for the plaintiff in the sum of $2,192; in each of the third, fourth, fifth and sixth actions, he found for the plaintiff in the sum of $1,096; in each of the seventh and eighth, he found for the plaintiff in the sum of $6,028. The defendants appealed.</p>

<p>Insurance, Life, Accident, Industrial. Insurance Commissioner.</p> <p>A foreign insurance corporation, with a capital stock of $2,000,000 and a very large surplus, engaged since 1879 chiefly in the business of industrial insurance, namely, of the issuing of non-participating life insurance policies in sums of less than $500 with a fixed premium payable in small instalments at short intervals, usually weekly, had made in its policies, in order to avoid fraudulent risks and to keep the expense of investigations duly proportional to the amount of the insurance, limitations that, if the insured died within a certain number of months of the issuance of the policy, nothing should be payable thereunder. In 1909 it proposed to issue a policy of industrial life insurance containing the following provision on the first page: “ One half only of the above sum payable if death occur within six calendar months from date, and the full amount if death occur thereafter,” and on the third page the following provision: “ Accidental Death. In the event of the death of the insured from accident within six months from the date of this policy, the full amount of insurance named in the first schedule will be paid subject to the policy conditions.” Held, that the provisions above quoted did not constitute accident insurance within the description contained in St. 1907, c. 576, § 32, cl. 5, and therefore that the life insurance policy which the corporation proposed to issue did not violate the requirement of § 34 that “contracts of insurance for each of the classes” specified in § 32 “shall be in separate and distinct policies.”</p>

<p>Writ of Entry. Practice, Civil, Abatement, Writ of entry.</p> <p>If, after the bringing of a writ of entry, the tenant surrenders possession of the land described in the writ and the demandant takes possession .thereof, the writ abates and judgment must be entered for the tenant.</p>

<p>Bill in equity, filed in the Superior Court on October 28, 1898, and subsequently amended, seeking to establish a resulting trust in favor of the plaintiff in certain land which it was alleged the defendant purchased with the plaintiff’s money.</p> <p>The case was referred to Charles C. Barton, Esquire, as master. The substance of such of his findings as are material to the decision was as follows:</p> <p>During the year 1897 the plaintiff became the owner in fee of the land in question. In November of that year, he began the erection thereon of two double apartment houses. On August 16, 1897, he mortgaged the premises to one Fallon to secure the payment of $30,500, to be advanced to the plaintiff from time to time to pay off existing mortgages and to pay for labor and material in the construction of the buildings as the work progressed.</p> <p>In June, 1898, the plaintiff was without further means to complete the buildings, and, as he could not obtain further advances from Fallon, he ceased work thereon. At this time the plaintiff had a large number of creditors to whom he was indebted for material and labor furnished in the construction of the buildings. Many of these creditors had placed attachments and liens on said premises.</p> <p>The defendant was a dealer in building materials and, at the time the plaintiff ceased work upon the buildings, was a creditor of the plaintiff in the sum of $3,324.86. The plaintiff also was indebted to one Nathan P. Gifford and George A. Gifford, lumber dealers and manufacturers of building finish, for about $1,500. The Giffords declined to make any more advances to the plaintiff until some part of the plaintiff’s indebtedness to them had been paid.</p> <p>On July 18,1898, Fallon began foreclosure of his mortgage by advertisement of a sale and by making an entry for the purpose of foreclosure. The sale was advertised to take place on August 5, 1898, but afterwards was adjourned to August 19,1898. At the sale a cash payment of $1,000 was required to be made.</p> <p>Nathan P. Gifford, being both willing and able to assist the plaintiff in the completion of the buildings, had a conversation with the plaintiff with that end in view. At that interview the plaintiff told Gifford that the defendant was a large creditor of his and had expressed a willingness to help him, and that the defendant might join with Gifford in helping him complete the buildings.</p> <p>The manner of holding the title to the premises to protect the defendant and Gifford for the money advanced by him was gone over in interviews between the plaintiff, the defendant and Gifford. One plan was to have a trust deed given. The other plan was to have the foreclosure proceed. The defendant objected to a trust deed on the ground that all the creditors of the plaintiff might not be willing to join. The defendant suggested that the foreclosure proceedings be allowed to go on and the property sold, as by that means all attachments and liens would be cut off. It finally was agreed between the plaintiff and the defendant and Gifford, that the defendant and Gifford would advance, as a loan, to the plaintiff, the money to make the cash payment of $1,000 required at the time of the foreclosure sale and to complete the buildings at an expense, according to estimates obtained, of about $7,000 ; that the plaintiff should obtain some person, acting as a dummy, to bid off the property for him and thereafter give a new mortgage to Fallon, and also to give a second mortgage, subject to Fallon’s mortgage, to the defendant and Gifford for the cash payment of $1,000 required to be made at the mortgagee’s sale and the $7,000 required for the completion of the buildings and in addition thereto the amounts the plaintiff then owed the defendant and Gifford, with interest at six per cent per annum, and to bold the premises for the plaintiff subject to the mortgages until the plaintiff got a permanent mortgage, or paid the second mortgage, and then to convey the premises to the plaintiff. It was further agreed that the plaintiff should have general charge and superintendence of the buildings in accordance with the original plans. This agreement was not in writing. The plaintiff engaged one Marsh to bid off the premises at the foreclosure sale, to give the mortgages and to hold the title for him, and on the day to which the mortgagee’s sale had been adjourned went with Marsh to the office of the defendant and together with him they went to the premises.</p> <p>Just before the sale began the defendant notified the plaintiff that he had made up his mind to bid in the premises himself for the plaintiff under the arrangement agreed upon, and that he did not wish to have Marsh bid on the property. The plaintiff, relying on the promise of the defendant that he would bid the property in under the arrangement previously made, directed Marsh not to bid at the sale. About twenty persons attended the sale and several bids were made. Two bids were made •by creditors of the plaintiff. The defendant bid $28,200, and, as he was the highest bidder, the auctioneer declared the premises sold to him. He thereupon paid down $1,000 as required by 'the terms of sale. Gifford did not attend the .sale on account of sickness. The defendant previously had agreed to represent him and to advance his part of the purchase money to be paid down in case he was unable to attend the sale. After the sale the defendant arranged with Fallon for a new mortgage to one Rice for $28,000.</p> <p>On August 24, 1898, Fallon gave a deed of the premises under the power of sale in the mortgage to the defendant, and on the same day the defendant gave back a mortgage on the premises on two months’ time for $28,000 to Rice. Rice and Fallon had a joint real estate account. The money lent on the mortgage given to Fallon and the money lent on the mortgage given to Rice came from this joint real estate account. The mortgage was given to Rice rather than to Fallon at the request of Fallon.</p> <p>“ Immediately after the sale the plaintiff told the defendant he would go with him to the defendant’s office and have the deeds and other papers made in accordance with the agreements entered into previous to the sale. The defendant told the plaintiff he was too busy to attend to the matter on that day and requested the plaintiff to call the next day when he would attend to it. The plaintiff began to get bids for labor and materials and make arrangements for the completion of the buildings. On the day after the sale, and from day to day thereafter, the plaintiff called on the defendant at his office and requested that the agreement made previous to the sale should be carried out, and that the deeds and other papers necessary to carry out the agreement should be executed and delivered. The defendant put the plaintiff off from day to day, for about ten days, and finally, when pressed by the plaintiff to execute the deeds and other papers, declined absolutely, and told the plaintiff he should keep the premises for himself. The defendant also told the plaintiff that he never intended to give the plaintiff any interest in the premises. The defendant has held the premises since the conveyance to him, and has taken the rents and profits thereof. He has refused to carry out his agreement with the plaintiff and Gifford.”</p> <p>A final decree in favor of the plaintiff was ordered by Wait, J.; and the defendant appealed.</p>

<p>Contract by the executors of the will of Charles H. Hayden, upon an oral agreement alleged to have been made by the defendant to pay a certain mortgage note for $5,000, dated August 4, 1900, signed by Warren D. Vinal and payable to Albert L. Jewell or order on August 4, 1902, with interest payable semiannually at the rate of five per cent per annum, the note being secured by a mortgage on a lot of land with the buildings thereon numbered 206 on Bay State Road in Boston, the plaintiffs’ testator being the assignee of the note and the mortgage and the defendant being the purchaser of the equity of redemption in the mortgaged property. Writ dated April 7, 1906.</p> <p>The declaration, as amended, contained four counts and alleged a promise of the defendant to pay the note in consideration of the forbearance of the plaintiffs for a reasonable time from instituting foreclosure proceedings upon the mortgage or taking action to enforce the payment of the note. The defendant’s answer to the amended declaration, after a general denial, alleged that if the defendant made any such contract as was set forth in any count of the plaintiffs’ declaration, the contract was a special promise to answer for tfie debt, default or misdoings of another, that such contract was not in writing, and that no memorandum or note thereof was made in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized, such as is required by R. L. c. 74; and further alleged that if the defendant made any such contract as was set forth in any count of the plaintiffs’ declaration, the contract was an agreement which was not to be performed within one year from the making thereof, that such contract was not in writing, and that no memorandum or note thereof was made in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized, as required by R. L. c. 74.</p> <p>In the Superior Court the case was tried before Morton, J. The judge ruled that the statute of frauds did not apply to the case, and the defendant excepted to this ruling. The judge submitted to the jury two spe'cial questions as follows:</p> <p>“ Has the plaintiff satisfied yóu by a fair preponderance of the evidence (1) that the contract was made as alleged in the decclaration and claimed by him to have been made, and (2) that he complied with the terms thereof ?”</p> <p>To each of these questions the jury answered “Yes.”</p> <p>The jury also brought in a general verdict for the plaintiff, which the judge set aside on the ground that it was improperly brought in. Thereupon a discussion took place between the judge and the counsel for the defendant, during which the counsel for the defendant said, “ In the first place, the defendant excepts to the ruling of the court that upon all the evidence — or at least we ask a ruling that upon all the evidence in the case there is nothing for the jury and a verdict should be ordered for the defendant. And we further ask the court now,— a special verdict having been found, two questions having been answered in favor of the plaintiff — upon the case as it stands, that the court order that a verdict be returned for the plaintiff, and to that we except on the ground that on the basis of the special verdict there is nothing else in the case. And on all the evidence they are not entitled to recover.” To this the judge replied, “ Those requests are refused and your exception is noted.”</p> <p>At the end of the discussion the judge again submitted the case to the jury, instructing them as follows:</p> <p>“I am going to submit some questions to you, and so you will take the case again for the purpose of answering these questions. You will have to determine the question under the declaration as to when the defendant agreed that that note should have been paid. Interest, of course, must be reckoned at the rate of the note up to the time that the defendant was under obligation to pay, and thereafter it is to be reckoned at the rate of six per cent. There are three counts in the declaration that you will have with you, and these are the questions that I am going to ask you to determine:</p> <p>“ 1. What was the date upon which the defendant agreed to pay the note ?</p> <p>“ Not the date of the agreement. The agreement was that the defendant should pay the note at some time. What was that time?</p> <p>“ (a) Was it during the month of September, 1902, as alleged in the second count of the amended declaration ?</p> <p>“ (b) Was it within a reasonable time from the date of the agreement, as alleged in the fourth count of the declaration, or</p> <p>“ (c) Was the time of payment left undetermined, as alleged in count three of the declaration ?</p> <p>“ When you have answered that question as to the date you will have to determine interest, calculate interest from that date. This paper you will have with you. This you will remember ; it is very simple.</p> <p>“ If the jury find that the date at which the defendant agreed to pay the note was September, 1902, théy will reckon interest from that date at six per cent to the present date, crediting all payments of interest subsequent thereto, and find for the plaintiff for $5,000 and the amount of interest thus arrived at.</p> <p>“ If the jury find that the date at which the defendant agreed to pay the note was to be within a reasonable time after the promise was made, the jury are to determine when said reasonable time expired and compute interest therefrom, crediting the payments of interest, if any, and return a verdict for the plaintiff for $5,000 with interest so computed.</p> <p>“If the jury find that the time of payment was left undetermined no interest is to be calculated.</p> <p>“ You will retire and answer those questions. You will make your verdict in accordance with the directions I have just given you. Fix the time. When you fix that time, calculate interest, giving credit for any payment of interest. For instance, there was a payment on it. There is no question about that. If you find September, 1902, was the date upon which the defendant was under obligation to pay the note you will calculate your interest at six per cent, from that time, and you have got to credit the payment of $125 which was made.”</p> <p>To the foregoing instructions the defendant excepted.</p> <p>To the question, “ What was the date upon which the defendant agreed to pay the note ? ” the jury answered, “ September 13, 1902.”</p> <p>The jury returned a verdict for the plaintiff in the following form: “ The jury find for the plaintiff and assess damages in the sum of $5,000 with interest at five per cent from August 4,1902, to September 13,1902, $27.40 and interest at six per cent from September 13, 1902, to May 11,1910, $2,298.33. Total interest, $2,325.73, less $125 paid February 17,1903. Balance interest due $2,200.73.” The defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions, petition to establish. Rules of Court.</p> <p>Proceedings to establish the truth of exceptions are treated as strictissimi juris.</p> <p>A petition to establish the truth of exceptions cannot be amended by adding to it allegations which are not supported by an affidavit made within twenty days after notice of the refusal to allow the bill of exceptions, as required by Rule 6 • of the rules for the regulation of practice before this court.</p> <p>If upon the face of a petition to establish the truth of exceptions it appears that the exceptions sought to be proved are plainly frivolous and immaterial, the petition should be dismissed without an inquiry into the truth of its allegations; but it is only when the immateriality is obvious that the petition can be dismissed on this ground. Where the petitioner presents questions proper for argument and for deliberate consideration by this court, they will not be disposed of without giving the petitioner an opportunity to establish the truth of the exceptions which he has alleged and to argue them if they are established.</p> <p>Where upon the face of a petition to establish the truth of exceptions it appeared that the petitioner’s requests for rulings raised only questions of fact upon which the petitioner had the burden of proof, and that the evidence on these questions was conflicting, and that the only other exception alleged to which the petition related was to the admission in evidence of a certain sentence in a letter, written by a man who had testified as a witness for the petitioner, and whose testimony the sentence in the letter tended plainly to contradict in a material matter, it was held, that the petition should be dismissed on the ground that, if the exceptions alleged by the petitioner were established, they would present no questions of law of sufficient gravity to call for consideration by this court.</p>

