Volume 210 — Massachusetts Reports

<p>Practice, Civil, Service on non-residents and absent defendants, Motion to dismiss, Abatement. Attachment, Of real estate of absent or non-resident defendant. Judgment, Special.</p> <p>A writ in an action of contract described the defendant as of a certain city in a certain county in this Commonwealth. The officer’s return stated that he had attached all the right, title and interest of the defendant in and to real estate in .the county aforesaid, that he had made diligent search for the defendant “and for his last and usual place of abode, tenant, agent and attorney, but have been unable to find either within my precinct and could make no service of this writ upon him.” Held, that this was not a return that the defendant had no last and usual place of abode within the precinct of the officer but only that no such abode was known to the officer, and therefore that it did not show that the defendant was a non-résident, within the meaning of E. L. c. 170, § 5, requiring, that, where real property of a non-resident is attached and no personal service is made upon the defendant, notice shall be given within one year after the entry of the action, as distinguished from a defendant merely absent from the Commonwealth, in whose case under the provisions of § 6 of the same chapter the matter of notice is discretionary with the court.</p> <p>Although, upon a motion to dismiss, only the record before the court is considered, in the present case, on account of the assumption of the parties in the argument, “the record” was treated as including besides the record of the case itself the record of certain material proceedings in the Probate Court which had been before the court to which the motion to dismiss was addressed.</p> <p>A decree of the Probate Court under B. L. c. 144, appointing a receiver of the property of a certain person on the ground that such person had disappeared from the Commonwealth and that his whereabouts were unknown, does not show necessarily that the absentee has become a non-resident of the Commonwealth within the meaning of R. L. c. 170, § 5, requiring in an action in which real property of such non-resident is attached and no personal service is made upon the defendant that notice shall be given within one year after the entry of the action, and such absentee may be a defendant merely absent from the Commonwealth, in which case under the provisions of § 6 of the same chapter the matter of notice is discretionary with the court.</p> <p>Under the provision of R. L. c. 170, § 6, that, “if real property of a non-resident is attached and no personal service is made upon the defendant, the action shall be dismissed unless notice thereof is given in such manner as the court orders within one year after the entry of the action," the failure to give such notice is matter of abatement and must be pleaded in abatement and not in bar.</p> <p>Under the provision of R. L. c. 170, § 5, that, “ if real property of a non-resident is attached and no personal service is made upon the defendant, the action shall be dismissed unless notice thereof is given in such manner as the court orders within one year after the entry of the action,” the denial of a motion to dismiss such an action for want of such notice on the ground that it did not appear by the record that the defendant was a non-resident, being a decision made on the facts appearing of record, is not conclusive upon the parties as to the actual facts, and does not prevent the defendant from pleading in abatement the failure of the plaintifi to give the notice and the fact that the defendant was a nonresident and from proving that fact.</p> <p>Where, in an action of contract, real estate of a non-resident defendant was attached and no personal service was made on the defendant, and, although no notice was given within one year as required by R. L. c. 170, § 5, the defendant, appearing specially by the receiver of his property appointed under R. L. c. 144, waived this defense by answering in bar without pleading it in abatement and it was held that the plaintiff was entitled to judgment, this court refrained from intimating whether the judgment should be general or whether it should be special, affecting only the property attached, leaving that question to be dealt with if it should arise at a later stage of the case.</p>

<p>Contract for breach of " 7, 1900, and to continue for a contract in waiting, dated March five years, which established terms under which the defendant alone should sell exclusively certain machinery of the plaintiff in the United States and Canada, and which was alleged to have been modified by an offer of the plaintiff in writing accepted by the defendant orally as hereinafter described, the breach of the contract relied on being that in August, 1900, the defendant ceased to sell machinery of the plaintiff and began selling that of another manufacturer. Writ dated November 15,1901.</p> <p>The case was referred to James D. Colt, Esquire, as auditor. He filed a report in which he found for the defendant, giving as his reasons in substance that the original contract between the parties was formally cancelled and that no new contract or agreement ever was made to take its place.</p> <p>In the Superior Court the case was heard by Raymond, J., without a jury. The auditor’s report was introduced in evidence by the defendant, and much other evidence which was not before the auditor was introduced by both parties.</p> <p>It appeared that previous to March 7,1900, one William Firth of Boston had been selling textile machinery, of. which the plaintiff was a manufacturer in England on a large scale, under a contract with the plaintiff; that, Firth having formed the defendant corporation to which he had transferred his business and of which he owned almost all of the capital stock, the plaintiff and the defendant made the following contract under seal as of the date of March 7, 1900:</p> <p>“ Whereas it is proposed to continue the Agreement hitherto existing between John Hetherington and Sons Ltd and William Firth Esq of Boston aforesaid and to vest the same in a new company entitled the William Firth Company.</p> <p>“It is hereby mutually agreed that the said John Hetherington & Sons Ltd give the said William Firth Company the sole right to sell their machinery in the United States of America and the Dominion of Canada and the William Firth Company undertakes to sell efficiently-and to appoint representatives to travel regularly in those countries visiting the existing mills and districts in which mills may be erected for the purpose of procuring orders for all the various machines made by the said John Hetherington and Sons Ltd.</p> <p>“ That the William Firth Company shall not during the continuance of this agreement be engaged or interested in the sale in the United States of America or the Dominion of Canada of any other spinning machinery similar to or made and used for the same purpose as the spinning machinery made by John Hetherington & Sons Ltd. That John Hetherington & Sons Ltd shall do all business with the United States of America and the Dominion of Canada through the agency of the William Firth Company referring to them all enquiries they know are for those countries.</p> <p>“ That all machinery shall be invoiced as delivered and a statement of such deliveries made during the month shall be rendered by the first available mail in the following month and paid by the said William Firth Company at the end of that month by virtue of these terms of payment the William Firth Company shall have the right to and shall conduct all business in their own name.</p> <p>“ That this agreement shall remain in force for a period of five years from the date thereof and shall at the expiration of that time be determined or continued by six months previous notice given by either of the parties thereto Provided always that in the event of it being found that the William Firth Company cannot work the business as efficiently as it has been worked by William Firth John Hetherington & Sons Ltd shall have the right to terminate this agreement by six months notice to be given at any time.”</p> <p>Early in the following May it came to the attention of the defendant that the terms of payment in the above contract were not the same as those of the contract between the plaintiff and Firth, in which it had been agreed that all accounts made up on the thirty-first of each month should be paid in sixty days or Firth should pay interest at five per cent. After some correspondence between the parties in May, the defendant stipulated in all inquiries as to prices during the rest of that month that payment should be sixty days from the date of shipment, and all offers accepted by the plaintiff during that month were accepted on that basis. On June 2 the defendant wrote the plaintiff saying: “ What we meant by payable on shipment two months was payable two months from invoice date. To save expense in future quotations we ask you for, please understand that all our inquires are on this same basis, that payment shall be made two months from date of invoice unless special terms are made, and trust this will meet with your approval.” This was acquiesced in and acted on by the plaintiff and all accounts were rendered and settled on that basis up to August 22.</p> <p>In the latter part of May Firth went to England and while there urged that the contract of March 7 be corrected. On June 25, being still in England, he wrote to the secretary of the plaintiff, “ Will you have the agreement changed from 30 days to 60 days and signed ? Send direct to Boston. I think changing date and initialing the same will be all that is required.”</p> <p>There was a meeting of the plaintiff’s board of directors on July 2. There was conflicting evidence as to whether Firth was present. The records of the meeting stated that he was present, and contained the following vote: “Agreement with William Firth Co., the clause relating to payment in the agreement dated the 7th of March 1900 between this company and the William Firth Company was found not to be in accordance with our former practice with William Firth, and it was moved by Messrs. J. Hetherington seconded by E. P. Hetheringt'on, and Resolved that the agreement between this company and the William Firth Company signed and sealed on the 7th of March 1900, be and is hereby cancelled and in substitution thereof a new agreement, the terms of which have been read to the meeting, be signed by any two directors and the secretary of the company and sealed with the Company’s seal.” There was evidence tending to show that some one at the meeting had suggested that it would be sufficient to make the change in the existing agreements and to initial the change, but that the chairman said he already had told the secretary to draw fresh copies; that these copies were dated March 7, 1900, and were exactly like the copies of the agreement already in existence except that in place of the words “at the end of the month after the month of delivery in Liverpool ” were put “ at the end of the second month after the month of delivery in Liverpool that these copies were read to the meeting in the presence of Firth and Firth was asked by the chairman if the agreement as altered and read over was satisfactory to him and that he said it was, and that then the resolution as contained in the records was passed and the amended copies were executed by two directors of the plaintiff and the seal of the plaintiff was affixed; that Firth then was asked to sign them, and he said “You had better send them on to Boston and our people will execute it in the proper manner.” The secretary of the plaintiff then asked the chairman whether he had not better mark the two old copies with the word “ Cancelled ” or something of that kind and the chairman said “ Oh, no. Mr. Firth has approved of the new ones. Tear them up,” and that he tore both copies in two, Firth being present during the whole proceeding. The plaintiff’s secretary further testified that after the meeting adjourned he took the torn pieces of the original copies and tore them into small fragments and enclosed them to Firth at Blackpool in a letter as follows: “ Dear Sir: The old agreements which I think are sufficiently cancelled are enclosed herewith”; and that his reason for tearing up these fragments and writing the letter returning them to Firth was to calm apprehensions that Firth had expressed that so long as the original paper was in existence there was a possibility that he might be called upon to pay in accordance with its terms.</p> <p>The day following the meeting of the plaintiff’s board of directors the re-drafted contracts were sent to the defendant’s Boston office, and in the course of the mails the defendant’s treasurer returned them with a suggested further alteration to the effect that the defendant should have the option of giving notice and terminating the contract in case the quality of machinery furnished by the plaintiff and the times of their deliveries were such as to injure the defendant. Action on the subject by the plaintiff’s board of directors was delayed pending the absence of the chairman and the defendant was notified to that effect. No further action was taken by the plaintiff and no further communications were sent to the defendant with regard to the contract. The re-drafted contracts never were executed by the defendant.</p> <p>There was evidence that Firth never had asked to have the contract cancelled or annulled, that to the minds of the plaintiff’s officers the contract was “ still running ” in August, 1900, that between July 2 and August 22 the defendant was carrying on business in America as before as representative of the plaintiff, taking fresh orders for the plaintiff’s machinery, giving fresh orders to the plaintiff and corresponding with the plaintiff with regard to future business, without any reference to any amendment, cancellation, or change in the relations existing under the contract of March 7 other than the change in the time of payment.</p> <p>There was evidence that in June and July, 1900, the plaintiff was short of working capital owing to the fact that.it had made large sales on long credit; that during the previous four years it had lost some ¿6125,000, that it had an arrangement with its bankers by which it was allowed a drawing credit of between ¿680,000 and ¿690,000, for which security was given, and that drafts against this credit during the spring and summer of 1900 were currently between ¿670,000 and £76,000; but there was evidence that it was not insolvent; that most of the losses above referred to had occurred during the early part of the four year period and had resulted in part from a strike; that Firth after his arrival in England had informed himself as to the condition of the plaintiff and had conferred with its officers in regard to its financial needs, and that on July 16 at a meeting at which Firth was present a long discussion took place as to the best course to be taken by the company in its then condition, the questions of voluntary liquidation, raising of new capital and amalgamation with another firm or firms in the same business were discussed and ultimately the plaintiff’s auditor was requested to approach some firm or firms in the machinery trade and sound them as to whether they would be willing to take over the business at a price to be arranged; that the suggestion of liquidation was made by Firth and was not approved by any others present, and that the auditor of the company said there was absolutely no necessity for anything of the kind; that at this meeting Firth himself suggested approaching Howard and Bullough, competitors, that the plaintiff’s officers never intended selling out the plaintiff’s plant or business; that representatives of two of three other firms were sounded as to possible amalgamation or taking over of the plaintiff’s business, but that these inquiries had been ended by August 22 and had come to nothing; that from July on there were various plans under discussion for reorganization or getting new capital but* that no new capital was in fact procured; that the company continued its business successfully and increased it; that the production of the company and its deliveries of its products during the summer of 1900 were in excess of all previous times and that its production and shipment during the year 1900 were the greatest in its history up to that time ; that the company did not in fact amalgamate with or sell out its business to any other company but successfully continued its business without interruption; that at no time was it pressed by any of its creditors or threatened with any proceedings by them.</p> <p>Other facts are stated in the opinion.</p> <p>The defendant made nineteen requests for rulings, the substance of all of which, except those numbered sixteen, seventeen, eighteen and nineteen, sufficiently appears from the opinion. The requests so numbered were as follows:</p> <p>“ 16. Since no prices are fixed by the contract of March 7, 1900, at which machinery was to be sold by the plaintiff to the defendant corporation, but those pnces were left to be fixed from sale to sale by agreement of the parties, no damages can be assessed based upon the profit which the plaintiff would have made upon any given amount of sales.</p> <p>“ 17. The contract having provided no standard of prices at which sales were to be made by the plaintiff to the defendant during the five years from March 7,1900, and those prices having been left entirely to the agreement of the parties from time to time, the plaintiff cannot recover even for such sum as the court may think the plaintiff and the defendant would have agreed upon, and any such standard is too vague and indefinite for legal ascertainment.</p> <p>“ 18. If the court finds that the sale of English machinery was seriously interfered with during the five years from March 7, 1900, as the result of American competition, and that prices of the various machines fell heavily during that period, then the court cannot determine how much the defendant would probably have agreed to pay the plaintiff on such sales as it thinks the defendant would have been able to make.</p> <p>“19. The fact that the contract established no scale of prices; that the prices were very much reduced for the five years from March 7,1900, below those of the previous five years; that the defendant corporation, and not William Firth, was making the sales; that several kinds of machinery were entirely driven out of the market by American competition and prices, rendered the plaintiff’s damages, if any, too problematical for ascertainment.”</p> <p>The action of the presiding judge as to the requests for rulings is described in the opinion. There was a finding for the plaintiff for $59,500; and the defendant alleged exceptions.</p>

<p>Contract, Validity, Consideration. Release. Estoppel. Lord’s Bay. Pleading, Civil, Answer. Practice, Civil, Venue, Abatement. Words, “Satisfactory.”</p> <p>A promise made by the son of a testator, to whom was left the principal part of his father’s estate, that if his three sisters, who had appealed from a decree of the Probate Court allowing the will, would withdraw their appeal he would “ make it right with them with a certain sum,” refusing to name any specific amount, and that he would “ give them a sum of money that would be satisfactory,” is a promise to pay to his sisters on such withdrawal what ought to satisfy a reasonable person or what is fair and just as between the parties under the circumstances existing, and, on the performance of the consideration by the sisters’ withdrawal of their appeal, becomes a binding contract which is not bad for uncertainty or indefiniteness.</p> <p>The withdrawal of an appeal from a decree of the Probate Court allowing a will is a good consideration for a promise to pay money to the person withdrawing the appeal, if the contest was a genuine one and made in good faith, whether in fact it was well grounded or not. In the present case there was held to have been evidence of good faith.</p> <p>In an action by three sisters against their brother, who was the principal beneficiary under the terms of their father’s will, and who also was made executor of that will, upon a promise of the defendant to pay the plaintiffs “ a sum of money that would be satisfactory ” if they would withdraw their appeal from a decree of the Probate Court allowing the father’s will, it appeared that by the terms of the will each of the plaintiffs had been given the sum of $100, that, after the promise was made by the defendant, the plaintiffs withdrew their appeal, and that thereafter each of them received from the defendant as executor a check for $100 and executed and sent to the defendant a receipt for this sum releasing the executor and the estate “ from any and all further liability to me on account of said estate.” Held, that the acceptance of the legacies and the execution of the releases did not preclude the plaintiffs from prosecuting their action against the defendant on his personal undertaking, such action not being a claim against the estate of the father.</p> <p>In an action upon an oral contract it is proper to admit in evidence a conversation which occurred on Sunday, if it was merely preliminary to the contract which was concluded on a secular day.</p> <p>In an action on an oral contract, the defense that the contract was made on Sunday must be pleaded in order to be available or in order that a conversation relating to the contract should be objected to because it took place on Sunday.</p> <p>The objection that an action of contract is brought in the wrong county by reason of the residence of the parties, all of whom are residents of the Commonwealth, can be taken only by a plea in abatement, and the question cannot be raised for the first time by a request for a ruling at the close of a trial.</p>

<p>Petition, filed in the Supreme Judicial Court on May 2,1911, for a writ of habeas corpus, by a prisoner held in custody at the House of Correction at Deer Island in Boston, to which he was committed under a warrant of commitment issued from the Superior Court of the county of Suffolk, after having been tried in that court and found guilty of the crime of larceny of property of the value of $19, on an appeal taken by him from a sentence imposed upon him for the same crime by the Municipal Court of the City of Boston, alleging that the complaint on which the petitioner thus was tried and convicted was unlawful, because the justice of the Municipal Court of the City of Boston who directed the issuing of the warrant upon the complaint did not examine the complainant and his witnesses under oath as prescribed by R. L. c. 217, § 22, but merely asked the complainant for a statement of the facts relating to the charge, which the complainant gave orally and not under oath, although the complainant afterwards subscribed and swore to the complaint before an assistant clerk of the Municipal Court of the City of Boston. The petition further alleged that when the defendant’s counsel first discovered such illegality, the defendant filed in the Superior Court a special plea setting forth such illegality, which was overruled by that court, and that the defendant also asked the judge of the Superior Court to order a verdict for him, and, this being refused, after a verdict of guilty had been returned against him, made a motion to have the verdict set aside on the ground that the complaint was unlawful, which was denied, and that the petitioner saved exceptions as to his special plea and all of his motions.</p> <p>The case was heard by Morton, J., upon the return of an order of notice to show cause why a writ of habeas corpus should not issue. It appearing that the facts stated in the petition and answer were true, the justice ruled that the Municipal Court of the City of Boston had jurisdiction of the offense and of the person of the petitioner, and that the error, if error there was, was an error of law or an irregularity of procedure, and did not arise from a want of jurisdiction. He ordered that the petition be dismissed, and, at the request of the petitioner, reported the case to the full court for determination, the writ to issue • or the petition to be dismissed as to the full court should seem proper.</p>

<p>Insurance, Life. Husband and Wife. Fraud. Statute of Limitations. Assignment. Equity Pleading and Practice, Master’s report, Reservation, Parties. Equity Jurisdiction, To recover premiums on life insurance policy paid in fraud of creditors, Interest. Interest. Trust. Executor and Administrator.</p> <p>The right of action for a recovery of the amounts of premiums, which have been paid upon a policy of life insurance by the insured in fraud of his creditors and which with interest thereon, by R. L. c. 118, § 73, now St. 1907, c. 576, § 73, “subject to the statute of limitations” are to inure to the creditors’ benefit “from the proceeds of the policy,” does not accrue, where there has been no surrender of the policy under a clause providing for a surrender for value at the option of the insured, until the maturity of the policy by the death of the insured; and therefore, where an insured, who for more than six years had been insolvent and had been paying premiums in fraud of his creditors upon a policy of which his wife was the beneficiary, has died without the policy being surrendered, and the insurance company has paid to the widow the proceeds of the policy, the administrator of the estate of the insured in a suit begun a year after the death of the insured can recover from the widow the amount of all premiums paid by the insured within six years before his death with interest on each sum so paid from the date of its payment.</p> <p>One, who had insured his life for the benefit of his wife and who was insolvent and was paying premiums upon the policy in fraud of his creditors, procured a loan from the insurance company and gave to the company a promissory note signed both by himself and by his wife and secured by an assignment of the policy also signed by them both. After the death of the insured the company paid to the widow, who availed herself of the protection of R. L. c. 118, §73, now St. 1907, c. 576, §73, the proceeds of the policy less the amount of the loan, and the administrator of the estate of the insured, which had been declared insolvent, sought by a suit in equity to recover from the widow under the provisions of the above statute the amount of the premiums paid in fraud of creditors. The widow contended that the loan with the policy as security was in effect an advance payment by her for her husband from the proceeds of the policy, which were to become hers, and therefore that it was in effect a debt owed to her by the estate, and that she should be allowed to cut down the amount to be paid to the plaintiff by the amount of the loan. Held, that the widow, having availed herself of the protection of the statute, also must be bound by its requirement that the amounts of the premiums paid in fraud of creditors should inure to their benefit from the proceeds of the policy, and that her contention was without merit.</p> <p>An instrument in writing by one who had insured his life in the sum of $5,000 for the benefit of his estate, requesting the insurance company to alter the contract of insurance by making $4,000 of the amount of the policy payable to the wife, and $1,000 thereof payable to the son of the insured, after the company in writing has assented to and has complied with the request, operates as an effectual transfer, although neither the wife nor the son knew thereof until after the death of the insured; and, where such transfer was made in fraud of creditors, while the direction for the payment of $1,000 to the son is ineffectual, the direction to pay $4,000 to the wife has full force by reason of St. 1907, c. 576, §73.</p> <p>In a suit in equity by the administrator of one who had insured his life, against the insurance company, among other defendants, it appeared that the company was holding a part of the proceeds of the policy which the insured in fraud of creditors had attempted to convey to his son, but it did not appear that the money was retained merely in consequence of a demand of creditors'of the insured that it should be held and of the suit brought by the administrator in their behalf, or that the company had realized any interest thereon, and a master to whop the suit was referred charged the company, without objection on its part, with interest on the sum so held. The case was reserved for determination by this court upon the pleadings and the master’s report. Held, that the master’s report must be followed and that the company must be charged with interest.</p> <p>Where one, who held a policy of life insurance payable to his estate, in fraud of his creditors transferred the policy to his wife, and died, the wife may retain the proceeds of the policy in accordance with the provisions of St. 1907, c. 576, § 73, although the insured during his lifetime induced creditors to make advances to him by oral representations that he had insurance which in case of his death would be available and sufficient to satisfy their claims.</p> <p>Where an insolvent person holds a policy of life insurance payable to his estate and, knowing himself to be insolvent, pays premiums upon it for many years and up to a short time before his death, when he transfers the policy to his wife in fraud of his creditors and dies before any further premium is paid, and it does not appear that he intended at the time of the payment of the premiums thus to transfer the policy later, the wife may retain the entire proceeds of the policy under St. 1907, c. 576, § 73, because, the estate having been the beneficiary of the policy at the time when the premiums were paid, it does not appear that the premiums were paid in fraud of creditors.</p> <p>The administrator of an estate which has been declared insolvent is the proper person to sue for the amount of a policy of life insurance upon the life of the decedent which before his death he had transferred in fraud of his creditors, and also under St. 1907, c. 576, § 73, for premiums paid by the insured in fraud of his creditors upon a policy which he had transferred to his wife.</p>

Two actions OF tort, against a street railway corporation, the first for damage to an automobile belonging to the plaintiff from being run into by an electric car of the defendant on the night of ¡November 23, 1909, on Longmeadow Street in Long-meadow, and the second by the chauffeur of the plaintiff in the first case, who was in the tonneau of the automobile at the time of the collision, for personal injuries thereby sustained. Writs dated January 15 and March 17, 1910.

Tort in the nature of trespass square clausum fregit for the alleged unlawful maintenance of poles, wires and fixtures upon the plaintiff’s land at Williamstown for conducting a high voltage electric current from the defendant’s power station in the town of Adams to Pownal in the State of Vermont. Writ dated November 29, 1909.