<p>Tort for personal injuries sustained on March 9,1907, in the manner described in the opinion, when the plaintiff was in the employ of James H. Roberts and Company and had been sent to take out a shaft in the place of business of the defendant at East Cambridge. Writ dated May 16, 1907.</p> <p>In the Superior Court the case was tried before White, J. The plaintiff at the trial waived all but the first count of- his declaration, which alleged that the plaintiff while in the exercise of due care was injured by reason of the negligence of the defendant’s servants and agents in causing the shaft to strike him with great force and violence. At the close of the plaintiff’s evidence, which is described in the opinion, the judge ordered a verdict for the defendant, and reported the case for determination by this court, with the stipulation of the parties which is stated in the opinion.</p>

<p>Res Judicata. Judgment. Practice, Civil, Findings of trial judge, Parties. Corporation, Ultra vires. Estoppel. Fraternal Beneficiary Corporation.</p> <p>In a suit in equity in another State, seeking to annul as ultra vires a consolidation between a fraternal beneficiary corporation in such other State and a Massachusetts fraternal beneficiary corporation, in which the Massachusetts corporation was named as a defendant but never has been served with process except by publication under the statutes of such other State and never has appeared in the suit, if a decree pro confessa is entered against the Massachusetts corporation in the court of the other State, the rights of the Massachusetts corporation are in no way affected by such decree; and therefore the beneficiaries named in a benefit certificate, issued by the Massachusetts corporation to one of its members, who were not parties to the suit in the other State, are in no way bound by any decision or decree made in that suit, even if they would have been sufficiently represented by the Massachusetts corporation to be bound by such a decree in case that corporation had become subject to or voluntarily had submitted itself to the jurisdiction of the court of the other State.</p> <p>On an appeal from a judgment entered by order of a judge to whom the case was submitted, without a jury, upon an agreed statement of facts with power to draw inferences from the facts stated, the question before this court is whether, upon the facts stated and any inferences which the trial judge was warranted; in drawing therefrom, his findings were warranted.</p> <p>If a fraternal beneficiary corporation, organized under the laws of another State, undertakes to assume the obligations of a death certificate issued by a Massachusetts fraternal beneficiary corporation, and the member insured by such certificate, accepting the offer of the foreign corporation, joins a body organized as one of its subordinate commanderies and for a period of two years pays assessments to the foreign corporation for the insurance purporting to be given by the terms of his certificate, believing himself to be entitled to all the privileges of a member of the foreign corporation, that corporation, after the death of the member, in an action brought against it by the beneficiaries named in the certificate to enforce its promise, cannot defend the action on the ground that its promise to assume the obligation of the Massachusetts corporation which issued the certificate was ultra vires and that the insured to whom the certificate was issued never performed the formal acts required for becoming a member of the foreign corporation.</p> <p>The beneficiary of a death benefit named in a certificate issued to a member of a fraternal beneficiary corporation incorporated under R. L. c. 119 can sue the corporation in his own name upon the contract made with the deceased member under whom he claims, and in like manner he can sue in his own name a corporation which has assumed toward the plaintiff the obligations of such fraternal beneficiary corporation upon such certificate.</p>

<p>Contract, What constitutes, Construction. Guaranty. Agency. Damages, In contract.</p> <p>In an action by a glass manufacturing corporation against the guarantors of the performance of a contract by a certain corporation to purchase two thousand gross of bottles to be made for it by the plaintiff, it appeared that the purchasing corporation had no financial rating and that guarantors were required by the plaintiff, that the names of the defendants as guarantors were submitted to and approved by the home office of the plaintiff, that a contract containing a guaranty clause was prepared on one of the regular forms used by the plaintiff and was delivered to the treasurer of the purchasing corporation, that this contract was signed by the defendants as guarantors but was not signed by the purchasing corporation itself, that it was delivered by the treasurer of that corporation to the plaintiff’s manager, who in the presence of such treasurer indorsed upon it the plaintiff’s acceptance, that the treasurer of the purchasing corporation by virtue of his office had authority to act for that corporation in all matters pertaining to its usual course of business and it did not appear that this authority was restricted by any vote or by-law. It was stipulated in the contract .that it should not be binding until accepted at the plaintiff’s home office, to which it was forwarded for indorsement. The plaintiff did not execute an indorsement of the contract at its home office, but retained it and never gave any notice of disaffirmance, and proceeded to perform the contract by manufacturing and delivering a part of the bottles, when its further performance was prevented by a repudiation of the contract by the purchasing corporation. Held, that these facts showed a delivery of the contract in behalf of the purchasing corporation and an acceptance of the contract by the plaintiff, the ratification of the act of the plaintiff’s manager being sufficient without an execution of the instrument at the plaintiff’s home office.</p> <p>In an action against four guarantors of the performance by a certain corporation of a contract to purchase two thousand gross of bottles of a specified kind to be made for it by the plaintiff, if it appears that the contract of sale and guaranty was signed by all of the four defendants and was delivered to the plaintiff by one of them, who had acted with full authority from the other three and who knew that the contract of sale and guaranty was accepted unconditionally by the plaintiff, it is not necessary for the plaintiff to show that he gave notice to the defendants of his acceptance of the guaranty.</p> <p>In an action against the guarantors of the performance by a certain corporation of a contract to purchase two thousand gross of bottles of a certain kind to be made for it by the plaintiff, where it appears that the delivery and acceptance of the contract of purchase containing the guaranty signed by the defendants were absolute and unconditional and that, after the plaintiff had manufactured certain bottles for the purchasing corporation in accordance with the terms of the contract and had delivered a part of them and had others ready for delivery, the purchasing corporation failed to pay for the bottles delivered and notified the plaintiff that it would not receive or pay for any more bottles, the plaintiff need not show that he gave notice of these facts to the defendants, his proof of the default of their principal being sufficient.</p> <p>In an action against a guarantor of the performance of a contract to purchase goods from the plaintiff, the defendant can set up the defense that he was not notified by the plaintiff of the default of his principal only where he can show that he was or might have been prejudiced by the failure to notify him of the principal’s default. In the present case, where the nature of the contract was such that no notice of default was necessary, it appeared affirmatively that the plaintiff had resorted to all the possible remedies against the principal, so that, even if he had been given the notice of default to which he was not entitled, he would have been no better off.</p> <p>In an action against the guarantors of the performance by a certain corporation of a contract to purchase two thousand gross of bottles of a certain kind to be made for it by the plaintiff, where the plaintiff shows that the contract of guaranty was absolute and unconditional, and that, after he had manufactured a certain number of bottles for the purchasing corporation in accordance with the terms of the contract, had delivered a part of them and had others ready for delivery, the purchasing corporation failed to pay for the bottles delivered and notified the plaintiff that it would not receive or pay for any more bottles, the plaintiff is entitled to recover fro'm the defendants not only the price of the bottles delivered to the purchasing corporation but also damages for the loss suffered by the plaintiff by reason of the purchasing corporation’s breach of contract in refusing to take the remainder of the bottles called for by the contract.</p> <p>In an action against the guarantors of the performance of a contract for the purchase by a certain corporation of two thousand gross of a certain kind of bottles to be manufactured for it by the plaintiff, where the plaintiff shows a breach of the contract by the purchasing corporation, after a part performance by the plaintiff, by the failure of the purchasing corporation to pay for the bottles already delivered to it and its refusal to take or pay for any more bottles under the contract, if the guaranty clause in the contract signed by the defendants provides that, in consideration of the plaintiff furnishing to the purchasing corporation various styles of bottles covered by the order, the defendants “guarantee the account ” of the purchasing corporation, this phrase does not restrict the liability of the defendants to the plaintiff’s loss by reason of the failure of the purchasing corporation to pay for the bottles delivered, where the whole instrument in connection with the circumstances under which it was executed shows a clear intention on the part of the defendants to guarantee the performance by the purchasing corporation of all its obligations under the contract.</p> <p>In an action against the guarantors of the performance of a contract for the purchase by a certain corporation of two thousand gross of a certain kind of bottles to be manufactured for it by the plaintiff, where a breach of the contract by the purchasing corporation after a part performance by the plaintiff is shown and the plaintiff is entitled to recover from the defendants not only the price of bottles delivered but also the loss suffered by him by reason of a refusal of the purchasing .corporation to take or pay for any more, bottles under the contract, if there is a provision in the contract that specifications shall be submitted to the plaintiff from time to time for bottles to be made, and that the quantities for delivery during June, July and August shall be specified not later than March 1, “ each delivery to be considered a separate contract,” the contract being an entire one for the manufacture and sale of the whole two thousand gross of bottles, this provision does not limit the plaintiff's right to recover damages for ail the portion of the contract which has been repudiated by the purchasing corporation.</p>

<p>Tort for personal injuries from being run over by an electric street car of the defendant as stated in the opinion. Writ dated June 26, 1907.</p> <p>In the Superior Court the case was tried before Hardy, J. Besides the facts stated in the opinion, there was evidence that the accident happened at five o’clock or a little, later on the afternoon of Sunday, January 20, 1907, that it was dusk and that there were double tracks of the defendant upon the street. The plaintiff testified that he was sufficiently familiar with the locality to know that these tracks were level and straight for a long way in either direction; that the car which struck him was bound from Campello to Brockton; and that any one standing at the point from which he left the sidewalk could see a long way back toward Campello.</p> <p>At the close of the plaintiff’s evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Two actions OE TORT for personal injuries received by the plaintiffs while they were passengers upon an electric street car of the defendant. Writs dated December 21,1907.</p> <p>In the Superior Court the cases were partly tried together before White, J., upon declarations in each case containing two counts, the first alleging that the injuries to the plaintiffs were “by reason of the negligence of the defendant, its agents or servants in operating and controlling said car, and in controlling the electric current by which said car was propelled, the plaintiff received a severe electric shock”; and the second alleging as the cause of the injuries negligence of the defendant, its servants and agents, in that they “so carelessly and negligently started said car and in controlling the electric current by which said car was propelled, plaintiff received a severe electric shock whereby the plaintiff during all this time was in the exercise of due care on his part, by reason of said negligence the plaintiff was thrown down with great force and violence.” Before the evidence for the defendant had closed, the presiding judge, on motion of the plaintiffs, allowed the declarations to be amended by adding to each the following:</p> <p>“ Third Count: And the plaintiff says that the defendant is a corporation carrying passengers on an electric railway in the cities of Boston and Medford, and that on the 19th day of September, 1907, plaintiff was a passenger on a car of the defendant corporation, which was proceeding from Sullivan Square to Medford and that he was injured while in the exercise of due care on account of the negligence of the defendant, its agents and servants. And the plaintiff says that by reason of his said injuries he has suffered great damage and has been put to great expense for medicines, medical services and attendance. All to the great damage of the plaintiff. And the plaintiff further says that all three counts are for one and the same cause of action.”</p> <p>At the request of the defendant, the cases then were continued. Thereafter, upon the defendant moving for specifications, each plaintiff specified as to the third count as follows:</p> <p>“ First. That the negligence of the defendant, its agents and servants, relied upon by the plaintiff in the third count of the plaintiff’s amended declaration; consisted of running the car upon which the plaintiff was a passenger on a track which was so near an adjoining track that a car being run upon the adjoining track and the car upon which the plaintiff was riding came into contact with each other, or that the car upon which the plaintiff was riding came in contact with some portion of the bridge over which said car was passing at the time; the plaintiff meaning to claim by these answers that the accident occurred either on account of the car upon which the plaintiff was riding coming in contact with some portion of the bridge, or coming in contact with a car upon an adjoining track, and that the negligence either consisted in the negligent management, operation or control of the defendant’s cars, or that the tracks were too near together and that the track was too near a portion of the bridge, and that the car upon which the plaintiff was riding or the car upon the other track was so wide that it came in contact either with the bridge or other car.</p> <p>“ And the plaintiff further says that he is unable to further specify as to the negligence of the defendant.”</p> <p>The cases then again were tried together before Hiteheoek, J. Such facts as are material to an understanding of the decision are stated in the opinion. At the close of the evidence, the defendant asked the presiding judge to rule as to each count of each declaration that the plaintiff was not entitled to recover thereon. The rulings were refused. There were verdicts for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Negligence, In use of highway, In use ofautomobile.</p> <p>At the trial of an action against the owner of an automobile for personal injuries caused by the plaintiff being run against by the automobile, there was evidence tending to prove the following facts: The plaintiff had been walking upon a sidewalk, which was upon the left hand side of a highway as she proceeded, when she came to a barrier cutting off the entire sidewalk, and in the street against the sidewalk at that point a two horse dray stood facing her. She therefore turned into the street to go around the dray, as she saw other persons doing, and had reached a point " just beyond the horses’ heads ” when she heard the horn of the defendant’s automobile about sixty feet away, and judged that the automobile would pass her “ all right.” She stood perfectly still where she was against the front wheel of the dray and the front wheel of the automobile passed her without hitting her, and then the automobile swerved and either the mud guard over the rear wheel or the canopy struck her. The only persons in the automobile were the defendant’s wife and his chauffeur, who was running the car, and both of them testified that they did not see the plaintiff and did not know that an accident to the plaintiff had happened until they were told of it afterwards. Held, that the questions, whether the plaintiff was in the exercise of due care when injured, and whether the defendant’s chauffeur was negligent, were for the jury.</p>

<p>Payment. Pleading, Civil, Answer. Bills and Notes.</p> <p>In an action against two defendants upon a joint and several promissory note signed by both of them as makers, the defendants cannot claim a set-off for services severally rendered by them to the plaintiff for which nothing is due to them jointly.</p> <p>The makers of a joint and several note can make with the payee at the time of the delivery of the note a binding agreement that, when it comes due, the makers shall set off against the note the value of services rendered by them severally to the payee, and in an action by the payee against the makers upon the note, the makers, if they set up such independent collateral agreement in their answer, can rely thereon in defense.</p> <p>In an action by the payee against the makers of a joint and several note, in which the answer contains only a general denial and an allegation of payment, the defendants cannot rely upon an independent collateral agreement that the payee would set off against the note the value of services to be rendered to him by the makers severally.</p> <p>In an action against a husband and wife upon a joint and several promissory note of which they were the makers, the defendants in their answer alleged a general denial and payment. At the trial the execution and delivery of the note for a valuable consideration were admitted, and there was evidence that the plaintiff had agreed when the note was given that certain services thereafter to be ren- " dered to the plaintiff by the defendants severally should be credited upon the note, and that such services were rendered. The husband testified that at some time in the year when the note became due the plaintiff said to him that he owed the plaintiff money, to which the husband replied that he did not, that thereupon the two went to see a common friend to whom they explained the matter and who said it was “ all right ” on the defendants’ part, “and they then came away and the plaintiff appeared perfectly satisfied and never made any claim . . . afterward until the bringing of the suit.” A verdict for the plaintiff was ordered. Held, that the verdict should not have been ordered, because a finding was warranted that the plaintiff and the defendant husband, who acted for both defendants, agreed to set the two claims then due one against the other, and, if the jury so founds each claim would have paid the othér and the defense of payment would have been made out.</p>

<p>Negligence, Railroad.</p> <p>At the trial of an action by a woman passenger against a railroad company for personal injuries caused by the plaintiff being pushed off the platform of a car as she was alighting in a station of the defendant, if there is evidence tending to show that as the plaintiff stood on the platform of the car she waited until the skirts of a woman in front of her were off the top stairs, and that then as she put one foot down to the top step she was pushed off the car by a man behind her, that the car was crowded before it reached the station, but that there were only twenty persons behind the plaintiff as she passed out of the car, that there was a good deal of pushing and jostling among them, and that that train usually was crowded; and if there is no evidence that on previous occasions the passengers had jostled or pushed each other, a finding of negligence on the part of the defendant and its servants in failing to guard its passengers from injury due to the conduct of crowds would not be warranted, both because on the evidence there was no reason why the defendant should have anticipated that the person who pushed the plaintiff would do so, and because the overcrowding of the car had ceased before the plaintiff was pushed.</p> <p>At the trial of an action by a woman passenger against a railroad company for personal injuries caused by the plaintiff being pushed off the platform of a car as she was alighting in a station of the defendant, if there is testimony that the part of the platform of the station where the car stopped was dark) and the plaintiff testifies that she waited until the skirts of a woman who preceded her “ were off the top stairs so that I could step down,” and that as she was stepping down to the top step a man behind her pushed her, and it is not contended that he did so because the place was dark, the plaintiff has failed to present evidence that negligence of the defendant in not keeping that part of the station light caused her injuries, both because it appears that the place was light enough for the plaintiff to see the skirts of the woman in front of her, and because the pushing of the man behind her, and not the darkness of the station, caused the accident.</p>

<p> Nuisance. Negligence. </p> <p>If the owner of a building on a city street, who retains control of the roof and of the outside of the building including the “ water spout and eaves combined," suffers icicles to form on the conductor pipe, which carries away the water from the gutter of the roof, by reason of a leak in this pipe which is shown to have existed for more than two years, he can be found to be liable to a traveller on the public sidewalk adjoining the building who is injured by such an icicle falling upon him.</p>

Tort brought by the administratrix of the estate of Joseph I. LaFond, late of Cambridge, for the death of her husband, the intestate, who was instantly killed by a train of the defendant at the railroad station of the defendant in that part of Cambridge called West Cambridge on October 9, 1909. Writ dated November 13, 1909. The first and second counts of the declaration were under St. 1907, c. 392.

Appeal to the Superior Court from a decree of the Probate Court for the county of Suffolk, dated April 20, 1909, ordering that the Chelsea Savings Bank be charged as trustee of the respondent in the sum of $805.69 and that an execution issue for the sum of $990, as the arrears due to the petitioner for her separate support under a former decree of that court dated April 21, 1892. In the Superior Court the case was heard by Bell, J., without a jury.

Contract for $120 as the price or compensation for six pencil drawings prepared by the plaintiff from certain photographs furnished by the defendant, with a count to recover $39 for other services. Writ dated February 8, 1909.

<p>Nuisance, By reason of snow or ice. Ice and Snow. Landlord and Tenant.</p> <p>Where, in an action for personal injuries by reason of the alleged defective condition of the defendant’s premises caused by snow and ice, there was no averment or proof that the plaintiff had given notice to the defendant of the time, place and cause of the injury within ten days as required by St. 1908, c. 306, but this conclusive defense appeared not to have been brought to the attention of the judge presiding at the trial, who had refused to order a verdict for the defendant, the case here was considered on other grounds, on which the defendant's exceptions were sustained.</p> <p>A landlord is not liable to a tenant of an apartment in his building, and consequently is not liable to a guest of such tenant, for injuries from a fall caused by snow and ice on a granolithic walk in the court yard of the building leading to' a public street, where it is not shown that the landlord had taken upon himself the duty of keeping the way clear of snow and ice, and it appears that the con-of the walk was due entirely to a combination of rain, snow and freezing weather, and was not due to any defect in the walk or in the building, or to the snow being trampled upon.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff while he was a passenger on a box electric street car of the defendant Boston Elevated Railway Company and to have been caused by the car and an ice wagon of the other defendant, the Boston Ice Company, coming into collision. Writ in the Municipal Court of the Roxbury District of the City of Boston dated June 14, 1907.</p> <p>On appeal to the Superior Court, the case was prosecuted against the Boston Elevated Railway Company only, and was tried before Pierce, J. All facts necessary for an understanding of the decision are stated in the opinion. At the close of the plaintiff’s evidence the defendant rested and the presiding judge ordered a verdict in its favor. The plaintiff alleged exceptions.</p>

<p>Bill in equity filed in the Supreme Judicial Court on May 27, 1909, by one who was the executrix of, and trustee and a legatee under the will of Samuel B. Hopkins, late of Boston, the plaintiff’s father, for instructions. The defendants are children of a deceased son of the testator and Charles E. Meins, the plaintiff’s husband.</p> <p>The will, after providing for the purchase and perpetual care of a burial lot for the interment of the testator, of the plaintiff and her husband and any children that they might have, and of the widow of a deceased son and her children, gave to the plaintiff all the household furniture and personal belongings in the house where the testator resided, numbered 565 Boylston Street in Boston, and all the horses and contents of the stable, ten shares of bank stock, and “ all my other personal property not herein otherwise disposed of”; also “the estate and premises, consisting of land, dwelling house and stable on Centre Street, Brookline,” and an estate and premises at Cottage City, and the contents of the buildings on such estates.</p> <p>To the widow of the testator’s son was given a diamond ring, which formerly was the son’s, and ten shares of bank stock.</p> <p>By the “ sixth section ” of the will there was given to the plaintiff in trust the Boylston Street property to use and occupy so long as she should see fit, with authority to let it or sell it, the income to be paid to herself during her life and after her death to be divided between her children, if any, and those of the testator’s deceased son, with directions for the payment to certain other specified persons in case of failure of grandchildren of the testator.</p> <p>The residue of the testator’s property also was given to the plaintiff in trust with directions as to payment of the income to herself for life, after her death to her children, if any, and to those of the deceased son, and with directions, in case of failure of such beneficiaries, for the payment to those who would have been the testator’s heirs at law had he died intestate.</p> <p>The codicil of the will, regarding which the bill sought instructions, was as follows:</p> <p>“First: I revoke the devise of the estate and premises, consisting of land, dwelling house and stable, situated on Centre Street in Brookline, given by the Fourth Section of my said will to my daughter, Addie L. Meins, and I give and devise said estate and premises to her husband, Charles E. Meins, — To Have and to Hold the same to him and his heirs and assigns forever. I also give and bequeath to said Charles E. Meins the sum of fifteen thousand dollars ($15,000); provided, however, and this devise and bequest to him is on condition that he survives my daughter Addie L. Meins; if he shall not survive my said daughter, then said estate and premises and said sum of fifteen thousand dollars ($15,000) shall be the property of my said daughter.</p> <p>“ I also cancel all indebtedness which said Charles E. Meins may be under to me at the time of my decease.</p> <p>“ Second: In' case Ann Taylor, Annie Pollister, Caroline Swett and Maude G. Hopkins, [persons designated in the will to receive income from the proceeds of the sale of the Boylston Street property in case of failure of grandchildren of the testator] mentioned in the Sixth Section of my said will, or any of them, shall die in the lifetime of my said daughter, Addie L. Meins, I revoke the gift and devise to them or any of them so dying, and make the same null and void; and I give and devise the share or interest given to them or any of them so dying, to said Charles E. Meins. And in case Blanche R. Ellis named in said Sixth Section of my said will shall die in the lifetime of my said daughter, I revoke the gift and devise to her and make the same null and void; and I direct that the share otherwise coming to her, shall revert to my heirs at law, had I then died unmarried, intestate and without issue.”</p> <p>The case was reserved by Braley, J., for determination by the full court.</p>