<p>Negligence, Employer’s liability.</p> <p>A workman, whose duty it is to oil the shafting in a factory and who knows and appreciates the obvious danger of an injury caused by his clothing catching on a revolving shaft, cannot recover against his employer for an injury thus caused; and the facts that there were currents of air and a lack of light at the place where the accident occurred and that the shaft had an accumulation of rust upon it, i although they enhanced the risk, do not affect the workman’s assumption of it, if he was fully aware of these obvious conditions.</p>

<p>Contract, against two defendants doing business under the name of the Worcester Dry Goods and Wrapper Company, for rent of a store numbered 192 on Front Street in Worcester at $112.50 a month for the nine months from April to December, 1909, inclusive. Writ dated January 5,1910.</p> <p>The answer, after a general denial, set up the defense that the plaintiffs had waived their rights under the contract alleged in the declaration; that on March 20, 1909, the defendants had surrendered the premises to the plaintiffs and that the plaintiffs had accepted such surrender. There was also an allegation of payment.</p> <p>In the Superior Court the case was submitted to Fox, J., upon an agreed statement of facts.</p> <p>A previous action between the same parties was brought on March 12, 1909, upon a covenant in a lease for rent of the premises for the months of February and March, 1909. By a decision of this court, reported in 203 Mass. 506, it was held the plaintiffs could not recover upon the covenant, although it was said that upon a proper declaration they might have recovered from the defendants as tenants at will for the rent due and unpaid after the expiration of the lease there in question. After that decision the plaintiffs amended their declaration in the previous action and declared for rent for the same two months of February and March, 1909, basing their claim in the amended declaration upon an alleged tenancy at will. That ease was settled by a payment by the defendants to the plaintiffs of $225, the amount claimed in the amended declaration as rent for the months of February and March, 1909.</p> <p>The agreed statement of facts set forth in the bill of exceptions in the former case was incorporated by reference as a part of the agreed statement of facts in the present case. The agreed facts in the former case included the following:</p> <p>The lease was for the term of two years from the first day of June, 1906, the rent being $1,350 per year, payable in equal monthly payments in advance “ on the first day of each and every month hereafter in every year during said term and at that rate for such further time as the said lessees, or any other person or persons claiming under them, shall hold the premises or any part thereof, the first monthly payment to be made on the first-day of June, 1906, now next ensuing.”</p> <p>The lease contained the following clause: “It is further agreed in consideration hereof the lessees shall have the privilege and right to renew this lease at its expiration for further term of two years upon the same terms and conditions of this lease.”</p> <p>The defendants occupied the premises and paid rent therefor at the rate specified in the lease. No new or additional agreement, either written or oral, was made between the parties at the expiration of the two years on May 31, 1908, or at any other time. The lessees, after May 31,1908, paid the same rent, $112.50 per month in advance, up to and for the month of January, 1909.</p> <p>On January 28, 1909, the defendants sent the plaintiffs the following letter: “ Worcester, Mass., Jan. 28,1909. Mr. Frank A. Leavitt, 597 Washington St., Boston, Mass. Dear Sir: Since the expiration of our lease of the store of No. 192 Front St., City, we have continued to occupy the same at sufferance hoping to find something more suited to our purposes. We have now done so and are moving out. We herewith send you the keys of the premises and as we have paid our rent in advance to February first, we have fulfilled our obligation to you. We wish to thank you for your courtesy in our business relations, and beg to remain, very truly yours, Worcester Dry Goods and Wrapper Co., by M. K. Maykel.”</p> <p>On February 2, 1909, the plaintiffs answered by a letter, addressed to the defendants and signed by the plaintiffs, as follows:</p> <p>“ Your letter of Jan. 28th, 1909, addressed to Mr. Frank A. Leavitt, enclosing key of premises No. 192 Front St., has been handed to us.</p> <p>“We think you are under a misapprehension as to the terms under which you have been occupying the premises No. 192 Front St., in Worcester.</p> <p>“ The lease under which you were placed in possession of the premises was for the term of two years from the first day of June, 1906, with the privilege and right to renew the lease at its expiration for the further term of two years upon the same terms and conditions.</p> <p>“ Since you kept possession of the premises after the expiration of the first term of two years -mentioned in this lease, we concluded that you had availed yourself of your privilege to renew, and we therefore look to you to pay the rent for the second term of two years mentioned in that lease.</p> <p>“ If you have removed your business from the premises it will be necessary for us to have a key in order that we may enter on the premises to take care of steam pipes which may freeze and other matters. If you wish us to find a tenant who will take the premises off your hands we will try to do this for you, but we do not accept from you any surrender of the premises, and we shall look to you for our rent in any event. The key which you have sent us we hold subject to your order, and the premises are at your disposal.”</p> <p>On February 4, 1909, the defendants wrote to the plaintiffs insisting on the position taken in their letter of January 28, and stating that they on that day had surrendered the premises and had no further connection with them.</p> <p>The following additional facts were agreed in the present case:</p> <p>The plaintiffs had the keys to the premises on and after January 28,1909, and the defendants never were upon the premises or exercised any control over them after that time. The plaintiffs found it necessary to enter on the premises to take care of “ steam pipes and other matters.”</p> <p>On March 20, 1909, while the first action was pending in the Superior Court, the defendants gave the plaintiffs the following agreement:</p> <p>“ It is hereby agreed by M. K. Maykel and A. Aboumrad, both of the city and county of Worcester and Commonwealth of Massachusetts, doing business in said city and county of Worcester as the Worcester Dry Goods & Wrapper Company, lessees named in a certain lease, dated February 21, 1906, in which Frank A. Leavitt and Chauncey W. Henry, both at that time of the city and county of Worcester and Commonwealth of Massachusetts, doing business in said Worcester as C. W. Henry & Company, are named as lessors, which lease demises a certain store on Front Street in said Worcester, being numbered 192 on said street, and also the basement under said store, except such portion thereof as is now occupied by the bowling alleys used and controlled by the said lessors, that the occupation of said premises by any one other than the lessees shall not be considered in any way as affecting the question of any surrender of their interests in the lease on the part of the lessees, and shall not be construed in any way by the lessees as a giving-up or surrender of any rights which the said lessors may have under said lease against the said lessees.” This was signed in the names of the defendants by their attorneys.</p> <p>Immediately after the giving of the foregoing agreement by the defendants, the plaintiffs, relying upon it, entered on the premises and took possession of them, put up “ to rent ” signs in the windows and succeeded in letting the premises to one Seiman who occupied them under an agreement with the plaintiffs for the months of June and July, 1909, paying for them $125 per month or $250 in all, which was credited to the defendants upon the account annexed in the plaintiffs’ declaration. There was no other agreement with the defendants except that above set forth as to the use of the premises by the plaintiffs or any one else.</p> <p>No demand for rent or for payment for use and occupation for the months from April to December, 1909, ever was made upon the defendants, nor was any assertion made that they were tenants at will until after the decision in the former case reported in 203 Mass. 506, which was rendered on November 22, 1909.</p> <p>On December 1, 1909, the defendants gave the plaintiffs the following notice:</p> <p>“ Worcester, Mass., December 1, 1909.</p> <p>“ Frank A. Leavitt & Chauncey W. Henry, doing business as O. W. Leavitt & Co.</p> <p>“ Gentlemen:</p> <p>“ Without admitting any liability for back or future rent but to protect our rights under any contingency, you are hereby notified that we shall on the first day of January, 1910, quit and deliver up the premises either now or formerly held by us as your tenants at No. 192 Front Street in the city and county of Worcester and Commonwealth of Massachusetts.</p> <p>“ This notice being given to make sure the termination of an alleged tenancy at will of said premises, which tenancy is denied by us. And this notice is given with the express reservation of all our legal rights and defenses to any suit which may be brought by you for use and occupation or other kind of action upon our relations the one to the other.”</p> <p>The notice was signed in the names of the defendants by their attorneys.</p> <p>Before bringing this action in January, 1910, the plaintiffs demanded of the defendants the sum of $762.50, for nine months’ rent from April to December, 1909, inclusive, at $112.50 a month, less $250 paid to the plaintiffs by Seiman.</p> <p>It was stipulated that the court might draw any proper inference of fact from the agreed facts.</p> <p>The defendants asked the judge to make the following rulings:</p> <p>“ 1. When the plaintiffs 6 took possession ’ of the premises on March 20,1909, the tenancy at will of the defendants terminated.</p> <p>“ 2. That when the plaintiffs, on March 20, .1909, entered on the premises and took possession of them, put up ‘ to-rent ’ signs and actually rented them to other parties as their tenants the tenancy at will of the defendants terminated.</p> <p>u 3. That the agreement of March 20,1909, preserved to the plaintiffs any rights they might have against the defendants under the written lease, but left the question of the termination of the defendants’ tenancy at will unaffected.</p> <p>“ 4. That when the plaintiffs, on March 20, 1909, entered on the premises and took possession of them, put up ‘to-rent’ signs and actually rented them to other parties, they elected to rely on any rights they might have against the defendants under the written lease, and any tenancy at will of the defendant ended.</p> <p>“ 5. That the plaintiffs could not take actual possession of the premises and exercise dominion over them, without terminating defendants’ tenancy at will, except by consent of defendants, and defendants did not so consent.</p> <p>“6. That upon the agreed statement of facts the plaintiff cannot recover.”</p> <p>The judge refused to make any of these rulings, and made the following memorandum of decision: “ I am unable to find in the present case that the landlord intended to accept the tenant’s surrender of his estate. The landlord took possession relying upon his agreement with the tenant. Although the agreement refers in terms only to the rights of the parties under the written lease, it excludes the inference that the landlord intended by his acts to put an end to the tenant’s estate.”</p> <p>The judge found for the plaintiffs in the sum of $762.50; and the defendants alleged exceptions.</p>

<p>Three actions of tort for personal injuries sustained on August 10,1909, by being thrown from an open electric car of the defendant in which the plaintiffs were being transported as passengers. Writs dated September 16, 1909.</p> <p>The declaration in each of the three cases was the same, and was as follows:</p> <p>“ And the plaintiff says that the defendant was on or about the tenth day of August, 1909, and now is a corporation operating a street railway between the cities of Springfield and Chicopee in said county and that on said day she was a passenger on one of the defendant’s street cars en route from Springfield to Chicopee ; that it thereupon became and was the duty of the defendant to carry her safely to her destination on its route and then to permit her to leave said car in safety; yet the defendant by its servants, agents and employees, wholly regardless of said duty, so carelessly, negligently and recklessly operated said car as to cause the same to approach and go around the curve of its track at the corner of Grape and Front streets in said Chicopee at a very high and dangerous rate of speed, causing said car to jolt and sway with the greatest violence and throwing the plaintiff who was seated therein, and who herself was using due care, with violence to the ground, that as a result the plaintiff was severely and permanently injured and has suffered and is still suffering great pain of mind and has sustained other damage.”</p> <p>In each case the answer was a general denial.</p> <p>In the Superior Court the cases were tried together before Crosby, J. It appeared that the accident happened at about nine o’clock in the evening; that the car was late about four minutes; that it was equipped with an air brake and a hand or emergency brake; and that connected with the air brake at each end of the car was a pressure gouge.</p> <p>Evidence was introduced by the plaintiffs which tended to show that the car on which the plaintiffs were passengers had been running very fast along Springfield Street before reaching Grape Street; that while running down the grade on Grape Street it attained a very high rate of speed and rocked and swayed with much violence; that it made no stop oh Grape Street; that while approaching a curve at the foot of the grade on Grape Street and turning into Front Street it was running at a rate of speed variously estimated at from twenty-five to forty miles an hour; that it rounded the curve while moving at a very rapid rate, about twenty miles an hour; that there was a violent lunge of the car as it entered the curve and that the three plaintiffs were thrown to the ground; and that the car rocked and swayed in such a manner as to cause various passengers to become alarmed and to take precautions for their safety. The conductor of the car testified that as the car entered the curve a passenger was thrown up against him as he stood on the back platform, and that this passenger lost his hat. It also appeared that other passengers were thrown about, retaining their positions with great difficulty, and that in some cases their hold on the uprights and seats of the car was loosened. The evidence of the plaintiffs further tended to show that as the car rounded the curve the trolley left the wire and that the car proceeded on to and down Front Street, not stopping until its rear end was at a distance from the curve variously estimated at from eighty to one hundred and fifty feet.- It also appeared that the motorman, immediately after the car had stopped, stated that he could not control the car, that the air brake would not work.</p> <p>A rule of the defendant was introduced in evidence by the plaintiffs which read as follows: “ Never run into a sharp curve at a greater speed than four miles per hour. Slacken speed of car when approaching curve so as to enter same with brakes released.”</p> <p>There was no dispute upon the part of the witnesses called by the defendant but that the plaintiffs were thrown from the car; and witnesses called by the defendant estimated that the rate of speed at which the car approached the curve was from eight to twelve miles an hour. Expert witnesses called by the defendant gave it as their opinion that it would be impossible for such a car as was described in this case to take this particular curve at a rate of speed in excess of eight miles an hour and remain upon the track. The evidence showed that the defendant’s car at no time left the rail.</p> <p>Other evidence introduced upon the part of the defendant tended to show that the air brake apparatus gave way without premonition or warning to the motorman; that he endeavored to use the air brake at a distance of about one hundred and fifty feet from the curve and while running down grade at a rate of from ten to fifteen miles an hour; that the first application checked somewhat the speed of the car; that the second application disclosed to •him that the brake utterly failed to work; that he was then at a distance of from ten to twenty feet from the curve at Grape and Front streets and that he reversed his car; that he did not use the hand or emergency brake which after the accident was found to be in good condition; and that the car came to a stop on Grape Street with the rear trucks just leaving the curve into Front Street. Evidence, also introduced by the defendant, tended to show that there had been an inspection of the car the evening before this accident and that this inspection had failed to show any defect in the air brake apparatus or in the wiring of the car, and that the failure of the brake to work was caused by a sudden and unforeseen breaking of the wire transmitting power to the motor which operated the air pump.</p> <p>At the close of the evidence the defendant made twenty-six requests for rulings, which included the following:</p> <p>“ 18. If you should find that the air brake on this car of the defendant failed to work, without premonition or warning to the motorman, and at a time when he was closely approaching a sharp curve in the defendant’s tracks, so that he was confronted with unexpected peril, then it is immaterial whether the hand brake was used by him or not, if he used a reasonably proper method for checking the speed of the car.”</p> <p>“ 25. The plaintiff cannot recover for any defect in the car causing the accident.</p> <p>“ 26. The plaintiff cannot recover for failure to inspect the car.’’ The judge refused to make these rulings, and submitted the case to the jury with instructions which permitted them to find negligence of the defendant, not only in the manner of the operation of the car, but also in operating the car with a defective air brake and in a failure to inspect the car properly.</p> <p>The jury returned a verdict for the plaintiff in each of the cases; and the defendant alleged exceptions.</p>

<p>Tort, against a corporation maintaining a department store in Salem, by the head fitter in the defendant’s cloak and dressmaking department, for personal injuries sustained on March 30, 1906, in the course of the plaintiff’s employment by the defendant, alleged to have been caused by the negligence of the defendant in employing for the management and operation of a passenger elevator in its building an incompetent person of insufficient mental and physical capacity and skill. Writ dated September 14,1906.</p> <p>The answer consisted only of a general denial.</p> <p>In the Superior Court the case was tried before Morton, J. The material evidence is described in the opinion. At the close of the plaintiff’s evidence, the judge, in accordance with an agreement of the parties, ordered a verdict for the defendant and reported the case for determination by this court, with the stipulation that, if upon all the competent evidence reported the plaintiff was entitled to go to the jury, judgment should be entered for the plaintiff in the sum of $2,500; otherwise, that judgment should be entered for the defendant.</p>

<p>Evidence, Remoteness. Negligence, In maintaining real estate.</p> <p>In an action against the owner of land, on which such owner maintained a store, for personal injuries alleged to have been caused by the unsafe condition of the approaches to the store, the defendant objected to the admission of evidence as to the condition of the approaches six months after the accident. The plaintiff then introduced independent evidence that the condition of the approaches had remained unchanged from the time of the accident to the time of the trial, and offered again the evidence of the condition of the premises six months after the accident, which the presiding judge admitted. Held, that the question whether the evidence was too remote was within the discretion of the presiding judge, and that this discretion did not appear to have been exercised wrongly.</p> <p>In an action against the owner of land, on which such owner maintained a store, for personal injuries alleged to have been caused by the caving in of a dirt walk leading to the door of the store, there was evidence warranting a finding that, for some time before the injury to the plaintiff, the filling was dropping away from the entrance to the store in such a way as might render it dangerous, ■ and that a reasonable inspection would have revealed a defective condition which reasonable prudence required should be remedied. The presiding judge refused to rule that “there was not sufficient evidence for the jury that the defendant knew or should have known by the exercise of due care and diligence that there was any defect in her premises.” Held, that the ruling was; refused rightly.</p> <p>In an action against the owner of land, on which such owner maintained a store, for personal injuries alleged to have been caused by the caving in of a dirt walk leading to the door of the store, it appeared that the plaintiff had a wooden leg with a flat base about three inches across, that as the plaintiff stepped from the doorway of the defendant’s store his wooden leg went through the walk in a slanting way, throwing the plaintiff down and causing his injuries, that the plaintiff for a considerable time had been a regular customer at the defendant’s store and that the defendant knew about his wooden leg. The defendant excepted to an instruction to the jury, which was in substance, that they might take into account, as bearing upon the care which the defendant ought to exercise, that the defendant knew of the plaintiff’s infirmity and that the plaintiff was in the habit of trading at the defendant's store. Held, that the instruction was a proper one; that, if the defendant knew that the plaintiff with his wooden leg was in the habit of resorting to her store as a customer, this was equivalent to an invitation to him to do so, and was a fact to be considered with all the others upon the question whether the defendant had conformed to the required standard of ordinary care.</p>

<p> Constitutional Law, Ex post factoXom. </p> <p>St. 1910, c. 555, § 3, repealing R. L. c. 167, § 8, which provided that capital cases should be tried before two or more judges of the Superior Court, is not an ex ’ post facto law as applied to the trial before a single judge of the Superior Court of an indictment for a murder committed before the repeal of R. L. c. 157, § 8.</p>

<p>Bill in equity, filed in the Superior Court on November 4, 1910, alleging that on December 2, 1907, the defendant conveyed by a warranty deed to the plaintiff a parcel of land with buildings thereon situated on Bridge Street in Holyoke and numbered 524 and 526 on that street, that as a part of the purchase there passed to the plaintiff certain store fixtures and also one china closet and cabinet and a hot water heater used in the bath room on the second floor of the building, that the china closet and cabinet were built in and attached to the building and were a part thereof, as also was the heater, which was connected with the building by pipes, that on the same day of December 2,1907, after the sale the plaintiff executed and delivered to the defendant a lease in writing for the term of three years of the first floor of the building, with an adjoining stock house and the barns and sheds on the premises and the tenement on the second floor of the building, that the lease had expired and that the defendant was about to quit and deliver up the premises and had advertised for sale the store fixtures, the china closet and cabinet; and praying that the defendant might be enjoined from removing or selling the fixtures and property belonging to the plaintiff.</p> <p>The case was referred to William P. Hayes, Esquire, as master. The master filed a report, and at the request of the plaintiff reported certain evidence. Both the plaintiff and the defendant filed exceptions to the master’s report. The case was heard on these exceptions by Hitchcock, J., who made an interlocutory decree that the exceptions filed by the plaintiff and by the defendant be overruled and that the report of the master be confirmed. Later the case was heard further by Pierce, J., who made a final decree that the plaintiff’s bill be dismissed and that the defendant be awarded her costs of suit to the amount of $39.54. From this decree the plaintiff appealed.</p>

<p>Negligence, Employer’s liability. Snow and Ice. Notice. Statute, Repeal.</p> <p>St. 1908, c. 305, providing, that the provisions of the highway act, requiring ten days’ notice of an injury from a defect consisting in part of snow or ice, shall apply to actions against persons or corporations founded upon the defective condition of the premises of such persons or corporations caused by or consisting in part of snow or ice, applied to and modified R. L. c. 106, § 75, requiring sixty days’ notice of an action under the employers’ liability act, which was in force when it was enacted, and likewise applies to St. 1909, c. 514, § 132, embodying in substance the provisions of that section, which is to be treated as a continuation of it with its modification, although St. 1908, c. 305, is not referred to in St. 1909, c. 514. Consequently no action can be maintained under St. 1909, c. 514, § 127, by an employee against his employer for personal injuries alleged to have been caused by the unsafe condition of the defendant’s premises by reason of accumulations of snow or ice without proving that the required notice was given to the defendant within ten days after the injury.</p>

<p> Execution. Attachment. Officer. </p> <p>When personal property is held by a deputy sheriff under attachment upon writs in different actions against the same defendant, such officer, not only must receive and execute all subsequent orders for the attachment of such property while it is in his custody, but also must receive and levy all executions which may issue in any of the actions, and it is right for such officer to refuse to surrender the property to another deputy sheriff to whom an execution upon a judgment in one of the actions has been delivered for service.</p>

<p>Bill in equity, filed in the Superior Court on July 8, 1909, by a wife against her husband, seeking to have declared void because procured by fraud, cruelty and duress deeds conveying her interest in certain property, in which she was jointly interested with her husband, to her daughter and from her daughter to her husband.</p> <p>The case was referred to James L. Doherty, Esquire, as master. The master’s findings with regard to the petitions of the plaintiff for separate maintenance, referred to in the opinion, were as follows:</p> <p>“ Beginning not later than 1907, the marital relations of the parties became more or less strained and on several occasions between October, 1907, and April, 1909, the plaintiff left the defendant, remaining away for short periods of time, and on December 7,1907, she instituted proceedings against the defendant in the Probate Court for Hampden County for the purpose of securing separate support from him and alleging as a ground therefor: ‘that her said husband has been guilty of cruel and abusive treatment of her and especially of threats of physical violence to her on two occasions during the year 1907, the dates of which petitioner cannot exactly specify, and of actual physical violence, in case at their residence in this city, on the following dates: August 30, October 19 and October 20, December 2, 3 and 7 of the year 1907.’ A second petition for separate support was brought in the same court by the plaintiff against the defendant, dated May 4, 1909, and based upon substantially the same grounds as those set out in prior suit, the first petition pending at that date. These suits, or at least the prior suit, was tried first in the Probate Court and later, upon appeal, in the Superior Court, and the findings of ” both of the courts are described in the opinion, where also are stated other material portions of the master’s report.</p> <p>The case was heard on exceptions to the master’s report and on the question of final decree by Pierce, J. At the hearing the defendant asked for the following rulings:</p> <p>1. That any acts of cruelty or coercion which the defendant committed toward the plaintiff were by her condoned, and by. reason of said condonation the plaintiff cannot recover in this action.</p> <p>2. That the judgment in the former action dismissing the plaintiff’s petition was an adjudication in favor of the defendant, and by reason of said judgment the plaintiff cannot recover in this action.</p> <p>3. That the plaintiff in standing by and seeing her daughter convey the property in controversy to the defendant, and making no objection, ratified said act and said conveyance, and the plaintiff cannot recover in this action.</p> <p>4. That the plaintiff in waiting from January 5 to July 8, and during said period making no demand for reconveyance of the property in controversy and no attempt to assert her alleged rights, was guilty of loches, and the plaintiff cannot recover in this action.</p> <p>5. That the defendant is entitled to be repaid by the plaintiff one half of all moneys, expended by the defendant for repairs, taxes and all other sums paid by him for protecting and preserving the property in controversy, and until the plaintiff has repaid to the defendant one half of all moneys so expended the plaintiff cannot recover.</p> <p>6. That the defendant has an equitable lien on the premises in controversy for one half of all moneys expended by him in taxes, repairs and in preserving and protecting said premises, and until said lien is satisfied the plaintiff cannot recover.</p> <p>7. That upon all the facts as found by the master, the plaintiff is not entitled to a reconveyance to her of her former interest in the property in controversy, nor to a decree in her favor.</p> <p>8. And that the bill be dismissed.</p> <p>A final decree was entered granting the prayers of the bill. The defendant appealed.</p>