<p>Two actions of contract, each with a declaration, as amended, containing two counts, the first count being upon a covenant to pay rent for certain premises in Boston for a certain period of time, and the second count being for use and occupation of the same premises for the same period of time. The declarations each stated that both of the counts were for the same cause of action. The period covered by the first action was from March 1, 1903, to June 1, 1903, and that covered by the second action was from June 1,1903, to December 1,1903. Writs in the Municipal Court of the City of Boston dated respectively August 17 and December 14,1903.</p> <p>On appeal to the Superior Court the cases first were tried together before Hardy, J., upon declarations containing only the first counts. Exceptions by the plaintiff to a ruling of the presiding judge ordering verdicts for the defendant were sustained by this court in a decision reported in 194 Mass. 460, where the facts, most of which are not material to an understanding of the present decision, are stated fully.</p> <p>There was a second trial of the cases before Pierce, J., after the declarations had been amended by adding the second counts. The original lease to the defendant Was executed on November 30, 1891, and was for a term of five years. A renewal was executed in 1906 for five years more. Quarterly payments of the amount specified in the lease as rent were made to the plaintiff by the defendant to April 13, 1903. Other material facts. are stated in the opinion.</p> <p>St. 1885, c. 266, § 6, as amended by St. 1889, c. 320, is as follows : “ The executive powers of said city [of Boston], and all the executive powers now vested in the board of aldermen, as such, as surveyors of highways, county commissioners or otherwise, shall be and hereby are vested in the mayor, to be exercised through the several officers and boards of the city in their respective departments, under his general supervision and control. Such officers and boards shall, in their respective departments, make all necessary contracts for the employment of labor, the supply of materials, and the construction, alteration and repair of all public works and buildings, and have the entire care, custody and management of all public works, institutions, buildings and other property, and the direction and control of all the executive and administrative business of said city. They shall be at all times accountable for the proper discharge of their duties to the mayor, as the chief executive officer, whose duty it shall be to secure the honest, efficient and economical conduct of the entire executive and administrative business of the city, and the harmonious and concerted action of the different departments. Every contract made as aforesaid in which the amount involved exceeds two thousand dollars shall require the approval of the mayor before going into effect; and no expenditure shall be made nor liability incurred for any purpose beyond the appropriation duly made therefor, except that at the beginning of the financial year, to meet the liabilities of the several departments incurred in the carrying on of the work entrusted to them, until the city government shall otherwise order, expenditures may be made, liabilities may be incurred and payments made from the treasury from any funds therein, and the treasurer may borrow money in anticipation of taxes to provide funds. Such expenditures and liabilities shall not exc.eed for each department, one-third the entire amount appropriated for the department the previous year, and shall be considered and reckoned as a part of the expenditures of, and the money paid therefor as a part of the appropriations for, the current financial year.”</p> <p>Section 12 of the same chapter is as follows: “Neither the city council nor either branch thereof, nor any member or committee thereof or of either branch thereof, nor the board of aldermen acting in any capacity in which said board may act separately under special powers conferred upon it, nor any member or committee of said board acting in any such capacity, shall directly or indirectly take part in the employment of labor, the making of contracts, the purchase of materials or supplies, the construction, alteration or repair of any public works, buildings or other property, or the care, custody and management of the same, or in the conduct of any of the executive or administrabusiness of the city, or in the expenditure of public money, except such as may be necessary for the contingent and incidental expenses of the city council or of either branch thereof, nor, except as is otherwise provided in sections one and two, in the appointment or removal of any officers or subordinates for whose appointment and removal provision is hereinbefore made; but nothing in this section contained shall affect the powers or duties of the board of aldermen in relation to state aid to disabled soldiers and sailors, and to the families of those killed in the civil war.”</p> <p>St. 1890, c. 418, § 6, is as follows: “All contracts made by any department of the city of Boston shall, when the amount involved is two thousand dollars or more, be in writing, and no such contract shall be deemed to have been made or executed until the approval of the mayor in writing is affixed thereto..</p> <p>All such contracts shall be accompanied by a suitable bond or deposit of money or other security for the faithful performance of such contracts, and such bonds or other security shall be deposited with the city auditor until the contract has been carried out in all respects; and-no such contract shall be altered except by a written agreement of the contractor, the sureties on his or their bond, and the officer or board making the contract, with the approval of the mayor affixed thereto.”</p> <p>At the close of the evidence, the defendant asked the presiding judge to give the following rulings, among others:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover in either action.”</p> <p>“ 3. The defendant was not required to give notice of any kind to the plaintiff in order to terminate the tenancy.”</p> <p>“ 7. There is no evidence in these cases which would warrant the jury in finding that the defendant became at any time after the expiration of the lease a tenant at will of the leased premises and consequently no notice was necessary from the defendant to the plaintiff to terminate the tenancy.”</p> <p>The judge refused to rule as requested, and submitted to the jury three questions, which they answered as follows:</p> <p>1. Q. “ Did the defendant make use of or-occupy the premises of the plaintiff as a public landing place between March 1, 1903, and June 1, 1903?” A. “Yes.”</p> <p>2. Q. “Did the defendant make use of or occupy the premises of the plaintiff as a public landing place between J une 1, 1903, and December 1, 1903 ? ” A. “ Yes.”</p> <p>3. Q. “ Did the plaintiff and defendant, at any time between December 1, 1901, and December 1, 1903, agree by reason of the facts and circumstances in the testimony the one to hold and the other to permit to be held the possession, use or enjoyment of the premises as a public landing place?” A. “Yes.”</p> <p>The jury found for the plaintiff in both actions; and the defendant alleged exceptions.</p>

<p>Will, Execution.</p> <p>An alleged testator, who in his own handwriting had written his name in the exordium clause of a printed form for a will and had filled in the rest of the blank form except in the testimonium and attestation clauses, asked three persons to see him sign his will and thereupon wrote in the date in the testimonium clause, but did not sign the document, and in his presence and in the presence of each other the witnesses subscribed their names below the attestation clause, and he left the house. Five minutes later he returned, stating, “ I forgot to sign my name to my will.” Thereupon, in the presence of the same three witnesses he wrote his name in a blank space in the attestation clause but nowhere else. The witnesses did not sign again. Held, that the statement of the alleged testator to the witnesses showed that he had not written his name in the exordium clause intending it to stand as his signature to the will, that the writing of his name in the testimonium clause, assuming it to have been good as a signature, was not attested by three witnesses who subscribed the will after its execution by the testator as required by our statute, and therefore that the will never was properly executed by the alleged testator.</p>

<p>Board of Health, Municipal. Milk.</p> <p>The board of health of a city, undertaking to act under the authority given to them by R. L. c. 76, §§ 66,140, made the following regulation: “ No person or corporation shall sell or offer, expose or keep for sale in any shop, store or other place where goods and merchandise are sold, milk or cream, unless the same is sold or offered, exposed or kept for sale in tightly closed or capped bottles or receptacles, which have been approved by the board of health.” Held, that the statute, which confines the jurisdiction of the board to examining into all nuisances, sources of filth and causes of sickness in the city that in their opinion may be injurious to the public health, to destroying, removing or preventing “ the same as the case may require,” and to making “ regulations for the public health and safety relative thereto and to articles . . . capable of containing or conveying infection or contagion or of creating sickness which are brought into or conveyed through ” the city, does not give the board power to make a regulation as to the sale of milk kept and sold in any such way as does not threaten the public health.</p> <p>A dealer in milk in a city kept in his store for sale wholesome milk of standard quality in a new tin cylinder or vessel with a new, clean removable top, the vessel being contained in a covered cooler, which was kept in a location and under such conditions as were approved by the board of health, contained wholesome, clean ice, and was properly drained and cared for and tightly closed except when milk or ice was being removed from or introduced into it. The milk always remained at a temperature less than fifty degrees Fahrenheit and none of it was allowed to stand outside of the cooler except when a sale was being made. The measure which was used in retailing the milk was new and clean and hung inside the cylinder which contained the milk. The cylinder was simple in shape, was easily cleaned and was susceptible of perfect sterilization. Held, that R. L. c. 76, §§ 66, 140, gave to the board of health of the city no jurisdiction or power to take any action or to make any regulation with regard to milk so kept and sold.</p>

<p>Tax, Abatement, Assessment. Partnership. Trust.</p> <p>On an appeal under St. 1909, c. 490, Part I. § 76, from a refusal of the assessors of a city to abate a tax, it appeared that the petitioners were the trustees of a real estate trust represented by shares, who seven years before the assessment of the tax had made a contract for the purchase of certain real estate from a museum corporation, and that the tax of which an abatement was sought was upon $1,600,000, which had been advanced to the museum corporation by the petitioners in part payments under the terms of the contract. It was provided in the contract that the petitioners should not receive the title to the real estate until all of the purchase money had been paid, and that in the final adjustment of payments between the parties the museum corporation should pay interest on all sums thus received by it at the rate of four and one quarter per cent per annum. At the time of the assessment the title to the property was still in the museum corporation. It was contended by the respondent that the advance payments in the hands of the museum corporation at the time of the assessment were loans from the petitioners which were taxable to them as "money at interest.” Held, that the part payments when made became the property of the museum corporation, and that the fact that interest was to be allowed on them from the time of each payment did not convert them into loans; so that they could not he taxed to the petitioners and the attempted tax on them should he abated.</p> <p>The holders of transferable certificates representing shares in personal property, which is held and managed by trustees, without incorporation, although the trust agreement provides that neither the shareholders nor the trustees shall be liable personally for the debts of the trust, are partners within the meaning of R. L. c. 12, § 27, (St. 1909, c. 490, Part I. § 27,) and are to be taxed as such shareholders jointly under the partnership name in the place where the business of the partnership is carried on. Consequently they are not to be treated for purposes of taxation merely as cestuis gue trust, whose interests would be assessed under R. L. c. 12, § 23, cl. 5, (St. 1909, c. 490, Part L § 23, cl. 6,) in the different places where they resided, if within the Commonwealth.</p>

<p>Probate Court. Executor and Administrator. Statute, Construction. Words, “ Undistributed.”</p> <p>The strict rules of common law pleading usually are not applied to proceedings in the Probate Court.</p> <p>R. L. c. 137, § 4, is as follows: " If administration has not been taken on the estate of a testator or intestate within twenty years after his decease, and any property or claim or right thereto remains undistributed or thereafter accrues to such estate and remains to be administered, original administration may for cause be granted, but such administration shall affect no other property.” Held, that under this statute property of an intestate which “ remains undistributed ” is property which actually has not been distributed among the persons entitled to it as next of kin, and includes a dividend from the receiver of a savings bank, in which the intestate had a deposit, which has been paid to the treasurer of the Commonwealth as due on the deposit of the intestate nearly thirty years after the death of the intestate, when no administration of his estate ever has been ■ applied for or issued; and in such a case administration may be granted under the statute quoted above.</p> <p>Where the Probate Court has power to appoint an administrator and makes such an appointment, but the person appointed resigns without performing his duties although there is property of the estate of his intestate to be administered, it necessarily follows that the Probate Court has jurisdiction to appoint an administrator de bonis non.</p> <p>The validity of the appointment of an administrator by the Probate Court, where the court had jurisdiction to make the appointment, cannot be questioned in an action brought by the administrator to recover money in the hands of the defendant alleged to belong to the estate of the plaintiff’s intestate.</p>

<p>Practice, Civil, Conduct oí trial, Exceptions.</p> <p>In an action of tort for personal injuries, where the judge in his instructions to the jury makes a remark tending to disparage the testimony of the plaintiff and his witnesses in regard to the effect of the alleged injuries upon the plaintiffs physical condition, and, upon objection and exception by the plaintiff’s counsel, tells the jury that on account of such objection he withdraws the remark, and the jury return a verdict for the defendant, the plaintiS has no ground for exception, the remark, even if it had not been withdrawn, relating only to the question of damages and having been made immaterial by the verdict for the defendant on the question of liability.</p>

<p>Tort for personal injuries sustained in falling from a wagon in which the plaintiff was driving, when one of its hind wheels was struck by a car of the defendant on Blue Hill Avenue in Boston on December 18, 1906, at about twenty minutes after ' four o’clock in the afternoon. Writ dated August 21, 1907.</p> <p>In the Superior Court the case was tried before Dana, J. The facts which could have been found on the conflicting evidence are stated in the opinion.</p> <p>At the close of the evidence, the defendant asked the judge to rule as follows:</p> <p>1. Upon all the evidence, your verdict must be for the defendant.</p> <p>2. The evidence does not warrant a finding that the plaintiff was in the exercise of due care.</p> <p>3. 'The evidence does not warrant a finding that the defendant was negligent.</p> <p>4. As the plaintiff was driving along the left hand roadway of Blue Hill Avenue instead of the right hand roadway, he cannot recover.</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $7,500, which on the defendant’s motion for a new trial on the ground of excessive damages was reduced to $6,000. The defendant alleged exceptions.</p>

<p>Land Court. Practice, Civil, Exceptions. Supreme Judicial Court.</p> <p>The denial by a judge of the Land Court of a motion for a rehearing upon a petition in that court is within the discretion of the judge and is not the subject of exception.</p> <p>The denial by a judge of the Land Court of a motion to vacate a part of a previous decision or finding of that court and to enter a new decision as to that part is within the discretion of the judge and is not the subject of exception.</p> <p>The provision of R. L. c. 159, § 24, under which in eases of accident or mistake the full court may grant leave to parties to exhibit further evidence, applies only to cases that come to this court by appeal and is not applicable to a case which comes before the court upon a bill of exceptions.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff from being thrown down by the starting of a box • electric street car of the defendant while she was in the act of entering it. Writ dated March 5, 1908.</p> <p>In the Superior Court the case was tried before Lana, J. The plaintiff was the only witness who testified as to facts bearing on the question of liability of the defendant. The facts are stated in the opinion. “At the close of the plaintiff’s case the presiding judge ordered a verdict for the defendant without requiring the defendant to rest, and at the request of the plaintiff reported the case for the determination of the full court, — if the ruling was right, judgment to be entered on the verdict; if wrong, the case to be remanded for a new trial.”</p>

<p>Practice, Civil, New trial.</p> <p>It is the right and duty of a judge presiding at the trial of a civil case to set aside the verdict of the jury when in his judgment it is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence but was the product of bias, misapprehension or prejudice, and the exercise of such discretion by the judge who presided at the trial of an action of tort by a woman against a street railway company for injuries, received while the plaintiff was alighting from a car of the defendant and alleged to have been caused by an unwarranted starting of the car, where the plaintiff was the only witness as to the happening of the accident and her story seemed to the judge so improbable and absurd that it could not command the credence of any right minded men, cannot be revised by this court.</p>