<p>Contract, against the Hampden Real Estate Trust, a voluntary association, and the American Surety Company, upon a bond by which the surety company guaranteed the performance by the real estate trust of a building agreement between it and the plaintiff. Writ dated November 27, 1909.</p> <p>The case was heard by Crosby, J., without a jury.</p> <p>It appeared that the building agreement provided that the real estate trust would build for the plaintiff a certain building on- a lot owned by him in Springfield “ for the sum of $6,500, $1,000 of this amount the said Borucinski will pay in cash, and $5,500 the said Hampden Real Estate Trust will loan to the said Borucinski on the lot and building at 5 per cent interest. . . . The said Hampden Real Estate Trust do hereby agree to commence work under this contract within two days from this date [April 5, 1909,] and to complete the work on or before October first, 1909. It is also agreed that the Hampden Real Estate Trust will make a mortgage herein named free of charge and also allow the said Borucinski $100 off of this contract, which amount already has been paid for the plan herein referred to. The $1,000 to be paid in cash satisfactory to both Borucinski and the Hampden Real Estate Trust. It is further agreed that the Hampden Eeal Estate Trust is not to charge any interest on the mortgage until Oct. 1st, 1909.”</p> <p>The bond which was the subject of this action was in the penal sum of $2,000, with the condition that, if the real estate trust “ shall faithfully perform said contract on its part, according to the terms, covenants, and conditions thereof (except as hereinafter provided), then this obligation shall be void; otherwise to remain in full force and effect.” The only provision which is material in this case was the following:</p> <p>“ Fourth: That the Obligee shall retain not less than fifteen per centum (15 p. ct.) of the value of all work performed and materials furnished in the performance of such contract until the complete performance by said Principal of all the terms, covenants and conditions thereof on said Principal’s part to be performed; and that the Obligee shall faithfully perform all the terms, covenants and conditions of said contract on the part of said Obligee to be performed.”</p> <p>At the trial it appeared that the plaintiff paid the real estate trust $100 when the plan was accepted and $900 about April 20, 1909, at about which date he gave it a mortgage securing a note for $5,500, and there was evidence that at that time the real estate trust had performed work under the contract worth about $1,459. The real estate trust abandoned the work from four to six weeks after it was begun, and the plaintiff procured one Hogan to finish it for him.</p> <p>At the close of the evidence the defendant surety company asked the judge to make the following rulings:</p> <p>“ 1. If before the contractor abandoned the work the plaintiff made a payment on the contract before the entire work was complete, the surety was released from all obligations on its bond.</p> <p>“ 2. If before the contractor abandoned the work and before the entire work was complete the plaintiff executed and delivered the mortgage provided for in the contract and especially if the contractor was thus enabled to avail himself of any funds raised by the mortgage, the surety was released from all obligation on its bond.</p> <p>“ 3. If, either by payment of the $1,000 or by the execution and delivery of the mortgage or any other way, the contractor was prepaid for a value not as yet incorporated in the work, the surety was released from all obligation on the bond.</p> <p>“4. If, either by payment of the $1,000 or by the execution and delivery of the mortgage or any other way the contractor was prepaid for a value not as yet incorporated in the work and the surety suffered loss thereby, the surety was released from all obligation on its bond.</p> <p>“ 5. If, either by payment of the $1,000 or by the execution and delivery of the mortgage or any other way the contractor was prepaid for a value not as yet incorporated in the work, the surety was released from obligation on its bond to the extent of said prepayment and is entitled to a reduction on this account or any liability it may have incurred upon its bond.</p> <p>“ 6. The provision and the bond for the withholding of fifteen per cent of all work performed and materials furnished was material for the protection for the surety, and any violation of this provision by the plaintiff released the surety from all obligation on its bond.</p> <p>“ 7. The provision and the bond for the withholding of fifteen per cent of all work performed and materials furnished was material for the protection for the surety and any violation of this provision by the plaintiff involves a corresponding reduction in the amount for which the surety would be liable, if liable at all, that is to say, if the liability would be total than a reduction from the penal sum of the bond.</p> <p>“ 8. By the act of the plaintiff in paying the one thousand dollars and also by his act in executing and delivering the mortgage and allowing the contractor to avail itself of certain proceeds thereof, the surety was released from all obligation on its bond.</p> <p>“9. If the rental value of the building is an element of damage then from the rental value there should be deducted interest on the payments upon the Hogan contract from the time when the payments should have been made on the original contract up to the time when they were made under the Hogan contract.”</p> <p>The trial judge made the fourth, fifth, sixth, seventh and ninth rulings, and refused the first, second, third and eighth. He found for the plaintiff in the penal amount of the bond and ordered execution in the sum of $1,756. The defendant surety company alleged exceptions.</p>

<p>Bill in equity, filed in the Probate Court for Worcester County on October 16,1910, by the administrator of the estate of Ellen M. Pierce, late of Leominster, for instructions as to what disposition should be made by him of property which his intestate had received under the will and codicil of her father, Francis Balch, late of Leominster. The defendants, besides the Attorney General of the Commonwealth, were the husband and the heirs at law and next of kin of Ellen M. Pierce.</p> <p>The contention of the heirs at law and néxt of kin, as stated in their answers, was that under the will and codicil of Francis Balch, quoted in the opinion, in the event that Ellen M. Pierce should die leaving no child or children, the share given to her under the will should be subject to a life interest in her husband, George A. Pierce, with vested remainder in the other children of the testator and their heirs share and share alike.</p> <p>The contention of the husband of the intestate, George M. Pierce, was that under the circumstances Ellen M. Pierce acquired an absolute title to the property which she received under her father’s will, that it was not subject to a mere life estate in his favor, and that on her death he was entitled to his statutory share therein.</p> <p>The ease was reserved by Loring, J., upon the bill and answers for determination by the full court. The facts are stated in the opinion.</p>

<p>Milk. Evidence, Relevancy and materiality, Competency, Opinion: experts. Praclice, Criminal, Conduct of trial. Witness.</p> <p>In a prosecution under R. L. c. 66, §§ 67, 68, charging the defendant with having in his possession with intent to sell and in receptacles not properly marked milk which was not of good standard quality or from which the cream or a part thereof had been removed, where it has been proved that the defendant had had in his possession with intent to sell milk of the description set out in the complaint, evidence, that he had not intended to have in his possession with intent to sell milk which the statute prohibited or that the milk which he had in his possession and had intended to sell was not of a character injurious to the public, is immaterial on the question of the defendant’s guilt.</p> <p>At the trial together of two complaints, the first charging the defendant with having in his possession with intent to sell milk which was not of good standard quality, contrary to the provisions of R. L. c. 56, § 67, and the second charging him with having in his possession with intent to sell and in receptacles not properly marked milk from which the cream or a part thereof had been removed, contrary to the provisions of § 58 of the same chapter, a witness for the Commonwealth was asked in cross-examination if he had read certain bulletins issued by chemists of the United States Agricultural Department and if certain statements therein were not contrary to statements by him in his direct testimony. He answered that he had read some of the bulletins but that he had not found therein any such statement as the defendant referred to. The defendant then offered a bulletin, corresponding to the description contained in his question of the witness, without further proof of its authentication and offered to show by statements therein facts contrary to some testified to by the witness in his direct examination. Held, that the document did not tend to contradict the testimony of the witness, and therefore was not admissible even in cross-examination.</p> <p>At the trial together of two complaints, the first charging the defendant with having in his possession with intent to sell milk which was not of good standard quality, contrary to the provisions of R. L. c. 66, § 67, and the second charging him with having in his possession with intent to sell and in receptacles not properly marked milk from which the cream or a part thereof had been removed, contrary to the provisions of § 58 of the same chapter, neither the whole nor any part of a document bearing the title “ Milk and Its Relation to the Public Health, House of Representatives, Document No. 702 under the supervision of the Hygienic Laboratory, Bulletin No. 41, W. J. Rosenan, Director, printed in the government printing office, Washington, D. C.,” or of a book entitled “The Science and Practice of Cheese-making” asserted by the defendant to have been published by a person whom one of the witnesses had quoted in his direct examination, or of a document called “ Bulletin No. 110,” asserted by the defendant to have been written by chemists of the Hatch Experiment Station of the Massachusetts Agricultural College, is admissible to disprove assertions of witnesses for the Commonwealth.</p> <p>It is within the discretionary powers of the judge presiding at the trial of a criminal complaint to determine how far the defendant shall be permitted in cross-examination of witnesses for the Commonwealth to inquire into collateral matters for the purpose of showing that the witnesses are hostile or biased in their opinions, as also to determine whether a witness offered by the defendant as an expert is qualified to give such testimony, and, unless it clearly appears that the judge acts arbitrarily or that the defendant is prejudiced unjustly, the judge’s decision in such matters will not be reversed by this court.</p>

<p>Devise and Legacy. Words, “ Relation.”</p> <p>A sister-in-law of a testator, named as a legatee, who died before the testator leaving issue surviving the testator, is not a “ relation of the testator ” within the meaning of R. L. c. 135, § 21.</p> <p>A will, which contained a large number of legacies, concluded with the following provision: “ If after all these legacies have been paid in full there shall still be a residue left, I bequeath that to be divided among the first sixteen legatees named in this will, in proportion to the several amounts given to each.” There was such a residue to be distributed. The first sixteen legatees named were relations and friends of the testator and their legacies were given successively in sixteen separate articles of the will. Three of1 these legatees died before the testator. One was not a relation of the testator and the other two left no issue, so that their legacies lapsed and the amounts named in these legacies fell into the residue of the estate to be distributed under the clause above quoted. Held, that the residuary legatees were the first sixteen legatees named in the will, whether they actually took under it or not, and that the residue, increased by the amounts of the three lapsed legacies, was to be distributed among the sixteen legatees named in the will as it was written, except that the shares of the residue which thus would go to the three deceased legatees were to be distributed as intestate property to the next of kin of the testator.</p> <p>A share of a residuary bequest which has lapsed by reason of the death of the legatee, being itself a part of the residue, cannot be distributed under the residuary clause and goes to the testator’s next of kin as intestate property, unless the will shows a manifest intention of the testator that such a lapsed residuary legacy shall go to increase the shares of the other residuary legatees. In the present case no such intention was shown.</p> <p>One of the bequests in a will was the gift of a fund of money to a trustee, “ but in trust ” to pay the income to the testator’s sister during her life, with a discretionary power in the trustee, if the income should “be insufficient at any time to provide for all her necessities and reasonable comforts,” to pay to her so much of the principal as might be needed therefor. The trustee was directed to exercise discretion in favor of the beneficiary. She was authorized to dispose of the principal of the fund by will, and, in case she did not do so, the fund at her decease was to go to the testator’s heirs. A later provision in the will was as follows: “ In the event my estate should not be sufficient to pay the legacies in full bequeathed in this will, I direct that the legacy to my sister, [naming her,] shall first be paid her in full.” After providing for the order of payment of the other legacies, came the following clause: “ If after all these legacies have been paid in full there shall still be a residue left, I bequeath that to be divided among the first sixteen legatees named in this will, in proportion to the several amounts given to each.” The legacy for the benefit of the testator’s sister was one of the sixteen thus designated. There was a residue to be distributed under the clause last quoted, and the testator’s sister contended that she and not the trustee was the legatee referred to and that she was entitled to receive personally the share of the residue corresponding to the legacy for her benefit. Held, that the trustee and not the beneficiary for life was the legatee designated to receive the share of the residue, and that such share was to be added to the fund held in trust.</p>

<p>Perjury. Evidence, Competency: at trial for perjury of alleged perjured testimony, of substance of conversation in foreign language. Practice, Criminal, Conduct of trial: offer of proof.</p> <p>At the trial of an indictment for perjury, alleged to have been committed by the defendant in testifying in his own behalf at the trial of a civil action in which he was the plaintiff, a witness who was present at the trial of the civil action can be allowed to testify to the material portion of the testimony of the defendant given at that trial, although he is not able to state in substance all of the testimony given by the defendant in his own behalf in the civil action. In the present case it did not appear that the witness did not remember the whole of the portion of the defendant’s testimony which was alleged to be perjured, but it was intimated that in a prosecution for perjury a witness who remembers distinctly a part of the alleged perjured testimony may be allowed to testify to that part although he does not remember all of the testimony of the defendant on the subject in question, leaving the other parts of the alleged perjured testimony to be proved by other witnesses.</p> <p>In this Commonwealth a witness in a criminal case may be allowed to state in English the substance of a conversation which he had with the defendant in a foreign language.</p> <p>Where at the trial of a criminal case the defendant makes an offer of proof, containing various matters which are clearly too remote to be admissible, the presiding judge properly may exclude the evidence, thus offered as a whole, without separating it into parts and passing upon the admissibility of each part separately.</p>

Bill in equity, filed in the Superior Court on April 6,1909, by the Boston and Maine Railroad, as successor to the rights of the Massachusetts Central Railroad Company, to enjoin the defendant from flooding a meadow belonging to him in Rutland in such a manner as to cause the water to flow on the railroad location of the plaintiff and to endanger the embankment on which one of its tracks was laid.- In the Superior Court the case was heard by Aiken, C. J., who made an order…

<p>Tort by the administrator of the estate of James J. Kennedy, late of Worcester, for causing the death of the plaintiffs intestote from injuries sustained by him on June 3, 1908, by reason of the alleged negligence of the servants and agents of the defendant in the operation of its street railway. Writ dated December 21,1908.</p> <p>In the Superior Court the case was tried before Fessenden, J. The material facts shown by the plaintiff’s evidence are stated' in the opinion. At the close of the plaintiff’s evidence the judge ordered a verdict.for the defendant; and the plaintiff alleged exceptions.</p>

<p>Equity Jurisdiction, To enjoin continuing Equity Pleading and Practice. trespass, Mandatory injunction, Laches.</p> <p>One, who has attempted to interfere with the rights or to appropriate the property of an owner of land and has changed the condition of the owner’s real estate with-,, out right, without excuse and without being misled by the speech, silence or con- ‘ duct of the owner, can be compelled by a suit in equity to undo so far as possible .that which he wrongfully has done affecting the owner and to pay.damages.</p> <p>If a landowner employed a builder to erect a building for him and ga've to him only a general direction not to get over the boundary line, and the builder did not employ a surveyor to show him where the boundary line was but shored up and adopted as the line an old fence, which was irregular and dilapidated and never had been regarded as marking the correct boundary line, and, having represented the fence to be the true boundary line to the owner of the adjoining land, who, relying upon the representation, did not object to it, erected the building in part upon land of the adjoining owner, in a suit in equity by a successor to the title of the adjoining owner seeking a mandatory injunction directing the removal of the building from the plaintiffs land, the landowner who employed the builder cannot rely in defense, as showing that he acted in good faith and merely made an honest mistake in which the plaintiffs predecessor shared, upon the fact that he gave the general direction to the builder not to get over the boundary line.</p> <p>The owner of certain land desired in 1905 to erect a building which was wider than could be included in the land and sought to purchase from the adjoining owner sufficient land to permit him to carry out his purpose and, the' adjoining owner refusing to .sell, he directed a builder, whom he had employed, to erect a building narrower than the one originally intended, and instructed him not to get over the boundary line. The builder, without procuring the assistance of a sur-veyor, made no especial effort to find the boundary line, but shored up an old, irregular and dilapidated fence, which never had been regarded as showing the line, and adopted it as a boundary; and then called the adjoining owner’s attention to it, who accepted an assurance of the builder that the fence was on the boundary line and that the proposed building would not encroach on the line, and said that the location was all right if it did not go over on his estate. The builder thereupon in 1905 erected a building thirty-two feet long which, exclusive of the overhang of the eaves, encroached upon the adjoining land four feet at one end and two feet at the other. In 1907 the adjoining owner sold his property to one who in 1908 caused his land to be surveyed and then discovered for the first time the building’s encroachment, and on April 23,1909, brought a suit in equity seeking a mandatory injunction directing the removal of the building from his land. It appeared that it would cost the defendant §500 to remove his building. Meld, that it did not appear that the plaintiff had been guilty of loches, that the defendant had not shown.that in encroaching on the plaintiff’s land he had acted in good faith and innocently, or that he had been misled by any silence, statement or conduct of the plaintiff or of his predecessor, and therefore that the plaintiff was entitled to the mandatory injunction which he sought.</p> <p>A defendant in a suit in equity cannot rely as of right upon a defense that the plaintiff has been guilty of loches sufficient to bar the suit unless he sets that defense up in his answer or in a plea.</p>

<p>Tort for personal injuries alleged to have been caused by a defective step provided by the defendant for use at the back of a house which the plaintiff in. her declaration alleged that she had hired from the defendant. Writ dated August 6,1910.</p> <p>Specifications were filed by the plaintiff in which also she stated that she was the defendant’s tenant.</p> <p>The case was tried before*Morton, J.</p> <p>The plaintiff’s attorney in his opening address to the jury, after reading the pleadings, “ offered to prove that in March, 1910, the husband of the plaintiff went to inspect a new tenement house . . . and talked with the defendant, who was the owner and landlord; that the house was hot then entirely complete, the finishing was to be done, floors to be laid, and painting and papering to be finished; that in that conversation the plaintiff’s husband picked out the tenement upon the second floor of the house, agreed upon the rentaLof the same, and that he would take possession when the defendant should notify him that,the house was ready for occupancy; that the house was a three tenement house with a flat on each floor; that in the latter part of April the defendant met the plaintiff’s husband and told him that the house was ready to be occupied; that they could move in at any time,, and that other tenants would move into the premises ,* that on the eleventh or twelfth of April the plaintiff’s husband and herself together with one Mrs. Kimball, . . . who was to occupy the flat above that of the plaintiff and her husband, started to move into the house; that they first took a load of lighter articles on an express wagon arid when they arrived at the tenement drove to the back door to unload and then for the first time found that the steps to that door had not been completed; that the defendant had constructed cement block walls on each side of the door and filled in between them a quantity of ashes and cinders to prepare the way for cement steps; that there was a space of two and one half or three feet between the top of the ashes, and the door sill; that when the Wards and Mrs. Kimball reached the back door, the women stepped off the express wagon on to the wall of cement blocks; that they could not step up from the wall to the door and that the husband of the plaintiff called the defendant who was present and called his attention to the situation ; that the defendant then went to the cellar,, got a box and placed it on top of the coal ashes, saying: *■ That will do for a while. I am going to get cement steps in in a few days ’; that the plaintiff and her husband and other tenants then moved into the building; that the box remained there something like a month and five or six days; that it wobbled and shook with the cinders under it and became worse as time went on; that it was not intended to be the permanent means of approach to that door; that the plaintiff’s husband and other tenants called the defendant’s attention to this insufficiency on two different occasions before the time of the plaintiff’s injury, and that on each occasion he gave some excuse for not doing it at that particular time, but said that he would do it in four or five days; that the back door and this box were used in common by the three tenants in the building in reaching the back yard where the clothes lines were; that upon the nineteenth day of May, the plaintiff, living on the second floor, put her washing out in the back yard, [that later] she noticed something drop from the line and on to the ground and went down the back stair and out in the back hall, which was used in common by all the tenants, for the purpose of going out of the back door to pick up the article which had fallen from the clothes line, and stepped from the back door to the box which, as soon as she stepped on it, turned over and threw her violently to the ground causing her severe injuries.”</p> <p>The plaintiff also offered to prove that “ she did not think that the box was as safe as steps would have been, but relied upon the assurance of the defendant that steps would be constructed in a few days, and that until that time, she thought she could get along with the box by using special care and did use special care in stepping on to it on each occasion and on the occasion of the injury.” The presiding judge ruled that the evidence set out in this paragraph would not be admissible.</p> <p>The presiding judge ruled that, upon the pleadings and the offer of proof, no action could be maintained. He ordered a verdict for the defendant and reported the case for determination by this court, judgment to be entered on the verdict if the ruling was correct, and the case to stand for trial if the ruling was incorrect.</p>

<p>Tax, Redemption, Agent of non-resident holder of tax title. Statute, Construction. Equity Jurisdiction, To redeem from a tax sale. Equity Pleading and Practice, Parties. Statute of Limitations.</p> <p>Section 45 of B. L. c. 13, now St. 1909, c. 490, Part II, § 46, which provides for the registering in public records by the purchaser of a tax title of identifying information regarding himself, if and so long as he is a resident of the city or town where the land is situated, and the appointment of an agent and like registering of information regarding him in case the purchaser resides at the time of the sale, or within two years from the date of the sale comes to reside, "outside of such city or town, being a statute designed to afford a way for persons, not infrequently poor or in- straitened circumstances, to relieve themselves from the hardship of the incumbrance of tax titles upon their land by redeeming it from the tax sales, is highly remedial in its nature and ought to be interpreted as liberally as the end in view permits with a just regard to the rights of honest and fair dealing purchasers at tax sales.</p> <p>Section 45 of R. L. c. 13, now St. 1909, c. 490, Part H, § 46, which provides for the registering in public records by the purchaser of a tax title of identifying information regarding himself, if and so long as he is a resident of the city or town where the land is situated, and the appointment of an agent and like registering of information regarding him in case the purchaser resides at the time of the sale, or within two years from the date of the sale comes to reside, outside of such city or town, imposes positive duties upon the purchaser at a tax sale, a violation of which is or may be found to be a limitation upon his title against the owner at least to the extent of enabling a court of equity to inquire whether the circumstances of the case are such that good conscience requires that the owner be given an opportunity to redeem even after the expiration of two years, if suit is brought within the six years limited by St. 1909, c. 490, Part II, § 76.</p> <p>A certain parcel of land was sold on October 29,1907, at a tax sale by the collector of taxes of a town to one who was not a resident of the town. The purchaser did not comply with the requirements of R. L. c. 13, § 45, in that he did not appoint an agent residing in the town or in the place where the deed was recorded and did not file with the treasurer of the town or with the register of deeds of the district where the deed was recorded any statement of his address or of that of any agent. At the time of the sale and for more than two years thereafter, the record title of the land, aside from the tax deed, stood in the name of a person who held it for the real owner. In the summer or early autumn of 1909, the real owner of the land first learned of the tax sale and at once sought to find the purchaser at the tax sale, but was unable to do so until October 17,1909, when the purchaser stated, as the amount claimed by him to be due in order to redeem, a sum which included items which he was not justified in charging. The real owner refused to pay the amount demanded and when he sought the purchaser later was unable to find him until after October 29, 1909, and the real owner did not pay the amount required for redemption to the collector of taxes as he was permitted to do by R. L. c. 13, § 60, as amended by St. 1902, c. 443. On December 21, 1910, having become the holder of the record title, the real owner brought in the Superior Court a bill in equity to redeem the land from the tax sale, and the judge who heard the case ruled as matter of law that the plaintiff was not entitled to redeem, and made a decree dismissing the bill, from which the plaintiff appealed. Held, that the decree must be reversed, since the ruling that as matter of law the plaintiff was not entitled to redeem was erroneous and the judge of the Superior Court should have considered whether all the circumstances were such as to make it equitable that the plaintiff should be entitled to redeem.</p> <p>If land, while standing in the name of a person who held it for the benefit of the real owner, was sold for non-payment of taxes and if, subject to the tax sale, it remained of record in the name of the same person for more than two years, when the record title subject to the fax sale was conveyed to the real owner, the real owner is the proper person to bring a suit in equity to redeem the land and, in order to avoid the bar of the lapse of the two years within which the land should have been redeemed, he may show a failure of the purchaser at the tax sale to record identifying and descriptive information as to his residence or that of his agent in accordance with St. 1909, c. 490, Part II, § 46.</p>

Two petitions under R. L. c. 49, § 4, filed in the Superior Court on August 28, 1908, for a revision of sewer assessments levied upon land of the respective petitioners. The petitions were referred to Charles H. Sibley, Esquire, as auditor.

<p>Marriage and Divorce, Desertion, Condonation.</p> <p>At the hearing of a libel for divorce filed by a husband in February, 1911, and alleging as ground for divorce utter desertion continued for three consecutive years next previous to the date of the filing of the libel, it appeared that in March, 1906, the parties were living together in Canada, when the libellee deserted her husband and took up her abode in Milford in this Commonwealth; that in December, 1909, for the purpose of inducing the libellee to return to him, the libellant visited her in Milford and remained three or four days, during which period they cohabited as man and wife, occupying the same room and bed, the libellee, however, not promising or giving the libellant reason to believe that she would return to his home; that immediately thereafter the libellant returned to his home in Canada, whither the libellee refused to accompany him. Held, that the cohabitation as man and wife in 1909 was a complete renewal in all respects of the marriage relation between them and was an absolute removal of the cause of divorce then existing, and could not be said to be merely a condonation or conditional forgiveness of her previous misconduct so that upon her subsequent refusal to accompany the libellant to his home the effect of the cohabitation was avoided; and therefore that the libel should be dismissed, since there was not on the part of the libellee any “ utter desertion continued for three consecutive years next prior to the filing of the libel,” as required by R. L. c. 152, § 1.</p>

<p>Tort for alleged assault and battery upon and false imprisonment of the plaintiff while he was a passenger of the defendant. Writ dated September 24, 1909.</p> <p>The answer of the defendant, as amended, contained a general denial and allegations that, “ if the plaintiff shall prove that he was ejected ” or “ detained,” “ then the defendant answers that he was rightly ejected” or “detained and with the use of no more force than was necessary.”</p> <p>In the Superior Court the case was tried before Aiken, C. J.</p> <p>The plaintiff’s evidence tended to show that he became a passenger upon one of the defendant’s trains at Worcester to travel to Charleston, New Hampshire, to which point he had a valid ticket which he presented to the conductor who “ punched it through to Winchendon; ” that the plaintiff had with him a small dog; that when the conductor took the tickets he told the plaintiff that he would have to take the dog into the baggage car because it was the rule of the railroad; that the plaintiff declined to do so; that before reaching Gardner the conductor again came to the plaintiff, showed him a copy of the rule as to dogs printed on a time-table, and asked him if he would take his dog into the baggage car; that the plaintiff replied that he would not. The rule, which was printed on the time-table that the conductor showed the plaintiff, was as follows: “ Special information for passengers. Dogs will not be permitted in passenger coaches, but will be checked and transported in baggage cars, at owner’s risk, upon payment of a minimum charge equal to 100 pounds of excess baggage for each animal.”</p> <p>The plaintiff’s evidence further tended to show that at Gardner the conductor again came to the plaintiff and said: “ There is fifteen cents fare due on that dog. You are evading fare. The next station is Hey woods and you will have to get off; ” that the plaintiff thereupon put his hand in his pocket and said, “ If there is fifteen cents due on the dog, I will pay it,” and that the conductor replied, “I shan’t take it. You will have to get off; ” that upon arriving at the next station the conductor re- • turned with the brakeman and the ticket agent and said, “ Are you going to get off; ” that the plaintiff replied, “ No, my ticket takes me through to Winchendon,” and that the conductor replied, “It don’t make any difference. You will have to get off; ” that the plaintiff then asked the conductor why he would have to get off and he replied, “ You are evading fare; ” that the plaintiff then said, “I offered to pay the fare of the dog such as due,” but the conductor said, “ It doesn’t make any difference. You will have to get off, and if you don’t get off, I shall arrest you; ” that the conductor was a railroad police officer; * that the plaintiff asked him what he would arrest him for, and the conductor said, “For evading fare,” and thereupon put his hand upon the plaintiff’s shoulder and said, “Under arrest;” that the plaintiff’s wife then picked up the dog and said that x she would take him into the baggage car rather than have so much trouble; that the conductor replied, “ It is too late. He is under arrest and has to get off; ” that he then motioned to the brakeman and the station agent and all three took hold of the plaintiff and pulled him down the aisle and out of the train, and that then the ticket agent took the plaintiff by the arm, led him down a public street to a square and there, in the presence of a crowd of people, demanded that the chief of police arrest the plaintiff and lock him up; that the chief of police asked why the plaintiff should be locked up and the station agent replied, “ For evading fare; ” that the plaintiff then showed the chief his tickets and explained the situation, and the chief declined to receive the plaintiff as a prisoner until the station agent should procure a warrant for his arrest; that the station agent then mingled with the people and went away, leaving the plaintiff.</p> <p>At the close of the evidence, the plaintiff asked the presiding judge to give to the jury, among other instructions, an instruction that the defendant had shown no justification for the assault of its officers and agents upon the plaintiff, and that they must find for the plaintiff. The judge refused the request, and among other instructions charged the jury in substance, that while the defendant’s rule as to dogs was a reasonable one which it had a right to enforce, the situation presented by the evidence did not come within that class of offenses, refusal to pay fare or noisy or disorderly conduct, that would have given the conductor a right to arrest the plaintiff; that, upon the plaintiff’s refusal to have the dog in the baggage car, the defendant had a right to put him off the train at the next stopping place, using no more force in kind or degree than was reasonably necessary to effect the removal. ■ “ It does not make any particular difference what name was given to the right by the railroad officer who took the man from the car. If the doctor [the plaintiff] refused to have his dog transported in the baggage car, then there was the right of removal. And if there was no more force used in effecting the removal of the doctor from the car than was reasonably necessary, then, gentlemen, up to that point in the case, there is' no responsibility for damages. . . . Now, when Dr. Hull was upon the station platform then the rights of the railroad by way of removal were ended . . . anything further in the way of conducting the doctor through the street or streets of Gardner or any public part of Gardner for the purpose of taking him to court or to find a police officer was in excess or was unauthorized by the law in this case. And if you find that in leading or conducting the doctor through the streets of Gardner he sustained damage, then there is a right to damages in that aspect of the case. Now, you have the right if you reach this aspect of the case to take into consideration any feeling of indignity or chagrin that a man would naturally, ordinarily and reasonably feel by reason of such conduct as appears in this case.”</p> <p>The jury, in answer to special questions propounded to them by the presiding judge, found that in removing the plaintiff from the car no more force was used than was reasonably necessary, and that the plaintiff while in the car did not conduct himself in a noisy or disorderly manner.</p> <p>The jury found for the plaintiff in the sum of $30 ; and the plaintiff alleged exceptions to the refusal to give the instruction asked for by him and to the instruction given that it did not make any particular difference what name was given by the conductor to the right to remove the plaintiff from the car.</p>

<p>Tort for personal injuries due to the plaintiff being run into by a train of the defendant while, having purchased a ticket, he was waiting at Heywoods Station for the train. The declaration contained two counts, the first alleging as the cause of the plaintiff’s injury a negligent failure of the defendant to adopt, erect and maintain a suitable, proper and safe station, approaches and waiting places for passengers while lawfully upon the defendant’s premises at Heywoods Station, and the second count alleged as the cause of the injury a negligent, improper and careless management of one of the defendant’s engines. Writ dated February 10, 1909.</p> <p>In the Superior Court the casé was tried before Laivton, J.</p> <p>The plaintiff’s evidence tended to show that he was waiting at the station to take a train due to leave at 7.38 p. m. It appeared that the only platform for passengers at the station was a hard cinder walk nearly level, extending from the line of the station to the top of the nearest rail of the nearest track, which was the track upon which all trains arrived and departed from the station; that the surface of the walk was even with the top of the rail and about two tenths of a foot higher at the line of the station than at the top of the rail; that there was no difference between the appearance of the walk at any place between the line of the station and the nearest rail, and no curbing or any other device to indicate to a passenger the extent to which incoming trains would overhang the walk; that the steam chest of the standard engine used by the defendant would overhang the walk from two and one tenth to two and seven tenths feet. This walk extended from a point south of the station near the gate-man’s house along in front of the station to a point one hundred and seventy feet north of it. The station itself was thirty-four feet long on the side facing the track. A flight of four wooden steps, five feet wide, led up to it from the walk. The width of the walk to the nearest rail of the nearest track was ten feet at the gateman’s house and twelve feet north of the station. In front of the station, the width of the walk was thirteen feet, except in front of the flight of steps, where it was seven and eight tenths feet. Three hundred and fifty persons could stand upon the platform comfortably and without being crowded.</p> <p>There was evidence that on the evening in question there were from seventy-five to one hundred people on- the platform when the train came in, that it “ came in fast; ” that the plaintiff was walking up the platform as the train came in, and that, when he was about opposite the station steps, he was near the track and “ tried to jump out of the way ” and “ got crowded back again in the same place” and was struck by the train.</p> <p>At the close of the evidence the presiding judge ordered a verdict for the defendant on the second count.</p> <p>As to the first count the plaintiff asked that the jury be instructed as follows:</p> <p>“ 4. Carriers of passengers for hire are bound to use the utmost care and diligence in the providing of suitable and proper carriages, engines, track and appliances, in order to prevent those injuries to passengers which human care and foresight can guard against.”</p> <p>“ 8. If you find that the plaintiff’s injury resulted from the failure of the defendant to construct and maintain a reasonably safe, commodious and sufficient platform, and that the plaintiff was at the time in the exercise of due care for his own safety, the defendant is liable.”</p> <p>“ 10. If you find the defendant maintained no platform, and that the plaintiff while in the exercise of due care for his own safety was injured as a result of the defendant’s failure to maintain a platform, the defendant is liable.</p> <p>“ 11. If you find the defendant had so constructed the platform in question that an ordinary engine and car would extend over it for an unreasonable distance, and that there was nothing in the usual and ordinary course of business at said station to render such construction necessary, and the plaintiff, while in the exercise of due care, was injured by such construction, the defendant is liable.</p> <p>“ 12. The construction of a platform or substitute therefor at a busy station where trains commonly come in upon only one track, so that it goes completely to the rail of the railroad with nothing to indicate to passengers the fine of safety from an incoming engine or train, is negligence of itself, and if it resulted in injury to a passenger who was in the exercise of due care, the defendant is liable.”</p> <p>“ 14. If you find that the plaintiff, as soon as he saw that he was in danger from the approaching train, used reasonable efforts to get out of the way, you will find that he was in the exercise of due care.”</p> <p>The judge refused to give any of these instructions. Exceptions by the plaintiff to the judge’s charge are described in the opinion.</p> <p>The jury found for the defendant; and the plaintiff alleged exceptions.</p> <p>Other facts are stated in the opinion.</p>

Tort by a child three years and four months of age for injuries caused by being run over by a train of the defendant which was proceeding along a siding in Worcester.

<p>Corporation, By-laws, Rights of stockholders, Duties of directors. Equity Jurisdiction, To enjoin unfair treatment of stockholder by corporation. Equity Pleading and Practice, Report, Findings by trial judge.</p> <p>The members of a voluntary association carrying on a wholesale and retail grocery business in Worcester formed themselves into a corporation and adopted as one of their by-laws the following: “ In case of the death or removal from the city, of any stockholder, the directors may purchase the share of such stockholder paying therefor the full value as shown by the figures of the last annual report. If said share is not duly assigned to the corporation upon demand made therefor by the directors, it shall not be entitled thereafter to more than one regular dividend." Eight years after the incorporation the by-law, against the vigororus opposition of one of the shareholders, who, four years after the incorporation, had removed from Worcester, was amended to read as follows: “ In case of the death or removal from the city of any stockholder, the directors may purchase the share of such stockholder. If said share is not duly assigned to the corporation upon demand made therefor by the directors, it shall not be entitled thereafter to more than one regular dividend. For a share duly surrendered after it ceases to be entitled to a dividend under this article, there shall be paid the sum last fixed by the directors as the value of a share of stock. The value of a share of stock as fixed by the directors after the last annual inventory shall remain at that price until the next annual inventory has been taken, unless the corporation shall in the meantime have sustained a serious loss in which case the directors may fix a new price for shares for the balance of that year.” In a suit in equity by the non-resident shareholder to have declared invalid proceedings of the directors under the amended by-law asserted by them to have terminated his rights as a stockholder, this court assumed without deciding that the by-law as amended might be found to bind the plaintiff as a contract between him and the corporation, and decided the case on other grounds.</p> <p>The members of a voluntary association engaged in the wholesale and retail grocery business in Worcester formed themselves into a corporation and adopted a by-law providing that in case of removal of a shareholder from the city the directors might purchase his share paying therefor its full value as shown by the corporation’s last annual report, and that, if the share was not assigned to the corporation upon demand by the directors, the shareholder should not be entitled thereafter to more than one regular dividend. Eight years after the incorporation the by-law was amended to make more explicit the method of procedure in case of removal of a shareholder from Worcester and action under it at once was taken by the directors as to a certain shareholder, dividends on his stock were discontinued and his rights as shareholder no longer were recognized. He brought a suit in equity to compel the corporation and the directors to recognize his rights as a shareholder and to recover the dividends which he had not received, and the judge who heard the case found, on evidence warranting the findings, that the plaintiff for four years with the knowledge of the directors and shareholders had resided outside of Worcester, and that a number of other shareholders had done so without any action being taken to terminate their rights as shareholders, that the stock had for several years paid dividends of over one hundred per cent, that in seeking to enforce the by-law against the plaintiff the directors had acted arbitrarily, capriciously and oppressively, being influenced thereto because of personal hostility to the plaintiff and from resentment at his opposition to their wishes at meetings of the shareholders, and that they were discriminating against him unreasonably and acting oppressively with the settled purpose of compelling him to surrender his stock at a great sacrifice to its value or to forfeit the dividends therein. Held, that the plaintiff was entitled to the relief which he sought, since it was apparent that the conduct of the directors was lacking in the good faith which the fiduciary nature of their powers required.</p> <p>The findings of fact contained in a report to this court by a judge of the Superior Court who has heard a suit in equity which was tried largely on oral testimony, although some of them may appear extreme, will not be disturbed unless it appears from the report that they clearly were wrong,</p>

Tort under St. 1909, c. 514, § 127, cl. 2, for personal injuries received by the plaintiff while in the defendant’s employ in its factory in Worcester and alleged to have been caused by the negligence of a superintendent of the defendant. Writ dated September 25,1909. In the Superior Court the case was tried before Aiken, C. J. The facts are stated in the opinion.

<p>Negligence, Gross or wilful. Railroad.</p> <p>In an action against a railroad corporation under St. 1906, c. 463, Part IT, § 245, for personal injuries and damage to the plaintiff's horse, carriage and harness alleged to have been sustained by reason of the defendant’s failure to give where its railroad crossed a highway upon the same level the signals required by Part II, § 147, of the same chapter, it was found specially, on evidence warranting such a finding, that the required signals were not given, and the defendant relied on the defense that the plaintiff was guilty of gross or wilful negligence which contributed to the injury. The plaintiff testified that, although the night was dark, he could see the way as he drove along in his buggy with a tired, gentle horse, moving no faster than a slow walk, that he knew that the highway was crossed by the railroad at grade, and that, on approaching the crossing, he looked and listened for passing trains, that he saw and heard nothing and received no warning from any bell or whistle, that he drove on the track, and then, suddenly seeing the headlight of an engine and appreciating his peril, he urged his horse forward with the whip, but that instantly the engine struck the team, injuring the plaintiff and damaging his property. Held, that there was evidence for the jury that the plaintiff was not guilty of gross or wilful negligence.</p>

Bill ik equity, filed in the Superior Court on April 10, 1910, by James Crosier and Mary H. Crosier, his wife, against Orre Anzellette Kellogg and Joseph Kellogg, her husband, to set aside a deed from the plaintiffs to the first named defendant conveying to her the plaintiffs’ homestead on East Street in Amherst subject to a right of occupation by the plaintiffs during their lives, praying for an order of reconveyance.

<p>Deed. - Evidence, Presumptions and burden of proof. Contract, Consideration.</p> <p>A deed of land, which purports on its face to have been “ signed, sealed and delivered in the presence of ” a witness whose name is signed, is presumed in the absence of anything appearing to the contrary to have been executed on the day of its date and to have been delivered.</p> <p>A promise, by the grantor in a deed purporting to convey an undivided half of a certain farm, to record the deed, which the grantor since its execution had retained in her possession unrecorded, made, after the death of the person named in the deed as grantee, to and at the reguest of the devisee of all the interest in such farm of such grantee, who held at the time of his death the record title to only one undivided half of the farm, is a good consideration for a promise on the part of such devisee to furnish the grantor with firewood during her life, even if the deed was invalid by reason of its non-delivery to the grantee in his lifetime.</p>

<p>Contract or tort, with a declaration containing, after the allowance of successive amendments following the sustaining of sundry demurrers, three counts, the first of which alleged in substance that the defendant, which “ undertakes to furnish reliable and trustworthy messenger boys to deliver messages and parcels within the city of Pittsfield,” upon the request of the plaintiff for such a boy, sent to her a messenger boy well known to her to be trustworthy and reliable, to whom she delivered a package containing valuable dresses to be delivered at an address named by her and known to the messenger; that the messenger, “ on the way to ” the designated address, went to the defendant’s office, “ where the defendant’s managers took the package from the messenger boy, and carelessly and negligently delivered it to some boy or person wholly inexperienced and untrustworthy, and managed and conducted the carrying and delivering of said parcel in such a negligent and careless way that ” it was lost. Another count alleged that the defendant had converted the gowns to its own use. A third count alleged in substance as the cause of the plaintiff’s loss the fact that the second boy, who was untrustworthy and unreliable, had been chosen by the defendant without ordinary care in selection and without investigation being made or precaution taken to ensure his being reliable and trustworthy. Writ dated December 18,1909.</p> <p>In the Superior Court the case was tried before Crosly, J. There was evidence tending to show the following facts:</p> <p>On October 14, 1909, the plaintiff, a dressmaker in Pittsfield, who was accustomed to use the defendant’s messenger service in the delivery of parcels, called the defendant’s office on the telephone and asked for a messenger. In response to her call one Tierney came. The plaintiff had used Tierney on former occasions, when he had acted efficiently, and he was a boy in whom the plaintiff had great confidence. On the occasion in question, however, Tierney no longer was a messenger, but was a clerk in charge of the messenger boys in the defendant’s office. The plaintiff did not know that he no longer was a messenger boy. He did not wear a uniform or distinctive' cap, either as a messenger boy or as a clerk.</p> <p>The plaintiff delivered a parcel to Tierney with directions to take it to a Mrs. Cowles at 151 East Street, Tierney saying that he knew the place, having been there frequently. He took the parcel to the defendant’s office, laid it down and a few minutes later handed it to one Schwatz (called elsewhere in the bill of exceptions Schwartz), a messenger boy in the defendant’s employ.</p> <p>Tierney testified that with the parcel he handed to Schwatz a slip bearing the words “ Mrs. Murray ” after the words “ Called by ” which were printed thereon, and that he wrote upon the slip the address “ Mrs. Cowles, 151 East Street,” after the printed words “ Sent to.”</p> <p>Schwatz, who was twelve years old at the time, testified that the slip had on it the name “ Mrs. Murphy” and that Tierney told him to take it to “ Murphy, 151 East Street.” He went to East Street, could not find number 151, “ asked some ladies and they didn’t know anybody by” the name Murphy, “and I asked some men and they said they didn’t know, until I came to one man and that man says ‘ That man over there is Mr. Murphy,’ and I asked him and he says, ‘Yes, his name was Mr. Murphy,’ and he took the bundle and went away.”</p> <p>At the close of the evidence, the plaintiff asked that the jury be instructed as follows :</p> <p>“1. If you find that Tierney as the agent of the defendant company was authorized by the company to take parcels and bring them to the office of the company and there deliver them to its messenger boys to be carried to their destination and was authorized to instruct such boys what to do with the parcels and that plaintiff did not know these facts but supposed that the clerk was to be her messenger and that Tierney did take this parcel to the office of the company and gave it to Schwatz to take to its destination, then Schwatz would be the servant of the defendant and if the parcel was lost through Schwatz’s negligence, the defendant would be liable.</p> <p>“ 2. If you find that Tierney as the agent of the defendant company was authorized by the company to take parcels and bring them to the office of the company and there to deliver them to its messenger boys and that he did not start to carry the parcel to its destination but in the course of a common practice took it to the office of the company and that he was negligent either in writing a wrong name on the slip accompanying the parcel or by failing to put in the name of Cowles or that he was negligent in choosing Schwatz for this errand and negligence in any of these particulars caused the loss of the parcel, then the defendant would be liable.</p> <p>“ 3. If you find that Tierney as the agent of the defendant company was authorized by the company to take parcels and bring them to the office of the company and there to deliver them to its messenger boys and was not himself a messenger boy and that the undertaking fairly to be gathered from the plaintiff’s telephone order and the defendant’s answer was that the defendant should furnish a messenger boy to the plaintiff at her place of business, then it would follow that the defendant did not furnish a messenger boy as agreed and that the defendant through its agent Tierney took the parcel from the plaintiff tortiously at the plaintiff’s place of business, and the plaintiff could recover on her count in trover for conversion of the package provided it was lost and never returned to the plaintiff.</p> <p>“ 4. The defendant is liable for the acts of the messenger boy Schwatz to whom the package was delivered by the clerk in charge of the company’s business.</p> <p>“ 5. The defendant is bound to use ordinary care in the selection of its messenger boys and make investigations and take precautions to ensure the exclusion of all unfit persons and to secure persons of such mental and moral qualifications as render them trustworthy and if the defendant failed to take due precautions in these particulars and you find that the boy Schwatz was incompetent by reason of his being too young or on account of his age taken in connection with his mental and moral qualifications as you may judge them from his appearance and conduct on the witness stand, bearing in mind that he was then nearly two years younger than he is to-day and as you may judge them from his conduct on the night in question in getting the name 6 Murphy ’ and handing the package and address slip to a man on the street, and if the defendant in using due precaution could not have hired Schwatz and the package was lost by reason of Schwatz’s misconduct, the defendant would be liable.”</p> <p>The judge refused to give any of these instructions. Among other instructions contained in the charge to the jury were those stated in the opinion. The jury found for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract, Implied. Evidence, Materiality, Of state of mind. Practice, Civil, State- ? ments of counsel, Exceptions, Ordering verdict, Judge’s charge. Evidence, Presump-, tians and burden of proof. Corporation, Officers. '</p> <p>At the trial of an action against a street railway corporation to recover compensation for alleged special services rendered by the plaintiff when he was the defendant’s president and one of its directors, a statement by the plaintiff’s counsel in his opening to the jury, that the plaintiff’s claim is based upon a contract with the defendant express as to employment although not as to price, does not preclude the plaintiff from relying upon a contract implied from the facts, if he can prove them, that he performed services of value to the defendant with the expectation on his part of compensation and under such circumstances as ought to have led the directors of the defendant as reasonable men to think that the services were to be paid for. In the present case the plaintiff failed to prove such facts and a verdict for the defendant was sustained.</p> <p>At the trial of an action against a street railway corporation for the reasonable value of alleged special services rendered by the plaintiff when he was the defendant’s president and one of its directors, the plaintiff excepted to the admission of testimony of directors of the defendant to the effect that they did not understand nor expect that the plaintiff was to be paid, and that his services were rendered in the capacity of president or director. Held, that the evidence was admitted properly, because, although the opinion of the directors was not material and their undisclosed purpose could not bind the plaintiff, their understanding at the time the services were rendered was relevant to show their expectation and knowledge, which in connection with all other attendant conditions bore upon the relations of the parties and the question whether the representatives of the defendant understood or as reasonable men ought to have understood that the services were performed outside those due from the plaintiff as president and director and were to be paid for.</p> <p>In an action of contract, where the jury has returned a general verdict for the defendant, an exception by the plaintiff to the exclusion of evidence, which, if competent, related only to the amount of money due to the plaintiff, is made immaterial by the verdict.</p> <p>At the trial of an action of contract, where upon issues of fact the evidence is conflicting and the burden of proof rests on the plaintiff, the jury must pass upon the credibility and the weight of the testimony and a request that a verdict be ordered for the plaintiff manifestly should be refused. '</p> <p>At the trial of an action against a street railway corporation for the reasonable value of alleged special services rendered by the plaintiff when he was the defendant’s president and one of its directors, there is no error in a refusal of the presiding judge to instruct the jury, that corporations may incur contractual liability by implication to the same extent as an individual, because, assuming that this is correct as an abstract proposition, it is not properly applicable to an action for compensation for services rendered by one who is the president and a director of the corporation sued, it being a matter of common knowledge that valuable services frequently are rendered to business, banking, insurance and public service as well as to charitable corporations by their president and directors under circumstances which are inconsistent with any presumption that compensation is to be paid.</p> <p>The acceptance of valuable services or material benefits does not create an implied promise to pay for them where the services performed or the benefits conferred were intended to be gifts.</p> <p>At the trial of an action against a street railway corporation for the reasonable value of alleged special services rendered by the plaintiff when lie was the defendant’s president and one of its directors, instructions to the jury are correct which state in substance, that, if the plaintiff at the time he rendered the services had no intention to claim compensation, there can be no recovery, but that, if the plaintiff's services were rendered with the expectation of pay and were accepted under such conditions that the officers of the defendant as reasonable men ought to have understood that they were to be paid for, there can be a recovery of the amount of their reasonable worth.</p> <p>At the trial of an action against a street railway corporation for the reasonable value of alleged special services rendered by the plaintiff when he was the defendant’s president and one of its directors, where there is ample evidence from which the jury may find that the attempt on the part of the plaintiff to collect pay for his services was an afterthought and that at the time of doing the work he did not , contemplate making any charge for it, it is proper for the judge in his charge to the jury to refer to the circumstances shown by the evidence and to give illustrations of the grounds on which it might be inferred that the services were rendered gratuitously.</p>