<p>Trust, Construction. Devise and Legacy. Equitable Conversion. Executor and Administrator.</p> <p>A testator by his will gave to a trustee a certain parcel of real estate and a certain sum of money in trust to pay the income thereof to a nephew during his life and after his death to the nephew’s daughter, naming her, for her life “ and to her children in fee simple, if she leaves issue, but if she dies without issue, at her decease, said real estate ” and money “ shall go to my heirs at law, discharged of all trusts.” No conversion of the real estate into personal property was ordered in the will. The nephew’s daughter died first after the testator, leaving a husband and a son. The son then died, and then the testator’s nephew. Held, that the testator intended the property; upon the termination of the two life estates, to go absolutely to the children of the nephew’s daughter, if she had any, and that it was only upon- her death without issue then living that the alternative limitation to the testator’s heirs was to take effect, and therefore that upon her death the entire beneficial interest in remainder vested absolutely in her son, and upon his death it passed to his father.</p> <p>A testator by his will gave to one S. certain real estate and a certain sum of money in trust to pay the income to the testator’s nephew Z. during his life and then to a designated daughter of the nephew and after her death to her children in fee if she should leave issue, but if she should die without issue, then to the testator’s heirs at law, discharged of all trusts. There was no other trust provision in the will. By a codicil the testator divided the residue of his estate into three equal parts and as to one part gave this direction: “to my nephew Z. one part — subject to the same trusteeship and conditions as stated in my will.” Held, that the effect of the quoted language in the codicil was to incorporate into the direction as to the residuary estate in the codicil the limitations of successive equitable estates set out explicitly in the will.</p> <p>A testator by his will gave real estate and personal property in trust to pay the income thereof to a nephew during his life and after his death to the' nephew’s daughter, naming her, for her life “ and to her children in fee simple, if she leaves issue, but if she dies without issue, at her decease, said real estate ” and money “ shall go to my heirs at law, discharged of all trusts.” No conversion of the real estate into personal property was ordered in the will. The nephew’s daughter died first after the testator, leaving a husband, and a son who died when less than seven years old leaving his father surviving him. The trustee turned all the real estate into money and invested it, partly in other real estate and partly in personal property. The testator’s nephew then died, and, an administrator of the estate of the son of the nephew’s daughter having been appointed, the trustee sought instructions as to the final disposition of the trust fund. It having been held, that on the death of the nephew’s daughter an absolute interest in remainder in the trust fund became vested in her son, it further was held that, a conversion of the real estate into personalty not having been ordered by the testator, each kind of property in the trust fund should be treated as retaining its original character until it should come into the hands of one entitled to treat it as his own absolutely and for all purposes; and therefore that such of the trust fund as represented proceeds of what at the death of the testator was real estate should be transferred to the husband of the nephew’s daughter absolutely, and such of it as was the proceeds of personal property should be transferred to the administrator of her son’s estate. It however was intimated that, since the husband was at the same time the heir at law and the sole next of kin of the son, and the son had died at so tender an age, the whole fund might safely have been paid to the husband had no administration been taken upon the son’s estate.</p>

<p>Negligence, Employer’s liability, In railroad yard.</p> <p>At the trial of an action by an administrator against a railroad corporation, the former employer of his intestate, to recover under R. L. c. 106, § 71, cl. 2,3, § 72, for the conscious suffering and death of the intestate, there was evidence tending to show that the intestate when injured was a foreman of a section gang of the defendant and was working in a railroad yard, where there were frequent shiftings of cars and passing of locomotives, in repairing a track called “ thirteen,” adjoining and branching from another track called “fifteen ”; that the conductor of a shifting crew of the defendant asked the intestate if he could set two cars in on track “ thirteen,” that the intestate answered, “ Yes, you can, but you can’t bother me any more until I have this job done,” and that the conductor replied, “ All right,” and soon after put two cars on track “ thirteen ” j that half an hour later by the conductor’s direction a car was shunted on to track “ fifteen ” which struck the intestate as he was working on track “ thirteen ” near where the two tracks joined and where they were from ten to eighteen inches apart. Hdd, that the case was one for the jury, since, in view of the conversation with the conductor, the plaintiff’s intestate might have been found to have been relieved of the duty of watchfulness as to cars coming from the conductor’s shifting crew.</p>

<p>Devise and Legacy, To “heirs.” Trust, Construction. Words, “ Heirs at law.”</p> <p>A bequest or devise to " heirs ” or “ heirs at law ” of the testator will be construed as having been used accurately and to mean those who take the testator’s real estate at the time of his death unless a different intent is plainly manifested by the will.</p> <p>A testator by the first three clauses of his will gave legacies to various servants, a bequest of money to an academy for a library, and bequests to two unmarried daughters equal to sums given to other daughters upon their respective mar- ; by a fourth clause he established three trust funds, two for the benefit of servants during their respective lives and one to furnish an income for the purpose of enabling the unmarried daughters to keep the homestead in good condition, the clause ending with the words, “The principal sums or funds shall, as the trusts cease, be distributed to my heirs.” A fifth clause gave to his son the land within the fence of the homestead. A sixth and a seventh clause gave the residue of the testator’s real estate and the personal property pertaining to the homestead to his unmarried daughters for their lives and the life of the survivor so long as they or she should continue unmarried, and, “ after the marriage or death of ” such survivor “ the estate herein devised shall descend to those persons who may then be entitled to take the same as ray heirs.” An eighth clause gave to the son one sixth of the residue of the personal estate and to trustees the other five sixths in trust to pay the income to all of the testator’s daughters in equal shares and to the issue of any deceased daughter, such issue taking the mother’s share, and “ after the decease of the survivor of my daughters the trust fund created by this item shall be distributed to those persons who may then take the same as my heirs.” In a suit after the death of the survivor of the daughters by the trustees under the eighth clause, for instructions as to the disposition of the fund, it was held, that the word “ heirs ” in the eighth clause meant real “ heirs,” and not such persons as would have been heirs had the testator died at the time of the termination of the trust, and therefore that the fund should be distributed among those persons then entitled as heirs of the testator or as succeeding to rights of heirs either as their next of kin or by bequest or assignment.</p>

<p>Contract, Implied in fact, Implied by law, Validity. Landlord and Tenant. Lord’s Day. Practice, Civil, Conduct of trial, Exceptions, Duty as to ruling in absence of request.</p> <p>At the trial of an action to recover rent for the occupation by the defendant of a cottage belonging to the plaintiff, if it appears that an oral agreement to hire the cottage was made on a Sunday, which it is assumed would be void under R. L. c. 98, § 2, St. 1904, c. 460, § 2, and that afterwards the defendant occupied the cottage with the consent of the plaintiff as if holding under him, the presiding judge properly may refuse to rule that the plaintiff cannot recover; because upon the evidence presented it may be inferred from the conduct of the parties on subsequent week days that they made a valid agreement adopting the terms of the agreement of Sunday, which would make the defendant liable for the rent stipulated for on Sunday, or it may be that, in the absence of an express lawful agreement as to the amount of rent to be paid, the plaintiff would be entitled to recover the fair value of the defendant’s use and occupation of the plaintiff’s cottage. ‘</p> <p>In an action to recover rent for the occupation by the defendant of a cottage belonging to the plaintiff, which is subject to a mortgage, if there is evidence warranting a finding that the defendant made a lawful agreement to hire the cottage from the plaintiff, it is not necessarily a defense to the action to show that the plaintiff intended to treat the defendant as occupying under the mortgagee and to hold the mortgagee accountable for the rent, and that the action against the defendant was begun only after an unsuccessful attempt to hold the mortgagee liable, because the relations between the plaintiff and the mortgagee, although important, are only material in determining whether the defendant hired the cottage from the plaintiff.</p> <p>At the trial of an action of contract to recover rent for the occupation of a cottage belonging to the plaintiff, which is subject to a mortgage, the presiding judge properly may refuse to give an instruction singling out certain evidence favorable to the defendant as tending to show that the plaintiff intended to hold the mortgagee for the rent, where this is only one of the circumstances to be weighed by the jury in determining whether the defendant hired the cottage from the plaintiff.</p> <p>A presiding judge properly may refuse to rule upon certain uncontroverted facts picked out from the evidence when the disputed facts also are material.</p> <p>Where an action at law is before this court upon a bill of exceptions, only the questions raised by the exceptions can be considered. In the present case the question sought to be raised before, this court was not brought to the attention of the presiding judge at the trial, was not raised or referred to by counsel at the trial and was not open on the pleadings.</p> <p>It is at least doubtful whether this court have power under R. L. c. 166, § 3, where an action at law is before them upon a bill of exceptions, to order a new trial on account of an error of law made by the judge who presided at the trial which is not brought in question by any of the exceptions. By Sheldon, J.</p> <p>At the trial of an action of contract, if the evidence discloses the fact that the agreement relied upon by the plaintiff was made on a Sunday, contrary to the prohibition contained in R. L. c. 98, § 2, St. 1904, c. 460, § 2, but this defense does not appear from the allegations of the declaration and is not set up in the answer and the defendant in no way raises the question at the trial, although it seems that the presiding judge, if he sees fit to do so, may of his own motion rule upon the question in favor of the defendant, and that such ruling would be sustained, yet it is not the absolute duty of the judge to interfere by proposing and sustaining this defense which has not been set up by the defendant, and his failure to do so gives the defendant no ground for exception.</p>

<p>Contract for $470.25 paid by the plaintiff under protest on February 9, 1910, as a tax assessed upon the land with the building thereon numbered 31 on Chestnut Street in Boston, which was sold and conveyed to the plaintiff by the defendant on February 4, 1910, and was alleged by the defendant to be subject to an assessment for such taxes made on May 1, 1909, when the property was held by the defendant under a devise contained in a codicil to the will of George F. Parkman, late of Boston, which gave the residue of the estate of the testator to the defendant to constitute a fund, the income of which was to be applied to the maintenance and improvement of the Common and parks of the defendant. Writ dated February 14,1910.</p> <p>The answer contained a general denial and an allegation that the tax paid as alleged by the plaintiff was legal and valid and was justly due from the plaintiff.</p> <p>In the Superior Court the ease was submitted upon an agreed statement of facts to King, J., who found for the plaintiff in the sum of $487.94 and ordered judgment for that amount. At the request of the parties the judge reported the case upon the pleadings and the agreed facts for determination by this court.</p> <p>The case was argued at the bar in November, 1910, before Knowlton, C. J., Morton, Loring, Sheldon, & Rugg, 33., and after-wards was submitted on briefs to all the justices.</p>

<p> Corporation, Ultra vires. Railroad. </p> <p>When a railroad corporation finds itself the owner of a large tract of valuable land in the heart of a city, which no longer is available for railroad purposes, it is the duty of such corporation to dispose of the land and turn it into money, and the corporation lawfully may exercise such powers as are incidental to its ownership and right to sell, but nothing more is permissible than what is fairly incidental to a disposition of the property for its fair market value within a reasonable time.</p> <p>A railroad corporation, subject to the laws of this Commonwealth and operating a railroad therein, which was the owner of a large tract of land in the heart of a city of the estimated value of $5,000,000 that no longer was available for railroad purposes, made a deed of conveyance of such tract of land to certain trustees accompanied by a declaration of trust, by which the property was put into the hands of the trustees as managing agents, who were appointed irrevocably, to conduct a business relating to the improvement, sale and management of real estate for a term that might last nearly a century, with practically the powers of an absolute owner not only over the property conveyed but for the acquisition and management of other real estate in the vicinity and of shares in corporations relating to the use, management and improvement of real estate. The scheme set forth in the declaration of trust contemplated the borrowing of money to create an indebtedness not exceeding $4,000,000 at any one time. The railroad corporation was to receive from the trustees in payment for the conveyance transferable certificates representing fifty-two thousand shares of the beneficial interest of the property held in trust of the par value of $100 each. The trustees were authorized to issue not exceeding forty thousand additional shares of the same nominal value in exchange for convertible notes or bonds that the trustees might issue to obtain money to be used in conducting the enterprise, and the declaration of trust contemplated an unlimited extension and enlargement of the enterprise, in the discretion of the trustees, by the issuing of additional shares to persons who should subscribe for them. Held, that the deed of the railroad corporation was beyond the power of the corporation to make and that the trustees took no valid title under it. p</p>