<p>Negligence, Due care of plaintiff, Street railway. Witness, Contradiction.</p> <p>In an action against a street railway corporation for personal injuries caused by being run into by an electric car of the defendant as the plaintiff was driving with a horse and buggy from a cross road into a street on which the defendant operated its railway, if the plaintiff testifies in substance that, as he approached the street in which the defendant’s tracks were, he was looking and listening for a car and that he neither saw nor heard any car and heard no gong until his horse was upon the track, when he saw an approaching car from sixty to ninety feet away, and that he used every effort to avoid a collision without avail, and if on the evidence it can be found that the plaintiff’s view of the approaching car was obstructed to some extent by a hedge, the question whether the plaintiff was in the exercise of reasonable care is for the jury.</p> <p>In an action against a street railway corporation for personal injuries caused by being run into by an electric car of the defendant as the plaintiff was driving with a horse and buggy from a cross road into a street on which the defendant operated its railway, where there is evidence in regard to the speed of the car, the time of sounding the gong or giving other warning of its approach, the obstructions to the view of travellers near the intersection of the ways, the distance within which the car could have been stopped, the distance which it went after the collision, and the point where the motorman first could have seen the plaintiff’s horse come upon the track, and there is testimony of the motorman that he did not reverse the power earlier because he thought the plaintiff “ would stop for he ought to have heard the bell,” the question whether the defendant’s motorman was negligent is for the jury.</p> <p>In an action against a street railway corporation for personal injuries caused by being run into by an electric car of the defendant as the plaintiff was driving with a horse and buggy from a cross road into a street on which the defendant operated its railway, a witness, called by the plaintiff, testified that he was a passenger on the car at the time of the accident, that he did not hear the gong of the car rung until the collision “ or just a second before,” and that “ when the motorman saw the position he was in then he rang his bell,” that there was something unusual that attracted the witness’s attention before the accident, and that he thought the speed of the car just before the accident was thirteen miles an hour, although he was not a good judge of the speed of a car. Thereupon the defendant offered to show that the witness immediately after the collision, on giving his name and address to the conductor, said, “ If there is anything further you want of me, you will find me there, because it is no fault of you people.” The presiding judge excluded this evidence. Held, that the exclusion of the evidence failed to show any harmful error; that the opinion of the witness in regard to the fault of the defendant plainly was immaterial to show such fault, and that the holding of that opinion by the witness was not so incompatible with the facts testified to by him as to require its admission for the purpose of discrediting his testimony.</p>

Bill in equity, filed in the Superior Court on July 19,1909, by the administrator of the estate of John Hughes late of Passaic in the State of New Jersey against the Northampton Street Railway Company and John C. Hammond, Esquire, averring in substance that at the time of his death the plaintiff’s intestate was the owner of one hundred shares of the capital stock of the defendant railway company, “formerly named the Northampton and Williamsburg Railway Company,” which…

<p>Contract, In writing. Evidence, Extrinsic affecting writings, Admissions. Practice, Civil, Answer. Damages, In recoupment. Agency, Scope of authority.</p> <p>Where, at the trial of an action upon a promissory note given as part of the purchase price of a soda water fountain furnished by the plaintiff to the defendant, it appears that before the note was delivered by the defendant the fountain had been delivered by the plaintiff to the defendant in accordance with an order in writing signed and delivered to a salesman of the plaintiff by the defendant, that there was no ambiguity in the description of the property in the order, that the order contained a stipulation that there were no agreements with the salesman except those therein stated and that the defendant would make no claim for anything not specified therein, that the fountain as furnished complied with the terms of the order and was reasonably fit for the_ uses and purposes for which it was intended, and that there was no suggestion by the defendant that there was any fraud" on the part of the plaintiff, the defendant cannot introduce evidence of conversations between him and the plaintiff’s salesman before the order was signed in which the salesman made statements regarding the quality of material, workmanship, finish and design of the fountain.</p> <p>Where, in an action upon a promissory note alleged to have been given to the plaintiff by the defendant as part payment for a soda water fountain furnished upon the defendant’s order in writing, it appears that a working plan furnished by the plaintiff was improperly drawn in such a manner as to make it necessary for the defendant to cut new holes in the fountain for outlet pipes and to rearrange the plumbing at a cost of $100, but the answer contains no claim for damages in recoupment, the defendant is not entitled to have the amount of the expense thus incurred by him deducted from the amount due to the plaintiff on the note, but he should seek his remedy by a separate action.</p> <p>The mere fact, that a manufacturer of soda water fountains gives to a marble worker, whom he has employed to set up a fountain for a purchaser, authority to receive delivery from the purchaser of a contract of conditional sale and lease of the fountain and of a cash payment and certain notes covering the purchase price, does not show that the employee had authority to bind the manufacturer by an admission as to imperfections in the fountain or by a statement that the manufacturer would “ make things right,” and in an action by the manufacturer against the purchaser on the notes given in part payment evidence of such an admission and statement is inadmissible.</p>

<p>Practice, Civil, Motion for continuance, Demurrer, Order of judgment, Exceptions. Superior Court. Executor and Administrator. Judgment.</p> <p>In an'action at law brought in the Superior Court by a minor by his guardian, a motion to continue the hearing of a demurrer was based on allegations that the judge who was to hear it and all the other judges of the Superior Court and of all other courts of the Commonwealth are members of the bar and of bar associations which form a “perfect labor union or law trust” which “ controls every department of the government ” and “ selects all judges,” that the judges protect the members of the bar in committing frauds and in robbing persons who are not members thereof, that the plaintiff's guardian was not a member of the “bar or law trust” and was a person to whom “the members of the bar association or law trust ” were “ hostile,” and who was persecuted by them, that the judges of the court shared the hostility of “their brother members of the bar or law trust” toward the guardian and had assisted them to persecute him, and that it was “not in the bounds of humanity that any” of the judges was in a position to try the case. The judge who heard the motion denied it. Held, that such denial was proper, because the motion was based upon allegations of fact of such a character that they could not be heard properly by a judge and could not be the ground for a continuance until they had been heard and determined in impeachment proceedings.</p> <p>A motion to strike out a demurrer which in form is substantially in accordance with the wording of R. .L. c. 173, § 16, cl. 2, properly may be denied.</p> <p>An action at law cannot be maintained by one of the next of kin of an intestate against an attorney, employed by the administrator of the estate of the intestate, to recover for losses sustained by the estate by reason of fraud and malfeasance of the attorney in assisting the administrator to manage the personal estate in his possession, whether the administrator was a party to such wrongdoing or not. The only right of action in such a case is in the administrator and, if he refuses to perform his duty, the proper remedy is to have him removed and a new administrator appointed, whose duty it would be to .recover from the wrongdoer or wrongdoers for the injuries thus done to the estate.</p> <p>Where, upon the sustaining of a demurrer in the Superior Court, the plaintiff , alleges an exception, no judgment should be directed to be entered until the exception is overruled unless the exception is adjudged immaterial, frivolous or intended for delay.</p>

<p>Contract, with four counts, of which the first count was for $29.50 lent by the plaintiff to the defendant, and the other counts are described in the opinion. Writ dated December 1, 1908.</p> <p>In the Superior Court the case was tried before Crosby, J. The material facts shown by the evidence are stated in the opinion. At the close of the evidence the plaintiff waived the fourth count. The judge ruled that the plaintiff could not recover on the second count, and also ruled that on the third count, which was upon an account annexed, the plaintiff could not recover for certain items relating to the acquisition by the defendant of a wood yard of. the plaintiff under a contract of barter or exchange which is described in the opinion.</p> <p>The jury returned a verdict for the plaintiff in the sum of $133.33; and the plaintiff alleged exceptions.</p>

<p>Two actions OE tobt for damages alleged to have been caused by false and fraudulent representations of the defendant, whereby the plaintiff Thomson was induced to purchase certain live stock from the defendant and with the plaintiff Stone to take a lease from the defendant of a dairy farm in ISTorthfield, called the Maples Dairy, and the plaintiff Stone was induced to give up a profitable business in which he was engaged in order to become one of the lessees and to manage the dairy. Writs dated March 16, 1907.</p> <p>In the Superior Court the cases first were tried together before King, J. The jury returned a verdict for the plaintiff Thomson in the sum of $1,359.09 and a verdict for the plaintiff Stone in the sum of $268.77. Exceptions alleged by the defendant were sustained by this court, solely on grounds relating to the measure of damages, in a decision reported in 206 Mass. 505. In that decision this court declared that the right of each plaintiff to a verdict was settled and ought not to be reopened, and that a new trial must be had only upon the question as to the amount of damages in each case.</p> <p>Such a new trial was had before Crosby, J. The course of the trial and the charge of the judge are described sufficiently in the opinion.</p> <p>The plaintiffs’ second request for an instruction to the jury, which is referred to in the opinion as having been given by the judge, was as follows: “ The fact, that the property sold was of such a character as to make it difficult to ascertain with exactness what its value would have been if it had conformed to the contract, affords no reason for exempting the defendant from any part of the direct consequences of his fraud.”</p> <p>The defendant asked the judge to make the following rulings:</p> <p>“1. That the plaintiff Marion Thomson, having agreed that the property bought by her from the defendant was of full value, and that there was no misrepresentation as to the property itself for which she paid value, the plaintiff is entitled to. recover only nominal damages.</p> <p>“ 2. That if the jury find that the property which was conveyed by the defendant to the plaintiff Marion Thomson on the ninth day of October, 1906, was worth the sum of $2,725, that being the price which she paid for the same, then the plaintiff is entitled to recover only nominal damages.</p> <p>“ 3. That the measure of damages in this case is simply the difference, if any, between the price of the property and its actual value at the time of the purchase.</p> <p>“ 4. That the plaintiff is not entitled to recover anything except nominal damages on account of the loss of alleged profits.”</p> <p>“ 6. That there is no evidence in the case to warrant the jury in finding that the defendant made any misrepresentations as to the value of the stock, crops, milk route or lease or other property conveyed by the defendant to the plaintiff.</p> <p>“ 7. That upon all the evidence the plaintiff Stone is not entitled to recover anything except nominal damages.</p> <p>“ 8. That the plaintiff Stone has offered no evidence showing what the actual value of his new employment was, or what it would have been if the defendant’s representations had been true.</p> <p>“ 9. The plaintiffs Stone and Thomson, on the evidence, are not entitled to recover because any action they may have is a joint action.”</p> <p>The judge refused to make any of these rulings. The jury returned a verdict for the plaintiff Thomson in the sum of $900 and for the plaintiff Stone in the sum of $575. The defendant alleged exceptions to the refusal of the judge to make the rulings requested by him and to certain rulings as to the exclusion and admission of evidence, which are referred to in the opinion, and also to the charge of the judge so far as it was inconsistent with the defendant’s requests for rulings and to a designated portion of the charge.</p>

<p>Bill in equity, filed in the Superior Court on June 13, 1910, under St. 1908, e.'552, § 2, by the selectmen of the town of Natick to compel the Boston and Albany Railroad Company to repair the hard pine under floor of a bridge over the tracks of the railroad of that corporation at North Main Street in Natick, in compliance with the terms of St. 1906, c. 463, Part I, § 38, relating to the maintenance and repair of bridges constructed under proceedings for the abolition of a grade crossing under that statute.</p> <p>The case was heard by Richardson, J. The facts appeared in ■ evidence which are stated in the opinion. The judge, against the objection and subject to the exception of the plaintiffs, admitted expert testimony as to what is the framework of a bridge and what is the surface of a bridge.</p> <p>The judge made a memorandum of decision as follows: “ Upon all the evidence and the explanations of the plans and the construction of this bridge, and considering the inconvenience of a divided responsibility in respect to the same parts of the floor of the bridge, my impression is, that the word 6 framework ’ in section 38, referred to, was not intended to include the planking or flooring, even if two planks are put on instead of one; that the under planking, so called at this hearing, is not a part of the ‘ framework.’ Whether there shall be two planks instead of one is a matter of flooring, and not a matter of framework. Therefore I think that the town, in such a bridge as I understand is constructed here, has the duty of keeping the flooring, whether it consists of one plank or two, in repair and order.” There was another paragraph of the memorandum in regard to the duty of a defendant street railway corporation, which is not material.</p> <p>The judge ordered that a decree should be entered in accordance with the opinion expressed in the memorandum. The plaintiffs alleged exceptions to this order and to the admission of the expert testimony referred to above.</p> <p>The case was argued at the bar in March, 1911, before Knowlton, C. J., Morton, Hammond, Sheldon, & Rugg, JJ., and afterwards was submitted on briefs to all the justices then constituting the court except De Courcy, J.</p>

<p>Two actions of tort, by the administrator of the estate of Roger Liversidge, the first for personal injuries sustained by the plaintiff’s intestate, and the second for his death, both alleged to have been caused by an assault committed by a conductor in the employ of the defendant upon the plaintiff’s intestate, whereby the intestate was thrown from a car of the defendant in which he was travelling. Writ dated January 19, 1910.</p> <p>In the Superior Court the cases were tried together before Fessenden, J. The evidence is described in the opinion. The offer of proof, which is referred to in the opinion, was an offer “ to prove that at the time the plaintiff’s intestate received his injuries there was an habitual custom that had long existed for passengers to ride in the vestibule of the defendant’s cars on its road; that this custom was known to the defendant; that fares were taken up from the people so riding and no objection made to the same.” The judge refused to admit this evidence.</p> <p>The defendant introduced in evidence a rule contained in a book of rules of the defendant “ for the guidance of conductors and motormen.” The rule was under the heading “ Handling Passengers ” and was as follows : “ Platform Clear. Conductor must keep the rear platform and steps clear of passengers whenever there is room inside.”</p> <p>At the close of the evidence the plaintiff asked for the following rulings in each case:</p> <p>“ 1. It is for the jury to say whether any rule or regulation offered by the defendant company prohibiting persons from riding in the vestibule or platform of its car, was intended by the defendant company to be enforced as such.</p> <p>“ 2. On the question whether any rule or regulation offered by the defendant company prohibiting persons from riding in the vestibule or platform of its car was intended to be enforced as such or had been waived by the company, it is competent for the jury to consider evidence of custom on the part of passengers riding in the vestibule of said car without objection on the part of said defendant company, its servants and agents.</p> <p>“ 3. If the jury shall find that there was a rule or regulation on the part of the defendant company forbidding or prohibiting persons from riding in the vestibule of a car, and the defendant company by its servants and agents permitted the car to become so crowded that passengers could not with a reasonable degree of diligence get into the car, and while the car was in that condition stopped for and received the plaintiff’s intestate and received fare for his passage, the plaintiff’s intestate had a right to ride in the vestibule of said car until he could with a reasonable degree of diligence gain admission inside said car.”</p> <p>The judge refused to make these rulings. Among other instructions the judge instructed the jury as follows:</p> <p>“ Now there is evidence in this case tending to show that there 1 was a rule that the conductors should require people to vacate the rear platform and go inside when there was room. It is a question of his obeying reasonably the requirements, if there was room inside. If he [the intestate] was told to go in or get off the car, then the conductor must give him a reasonable opportunity to alight in safety, because the conductor couldn’t, if he was a passenger, the conductor couldn’t require him to get off the car while it was in motion.</p> <p>“ There are many things that he has to do, and it is said in this case that there was a rule governing his conduct or directing his conduct under certain circumstances, a rule with reference to the occupancy of the platform. Now that rule is competent for you to consider in connection with the proper performance of his duties. It’s for us to take the rule into account as part of the circumstances of the case, if there was any such rule.</p> <p>“There is a notice to keep passengers under those circumstances out of the vestibule. You will have that rule before you. I don’t understand, gentlemen, this rule requires the conductor to keep passengers out of the vestibule under all circumstances, but it’s where there is room for them inside. I do not understand that this rule, although I am not prepared to say that they couldn’t pass a rule whereby under all circumstances passengers should be kept from standing permanently in the vestibule, but that’s not this case, because so far as the rule goes, it is where there was room inside, but you will have the rule before you, so that it would become important for you to see whether there was room inside or not, and if there was room inside, then, as I said yesterday, it’s the duty of the passenger to go in. It’s his duty to go in, and if the conductor tells him to go in or else get off the car, it’s his duty to get off if he doesn’t want to go in. He isn’t obliged to go in. He can get off the car, but he can’t stay in the vestibule if he is requested not to do so. I instruct you that positively in this case. He needn’t stay on the car, but if he does, he should go inside the room. The conductor should give him a reasonable opportunity to alight, under those circumstances, if he elects to get off the car. That’s part of the conductor’s duty. ... It becomes important for you to ascertain what was the condition as near as you can, what was the condition inside. It is said on the one hand that the car was crowded and there wasn’t opportunity for him to go inside. If that is so, of course he couldn’t go inside. He isn’t bound to go inside if that is so.”</p> <p>In answer to a question of a juror in regard to whether the plaintiff’s intestate was a passenger, the judge said, “ If you find he was a passenger and was told by the conductor to go inside the car or else get off, he was bound to do so if there was a reasonable opportunity for him to get in the car; if he could have got into the car reasonably and if he did not want to go into the car, then he was bound to get off if the conductor gave him a reasonable opportunity to alight, for he cannot himself elect to stay upon the vestibule.”</p> <p>The judge submitted to the jury two issues of fact in each case, as follows:</p> <p>“ First: Was the intestate a passenger on the defendant’s car ?</p> <p>“Second: Was the intestate in the exercise of due care?”</p> <p>The jury in each case answered both questions in the negative, and in each case returned a verdict for the plaintiff, in the first case in the sum of $750, and in the second case in the sum of §500. The plaintiff alleged exceptions.</p>

<p>Negligence, In use of highway.</p> <p>It is not the duty of the proprietor of a “reach wagon,” transporting on a public street rails sixty feet in length upon two pair of wheels from forty to fifty feet apart, to have a person or persons in attendance to protect travellers from being struck by the rear wheels, and, in an action by a child three and a half years of age for injuries sustained from being struck by one of the rear wheels of such a vehicle when he had stopped after having walked for about one hundred feet beside it while the horses were walking slowly and-the driver was looking forward, the absence of warning to the plaintiff is no evidence of negligence on the part of the defendant.</p>

<p>Way, Public: by prescription. Railroad.</p> <p>No right of way across the tracks of a railroad corporation on which its trains run can have been acquired by the public by the use of a path which had existed only for ten years when St. 1892, c. 275, was enacted, prohibiting the acquisition by prescription of a right of way across any railroad track or location in use for railroad purposes.</p> <p>No public right of way by prescription across the tracks of a railroad corporation on which its trains run can be established by tacking to a period of ten years before the enactment of St. 1892, c. 275, during which the public had used a certain path across such tracks, a previous period during which a distinctly different path or road starting from a point more than eighty feet distant had been used to cross the tracks.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on September 19, 1908, alleging the plaintiff’s claim against the defendant Hannagan as stated in the opinion, and further alleging that the defendant Hannagan gave to the plaintiff a check for the amount of such claim but stopped the payment of such check before it could be collected, and that the plaintiff brought an action upon the check and obtained a judgment against the defendant Hannagan for $1,189.28 damages and $27.65 costs, that the judgment remained unsatisfied, that subsequently the defendant Hannagan filed a voluntary petition in bankruptcy, that the plaintiff presented his claim for allowance in the bankruptcy proceedings and that it was allowed, but that the plaintiff received no dividend thereon, and that the defendant Hannagan received a discharge in bankruptcy, which the plaintiff alleged was inoperative to bar the plaintiff’s judgment debt under the provisions of the bankruptcy act of 1898, § 17, cl. 4; praying for a decree that the defendant Hannagan owed the plaintiff the amount of such judgment with interest thereon notwithstanding his discharge in bankruptcy.</p> <p>The clause of the bankruptcy act. referred to is as follows: “ Sec. 17. Debts not Affected by a Discharge. — A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as . . . (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.”</p> <p>The case was heard by Sheldon, J., who reported it for determination by the full court of the question whether the plaintiff’s judgment was exempted from the operation of the defendant Hannagan’s discharge in bankruptcy. If the plaintiff’s claim was barred by the discharge, the bill was to be dismissed; otherwise, the case was to stand for further hearing on the other question in issue.</p>

<p>Fence. Fence Viewers. Notice. Evidence, Presumptions and burden of proof.</p> <p>In an action under R. L. c. 33, § 6, to recover double the value of a part of a partition fence which on an application made by the plaintiff under § 5 of the same chapter had been assigned by the fence viewers to the defendant to build and which the plaintiff had built after the defendant’s refusal to do so, it is not necessary that the decree of the fence viewers made under § 6 declaring the value of such part of the fence as ascertained by them should contain a statement that the fence built by the plaintiff had been adjudged sufficient, that requirement being contained in § 4 and relating only to an application made under § 3 of the same chapter.</p> <p>In an action under R. L. c. 33, § 6, to recover double the value of a part of a partition fence which had been assigned by the fence viewers to the defendant to build and which the plaintiff had built after the defendant’s refusal to do so, a recital in the decree of the fence viewers determining the value of such part of the fence, that due notice had been given to the defendant of the hearing for assessing such value, is evidence that such notice was given.</p>

<p>Strike. Equity Jurisdiction, To enjoin unlawful strike. Labor.</p> <p>The lasters employed in a shoe factory, where work is paid for by the piece and there is not sufficient work to keep all of the lasters employed all of the time, lawfully may maintain a strike undertaken in good faith to prevent the proprietor of the factory from permitting a laster in his employ to employ and pay a helper, for whose work the laster is paid by the proprietor in addition to being paid for his own work, the purpose of the strike being to cause the abolition of the system of such an employment of helpers in that factory because it resulted in an unequal distribution of the work of lasting at times when there was not enough work for all the lasters and thus affected their wages.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on November 21, 1910, and amended on February 14 and March 17, 1911. The bill, as substituted by the second amendment, is described in the opinion, where also the grounds of the defendants’ demurrer are stated.</p> <p>The case came on to be heard before Loring, J., on an agreement of the plaintiff to abide by the bill substituted by his second amendment and.to have the bill dismissed if the demurrer was sustained. At the request of both parties the justice reserved the case for determination by the full court.</p> <p>The case was submitted on briefs at the sitting of the court in March, 1911, to Knowlton, C. J., Morton, Hammond, Braley, & Rugg, JJ., and afterwards was submitted on briefs to all the justices then constituting the court except Loring, J.</p>

<p>Damages, For property taken under statutory authority. vation. Practice, Civil, Exceptions. Greylock State Reser■2-3S</p> <p>At the trial of a petition to recover compensation for a large tract of land, chiefly covered with wood, on Greylock mountain^aken under St. 1898, c. 543, for the Greylock State Reservation, the principal elements of value in controversy were the quality and quantity of the standing wood and timber and the ease and expense of marketing it as lumber. It appeared that a stream ran through the land called Hopper Brook. A civil engineer, not shown to be an expert on land values, who was called as a witness by the respondent, testified on cross-examination that the water from this brook could be conveyed to Williamstown and stated the area and watershed of the brook and that a part of it was precipitous with a quick flowage. There was no other evidence tending to show that the market value of the petitioner's land was affected by the presence of the brook. The presiding judge ordered that this evidence be stricken out for the reason that a full inquiry into the adaptability of the brook for a water supply would involve matters of which there could be no satisfactory proof and would be in substance only conjecture. Held, that the ruling, although rather broad in its terms, must be interpreted with reference to the evidence to which it was directed and the stage of the trial at which it was made, and that so interpreted it was a proper exercise of judicial discretion within the principles established by Sargent v. Merrimac, 196 Mass. 171.</p> <p>At the trial of a petition to recover compensation for a large tract of land, chiefly covered with wood, on Greylock mountain taken under St. 1898, c. 543, for the Grey-lock State Reservation, the principal elements of value in controversy were the quality and quantity of the standing wood and timber and the ease and expense of marketing it as lumber. It appeared that a stream ran through the land called Hopper Brook. In regard to considering the brook as an element of value the presiding judge instructed the jury that its availability as a source of water supply “ should be entirely disregarded ” and that the brook “ is a feature which you have a right to consider if you think it throws some light upon the question of value, on the theory that if there was not a brook there the soil would not be as fertile as it is. You have a right to consider that as one of the features but you have a right to consider it to no other extent, not for any possible use to which the brook might be put.” There was nothing in the record tending to show that any purchaser would be likely to give an additional price for the land because of the possibility that the brook might be available for a water supply and there was no offer to show that any enhancement of market value arose from this cause. There was nothing to indicate that the town of Williamstown, by which it was contended that the water could be used, did not own already a source of water supply ample for future needs. Held, that, although the instructions given were not accurate statements of law, it did not appear that they were of such a character as to afford reasonable apprehension that the petitioner had suffered harm and thus to require this court to sustain an exception to them.</p> <p>On a petition to recover compensation for land taken under a statute for a public reservation, the petitioner is not entitled to recover any increase in the value of his land which was due to the fact that the land was known to be within the area designated for the reservation and was certain to be taken for it.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on July 13, 1893, and amended by leave of court on September 24,1910, to enforce specifically a certain agreement, described in the opinion, made on October 15, 1849, by the defendant Cheshire Railroad Company with the plaintiff Baxter D. Whitney.</p> <p>The defendants’ answers were filed on September 19, 1893. It was stated in the report to the full court, that “ about 1902, on the calling of the docket, the matter was again called to the attention of the plaintiff’s present counsel, and they, after correspondence with the defendant’s counsel and the plaintiff, moved orally that the case be allowed to stand, the defendants’ counsel neither assenting nor objecting! thereupon the court directed that the case should stand. In 1906, in the absence of both counsel at the calling of the docket, the case was stricken from the docket by order of the court. April 13,1909, the case was restored to the docket at the request of the plaintiff and with the consent of the defendant.” On January 19, 1910, William M. Whitney filed a motion, alleging that he had acquired the interests of Baxter D. Whitney in the premises referred to in the indenture annexed to the bill and praying to be allowed to appear in and prosecute the case as a party plaintiff. On September 24, 1910, the motion was granted by the allowance of the amendment to the bill referred to above. The other material facts are stated in the opinion.</p> <p>The case came on to be heard before Rugg, J., who reserved it for determination by the full court upon the bill as amended, the answers, the deposition of Baxter D. Whitney and the facts found and reported by the justice, such decree to be entered as equity might require.</p>

<p>Tort under the employers’ liability act for personal injuries received by the plaintiff shortly after 8.05 p. M. on June 17, 1907, while he was employed and at work as a laborer in the defendant’s freight yard at Fitchburg, from being struck by a regular passenger train of the defendant which was made up at and started from the Fitchburg station at 8.05 every evening/ Writ dated May 16, 1908.</p> <p>In the Superior Court the case was tried before Lawton, J. It appeared that due notice of the injury was given by the plaintiff in accordance with the provisions of the statute. The jury took a view of the premises. On the night of the accident and for several months previously the plaintiff had been employed by the defendant as a laborer around its yard and engine house at Fitchburg and he was familiar with the surroundings. The only witness in regard to liability was the plaintiff. The material facts as shown by his testimony are stated in the opinion.</p> <p>At the close of the plaintiff’s evideneé the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Carrier, Of goods. Negligence. Practice, Civil, Exceptions, Election between counts. Evidence, Competency, Bes inter alios. Contract, Validity, Implied in law. Sale, Delivery.</p> <p>A stipulation in a bill of lading of goods transported by rail, that the carrier shall not be liable for any loss or damage “ by fire for any cause whatsoever occur- ' ' ring” during the transit, does not relieve the carrier from liability for loss of or ;• damage to the goods by a fire caused by the negligence of the servants of the ^ -j p carrier. ^</p> <p>In an action against a railroad corporation for injury by fire to goods of the plain- ' ' tiff delivered to the defendant as a common carrier for transportation, where it appears that by the terms of the bill of lading the carrier is exempted from k- if l liability for loss or damage by fire and the plaintiff to hold the defendant ~2-'r, liable must prove that the fire that injured the goods was caused by the negli--' gence of the defendant or its servants, if it appears that the fire which partially^ ‘ destroyed the goods occurred when the goods were in a car in the defendant’s • -r : « freight yard at their place of destination, and there is evidence on which it could'? J ?/ - be found that the seals on the doors of the car had remained unbroken, excluding the intrusion of strangers, it is for the jury to determine upon all the evidence whether the only reasonable explanation of the origin of the fire involves negligence of the defendant’s servants.</p> <p>In an action against a railroad corporation for injury to goods of the plaintiff by a fire alleged to have been caused by negligence of the servants of the defendant while the goods were in a car standing on a side track in a freight yard of the defendant, the defendant offered in evidence a report of an investigation as to the origin of the fire made by the detective department of the district police of the Commonwealth under R. L. c. 32, § 2, St. 1904, c. 433. No statement was made as to the contents of the record. The presiding judge excluded the record. Held, that the exclusion could be sustained on the narrow ground that, no statement having been made of what the record, if admitted, would have disclosed, the defendant was not shown to have been prejudiced by its exclusion; but, assuming that the report would have exonerated the defendant, it was incompetent, the inquiry under the statute having been instituted for the information and benefit of the public as an aid in the detection of crime, and not having been a proceeding to ascertain the defendant’s civil liability in which the plaintiff could have appeared and have been heard.</p> <p>Where goods are transported by a railroad corporation to one of its stations, at which the rule for the delivery of goods requires that the consignee shall be notified of their arrival, and the car containing the goods is left standing on a side track in the corporation’s freight yard, where, before any notice has been given to the consignee of the arrival of the goods, they are injured by fire while still in the car, the corporation has not become a mere warehouseman and its liability for the injury is that of carrier of the goods.</p> <p>Where goods are sold by sample at the buyer’s place of business and the seller ships the goods by railroad consigned to the buyer who has given no directions for transportation, the seller paying the freight charges, the title to the goods remains in the seller until they have been delivered by the carrier to the buyer and have been accepted by him, and, if the goods are injured by fire while in the hands of the carrier, the right of action for such injury is in the seller.</p> <p>In an action against a railroad corporation for injury by fire to goods of the plaintiff delivered to the defendant as a common carrier for transportation, it appeared that, upon the refusal of the consignee to receive the damaged goods, the railroad corporation sold them and retained the proceeds. The declaration contained a count in tort alleging negligence of the defendant in permitting the goods to be destroyed by £re while in its hands as a common carrier, and a count in contract for money had and received. There was evidence on which negligence of the defendant could have been found. The defendant contended that the fire originated from spontaneous combustion, in which case it would not be liable under the terms of the bill of lading. The presiding judge refused to compel the plaintiff to elect between his count in tort and that in contract, but instructed the jury that the plaintiff could not recover on both counts. Held, that the refusal and the instruction were correct; that, if the jury accepted the defendant's theory that the fire originated from spontaneous combustion, the plaintiff could not recover in tort but was entitled to the amount of the proceeds received by the defendant from the sale of the damaged goods.</p>

<p>Bill in equity, filed in the Superior Court on August 3, 1911, by the holder of the legal title and the beneficial owner of the lot numbered 34 on Ocean Avenue in Oak Bluffs against the owner of the adjoining lot numbered 36 on the same avenue to enforce the equitable restriction which is quoted below.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts to White, J., who with the consent of the parties reserved it upon the pleadings and the agreed statement of facts for determination by this court, such final decree to be entered as justice and equity might require.</p> <p>The agreed facts were as follows:</p> <p>On August 3,1867, the Oak Bluffs Land and Wharf Company, a corporation, being seised in fee of a tract of land in that part of Edgartown now comprised in the town of Oak Bluffs, caused the tract to be laid out into house lots, streets, avenues and parks, according to a plan which was recorded with the register of deeds for the county of Dukes County, and the lots were placed upon the market for sale. The deeds prepared by the company and used by it in all its conveyances of all the lots situated on Ocean Avenue in Oak Bluffs were the same in form and contained certain conditions which included the following: “ The said grantee shall within one year from the date hereof cause to be erected on the granted premises, a dwelling house, to be used exclusively as a residence, for a private family, and no other buildings except the necessary out buildings requisite, and to be used exclusively for domestic purposes, shall ever be erected thereon.”</p> <p>The plaintiffs and the defendant held through mesne conveyances under the same form of deed. Dwelling houses were erected on the lots within one year by the original grantees. The dwelling on lot No. 34 had been used up to the time of the agreed statement as a residence for a private family. The dwelling on lot 36 was used up to June, 1908, as a residence for a private family. On June 9, 1908, the defendant purchased lot No. 36. Both the plaintiffs and the defendant used the dwellings on the lots only during the summer and autumn seasons. During the season of 1908 the defendant kept three boarders in the dwelling on lot No. 36. During the summer of 1909 the defendant let her dwelling house on lot No. 36 to a private family. During the autumn of 1909 the defendant kept two or three boarders in the dwelling on lot No. 36. During the season of 1910 and 1911 the defendant occupied the dwelling house as her residence and kept boarders and let rooms in the dwelling house on lot No. 36, the boarders and roomers averaging in number about twelve persons at any one time, and the average stay of the individual boarders or roomers being two weeks, excepting as to a few who remained throughout the season. About one half the roomers and boarders kept by the defendant in the dwelling house on lot No. 36 were friends of the defendant, and for that reason were only charged about the exact cost of their keep. The other boarders and roomers kept by the defendant in the dwelling on lot No. 36 paid the full price. The defendant did not place any sign on the dwelling on lot No. 36 or advertise in any way or make known to the public that she kept boarders or roomers in the dwelling on lot No. 36. The first knowledge that the plaintiffs had that the defendant furnished lodgings as aforesaid was in the autumn of 1910, just after the close of the autumn season. In the latter part of June, 1911, the plaintiffs for the first time were convinced that the defendant was furnishing board and rooms as aforesaid. On July 31,1911, the plaintiffs, by their attorneys, requested the defendant to cease furnishing rooms and food to people for hire and reward, and notified the defendant that the plaintiffs felt that such use of the dwelling at No. 36 was a violation of the conditions and restrictions in the original deed of the Oak Bluffs Land and Wharf Company.</p> <p>Three dwelling houses, numbered respectively 11, 13 and 15 Ocean Avenue, were used at divers times by the occupants for the purpose of letting rooms and furnishing meals, and the dwelling house No. 11 Ocean Avenue has been used for such purpose for more than twenty years. There were no signs or advertisements on any of the three dwellings at Nos. 11, 13 and 15 Ocean Avenue, or anything to indicate that boarders or lodgers would be provided for at these houses. The plaintiffs had no knowledge that the houses numbered 11,13 and 15 Ocean Avenue ever were used for the purpose of furnishing people with board and lodging, until the time of agreeing to these facts. In a large number of the dwellings on streets and avenues other than Ocean Avenue boarders and lodgers have been kept for many years in Oak Bluffs, and the original deeds of the lots where these dwellings are situated contained the same conditions as the original deed of lots 36 and 34. The plaintiffs had no, knowledge that these dwellings were so used until the time of the agreement of the facts. On all the lots on Ocean Avenue substantial dwelling houses were erected and used as required by the deeds excepting on lots 2 and 4, on which twenty years or more before the filing of the bill there was erected a clubhouse which was maintained up to about ten years before the filing of the bill, when it was destroyed and a private residence was erected thereon. With that exception, Ocean Avenue always has been a very high class residential district.</p>

<p>Contract against a married woman as the guarantor of a promissory note made by her husband. Writ dated July 8, 1910.</p> <p>The note sued upon was dated May 11, 1909, and was for the amount of $850, payable four months after date to the order of the plaintiff. It was signed as maker by William H. Canning, the husband of the defendant. On the back of the note was the following: “ For value received hereby guarantee the payment of the within note and any renewal of same, and hereby waive protest, demand and notice of non-payment thereof. Emily Canning.”</p> <p>In the Superior Court the case was tried before Hardy, J. William H. Canning, the husband of the defendant, testified that he built a building and that the Enterprise Brewing Company, the plaintiff, helped him out in the way of a note secured from the Pocasset Bank; that the plaintiff found the money and signed the note; that the note was sometimes indorsed by his wife and the plaintiff and sometimes by the plaintiff alone; that the note for $850 was for the balance of this original note which was for $1,200 borrowed at the bank with the assistance of the plaintiff and the defendant. The defendant testified that she never had any talk with the plaintiff about signing the note, but that she knew the plaintiff signed it with her, and that the note was given to raise money at the bank for her husband.</p> <p>The judge instructed the jury that if they found that there was consideration for the signing of the note, they must find for the plaintiff for the total amount of the note and interest, and that there was no evidence that the plaintiff and the defendant were joint accommodation indorsers. The defendant excepted to this instruction.</p> <p>After the jury had retired they sent a written communication to the presiding judge “asking whether it would be legal to bring in a verdict for half of the $850 note,” and the judge replied to them in writing that they could not do so; that they must follow his instructions. The defendant excepted to this additional instruction.</p> <p>The jury returned a verdict for the plaintiff in the sum of $903.41; and the defendant alleged exceptions. Myers, mentioned in the opinion as a witness, was the treasurer of the plaintiff.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action by a weaver in a cotton mill against her employer for personal injuries caused by the plaintiff stepping in a hole or depression in the floor of a dark passage back of the looms tended by the plaintiff, through which she had occasion to pass in oiling the looms, if it appears that the depression was about five by six inches and about an inch deep in the centre with a ragged edge all around it and that it had been allowed to remain in practically the same condition for about two years, although it had been known during the whole of that time to the defendant’s “ second hand ” in charge of the room, there is evidence of a defective and dangerous condition of the floor which the defendant by the exercise of due diligence should have remedied.</p> <p>A weaver in a cotton mill does not assume as a condition of her employment the risk of injury from a depression in the floor of a dark passage, back of the looms which she tends, through which she has to pass in oiling them, if the depression, which is about five by six inches and about an inch deep in the centre with a ragged edge all around it, is nearly filled with cotton waste dark and discolored like the rest of the floor so that it would not be noticed without a careful inspection, and she has not seen the depression or been told of its existence.</p>

<p>Tort by a hostler, employed in the livery stable of the defendants in Taunton, for personal injuries alleged to have been caused by the defendants furnishing the plaintiff with unsafe and. unmanageable horses, which were known to the defendants to be dangerous. Writ dated July 9, 1910.</p> <p>In the'Superior Court the case was tried before Sherman, J. The facts shown by the plaintiff’s evidence are stated in the opinion. At the close of the plaintiff’s evidence the judge, at the request of the defendants, ordered a verdict for the defendants, and by agreement of counsel reported the case for determination by this court. If the ruling of the judge was wrong, judgment was to be entered for the plaintiff in the sum of $450, without costs; otherwise, judgment was to-be entered on the verdict.</p>

<p>Negligence, Street railway.</p> <p>In an action against a street railway corporation for personal injuries sustained while the plaintiff was being transported as a passenger in a vestibule car of 1 the defendant, it appeared that the plaintiff’s injuries were caused by the falling upon him of a bundle about six and a half feet long and about three and a half inches in circumference, which consisted of three sections, tied together, of a pole used for trimming branches of trees and was placed in the vestibule of the car by an employee of a telephone company who was a passenger on the car, that the plaintiff was sitting on a side seat of the car next the rear door, that the telephone employee entered the rear vestibule of the car and remained standing there with this bundle in the presence of the conductor, that the conductor entered the car and went to the forward end of it to collect the fares of passengers, that after the conductor had entered the car for this purpose the telephone employee “ stood up ” the bundle with one end resting on the floor and the other end against the back framework of the vestibule, entered the car and took a seat near the door, that, when the car made its next stop, the bundle fell forward through the rear door of the car, which was open, and struck the plaintiff’s leg, causing the injuries sued for. A judge, to whom the case was submitted upon an agreed statement of facts, found for the defendant, and from a judgment entered in accordance with this finding the plaintiff appealed. Held, that it could not have been ruled as matter of law that the defendant was negligent, that the question was one of fact, and that the judge in finding for the defendant was not shown to have made any error of law.</p>

<p>Replevin of a barrel wagon which the defendants’ testate, William Pritchard, a deputy sheriff of Bristol County against whom the action orginally was brought, had attached on mesne process as the property of Joseph Blumberg and Edward Gamson, copartners doing business as the Bay State Barrel Company. Writ in the Second District Court of the County of Bristol dated . March 6, 1909.</p> <p>On appeal to the Superior Court the case was tried before Raymond, J. There was evidence tending to show the following facts: The plaintiff was a brother of Edward Gamson, one of the copartners above described. The copartners went to the plaintiff for his help in purchasing a barrel wagon and the plaintiff told them in substance that he would advance the money for the wagon, but that he was going to “ own the team until they pay me back.” He testified, “ I told them that I would buy them that team and I shall have the receipt and after they pay me back the $65 I will give them a receipt and they can have the wagon. I wanted that as security.” The copartners and the plaintiff then went to one Dunn, to whom the plaintiff paid $10 on account of a purchase price of $65 for the wagon and received from Dunn a statement reciting, “Mamfred L. Gamson, to John W. Dunn, Dr., . . . Sept. 30, 1908. To one barrel wagon, $65. Cr. by cash, $10, balance to be paid when team is taken the same to be moved by Oct. 7, 1908.” Later the plaintiff paid the copartners $55 and on October 7, 1908, they paid that amount to Dunn, who indorsed on the above statement, “ Received payment in full Oct. 7,1908.” The partners then received the wagon from Dunn and used it, it never being in the plaintiff’s possession until, at some time before the attachment by the defendants’ testate, the plaintiff had it taken from the partnership’s place of business to the yard of a brewery, from whose proprietor the plaintiff had obtained permission to put it there.</p> <p>At the close of the evidence the defendants asked the presiding judge to order a verdict for them. The judge refused to do so and the case was submitted to the jury “ on full instructions which were not excepted to.”</p> <p>The jury found for the plaintiff; and the defendants alleged exceptions.</p>

<p>Attorney at Law, Disbarment. Practice, Civil, Disbarment proceedings. Statute, Construction. Usage. Words, “Costs,” “Expenses.”</p> <p>The word “ costs ” as applied to proceedings in court ordinarily means only legal or taxable costs and does not include counsel fees.</p> <p>Where the language of a statute is of doubtful import, a construction put upon it for many years, during which the statute was not amended, by officers charged , under its provisions with the performance of public duties is strong evidence of its meaning. !'t,</p> <p>Where an attorney at law, acting under an order of the Superior Court authorizing ^ him to prosecute certain disbarment proceedings and directing that “ the expenses and costs of the same be paid as in criminal proceedings in this court,” in such proceedings renders services and incurs liability for services of an associate counsel employed by him therein, and a judge of the Superior Court allows a reasonable charge which the attorney made therefor, the county in which such proceedings were pending must pay such charge, since the word “ expenses,” as used in B. L. c. 165, § 44, providing that the “ expenses and costs ” in such proceedings “ shall be paid as in criminal prosecutions in the Superior Court,” includes compensation to attorneys charged with the prosecution of the proceedings and empowers that court to award compensation to such an attorney for his services.</p>

<p>Way, Private. Deed, Construction, Interpretation by acts of parties.</p> <p>A right of way, created by an express reservation in a deed of land as appurtenant to a back lot, to pass through a front lot to a public street, cannot be used lawfully by a tenant of the owner of the back lot occupying land beyond that lot.</p> <p>A right of way, created by an express reservation in a deed of land as appurtenant to a back lot, to pass through a front lot to a public street in a village, may be used by the teamsters of a contractor, to whom the owner of the back lot has sold gravel and sand to be taken from a sand pit on such lot, to cart such gravel and sand to the street, although when the deed containing the reservation of the way was made the back lot was used for garden and grass land and no sand pit had been opened on it; and, where it appears that the owner of the back lot has carted sand over the way during a period of eight years without any objection being made by the owner of the front lot, this fact tends to support this construction by indicating that such use of the way was contemplated when the reservation was made.</p>