<p>Three indictments for libel, found and returned on January 6, 1910.</p> <p>The third indictment was against a corporation which was the proprietor of a newspaper called the Somerville Evening Sun, and charged the publication of two libels, one on Decernber 10 and the other on December 13, 1909, regarding one John M. Woods, then mayor of Somerville and seeking re-election. The article of December 10 charged in substance that Woods was intoxicated on the evening of July 5, 1909, at a celebration on Josephine Avenue in Somerville ; that while mayor he aided and abetted in the violation of the law relating to the sale of intoxicating liquors in Somerville, a no-license city; that he accompanied members of the committee of the fire department of the board of aldermen on an automobile trip to New Bedford, that liquor was taken along with the committee and that some members of the party were so intoxicated upon their return that night to Somerville that they were but a little short of helpless. The article printed in the issue of December 13,1909, was an editorial which was in reply to a circular letter published by Woods denying the charges contained in the article of December 10. It referred to that article, reaffirmed it and stated among other things that “ The Sun is prepared, Mr. Mayor, to prove each and every allegation it has made against you in these columns.”</p> <p>The first indictment charged George H. Pratt with the publication of the libel contained in the article published in the Somerville Evening Sun of December 10, 1909; and the second indictment charged Pratt and E. Eben Bayliss jointly with the publication of the libels contained in both of the articles.</p> <p>The three indictments were tried together before Bond, 3.</p> <p>The evidence bearing upon whether the defendant Bayliss, who was a clergyman, legally was responsible for the libels or for any part of them was in substance as follows:</p> <p>Testimony of Woods was to the effect that he saw the defendant Bayliss for the first time about July 8,1909, at his office in East Cambridge; that at that time Bayliss was ushered into his private office and laid down his card which stated that Bayliss was a correspondent connected with the New York Tribune; that Bayliss stated to him that he was sent by the Tribune to investigate the result of no license in the cities of Massachusetts, and asked what was the experience in Somerville. Woods replying, “Very satisfactory,” Bayliss said, “By the way you were on Josephine Avenue the night of the fourth of July ? ” Woods said, “Yes, sir.” Bayliss said, “You were drunk.” Woods said, “ What, sir ? ” Bayliss said, “ I have six or eight affidavits to prove that.” Woods said, “Publish one of them and I will prosecute the signers to the full extent of the law. Good-day.” Bayliss called Woods on the telephone about two weeks later and said, “ I am the man who talked with you about the Josephine Avenue affair.” Woods recognized the voice as that of Bayliss and told him that he had no time to talk with him and hung up the telephone. Woods had another talk with Bayliss at his private office at the city hall. Bayliss was introduced by the mayor’s private secretary as Mr. Saville. When he came into the door of the office Woods recognized him. He had a green bag, pulled out a slip of paper and left it. Woods said, “ Get out of this office as quick as you can,” and he did, saying as he went out, “ You can’t scare me. Nolan will attend to you.” Nolan was the democratic candidate for mayor in opposition to Woods.</p> <p>One Carter, lieutenant of the Somerville police, one Kendall, chief of police, and one Damery, a police officer, testified that on November 22,1909, they had an interview with the defendant Bayliss, in which, among other things, Bayliss said that he had an article about the Josephine Avenue affair all written up and sealed in a safe in the hands of a printer ready to be published at the word from him, Bayliss; that he did not give the name of the printer ; that on November 26, 1909, Bayliss wrote to Kendall a letter as follows :</p> <p>“ I have not heard from you (as you promised) regarding the matter about which you and others came to see me. As the time is drawing near for the decision of the case I want that something shall be done at once. I understand that the gentleman under consideration is on the program for an address, in the interests of no-license, in the Rev. Mr. Grant’s church, the Sunday evening prior to election. Would it not be wise to have a settlement of the question, which is vital, before the public have to render their decision? As you, with the other gentlemen, were the emissaries from my friend, I continue the motion with you; otherwise I should have taken up the case with the party of the first part. Prompt attention to this matter will illuminate the situation greatly.”</p> <p>One Lowe testified that in December, 1909, he was a newspaper reporter in the employ of the Somerville Evening Sun; that' some time during the first week or ten days of December, 1909, he went to see the defendant Bayliss, and interviewed him; that Bayliss told him the facts contained in the article published on December 10. He testified in detail, as to each statement contained in the articles, that the defendant Bayliss told him each statement.</p> <p>Upon cross-examination Lowe testified that the defendant Bayliss appeared to be somewhat provoked that the witness had called upon him, saying that he did not like to talk about the matter until he heard from the mayor, that he wanted to give the mayor a fair chance to answer a letter that he had written to him and that he did not wish a publication of the interview until the mayor had answered the letter.</p> <p>Kendall, the chief of police of the city of Somerville, also testified that he had another talk with the defendant Bayliss on December 8 or 9, 1909, at the police station, that Bayliss came of his own accord to his office between nine and ten o’clock in the morning and said, “ In view of your not coming to see me I thought that I would come and see you. I have an appointment with a number of prominent citizens this afternoon at three o’clock, and as long as you acted for the mayor I came to give you thedast chance. I have a lot of matter prepared, and if you will meet me at Young’s Hotel to-day at twelve o’clock I will show you what I have.” Kendall said to him, “ By way of illustration, supposing that Mayor Woods should deny your allegations ? ” Bayliss said, “In that event I shall publish them.” Kendall said, “By the way of illustration, suppose that Mayor Woods should admit them, what then ? ” He said, “ I would treat him as a brother. I have spent about ten days gathering this information, and I would treat him fairly in the matter.”</p> <p>At the close of the evidence the defendant Bayliss requested that a verdict of “ not guilty ” be ordered in the case against him. The presiding judge refused the request.</p> <p>All of the defendants made numerous requests for rulings. The twenty-first and twenty-second rulings asked for by the defendant Bayliss and refused by the judge, as stated in the opinion, were as follows:</p> <p>“21. Assuming that John M. Woods, named in the indictment, was a candidate for re-election to the office of mayor at the time alleged in the indictment, then if the jury are satisfied that the charges as alleged in the indictment were reasonable criticism and comment upon the real acts of the said John M. Woods, and the consequences likely to follow from said acts, no conviction can be had under the indictment even though such criticism and comment were severe and sarcastic and tending to ridicule the said John M. Woods.</p> <p>“ 22. If the jury are satisfied that the defendant Bayliss merely quoted or referred to statements as made by other persons with whom he talked and that he added nothing thereto, nor gave such quotations new sanction, except fair comment and criticism then the same were privileged, and said defendant Bayliss cannot be convicted under the indictment without proof of actual malice.”</p> <p>All of the defendants were found guilty and alleged exceptions. Other facts are stated in the opinion.</p>

<p>Contract for a balance of $8,000 alleged to be due to the plaintiff under a contract in writing, which is printed below, by which the plaintiff agreed to do all the shoring for underpinning buildings in section 3 of the Washington Street tunnel in Boston, in the vicinity of Boylston Street and Hayward Place in that city, which the defendants were engaged in constructing under a contract made by them with the city of Boston through” the transit commission of that city. Writ dated September 12, 1905.</p> <p>The contract between the plaintiff and the defendants, of which a copy was annexed to the declaration, was as follows:</p> <p>“Articles of agreement entered into this ninth day of January, 1905 between John Soley & Sons, a corporation, of Chelsea and Hyde Park, Massachusetts, and J. Edward Jones and Michael Meehan, co-partners doing business under this name of Jones & Meehan;</p> <p>“ Witnesseth:</p> <p>“ That for and in consideration of $7000.00 to be paid by said Jones & Meehan to said John Soley & Sons in monthly payments based upon the estimate in writing of the Engineer in the same proportion to the entire contract price as the contractor shall be paid.</p> <p>“ It is further agreed that the said John Soley & Sons shall do all the shoring for underpinning buildings according to plans and specifications of Section 3, Washington Street Tunnel, so-called, and they are to do such extra shoring as may be necessary for all alterations in the two store fronts of the Arioch Went-worth Building, including the putting in of all columns and I beams.</p> <p>“ It is further agreed by and between the parties to this agreement that any sums charged by the Boston Transit Commission for the occupation of street space by the shores of the said John Soley & Sons, shall be equally divided.</p> <p>“ It is further agreed that in case the alterations in said store fronts are not made the sum of $150.00 shall be deducted from the above contract price.</p> <p>“ The foregoing includes the shoring work proper by the said John Soley & Sons, shoring area walls as far as practicable, incidental repairs to fronts of buildings, but does not include incidental excavations, repairs to sidewalks and areas, repairs and charges necessitated in basements nor mason work of underpinning.</p> <p>“All work to be done in a careful and workmanlike manner according to orders and'directions and to the satisfaction of the Boston Transit Commission or their authorized agents.</p> <p>“Said John Soley & Sons shall pay all costs, damages and fines arising from their non-compliance with said plans and specifications and contract.</p> <p>“ Jones & Meehan,</p> <p>John Soley & Sons, Inc.</p> <p>By W. A. Soley, Treas.”</p> <p>In the Superior Court the case was tried before Hardy, J. The ease was referred to Arthur P. Hardy, Esquire, as auditor, who filed a report. The following facts appeared in evidence:</p> <p>The defendants on December 19,1904, entered into a contract with the city of Boston, acting by the Boston transit commission, for the construction of section 3, so called, of the Washington Street tunnel, in Boston. On January 9, 1905, the defendants made with the plaintiff the contract printed above.</p> <p>The plaintiff’s president and treasurer had a copy of the defendants’ contract with the city of Boston and the construction plans before the execution of the contract of the plaintiff with the defendants and testified that at that time they were familiar with its contents.</p> <p>The plaintiff began work under its contract and prosecuted it until July 18, 1905, when it ceased work, on learning that the Boston transit commission had terminated the contract of the city of Boston with the defendants. The work done by the plaintiff was satisfactory. The plaintiff admitted that of the work required to be done under its contract it had not completed at the time it ceased work the shoring of two piers and the shoring of a building on Essex Street. In addition to this work which had not been done the defendants contended and offered evidence tending to show that the plaintiff was required under the contract, and that it was practicable, to shore area walls to the extent of two hundred and eighty-five feet and that this had not been done when the plaintiff ceased work. The plaintiff offered evidence tending to show that it was not practicable to shore this area wall.</p> <p>The provision of the contract of the defendants with the city of Boston under which that contract was terminated by the transit commissioners was as follows: “ If at any time the engineer shall be of the opinion, and shall so certify in writing to the commission, that the said work is unnecessarily or unreasonably delayed, or that the contractor is wilfully violating any of the conditions or agreements of this contract, or is not executing said contract in good faith, or is not making such progress in the execution of the work as to indicate its completion within the required time, or is not properly supporting or protecting adjacent pipes and structures, the commission may notify the contractor to discontinue all work, or any part thereof, under this contract; and thereupon the contractor shall discontinue said work, or such part thereof as the commission may designate.”</p> <p>The plaintiff contended that it was entitled to recover the contract price, namely, 17,000, less any sums paid on account, and less what it would have cost the plaintiff to finish the work by shoring the two piers above referred to and the building on Essex Street. The plaintiff refused to make any deduction because of area walls and contended that under the contract no deduction should be made therefor.</p> <p>The defendants contended that the plaintiff was entitled to recover only the fair value of the work actually done by it; allowing it a reasonable profit thereon, and that any deductions from the contract price for work not done should not allow the plaintiff in effect to recover the profit it would have made if all the work provided for in the contract actually had been done.</p> <p>There was no dispute as to the amount of the payments made on account, which was agreed to be $3,900.</p> <p>The judge ruled that evidence as to the causes for the termination of the contract between the defendants and the city of Boston, represented by the transit commission, was not material, and no evidence was introduced with reference to this subject. The judge instructed the jury that there was no evidence from which the jury could impute blame to the defendants in the termination of that contract with the city of Boston, and no inference against the defendants was to be drawn because of the act of the transit commission in terminating that contract, as the right to terminate was reserved to the transit commission in its contract with the defendants.</p> <p>At the close of the evidence the defendants asked the judge to give, among others, the following instructions to the jury:</p> <p>“ 1. Under the first count * of the declaration the plaintiff is entitled to recover only the same proportion of the entire contract price as the defendants received under their contract with the transit commission on account of the work done by the plaintiff.</p> <p>“ 2. Under the first count of the declaration the measure of damages is the fair value of the work actually done, allowing the plaintiff a reasonable profit for such work.”</p> <p>“6. Under the first count of the plaintiff’s declaration the plaintiff is not entitled to recover the profit it might have made on the work not done if the contract had been fully performed.”</p> <p>The judge refused to give any of these instructions, and on the question of damages instructed the jury as follows:</p> <p>“ The plaintiffs are entitled to compensation for the work done so far as it was done here, substantially performed, less the proper deductions that were to be deducted from that amount because of the termination of the work, because they have not completed it. Now, that deduction, in accordance with my instructions to you is, what would be the cost to the plaintiffs to complete the work that remained to be done, considering that the materials that were to be used in connection with it and the tools were there upon the premises, what would be the market value of the work to be done, that is, what would be the reasonable cost ? Of course profit upon any contract depends upon the difference between the cost to the man who performs the work and the amount that he may have received for the work to be done. The contractor in this case, of course, had to furnish labor, superintendents of labor, materials in connection with the shoring, tools. Tools were liable to depreciation. Cost of insurance is to be considered in connection with that. And that is all that you are to consider- here, what was the difference — what was the actual cost to him, so far as you can deal with that proposition here upon the evidence presented to you, what would be a fair cost — of course I don’t mean actually in the sense that it was performed by him — but what would be the fair, reasonable cost to complete the work.”</p> <p>On the first count the jury returned a verdict for the plaintiff in the sum of $3,641; and the defendants alleged exceptions.</p>

<p>Negligence, In use oí highway.</p> <p>In cases of collision between travellers upon the highway where the law requires that each traveller shall use the way with due regard for the rights of every other, the question of the care or negligence of either traveller, depending for solution as'it does upon a variety of circumstances about any one of which the evidence may be conflicting, generally is for the jury.</p> <p>At the trial of an action for personal injuries and damages to the plaintiff’s horse and wagon, caused by a collision with an automobile driven by an employee of the defendant, it appeared that the accident happened on a country road between ten and eleven o’clock at night, and that the plaintiff’s team carried no lights ; and there was evidence tending to show that the plaintiff saw the lights carried by the defendant’s automobile a long way off on a straight part of the road and turned to one side of the road and more than half way out of the travelled part of the way and was standing still and waiting for the automobile to pass, when the collision occurred, and that there was not room for two vehicles to pass in the commonly travelled part of the way. Held, that the questions, whether the plaintiff was exercising due care and whether the defendant’s employee was negligent, were for the jury.</p>

<p>Way, Defects in highway. Negligence, In use of highway, Proximate cause, Plaintiff’s due care.</p> <p>In an action against a city under R. L. c. 61, § 18, for personal injuries alleged to have been sustained by reason of a defect in a highway of the defendant, it appeared that the plaintiff in the exercise of due care was driving four horses attached to a heavily loaded wagon, when the horses were frightened by a portable engine maintained in a temporary shelter on the highway for use in the erection of a building, which was being operated negligently by the engineer of the building contractor, that the horses became uncontrollable and turned one of the wheels of the wagon into an open trench in the highway, so that the plaintiff was thrown from his seat and sustained the injuries complained of. It further appeared that the trench had been dug by the water department of the defendant, and that, after the defendant had received, reasonable notice of its dangerous character, it had been left wholly unguarded without any precautions being taken to warn travellers of the danger. Held, that the action could not be maintained because the defect in the highway was not the sole cause of the • plaintiff’s injuries.</p> <p>A contractor, who is granted a permit by the proper officers of a city to maintain and operate a portable engine in a temporary shelter upon a highway of the city, which is not closed to public travel, must use reasonable care not to operate the engine in a manner that is likely to frighten horses when being driven near it by travellers on the highway.</p> <p>In an action against a contractor for personal injuries alleged to have been sustained by reason of the negligence of an engineer of the defendant in suddenly starting a portable engine maintained under a permit from a city in a temporary shelter on a highway of the city, at the moment when the horses driven by the plaintiff were passing near it between the temporary shelter and an open trench, thus causing the horses to become uncontrollable and to turn one of the wheels of the wagon into the trench so that the plaintiff was thrown from his seat and injured, it is no defense that the accident would not have happened if the trench in the highway had not been left by the city open and unguarded.</p> <p>The driver of four horses attached to a heavily loaded wagon, who in passing through a street of a city sees ahead of him on his right an open trench unguarded and on his left a temporary shelter in which a portable engine is maintained on a portion of the highway for use in the erection of a building, if his horses have not shown signs of fright and there is room in the street for his team to pass safely between the trench and the temporary shelter of the engine, and he has no reason to anticipate that the engineer in charge of the engine will start it up suddenly at the moment that his horses are passing near it, cannot be said as matter of law to be negligent in attempting to drive between the trench and the engine, although while he is doing so the sudden starting of the engine frightens the horses and makes them uncontrollable, so that they turn a wheel of the wagon into the trench and he is thrown from his seat and injured.</p>

<p>Insurance, Fire. Referee. Notice.</p> <p>In an action on a policy of fire insurance in the Massachusetts standard form, which contains the usual clause requiring that, in case of a failure of the parties to agree, the amount of loss shall be ascertained by arbitration as a condition precedent to any right of action, if the plaintiff merely shows that at his request three referees were selected, who met, heard the parties and prepared and signed an award determining the amount of the plaintiff’s loss, this is not enough, and he must show further that in some way the award was made known to the plaintiff and to the defendant; because the arbitration clause requires by necessary implication that the award shall be transmitted to the parties or published by giving notice to them of the decision.</p>

<p> Attachment. Officer. </p> <p>If a deputy sheriff makes an attachment of personal property purposely excessive in amount, he has exceeded his authority and is liable to the owner of the property in an action of tort for any injury which his unlawful act has caused. Where an officer makes an attachment of personal property it is his duty to decide, as best he can, whether the property attached will prove sufficient to satisfy tlie plaintiff’s claim, and, if in the exercise of this discretion he acts in good faith, he will not be liable to the debtor for attaching through an honest mistake a greater amount of property than is necessary.</p> <p>In an action against a deputy sheriff for wilfully making an attachment of the plaintiff’s property excessive in amount, where there is evidence that the defendant took and held in his possession goods of the plaintiff largely exceeding in value the amount which the defendant was commanded to attach, this is a circumstance for the consideration of the jury, in connection with the other evidence, in determining the true character of the defendant’s conduct, but, unless they find that the defendant made the attachment for an excessive amount wilfully, he cannot be held liable.</p>

<p>Petition, filed May 17, 1907, to establish a lien on a certain parcel of land and the building thereon on the corner of Geneva Avenue and Charles Street in that part of Boston called Dorchester, for carpenter work performed and furnished for such building under a contract between the petitioner and the respondent Stewart, who conveyed the property to the respondent Blanchard, trustee.</p> <p>The case first was tried before Sanderson, J., upon an auditor’s report. The judge, after certain findings by the jury, set aside the verdict on certain issues, granted a new trial, and reported the case for determination by this court. This court, in a decision reported in 204 Mass. 122, held, among other things, that the order for a new trial was proper and ordered that the case should stand for hearing in the Superior Court.</p> <p>There was a new trial of the case before Bell, J., at which, in addition to the auditor’s report, the petitioner testified at length and also introduced the testimony of the respondent Stewart. The respondent Blanchard, trustee, testified that he never knew what the terms were of the contract between the petitioner and the respondent Stewart and that he did not testify before the auditor. He also testified that at the time he took title to the property in January, 1907, he understood that all the work was finished, and that he never knew of any work being done by the petitioner after that. The change in the character of the evidence from that at the former trial is described in the opinion.</p> <p>The respondent Blanchard asked the judge to make the following rulings:</p> <p>“ 1. Upon all the evidence in the case as a matter of law the petitioner is not entitled to recover.</p> <p>“ 2. The petitioner’s statement is not sufficient to preserve a lien for materials.</p> <p>“ 3. The petition is not sufficient to enforce a lien for materials.</p> <p>“ 4. The petitioner’s, contract with Stewart was an entire contract including both labor and materials at an entire price.</p> <p>“ 5. There is a variance between the petition and the proof.</p> <p>“ 6. Upon all the evidence in the case as a matter of law the jury cannot answer the issue numbered three.</p> <p>“ 7. Upon all the evidence in the case as a matter of law the jury cannot answer the issue numbered five.”</p> <p>The judge with the assent of the petitioner made the rulings numbered two and three as requested. He refused to make any of the other rulings requested.</p> <p>The jury were instructed properly as to computing interest upon any amount which they should find to be due and also as to certain items for $100, $125 and $95.</p> <p>The judge then submitted the case to the jury upon six issues, which with the answers of the jury to them were as follows:</p> <p>“ 1. Did the petitioner perform and furnish on the premises described in the petition the labor set forth in the petition ? ” The jury answered “ Yes.”</p> <p>“2. Is any amount due the petitioner for said labor?” The jury answered “ Yes.”</p> <p>“ 3. How much is due for such labor ? ” The jury answered “$1,934.96.”</p> <p>“ 4. At what time did the petitioner cease to perform and furnish labor on said premises ? ” The jury answered “ April 25,1907.”</p> <p>“ 5. Did the petitioner within thirty days after he ceased to perform and furnish labor on the premises described in the petition file in the registry of deeds the statement required by law? ” The jury answered “ Yes.”</p> <p>“ 6. Did the original contract under which $3,600 was to be paid to the petitioner include the furnishing by the petitioner of the lumber for the stair carriages ? ” The jury answered “ Ho.”</p> <p>The respondent Blanchard, trustee, alleged exceptions. It did not appear from the bill of exceptions that the judge made any order that the lien be established.</p>

<p>Tort for false and fraudulent representations that the Mutual Stock Company, of which the defendants were officers and agents, was engaged in the actual purchase and sale of stocks and commodities, whereby the plaintiff was induced to pay to it for legitimate transactions in stocks certain sums set out in a schedule annexed to the declaration, and suffered loss thereby, the declaration alleging that the Mutual Stock Company was not engaged in the actual purchase and sale of stocks and commodities but was “ doing a gambling business under the management and control of the defendants.” Writ in the Municipal Court of the City of Boston dated March 6, 1906.</p> <p>On appeal to the Superior Court, the case was tried before Bell, J. In defense the defendants offered five releases, which are described in the opinion, and as to which the presiding judge, when they were offered, ruled as follows: “ I am going to make a ruling here for the purpose of settling this matter. I might as well make it broad enough. Our statute, not for the benefit of the stockholders, nor for the benefit of the particular person who deals with this company, but for the purpose of preventing and discouraging this business as a matter of public policy, passed certain laws. If these [referring to the alleged releases] were given for the purpose of escaping and evading these laws, I rule they were void.”</p> <p>The releases were excluded, subject to exceptions by the defendants.</p> <p>The jury found for the plaintiff in the sum of $824.96; and the defendants alleged exceptions.</p>

<p>Tort for personal injuries from being run into by an electric car of the defendant between twelve and one o’clock in the afternoon of June 4, 1907, at or near the crossing of Main Street and Park Street in North Reading. Writ dated October 3,1907.</p> <p>In the Superior Court the case was tried before Hardy, J. An exception by the defendant to a refusal of the presiding judge to rule that there was no evidence for the consideration of the jury on the first count of the declaration was sustained by this court in a decision reported in 202 Mass. 463.</p> <p>The second count of the declaration, to which alone these exceptions relate, was as follows:</p> <p>“ And the plaintiff says that the defendant is a street railway corporation and runs its cars over the State highway, so called, in North Reading aforesaid, and on June 4, 1907, the plaintiff being then and there a pedestrian on the public highway, was injured ... by the gross recklessness and culpable negligence of the defendant’s servant in charge of one of its cars, said negligence consisting in the reckless and wilful overspeeding of said car combined at the same time with a wilful neglect to sound a warning bell or whistle and a wilful neglect to maintain a watch or lookout when approaching the intersecting public street from which the plaintiff was passing into said State highway, the view of an approaching car from said intersecting street being obscured and shut off by trees and foliage.”</p> <p>On the question of whether the conduct of the motorman of the car amounted to such wilful misconduct and wanton and reckless disregard of the probable harmful consequences of his acts as to render the defendant liable although the plaintiff was not in the exercise of due care, which is the only question raised by these exceptions, there was evidence tending to show that the motorman, as the car proceeded on Main Street down a hill approaching Park Street, permitted it to go very fast; that when seven hundred feet from the crossing of the two streets the motorman had seen the plaintiff driving his horses down Main Street and disappearing into Park Street, and that the motorman did not sound any whistle or gong as he approached Park Street although the rules of the company required him to do so. The motorman testified that he considered the corner “ a rather dangerous corner.” When the motorman was about one hundred feet from the place of the accident, he saw the plaintiff returning and again about to cross the track, and tried to stop the car with the use of the air brake and the reverse, but was unable to do so until after the horses had crossed the track, the car had struck the plaintiff, had hurled him about forty feet and then had continued on its course with the air brakes set for about two hundred and ten feet oyer a level track.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence, besides making the ruling permitting the first count of the declaration to go to the jury, an exception to which by the defendant was sustained, as previously stated, the presiding judge ordered a verdict for the defendant on the second count; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Plea in abatement, Set-off. Lis Pendens.</p> <p>In an action of contract the pendency of another action for the same cause by the . plaintiff against the defendant, in the form of a declaration in set-off filed by him in a previous action, is as good a reason for an answer in abatement as is the pendency of an original and independent suit for the same cause of action.</p> <p>Review by Knowlton, C. J., of decisions of this and of other courts with regard to what disposition should be made of pleas in abatement founded upon the pendency of another action for the same cause, where, before action upon the plea was called for, the previous action was disposed of.</p> <p>It seems, that it is more equitable, where a second action is brought for a cause that was made the foundation of a former action which is defective in some essential particular, to allow the plaintiff to discontinue the former action upon proper terms and to proceed with the later one, rather than to order an abatement of the last action and to compel him to begin anew after the termination of the first.</p> <p>A defendant in an action filed a declaration in set-off, to which the plaintiff demurred. Later, and while the former action was pending, the defendant brought a separate action against the plaintiff for the same cause as that alleged in the declaration in setoff and in the second action the defendant filed a plea in abatement, based on the pendency of the claim in setoff. A determination of the plea was postponed until a determination of the issue raised by the demurrer to the declaration in setoff in the first action. That demurrer being sustained by this court on the ground that the claim alleged in the declaration in setoff was unliquidated, the plea in abatement in the second suit was overruled. Held, that the plea was overruled properly; although, it was intimated, that a better course to have adopted when action upon the plea in abatement first was asked for might have been to have ordered an abatement unless the declaration in set-off was abandoned, that is, to have compelled an election between the two actions.</p>

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by a carpenter against his employer for personal injuries, it appeared that the plaintiff had been a carpenter for thirty years and, when injured, was assisting in the remodelling of a building, which was being done under the defendant’s personal supervision. In the course of the work certain brick walls had to be taken down and the plaintiff had helped to put up a fence around a sidewalk adjacent to the building, as to which he testified that he did not “ know what it was for unless it was to keep people out and from getting hurt from anything falling from the building.” At a later stage of the work the plaintiff was directed to move a temporary brace which was supporting the second floor of the building and to put in a stronger one and, while so doing, was struck on the head by a brick which had slipped from the control of a fellow workman who was helping to tear down the brick wall. There was no evidence which tended to show that the methods adopted by the defendant in tearing down the wall and disposing of the brick were unusual or improper. Held, that the defendant had a right to assume that the plaintiff could and would take care of himself so far as respected the usual and obvious dangers of employment, and that he needed no instruction and warning; and that therefore, if the plaintiff’s injury was caused by negligence of any one, it was by negligence of a fellow servant, for which the defendant was not liable.</p>