<p>Negligence, At railroad crossing, Railroad, Causing death. Railroad, Failure to give signals. Evidence, Presumptions and burden of proof, Matter of conjecture.</p> <p>At the trial of an action under St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, against a railroad corporation by the administrator of the estate of one who, the declaration alleged, was killed at a crossing of the railroad with a highway at grade because of negligence of the corporation or gross negligence of some of its servants or agents, there was evidence tending to show that the intestate’s lifeless body was found on the crossing under a freight car of the defendant on a dark night, and that previous to that the plaintiff’s intestate was last seen alive a few minutes before the accident when he was leaving a liquor saloon a few minutes’ walk from the place where his body was found. There was no further evidence as to his conduct. Held, that the question, whether he took any precautions for his safety at the crossing, was left on the evidence entirely to conjecture so that there was no evidence for the jury as to his due care.</p> <p>St. 1906, c. 463, Part II, § 147, requiring that a bell or a whistle upon a locomotive engine be sounded at a certain distance from a crossing of a railroad with a highway at grade, applies only when the locomotive itself or the locomotive with a car or cars attached to it approaches the crossing, and therefore § 245 of that part, establishing liability on the part of a railroad corporation where the death of a traveller on a highway is caused by a failure to give such signals, is inapplicable where the death is caused by one car only, without any locomotive attached to it, being sent over the crossing without any signal.</p>

<p> Malicious Prosecution. </p> <p>In an action by a boy for malicious prosecution in causing the arrest of the plaintiff upon a charge of larceny of a horse, if on the evidence it can be found that tlie horse was taken from the defendant’s stable by the plaintiff’s younger brother, who was acting under an honest claim of right in obedience to an order which he believed to have been given to him rightfully by his father, that the defendant ought to have known that this was so and to have seen that, if any crime was committed, the father and not the son was the guilty person, and that the defendant, without making any investigation of the grounds on which the boy who took the horse was acting, believing the plaintiff to be such boy, caused his immediate prosecution on a charge of larceny, and if the defendant on his cross-examination testifies that he wanted his horse or an equivalent and that he wanted the horse and would have taken money, there is evidence for the jury that the defendant was actuated by malice and that he acted without any honest or well grounded belief that the person whom he intended to prosecute was guilty of the alleged crime.</p> <p>If, at the trial of an action for malicious prosecution, the presiding judge instructs the jury that if they find that the defendant instituted the prosecution of the plaintiff from malice they should return a verdict for the plaintiff, without also plainly instructing them that the plaintiff cannot recover unless the absence of probable cause for the prosecution also is shown, and thereupon the jury return a verdict for the plaintiff, an exception by the defendant will be sustained, because the jury may have returned their verdict for the plaintiff on the ground of the defendant’s malice alone without finding the absence of probable cause.</p>

<p>Equity Jurisdiction, To complete an imperfect exercise of a power. Power. Trust, Purchase of trust property by trustee. Statute of Frauds.</p> <p>Where one, who by the provisions of a will is given property in trust with a power to convey it, makes an attempt to carry out a fixed intent to execute the power by a conveyance for a sufficient consideration and the attempt falls short of accomplishing the purpose by reason of some defect in the instrument of conveyance, the person, to whom the property was attempted to be conveyed, by a suit in equity may compel a complete performance of the power if no rights of other persons with superior equities have intervened.</p> <p>By the provisions of a will several parcels of real estate were given to two sisters under a trust to pay the income to themselves during their lives, with remainders over to their respective children and with a power, if by reason of misfortune either of them needed more than her net share of the income, to sell any and all of the real estate and to convey it by good and sufficient deeds. One of the sisters became needy and the two decided to sell one undivided fourth part of a certain parcel. To carry out their purpose the needy sister sold to the other sister her interest in the property, receiving $1,250, which was the fair value of the property, signing before witnesses and giving to her sister an instrument reading as follows: “ I have received $1,250 from [my sister] in payment for the quarter interest in store number 32 Market Square which I own and relinquish to her.” The writing was intended by both sisters as a valid and binding execution of the power in the will and was intended and was believed by them legally to vest the title in the sister to whom it was given. After the death of both of the sisters, one, who would have been entitled to the land if the conveyance had been made formally, brought a bill in equity against persons who under the will held the title to the land in the absence of a completed conveyance, and averred the foregoing facts. Held, that the plaintiff was entitled to relief in equity, since all of the elements existed which entitled the plaintiff to have the exercise of the power completed, and there were no rights of other persons intervening.</p> <p>Where by the provisions of a will certain real estate was given in trust to two sisters to pay to themselves the net income thereof for their comfortable maintenance, with a power, in case either of them by reason of misfortune should need more than the net income, to sell the property at public or private sale, and one of the sisters comes to need more than her share of the net income, the other sister, if she pays an adequate price therefor, may purchase the needy sister’s interest in a part of the trust estate without violating the equitable rule forbidding one who holds property in a fiduciary capacity from becoming a purchaser thereof.</p> <p>The statute of frauds does not prevent the giving of relief in a suit in equity to compel the completion, by a formal conveyance of land, of an imperfect execution of a power under a will where there has been a valid sale of the land, the consideration has been paid, a receipt adequately stating the terms of the sale has been given by the intended grantor to the intended grantee, and both parties thought that the writing given was a sufficient formal conveyance of the property.</p>

Libel bob divobce filed on March 6,1911, the alleged ground for divorce being utter desertion for three consecutive years from December 1, 1903. In the Superior Court the case was uncontested and was heard by Brown, J., who dismissed the libel and at the request of the libellant reported the case to this court for determination.

<p>Evidence, Competency. Witness, Redirect examination. Practice, Civil, Exceptions.</p> <p>At the trial of an action against a street railway corporation for personal injuries from being run down by a car of the defendant when the plaintiff was at work upon a highway as a laborer, a witness was called by the defendant who was on the front platform of the defendant’s car when it struck the plaintiff. The plaintiff cross-examined the witness in regard to a paper signed by the witness on which he had filled in written answers to printed questions, but the plaintiff asked no questions in regard to the contents of the paper and did not call for the paper nor inspect it. On redirect examination by the defendant the witness testified that after the accident his name was taken by the conductor and that a few days later he received by mail from the office of the defendant a .blank with printed questions, that he filled in the answers, signed the paper and sent it back to the defendant. The defendant then offered the paper in evidence. The plaintiff objected to its admission and stated that he should make no reference to it in his argument. The answers of the witness contained in the paper tended strongly to show that the plaintiff’s injuries were due to his own negligence. The presiding judge admitted the paper under an instruction which did not forbid the jury to consider the statements which were prejudicial to the plaintiff., The jury returned a verdict for the defendant, and, on exceptions alleged by the plaintiff, it was held, that the admission of the paper was an error injurious to the plaintiff and that the exceptions must be sustained.</p> <p>Upon a bill of exceptions alleged by the plaintiff in an action for personal injuries after a verdict for the defendant, it appeared that a paper injurious to the plaintiff had been admitted in evidence improperly, but the bill of exceptions contained no statement of the evidence given in behalf of the plaintiff nor any statement that there was such evidence, and the defendant contended that the plaintiff could not have been harmed by the admission of the paper as there was nothing to show- that he was entitled to have his case go to the jury. The bill of exceptions, however, showed that the judge gave instructions to the jury in a charge and contained a statement that “the jury found for the defendant." Held, that it must be inferred that the case was left to the jury, which was in effect a ruling by the presiding judge that there was evidence for the jury to consider in favor of the plaintiff as well as against him, and that the ruling properly could be considered by this court as showing that evidence for the plaintiff existed on which the ruling was based.</p>

<p>Tort for an injury sustained on November 7,1907, when the plaintiff was a passenger on a train of the defendant, from the plaintiff’s hand being caught by the door of a ear swinging to and closing upon it when he was about to alight from the train at the Franklin Park station of the defendant in that part of Saugus called Cliftondale. Writ dated February 15, 1908.</p> <p>In the Superior Court the case was tried before Lawton, J. At the close of the plaintiff’s evidence the defendant asked the judge to rule that upon all the evidence the plaintiff could not recover. The judge so ruled and ordered a verdict for the defendant ; and the plaintiff alleged exceptions.</p>

<p>Practice, Civil, Findings of trial judge, Exceptions.</p> <p>Where, at the trial of an action of contract before a judge without a jury, the plaintiff introduces evidence of facts which entitle him to recover the full amount claimed by him, and the defendant, after testifying in direct contradiction to the plaintiff’s evidence, asks the judge to find the facts in accordance with his testimony and on such facts to rule that the plaintiff cannot recover, if the judge, without passing expressly on the defendant’s requests, finds for the plaintiff for the full amount of his claim, this necessarily implies that the judge did not believe the defendant’s testimony and refused to make the finding and ruling asked for by him, and the defendant can have no ground for an exception.</p>

<p>Agency, Scope of authority, Ratification. Broker.</p> <p>Where the owner of a parcel of land puts it into the hands of a real estate broker for sale with no instructions as to the price or terms of sale, such owner is not bound by an agreement in writing, signed by the broker as his agent, to sell the land for a certain price on certain terms, unless he ratifies the contract thus made in his behalf.</p> <p>Where the owner of a parcel of land puts it into the hands of a real estate broker for sale with no instructions as to the price or terms of sale, and the broker without previous communication with the owner signs an agreement in writing as the agent of the owner to sell the land for a certain price on certain terms, taking from the proposed purchaser $50 as a part payment of the purchase money, and afterwards the broker reports to the owner' in substance the terms of the agreement of sale but does not inform him that he has made a contract in writing in his behalf or that he has received $50 in part payment, an apparent acquiescence of the owner at that time can be found not to have been a ratification of the acts of the agent in making the sale, because the owner did not have a full knowledge of the facts.</p>

<p>Contract for $347.95. Writ dated January 16,1909.</p> <p>At the trial in the Superior Court before King, J., the jury returned a verdict for the defendant. The plaintiff filed a motion for a new trial assigning five reasons for setting aside the verdict. At the hearing of the motion for a new trial the defendant asked the judge to rule that the court had no jurisdiction to hear the motion because of the plaintiff’s failure to deliver a copy of the motion to the defendant or his counsel on the day the same was filed, and that, Rule 41 of the Superior Court not having been complied with, the motion should be dismissed. The facts in regard to the giving of notice are stated in the opinion. The judge refused to make the ruling requested by the defendant, granted the motion and ordered a new trial. The defendant alleged exceptions.</p> <p>The material portions of Rule 41 and Rule 27 of the Superior Court are quoted in the opinion.</p>

<p>Landlord and Tenant. Negligence, Of one owning or controlling real estate. Elevator.</p> <p>An employee of a subtenant of a part of a floor of a building, in which there is a freight elevator for the use of tenants, who operate it in the transportation of materials, cannot recover from the owner of the building for an injury caused by the elevator not resting evenly on the floor of the well before being started, if at the time of the accident the construction and the condition of the elevator were the same that they were and appeared to be when the employer of the person injured became a subtenant in the building, and if the uneven resting of the elevator was due to rubbish or waste allowed to accumulate beneath it by the tenants without fault of the owner of the building.</p>

<p>Bills and Notes. Payment. Evidence, Presumptions and burden of proof.</p> <p>Where, upon a petition to enforce a mechanic’s lien for materials alleged to have been furnished for the construction of a certain building, it appears that the materials were furnished as alleged, and the respondent asks to be credited with the amount of a promissory note given by him to the petitioner but never paid, the burden of proof is upon the respondent to prove the payment alleged by him, and tliis burden is not shifted by showing that the note was given for the amount of the alleged payment.</p> <p>The presumption of fact, whicii exists in this Commonwealth, that a negotiable promissory note given for an unsecured simple contract debt was given and taken in payment of that debt, is not to be extended as' of course to the case of a debt secured by a lien.</p>

<p>Negligence, In use of highway.</p> <p>If a traveller on foot, when about to cross a city street in which there are double tracks of a street railway, looks along the tracks and sees a car approaching at an apparently safe distance from him but does not look into a cross street from which a team is coming, and this team turning from the cross street and passing in front of him after he has crossed the farther track of the street railway bars his way, so that, although he steps away from the rail and as close to the team as possible, he is struck by the car, in an action against the corporation operating the street railway for his injuries thus caused, it is not to be ruled that his failure to look into the cross street was negligence as matter of law, and the question of his due care is for the jury.</p>

Tort for personal injuries received by the plaintiff while in the employ of the defendant as stated in the opinion, the declaration containing a count at common law alleging as the cause of the injury negligence of the defendant in setting the plaintiff at work in a dangerous place without proper warning, a count under R. L. c. 106, § 71, cl. 1, alleging as the cause of the injury a defect in the ways, works or machinery of the defendant, and a count under clause 2 of the…

<p>Practice, Civil, New trial.</p> <p>A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge, which is a judicial and not an arbitrary discretion. In the present case, which was an action for assault and battery, it was held that there was nothing in the record to show even unwise action of the trial judge in overruling such a motion.</p>

<p>Devise and Legacy, Vested interest. Trust, Termination, Restraint "upon alienation, Res Judicata. Judgment. Estoppel. Probate Court.</p> <p>By the provisions of a will certain parcels of real estate were devised to trustees among other things to divide the net income therefrom into halves and to pay one fourth of one half to five designated grandchildren of the testator, and one of the other three quarters of this half to each of three of his children, and, on the termination of the trust in a certain way, the will read, “ I give devise and bequeath said three estates,” one undivided fourth to each of the designated children of the testator, “ to have and to hold to them and their heirs and representatives,” and one undivided fourth to the five designated grandchildren “ the survivors and survivor of them in equal proportions one fifth part to each — or the whole to the last surviving one if but one should then survive. My meaning and intention being that my said grandchildren the survivors and survivor of them shall together take the same share or portion thereof as their late mother would have taken if living; to have and to hold the same to them and their heirs forever. In case at the time when said three estates shall become free of mortgage as aforesaid my said grandchildren shall all be deceased, I give, devise and bequeath said one fourth part in fee simple to the other devisees under this will, the survivors and survivor of them.” A residuary clause gave the rest and residue of the estate to “ the same persons and in the same proportions as I have given the three estates aforesaid . . . except . . . not to be in trust but an absolute bequest and devise.” Held, that the interest of the children and grandchildren vested in interest at the death of the testator and was to vest in possession at the termination of the trust.</p> <p>In a suit in equity for instructions brought in 1910 by trustees under a will proved in 1856, it appeared that by the provisions of the will three designated parcels of real estate, subject to mortgages which were described, were devised to trustees, and among the conditions of the trust were provisions, that the trust should not be terminated until “ the mortgage now existing upon each estate respectively as aforesaid, and the mortgage or mortgages which may hereafter he put upon each estate' respectively by my Trustees as hereinafter provided, if any, shall be fully paid and discharged," that one half of the net income from the estates should be set aside as a sinking fund to be applied “ as soon as, and as often as the same can legally and properly be done, toward the payment and discharge of said mortgages," and that the trustees might rebuild, in case buildings on the estate were destroyed, or tear down and rebuild, and improve and repair at their discretion, and if necessary might further mortgage the estates for such purposes, and might re-mortgage in case the payment of any mortgage became necessary before its payment could be compassed by the sinking fund. The income, and the principal of the trust on its termination, were devised to certain persons in language which this court held to convey interests which vested in interest at the death of the testator. The provisions of the will had been carried out by successive trustees until a short time before the filing of the bill in the present suit. Held, that the termination of the trust was postponed until the payment and discharge not only of the mortgages originally upon the estates, but also of such mortgages as the trustees at any time subsequently in their discretion might place thereon, and therefore that the property was rendered inalienable for an unreasonable period and that the trust should be terminated.</p> <p>Where trustees under a will, which provided that one half of the net income from the trust estate should be set aside as a sinking fund ultimately to be used to pay certain mortgages on the trust property, for at least twenty-five years in accounts filed in the Probate Court have treated as capital and not as income a share of the estate assigned to them by a former trustee, who also was a beneficiary of the estate, as security for a promissory note covering an amount of trust funds in the sinking fund misappropriated by him, and the beneficiaries have assented in writing to the accounts, and decrees have been made confirming all such accounts and also a decree has been made, from which no appeal was taken, confirming an account of the delinquent trustee filed by the executor of his will after his death, one who has succeeded to the interest of several of the beneficiaries who so assented to the allowance of the accounts is barred from maintaining, in a suit in equity by the trustees for instructions, that the share thus assigned to the trustees should have been treated by them as income in the sinking fund and used with its accumulations to discharge the mortgages.</p>

<p>Indictment fob mubdeb, found and returned on July 12, 1910. The defendant was convicted of murder in the first degree, and a decision, of this court overruling his exceptions is reported in 209 Mass. 396. After the filing of the rescript, the defendant filed a motion in arrest of judgment, which was denied. On appeal to this court, the order denying the motion in arrest of judgment was affirmed in a decision reported ante, 78.</p> <p>In the Superior Court on October 25, 1911, Fessenden, J., made an order imposing upon the defendant the sentence of death by means of a current of electricity, to be executed during the week beginning December 31,1911.</p> <p>From this order the defendant appealed.</p> <p>E. L. c. 219, § 32, is as follows: “A defendant who is aggrieved by a judgment of the Superior Court which is founded upon matter of law apparent upon the record in any criminal proceeding, except a judgment upon a plea in abatement, may appeal therefrom to the Supreme Judicial Court.”</p>

Tort for personal injuries sustained by the plaintiff on March 17, 1910, while in the employ of the defendant in its silk factory .in that part of the town of Northampton called Leeds, from the plaintiff’s hand being caught between the rollers of a filling machine by reason of the negligence of one Tower, alleged to be a person in the employ of the defendant whose sole or principal duty was that of superintendence, in having removed a cover or guard from the rollers and…

<p>Negligence, In use of easement. Easement, Liability for negligent use of. Practice, Civil, Exceptions, Auditor’s report. Damages, In tort.</p> <p>In an action by a manufacturing company against an ice company, for damages from the washing away of a part of the bank of a canal maintained by the plaintiff, it appeared that the plaintiff, had the right to draw water for its mills through the canal from a certain pond, but that this right was subject to the right of the defendant to cut and take ice from the pond and the canal, that six or seven years before the plaintiff acquired title to its mills the defendant caused a cut to be made in the bank of the canal at a point not far from the pond and built a runway for the purpose of sliding the ice down without lifting it over the bank, that, about two years after the plaintiff acquired title, about eighty feet of the bank of the canal at or near the cut was washed away by a sudden rise of water, causing damage to the plaintiff. The first count of the declaration alleged injury from the making of the cut in the bank for the purpose of constructing a runway, without alleging negligence, and other counts alleged negligence in constructing and maintaining the runway. There was evidence as to the manner in which the cut was made and the runway was built and maintained. The presiding judge refused to instruct the jury that they must find for the defendant on the first count, but instructed them in substance, that the gist of the plaintiff’s cause of action was negligence, that the defendant had the right to make the cut and build the runway, but was bound at its peril to see that due care was exercised in doing so, and that, if the washout was caused by negligence of the defendant in the construction and maintenance of the cut and runway and the plaintiff was injured thereby while in the exercise of due care, the defendant was liable. The jury returned a verdict for the plaintiff. Held, that, if the first count was defective in not alleging negligence and the instruction requested by the defendant in regard to the first count should have been given, no harm was done to the defendant by the refusal, as under the judge’s charge the jury in finding for the plaintiff must have found that the defendant Was negligent in making and maintaining the cut and the runway and that the washout and the damage to the plaintiff were due to such negligence.</p> <p>In an action by a manufacturing company, having a right to maintain a canal to draw water for its mill from a certain pond subject to the right of an ice company to cut and take ice from the pond and the canal, against the ice company for alleged negligence in constructing and maintaining a runway through the bank of the canal for the purpose of sliding ice down, and thereby causing a part of the bank of the canal at or near the cut to be washed away by a sudden rise of water, whereby the plaintiff was put to expense in repairing the break and also was compelled to shut down its mill temporarily for want of water, the only evidence in regard to damages was that contained in the report of an auditor to whom the case had been referred. The auditor’s report set out the different items of damage claimed by the plaintiff and what the auditor allowed under each and also set out what the contentions of the defendant were in respect to such items and how these contentions were dealt with by the auditor. The report concluded as follows: “I find that the defendant owes the plaintiff . . . the sum of $7,061.63.” The defendant asked the judge to rule that this statement in the auditor’s report, “ finding that the defendant owed the plaintiff a certain sum,” was not evidence and should not be considered by the jury. The judge refused to make this ruling and instructed the jury as follows: “ The mere fact that the auditor may have stated at the end of his report that the defendant owes $5,000, or $6,000, is not sufficient for you to make a finding upon in this case. You are to consider all the report; consider it in all its parts. It is not for you to select one or two sentences. I give you instruction on this point to deal with the whole report and see whether you are satisfied from that whole report that the evidence is sufficient to sustain the findings of the auditor.” Held, that, even if the statement complained of was a conclusion of law rather than a summing up by the auditor and a finding of fact by him, which was not intimated, there was no error in the manner in which the matter was dealt with by the judge.</p> <p>In an action by a manufacturing company, having a right to maintain a canal to draw water for its mill from a certain pond subject to the right of an ice company to cut and take ice from the pond and the canal, against the ice company for alleged negligence in constructing and maintaining a runway through the bank of the canal for the purpose of sliding ice down, and thereby causing a part of the bank of the canal at or near the cut to be washed away by a sudden rise of water, whereby the plaintiff was put to expense in repairing the break and also was compelled to shut down its mill temporarily for want of water, the plaintiff, if it prevails, is entitled to recover for the loss of profits due to the interruption of the work of the mill caused by the washout and for the expense to which it was put in repairing the break in the bank of the canal and in securing a temporary supply of water.</p>

<p>Nuisance, Identify of wrongdoer. Evidence, Competency. Agency, Declarations of J agent.</p> <p>In an action against a corporation, named “Ered T. Ley & Co., Inc.,” for injuries caused by the plaintiff’s horse being thrown down by wires stretched across a highway on which the plaintiff was driving, there was evidence of due care on the part of the plaintiff and of negligence on the part of the person engaged in stringing the wires. The case came to this court by a report of the presiding judge and presented the question whether there was evidence for the jury that the work of stringing the wires was being done by the defendant. There was evidence that the work of stringing wires in that neighborhood had been going on for some days, that one D, who was designated by the plaintiff’s counsel in putting his questions as “ the superintendent of the Fred T. Ley Company,” was around there while the work was being done, instructing the men what to do, and that the teams and tool boxes were marked “Fred T. Ley Construction Co.,” “F. T. Ley Construction Co.," “F. T. Ley," and “Fred T. Ley.” There was no testimony that the corporate name of the defendant, “ Fred T. Ley & Co., Inc.,” appeared on any tool box or wagon. The report showed that in a discussion at the trial in regard to the admissibility of certain declarations made by D, it was understood and assumed by the presiding judge and by the counsel on both sides that D was referred to by the plaintiff as a superintendent of the defendant, although he was mentioned as “ the superintendent of the Fred T. Ley Corporation,” and that no question was raised of misnomer or of the identity of the defendant under different names, but only as to the authority of this superintendent of the defendant to affect his employer by his statements. Held, that, on the evidence presented by the report and the inferences that justifiably might be drawn from it when not explained or controlled by the production of facts necessarily in the possession of the defendant, the plaintiff was entitled to go to the jury.</p> <p>In an action for injuries caused by the plaintiff’s horse being thrown down by wires stretched across a highway on which the plaintiff was driving, where it appeared that one D “ was around there ” while the work of stringing wires across the highway was being done, and that he was “ instructing the men what to do,” and there was evidence warranting an inference that D was the defend- • ant’s superintendent, the plaintiff offered to prove by his own testimony that D came to the plaintiff’s house during the plaintiff’s illness caused by the injuries and there stated to the plaintiff that he was the superintendent for the defendant and that the defendant was doing the work when the plaintiff was injured. This evidence was excluded. Held, that the exclusion was proper; the statement not having .been made by D in the performance of his duty as the defendant’s superintendent.</p>