<p> Libel and Slander. </p> <p>An entire page of a newspaper was covered with the following, with regard to the mayor of the city in which the newspaper was published, who was a candidate for re-election: A cartoon ,or caricature labelled “ City Farm ” and showing inmates emaciated, in various attitudes of dejection and despair, some sitting at a dining table and others rising in disgust or protest as a woman approached bearing a tray containing a small amount of food and a teapot. Toward the tray hands pointed from the words, “ Poor food,” “ Rancid butter,” “ Shadow tea ” ; while just beside and behind the woman was depicted a large receptacle labelled, “Forty gallons of water to a pound of fifteen-cent tea.” At the top of the page above the picture were the words in very large type, “ Saving on the city’s poor is the meanest kind of economy ” ; while underneath, in a little smaller type, were the words, “ It is no crime to be poor, but it is wrong to stint the poor and the unfortunate.” Then followed this language in large print: “ Mayor Brown forced a competent and humane board of charity out of office because it would not do his bidding, and he put in the present charity board, which has been cognizant of this outrage upon the poor and unfortunate inmates of our city farm. In the name of humanity and public decency, let us go to the polls tomorrow, like men, and repudiate the mayor who has been solely responsible for this blot upon the fair name of our city.” In an action by the mayor against the publisher of the newspaper, the foregoing facts were alleged in the declaration, and there was evidence to prove them all. Held, that the publication was actionable as a libel, and that the case was for the jury.</p>

<p>The following order was passed by the House of Representatives on April 4,1911, and on April 6, 1911, was transmitted to the Justices of the Supreme Judicial Court. On April 17, 1911, the Justices returned the answer which is subjoined.</p> <p>Ordered, that the opinion of the Justices of the Supreme Judicial Court be required upon the following questions:</p> <p>First, Is it within the constitutional power of the Legislature to permit the city of Boston, or any city or town of the Commonwealth, to erect a bridge or structure across a public street or highway connecting premises owned or occupied for municipal purposes on opposite sides of the public street or highway?</p> <p>Second, Is it within the constitutional power of the Legislature to enact a law conferring upon a city or town within this Commonwealth the power to grant permits or privileges to private individuals to erect structures which will bridge the public streets connecting premises owned on both sides of the street ?</p> <p>Third, Is it within the constitutional power of the Legislature to enact a law conferring upon a city or town in this Commonwealth the power to grant permits or licenses to bridge public streets connecting premises on opposite sides which will be revocable at any time at the- action of the city or town government, and for which a rent will be charged payable to the city . or town in which the permit or license may be granted ?</p> <p>Fourth, Is it any restriction of the constitutional right of the owner of premises abutting on a public street or highway in a city or town of this Commonwealth to have the light and air in the public street obstructed by the erection of a structure connecting premises on the opposite sides of the street, provided there is provision made for compensation to persons suffering any damage thereby ?</p> <p>Fifth, Is the right of an owner of property abutting on the public street or highway where he owns the fee to the middle of the street or way limited solely to his right upon and over the surfa.ce of the street, or does it include also rights to light and air above the surface of the street, and the right to have the street for its entire length open from the street surface up to the sky ?</p> <p>Sixth, What rights, if any, do the abutting owners of public streets or ways enjoy other than the rights general to the public?</p> <p>Accompanying the order were copies of two bills pending in •the House of Representatives, one of them, House Bill No. 451, being entitled “An Act to authorize the Bridging of Mason Street in the City of Boston,” and the other, House Bill No. 817, being entitled “ An Act to authorize the Construction of a Bridge over Avon Street in the City of Boston.”</p>

<p>A statute making it a criminal offense to engage in any gift enterprise, and providing that a person who in any manner holds out a promise of gift or bestowal of any article or thing for and in consideration of the purchase by any person of any article or thing shall be deemed to be engaging in a gift enterprise within the meaning of the statute, would be unconstitutional.</p>

<p>The provisions of St. 1910, c. 220, requiring the auditor of the Commonwealth in each year to submit to the Governor and Council for examination a printed statement of the estimates for the ensuing fiscal year, which the Governor shall transmit to the General Court with such recommendations, if any, as he may deem proper, and the provisions of § 5 of that chapter that the Governor may, in his discretion, transmit to the General Court from time to time, with his recommendations, if any, thereon, particular items in the documents submitted' to him by the auditor, and may withhold other items for further investigation, do not lessen the power, duty and responsibility of the Legislature in regard to appropriations and do not increase the power of the Governor in regard to them, which, beyond making recommendations, he can exercise only by his veto, and the statute creates no interference by the executive department with the power of the legislative department under art. SO of the Declaration of Eights.</p>

The following order was passed by the House of Representatives on April 24, 1911, and on April 27, 1911, was transmitted to the Justices of the Supreme Judicial Court. On April 28, 1911, the Justices returned the answer which is subjoined.

<p>Under the Constitution of this Commonwealth a tax upon property must he proportional as well as reasonable, and therefore a statute which would operate to impose a different rate of taxation upon personal property from that imposed on real estate would be unconstitutional.</p> <p>Under the Constitution of this Commonwealth the Legislature cannot impose an excise tax on the mere ownership or possession of personal property of every kind.</p>

<p>By the law of the land as determined by the Supreme Court of the United States a State cannot limit a citizen in the exercise of his right to make contracts by the enactment of a statute forbidding his employment for more than eight hours a day.</p> <p>The Legislature have power to enact a statute providing that neither the Commonwealth nor any county therein, nor any city or town which has accepted the provisions of R. L. c. 106, § 20, or St. 1909, c. 614, § 42, shall employ in its public work a laborer, workman or mechanic more than eight hours a day, even though this may be considered an interference with individual rights and a detriment to the best interests of the community, because the Commonwealth may prescribe the method in accordance with which any one of these divisions of government shall conduct its public business.</p> <p>In a statute, providing that neither the Commonwealth nor any county therein, nor any city or town which has accepted the provisions of R. L. c. 106, § 20, or St. 1909, c. 614, § 42, shall employ in its public work a laborer, workman or mechanic more than eight hours a day, and making a violation of the statute by any official or agent a criminal offense, a provision that working more than eight hours in any one day shall be prima facie evidence of a violation of the statute would be unconstitutional.</p>

<p>On June 2, 1911, the following order was passed by the Senate, and on June 6, 1911, was transmitted to the Justices of the Supreme Judicial Court. On June 13, 1911, the Justices returned the answer which is subjoined.</p> <p>Whereas, the questions upon which the opinion of the Justices of the Supreme Judicial Court was required by the order adopted on April 4th last, and the answer of the Justices thereto were based upon two pending bills which were somewhat dissimilar in their form and in their substantive provisions, and did not call attention to the fact that one of these, namely, House Bill No. 817, was a bill in favor of certain named individuals, and did not make any mention of the recovery of damages for the loss of light and air caused by the construction of a bridge under the authority of an act of Legislature.</p> <p>Now, therefore, ordered, That the opinion of the Justices of the Supreme Judicial Court, be required by the Senate upon the following questions:</p> <p>1. Is it within the constitutional power of the Legislature to enact a law which shall give to the city of Boston the power to grant permits or licenses to the owners of any estates which abut upon any public street and which are situated directly opposite to each other upon opposite sides of said street to erect structures which will bridge said street and which will connect the premises on opposite sides thereof for private purposes, provided that the fee of the street over which the structures are to be erected is in the grantees of said permits or licenses, and subject to the condition that any person owning property or doing business in property which abuts upon a street over which the construction of a bridge is authorized whose property or business is damaged either through interference with light and air or otherwise by the construction or maintenance of said bridge may have damages therefor determined by a jury upon petition to the Superior Court filed within a specified time against the grantees of the permit for the construction of said bridge ?</p> <p>2. Is it within the constitutional power of the Legislature to enact a law which shall suspend the existing law as to certain named individuals so as to allow the city of Boston to grant to such individuals the right to build and maintain a bridge across a certain named public street in said city for the purpose of connecting for private purposes buildings owned by said individuals on opposite sides of said street, or for the purposes of a fire escape, provided that the fee of the street over which the structures are to be erected is owned by the individuals in whose favor the suspension and grant is made ?</p> <p>3. Is it within the constitutional power of the Legislature to enact a law which shall suspend the existing law as to certain named individuals so as to allow the city of Boston to grant to such individuals the right to build and maintain a bridge across a certain named public street in said city for the purpose of connecting for private purposes buildings owned by said individuals on opposite sides of said street, or for the purposes of a fire escape, provided that the fee of the street over which the structures are to be erected is owned by the individuals in whose favor the suspension and grant is made, and that the bridge is so constructed as not to interfere with the reasonable use of the surface of the street for public travel ?</p> <p>4. Would the provisions of the bill now pending in the General Court which authorizes the construction of a bridge over Avon Street in the city of Boston, being House Bill No. 817, a copy of which is transmitted herewith, be constitutional if enacted ?</p> <p>5. Would the provisions of the bill of similar tenor to said House Bill No. 817, a copy of which is transmitted herewith, be constitutional if enacted ?</p> <p>6. Would the provisions of said House Bill No. 817 be constitutional and would the provisions of the bill which forms the subject of the last question be constitutional if these bills were amended by striking out section three of the former bill and section four of the latter bill and substituting in the place of each of said sections the following section :</p> <p>“ Any person owning property, or doing business in property abutting on Avon Street, whose property or business is damaged either through interference with light and air or otherwise by the construction or maintenance of a bridge constructed in accordance with the provisions of section one of this act, may have damages therefor determined by a jury upon petition to the Superior Court filed against the grantees of said permit within one year after the permit for the erection of said bridge is approved by the Mayor, as provided in section one of this act”?</p> <p>7. If at any time after the enactment of such a bill and the issue of such permit and the construction or beginning of construction of such bridge under said permit any person using said street and passing under said bridge shall suffer any injury either to bis person or to his property on account of the construction or maintenance of said bridge, as by the falling of material used in the construction of said bridge or by the falling of snow or ice from said bridge, will the city of Boston be liable for said injury ?</p> <p>House Bill No. 817.</p> <p>An Act to authorize the Construction of a Bridge over Avon Street in the City of Boston.</p> <p>Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:</p> <p>Section 1. Upon petition and after seven days’ public notice published in at least three newspapers published in the city of Boston, and a public hearing thereon, the board of street commissioners of the city of Boston may, with the approval of the mayor, issue a permit to Eben D. Jordan and Edward J. Mitten to build and maintain a bridge across Avon Street in said city for the purpose of connecting buildings owned by them on opposite sides of said street, or for the purposes of a fire escape, on such conditions and subject to such restrictions as said board may prescribe.</p> <p>Section 2. No bridge built across said street, under a permit granted as provided in section one of this act, shall be constructed or maintained at a height less than thirty feet above the grade line of said street; and no part of the bridge or its supports shall rest upon the surface of the street.</p> <p>Section 3. Any person whose property is damaged by reason of the construction of any bridge permitted to be built, as provided in section one of this act, may have the damages therefor determined by a jury upon petition to the superior court therefor filed within one year after the permit for the erection of such bridge is approved by the mayor, as provided in section one of this act.</p> <p>Section 4. This act shall take effect upon its passage.</p> <p>The following is “ the bill of similar tenor to said House Bill No. 817,” referred to in the foregoing order of the Senate.</p> <p>An Act to authorize the Construction and Maintenance of a Bridge over Avon Street in the City of Boston.</p> <p>Section 1. Upon petition and after seven days’ notice published in at least three newspapers in the city of Boston, and a public hearing thereon, the board of street commissioners in said Boston may, with the approval of the mayor, issue a permit to Eben D. Jordan and Edward J. Mitten to build and maintain a bridge across Avon Street in said city for the purpose of connecting buildings owned by them on opposite sides of said street, and to serve as a fire escape.</p> <p>Section 2. Any permit given by the board of street commissioners of the city of Boston, as provided in section one of this act, shall be upon the express condition that the person or persons receiving such permit shall pay a fee for the same, the amount of said fee to be determined by the board of street commissioners. The board of street commissioners may further impose such other conditions and restrictions in granting said permit, as to the Board may seem wise.</p> <p>Section 3. No bridge built across said street, under a permit granted as provided in the preceding sections of this act, shall be constructed or maintained at a height less than thirty feet above the grade line of said street; and no part of the bridge or its supports shall rest upon the surface of the street.</p> <p>- Section 4. Any person whose property is damaged by reason of the construction of any bridge permitted to be built as provided in the preceding sections of this act may have damages therefor determined by a jury upon petition to the superior court therefor filed within one year after the permit for the erection of such bridge is approved by the mayor. Whatever damages are found by the jury, under the provisions of this section, shall be paid by the person or persons to whom the permit has been granted by the board of street commissioners.</p> <p>Section 5. This act shall take effect upon its passage.</p>