<p>Practice, Civil, Judge’s findings of fact, Exceptions. Dog Officer. Officer. Statute, Construction.</p> <p>No exception lies to the refusal of a judge before whom an action at law is tried without a jury to make particular findings of fact. In the present case the findings of the judge contrary to those requested were warranted by the evidence.</p> <p>Under R. L. c. 102, § 143, a bill for services as a dog officer in a city must be op. proved by the mayor of the city as a condition precedent to payment by the county treasurer.</p> <p>Under Rx L. c. 102, § 143, requiring that a bill for services as a dog officer in a city shall be approved by the mayor of the city as a condition precedent to payment, the approval of such a bill by the person who was the mayor of the city when the services were rendered, given after he has ceased to be such mayor, is of no effect.</p> <p>Under R. L. c. 102, § 143, as amended by St. 1907, c. 240, and St. 1908, c. 182, providing that a dog officer shall hold office for one year or until his successor is appointed and qualified, and that in cities of twenty-five thousand inhabitants, or more, such officers “ shall he paid the same wages per diem during the term of their employment which the regular police officers of such cities receive,” the wages of such an officer are to be paid by the day during the term, not of his office, but of his actual employment as such dog officer, and the subsequent amendment of the statute by St. 1911, c. 391, limiting the compensation of dog officers to the time actually employed, is merely declaratory of the meaning of the statute amended.</p>

<p>Bill in equity, filed in the Superior Court on March 9, 1908, amended by the filing of a substituted bill on February 25, 1909, and further amended on October 18, 1909, by the members of the board of health of the city of Worcester under R. L. c. 102, § 71, to restrain the defendant from completing the erection of a building designed to be used as a stable on the defendant’s land on Shirley Street in Worcester, from plumbing such building for stable purposes and from using and occupying it as a stable without a license for such plumbing and occupation granted by the plaintiffs under R. L. c. 102, § 69.</p> <p>A demurrer to the substituted bill was overruled by Sander-son, J., and the defendant appealed from the order overruling the demurrer.</p> <p>On the issues raised by the defendant’s answer the case was heard by the same judge. The material facts and the questions raised at the trial by the exclusion of certain evidence are stated in the opinion. At the close of the evidence the defendant asked for the following instructions:</p> <p>“ 1. On all the evidence the plaintiffs cannot maintain their bill.</p> <p>“ 2. That there is no evidence that R. L. c. 102, § 69, has. been violated.</p> <p>“ 3. That the bringing of the bill was premature.</p> <p>“ 4. Complete and adequate remedy is provided by statute to the board of health for the abatement of a nuisance immediately upon the violation of § 69, so far as it pertains to the occupancy of buildings for the stabling of horses.”</p> <p>The judge refused to make any of these rulings and made the following memorandum of decision:</p> <p>“ The court finds that the defendant is the owner of a building which he has fitted up as a stable to accommodate ten horses; that he has applied to the board of health three times for a license to occupy and use said building for a stable for horses and that the license has in each case been refused; that notwithstanding said refusal he has repeatedly said in substance and effect to one member of the board of health that he would occupy the stable without a license, and that he continued to make such statements up to the time of the bringing of the bill in equity asking that he be enjoined from occupying said building as a stable; that the defendant meant by said statements that he intended to occupy said building for a stable for horses without a license.”</p> <p>At the request of the defendant the judge made an additional finding of fact as follows: “ The member of the board of health to whom the defendant made the statements referred to in said memorandum is James C. Coffey.”</p> <p>The judge made a decree for the plaintiffs ordering that an injunction should issue; and the defendant alleged exceptions to the refusal of the rulings requested by him and to the exclusion of the evidence referred to above and described in the opinion.</p>

Contract or tort for damage to a crank ease and shaft of an automobile belonging to the plaintiff alleged to have been injured on February 28, 1908, while being transported by the defendant as a common carrier for delivery to the plaintiff at Topsfield. Writ dated January 11, 1909.

<p>Labor, Employment of women. Constitutional Law. Pleading, Criminal, Complaint.</p> <p>The provisions of St. 1909, c. 514, § 48, limiting the time during which women may be employed in manufacturing and mechanical establishments to fifty-six hours in each week and to ten hours in each day, “unless a different apportionment of the hours of labor is made for the sole purpose of making a shorter day’s work for one day of the week,” except that where employment is by seasons the hours of labor in each week may exceed fifty-six but not fifty-eight hours if the total number of hours of such employment in any year shall not exceed an average of fifty-six hours in each week for the whole year excluding Sundays and holidays, were constitutional.</p> <p>While those provisions of St. 1909, c. 514, § 48, (which remain in force after the amendment of another portion of the section by St. 1911, c. 484,) requiring one employing women or children in a manufacturing or mechanical establishment to post in a conspicuous place in every room “ in which such persons are employed a printed notice stating the number of hours’ work required of them on each day of the week, the hours of commencing and stopping work, and the hours when the time allowed for meals begins and ends,” do not require that such a notice shall be posted as to the hours of labor of women or children hired temporarily or intermittently to perform tasks subsidiary to the main business of the establishment, they do require a posting of such a notice with regard to the hours of labor of all women and children regularly employed in the establishment in labor practically permanent.</p> <p>The means provided by St. 1909, c. 614, § 48, for enforcing the provisions of that section with regard to the hours of labor of women and children in manufacturing and mechanical establishments by the posting of certain notices stating their hours of labor and of intermissions for meals and the infliction of a penalty for a failure to do so, when read with the other provisions of the statute, are not unreasonable, unnecessary or arbitrary and are within the powers of the Legislature.</p> <p>A criminal complaint charged that the defendant on a certain date in February, 1910, “ being then and there the superintendent of” a certain corporation carrying on a certain manufacturing establishment in which women were employed and in which the corporation had caused to be posted and had maintained on the date named in a conspicuous place “ in a certain room therein in which said room were employed certain women,” among them a woman named C, “ printed notice that said women were required to work in laboring during the hours set forth in said notice” with an hour out for dinner beginning at 12 and ending at 1 p. m., “ did then and there employ” C “ in laboring in said mill and in the room in which said notice was posted ... at a time other than that stated in said printed notice, to wit, at five minutes of one o’clock ” on the day named, such employment not being by reason of time lost through the stopping of machinery upon which she was employed or dependent for employment. Held, that the complaint sufficiently charged a violation of St. 1909, c. 614, §§ 48, 49.</p> <p>Although by § 70 of St. 1909, c. 514, the superintendent of a manufacturing establishment, in which are posted proper notices of the hours of labor of women therein in accordance with the requirements of § 48 of the statute, cannot be held responsible for a violation of that section if a woman works in the establishment during a part of the time allowed in the notice for meals without his “ orders, consent or knowledge,” one who is such a superintendent and has general charge of the operations of the establishment, the overseers thereof being subject to his orders, may be found guilty of a violation of § 48 in employing a woman in a certain room therein five minutes before the end of an hour stated upon notices of the hours of labor for women in that room to be the hour set apart for dinner, upon evidence that tended to show merely that the machinery therein was started by an overseer five minutes before the hour, that a woman therein then did some work on one machine, and that afterwards, when spoken to regarding the matter by a State inspector, the superintendent said, “ Wasn’t it all right, five minutes of?”</p>

<p>Bill in equity, filed in the Superior Court on October 11, 1910, seeking to enjoin the defendant “from claiming title to” certain buildings upon land conveyed by the plaintiff to the defendant by a deed containing the stipulation hereinafter set out, “and from injuring and destroying the same and from.hindering, opposing, or obstructing the plaintiff from removing or moving or continuing to remove the said buildings from the defendant’s land.”</p> <p>The case was heard by King, J. It appeared that by a deed acknowledged on February 28 and recorded on March 2,1910, the plaintiff conveyed to the defendant “the following certain lots or parcels of land situated in said New Bedford,” the deed describing them by metes and bounds. After the description of the lots, the deed contained the following: “ All buildings to be removed from these premises on or before July 1st next by the Grantor or his assigns. To have and to hold the granted premises with all the privileges and appurtenances thereto belonging to the said Grantee, the City of New Bedford, and its successors and assigns, to their own use and behoof forever. ”</p> <p>There was no other mention of buildings in the deed.</p> <p>The plaintiff testified that at the time of the conveyance there were three buildings on the land; that he owned land about four hundred feet from the location of the buildings and had made preparations to place them there; that on June 22, 1910, he applied to the mayor and aldermen of the defendant for permission to move the three buildings to his other land. It appeared from the records of the board of aldermen that the permission was given him on that day.</p> <p>The plaintiff further testified that he began operations on the buildings in April and removed all the foundations around them, taking out the curbing and large stone posts and a fence, and getting “ everything ready as far as he could in April; ” that there was only one building mover in New Bedford who could handle these buildings and that was one Hathaway; that outside of New Bedford the nearest movers were in Fall River and Brockton; that the plaintiff tried to get Hathaway to move the buildings several times between April and July 1, but could not get him because his timbers were all tied up and he “ was driven up with work and was busy; ” that it was impossible for Hathaway to move the houses or to do anything about them until he began ■ work on them in September; that the plaintiff tried to get the movers from Fall River and Brockton but could not secure them “ as they were too busy and were tied up with work,” doing some work for Hathaway; that the plaintiff told Hathaway that the buildings had to be away by July 1; that it was the plaintiff’s intention to remove these buildings before July 1; that the plaintiff saw the mayor with reference to the removal of the buildings several times between June 21 and September 1; that the plaintiff attended the meeting of the board of aldermen on June 22,1910, the full board being present, when “the mayor, in the presence of the full board, said that several applications to extend the time had been made by the owners of buildings on the land bought by the city,” naming the plaintiff among others, “ and that the parties would be unable to get away from the premises by the first of July, and that... if there were no objections the extension would be granted; that no objection was made, the full board of aldermen being present; that one of the aldermen . . . asked if the city was suffering in any way and if there was any harm done by these buildings not being got away by the first of July, and the mayor said that there was no harm done, that the city couldn’t widen the street yet, and had no use for the land, and wasn’t suffering in any way; that ” another alderman “ asked the same question and received the same response; ” and that after the meeting the plaintiff saw the mayor a number of times previous to September 1 about the matter.</p> <p>It was admitted that the records of the board of aldermen contained no reference to a discussion or of any action on the matter of the delay in the moving of the buildings.</p> <p>The plaintiff in the middle of September moved two of the buildings to other land of the defendant, leaving one on the land in question.</p> <p>On October 1,1910, the defendant’s solicitor in response to a request from the defendant’s clerk of committees gave a written opinion that the plaintiff, “ having failed to remove the buildihgs within the time which he stipulated in his option and the deed given the city, has parted with any right to claim the houses as property received to himself and the same belong to the city of New Bedford.”</p> <p>The foregoing is in substance all the evidence introduced at the hearing.</p> <p>At the close of the evidence, the presiding judge “ ruled, at the request of the defendant, that on all the evidence the plaintiff could not recover, &emdash; saving the plaintiff’s rights; ” and at the request of the parties reported the case to this court “ on the agreement that if the ruling was right (on all the evidence that was admitted, and all that was excluded but should have been admitted) then the ruling is to stand and a decree is to be entered for the defendant, with costs; if the ruling was wrong (on all the evidence that was admitted and all that was excluded but should have been admitted) then a decree is to be entered for the plaintiff with costs. ”</p>

<p>Petition, filed in the Land Court on July 23,1907, for the registration of the title to land in Gloucester fronting southerly on Gloucester harbor and northerly on Main Street. The respondents claimed the right to use a way through land of the petitioner in connection with land owned by them fronting on Main Street and immediately east of the way and the land of the petitioner.</p> <p>In the Land Court the case was tried before Davis, J. He found the following facts in substance:</p> <p>In 1852 the land of the respondents and the greater part of that of the petitioner was included in a tract of pasture land, known as Trask field, which then was purchased by John Pew, a Gloucester merchant engaged in the fisheries. The field sloped up from Main Street, at which point it was low and springy, over a rocky incline, and thence dropped off to the harbor. On the water front, Pew built wharves and docks with a flake yard to the north thereof. Running from Main Street to the wharves near the west line of the Trask field, he built the way now in question, leaving, however, a narrow strip of land at the northwesterly corner for a store, now contained in a brick block, and for a yard and for fish flakes, and at the northeasterly corner a tract of land having a frontage of sixty-five feet on Main Street, a depth southerly along the way in question of three hundred and twelve feet, and a width on the southerly end of sixty-two feet, for a house lot, stable and garden comprising his homestead estate which is now the property of the respondents. This homestead estate he filled and graded, building a mansion house on the front part facing on Main Street, with a stable in the rear and a garden which he cultivated and in which he also had a hen house and yard. The portion of the lot on which the house was built was filled in so that the house stood above the street and way, with bankings and some ornamental shrubbery about it, and there was a wall surmounted by an ornamental fence along Main Street, with gates for foot passengers opening to walks leading to the front and back doors of the house, to the cellar doors and cellar windows, and to stone steps to the stable yard, and there was a wall surmounted by a similar fence along the way in question as far south as an embankment wall which was between the house and the stable. Back of the house the land made an abrupt drop to the stable. The embankment wall was surmounted by a low fence with a gate in it between the house and the stable and stable yard, and a flight of stone steps leading down from the house to the stable yard. A trellis and fence with an opening in it separated the stable and stable yard from the garden. Access to the stable, stable yard and garden was had from the private way in question through a swing gate for teams opening on to a driveway to the stable yard and stable, located opposite the stable and large enough to admit a wagon, the opening thus made into the driveway being in a high slat fence which ran from the embankment wall around the west, south and east sides of the property now owned by the respondents. The fences above mentioned completely enclosed the house, stable and garden.</p> <p>Pew lived in the house and occupied the whole of the premises now owned by the respondents as his homestead until his death. Until 1868 he kept in the stable a horse and carriage for his own use, and also at times one used in the firm business. In 1868 he had a runaway accident which lamed him for life, and thereafter he kept no horse. From then on the stable was used mostly for storage purposes, and in the stable yard and driveway were from time to time kept portable chicken coops. Access to the stable, stable yard and garden was, however, still had as occasion might require through the gates opposite the stable which opened upon the way in question. In going between his house and place of business, Pew sometimes came out his side door, down the stone steps to the stable yard, and thence out by the stable gate and down the way in question to the wharves. Sometimes, however, he went out through his front gate to Main Street and around by the store. As he grew older he used the stone steps and stable gate less and less. It appeared that the gates opposite the stable opening from the way were locked at times to prevent boys from getting into the yard to the magnolia and fruit trees, and that in the later years of Pew’s life the use of the gates for any purpose was very infrequent; but the judge found that the gate was not permanently closed up. The use of the way so far as Pew personally was concerned in his actual occupation of the premises was largely discontinued, but there was no abandonment of the use of the way in connection with the premises or permanent interruption thereof.</p> <p>In 1868 Pew bought additional land on Main Street adjoining the store on the west, and a brick block was erected covering that lot and the piece of the Trask field formerly occupied by the store. He also bought some house lots south of the store which fronted on an adjoining street called Vincent Street. For many years and until his death the block and the wharf properties were rented by Pew to the firm in which he was the principal partner, and the way was in constant use in connection with the firm properties, constituting the principal means of access to the wharves and flake yards, and the only entrance to the side and back doors of the store and block and to a yard and small building back of the store. Cottages were erected on the house lots which were rented to employees of Pew or of the firm. The tenants used the, way in question. After 1879 the way was and now is defined on its west side by fences and a wall and the side of the brick block. The way in question was always kept in repair by the firm, and the cost charged into the firm’s expenses, along with rent, in their accounts with Mr. Pew.</p> <p>In Pew’s lifetime or at his death a driveway ten feet wide, as far as the stable yard and stable, could have been built from Main Street over the front lot now of the respondents, which was worth about $10,000, for about $150. Such a driveway would have been very disadvantageous to the remainder of the house lot. A way ten feet wide would not have been adequate for the development and use of the stable and garden lots, either for business purposes or for cutting up into house lots, and a way twenty feet wide running back into the garden for the development and use of the property would have cost from $750 to $900 and would have greatly impaired the availability, use and value of the garden lot by narrowing the lots into which the garden could have been divided. The homestead estate at the time when Pew’s will was made and at his death was in a residential and business neighborhood.</p> <p>Pew made a will in 1876, by the second paragraph of which he left his “ homestead ... in said Gloucester as now enclosed ” to his wife, and by the sixteenth paragraph he directed “ that the garden situated southerly of the dwelling-house occupied by me . . . shall be a part of the homestead given my wife in the second item of the will, and I do hereby devise said garden to my said wife as a part of said homestead.” He died in March, 1890, and his will was proved. His widow occupied the homestead, including the house, stable and garden, until her death in December, 1890, when she devised it to her daughter, who occupied it for nearly ten years, and from whom it passed in 1900 to the respondents by mesne conveyances duly recorded, each containing the usual habendum clause “ with all the privileges and appurtenances thereto belonging. ” The fee to the way and to the other land described in the petition for registration was devised to the testator’s sons.</p> <p>The respondents upon acquiring title levelled off the front land and erected a permanent wooden building used as a theatre and opera house, covering the middle portion of the property, including the southerly end of the house lot, the whole of the stable yard, and the northerly end of the garden, and having its stage entrances and only intended means of access by teams on and from the way in question. They removed the gates and the fence along the way. At the place where the gate opposite the stable formerly was located, the theatre building completely blocks entrance from the way to the property, except for the purpose of entering the theatre. The theatre building also blocks all access to the stable by horses or wagons. - The respondents have used all the land between the house and the way in question, a width of from twenty-one to twenty-three feet, as an entrance for spectators from Main Street and have levelled it and covered it with cement for that purpose. The house and stable are still standing in their original location, and are in use by the respondents. In 1902 a cottage house was moved on to the southerly part of the garden lot by the respondents and is occupied by them.</p> <p>The judge found as a fact that at the time the will was made and at the date of the testator’s death, the only reasonable means of access to the stable and garden lots was by means of the way in question, and ruled that under the will of John Pew his widow took as appurtenant to the homestead and garden specifically devised to her under the above described second and sixteenth clauses of the will an easement of passage to and from Main Street for all convenient purposes in the land within the limits of the way in question, and that the respondents by mesne conveyances are now the owners of the estate so devised to her. A decree was ordered accordingly; and the petitioner alleged exceptions.</p> <p>The bill of exceptions contained a recital of all the material facts in evidence and a statement that a decision of the trial judge’s finding, which contained a detailed statement of facts found by him, might “be referred to.”</p>

<p>Charity, What constitutes benevolent or charitable institution, Exemption from taxation. Tax, Exemption. Trust. Young Men's Christian Association.</p> <p>At the hearing of an action of contract in which was involved the question, whether the property of the Young Men’s Christian Association of Newburyport was taxable, there was evidence tending to show that the association was a corporation without capital stock; that its purpose, as stated in its charter and constitution, was “the improvement of the spiritual, mental, social and physical condition of young men; ” that its membership was made up of “ active ” and “ associate ” members; that any man above fifteen years of age who was a member in good standing of a Protestant Trinitarian church might become an active member; that only active members had a right to vote or to hold office; that any man over fifteen years of age of good moral character might become an associate member and enjoy all the privileges of the association other than voting and holding office; that the extent to which members might use some of the privileges of the association depended upon the amount of membership fee they paid; that there was no religious test applied to associate members and they included persons of the Roman Catholic and of all Protestant' denominations as well as Jews and persons of no religious preference; that the association had a definite policy of religious work not confined to its members nor to its building, carried on considerable educational work, also not confined to members, with classes in fifteen or twenty different studies for which was charged a small fee insufficient to sustain the work; that there were classes for Polish residents of the city, both men and women, where no fee was charged and general instruction in elementary matters of clean living and good citizenship was given; that a reading room was maintained; that there were meetings for social purposes, entertainments, games, public receptions and sometimes shop receptions where men from different factories were entertained without cost to them; that some work was done which was charitable in the popular meaning of that word, mainly to assist young men, both members and non-members; that none of the work was done for profit; that no officer except the secretary received any compensation; and that the association depended for support for its work mainly upon subscriptions. Held, that the corporation was a benevolent or charitable institution within the meaning of those words in St. 1909, c. 490, Part I, § 5, cl. 3, the fact that some of its benefits were afforded only to its members, and the limitation of the privileges of becoming “ active ” members, of voting and of holding office not being material.</p> <p>A fund, bequeathed to trustees for the purpose of paying the net income thereof “ for the general purposes ” of a Young Men’s Christian Association which is a benevolent or charitable institution, is exempt from taxation under the provisions of St. 1909, c. 490, Part I, § 5, cl. 3.</p>

<p>Evidence, Extrinsic affecting writings, To show fraud, Presumptions and burden of proof. Contract, In writing, Performance and breach. Fraud. Practice, Civil, Ordering verdict. Damages, In contract.</p> <p>Where one signs an unequivocal agreement in the form of a letter to pay for a stated number of volumes of an existing publication to be shipped by the person to whom the letter is addressed, and the letter contains the words, “ This agreement is unconditional, except as noted hereon,” and no conditions are noted thereon, the signer of the letter cannot show, at the trial of an action upon the agreement brought after he had received the books therein described and had returned them because he did “not feel as if” he could “ afford the expense,” that he was induced to sign the agreement by a representation of an agent of the vendor that, if he would sign, the books would be shipped to him with the privilege of examination and that he would be allowed to return them after examination if they were not satisfactory, such evidence tending to vary the terms of an unequivocal agreement in writing and not being sufficient to sustain a defense that the agreement was procured by fraud.</p> <p>At the trial of an action upon an agreement in writing, dated on a May 12, whereby the defendant had agreed to receive and pay for certain volumes of a published work and the plaintiff had agreed to send him the volumes, it appeared that the following was printed on the face of the contract after the signatures, “ 1 year’s subscription Scientific American Free,” that the volumes were sent to the defendant about May 25 and that he returned them at once with a letter stating that he could not afford the expense of purchasing them. The only evidence with regard to the “ Scientific American” was testimony of the defendant, “that he received some copies of the Scientific American, — how many he could not say, ■— that he received copies until he wrote to the Scientific American Company ” the letter of May 25. There was no evidence describing the “ Scientific American.” A verdict was ordered for the plaintiff. Held, that a verdict should not have been ordered for the plaintiff, it being incumbent upon the plaintiff to prove that he had complied with all the terms of his contract and there being evidence from which the jury might have found that the “ Scientific American” was not sent to the defendant after May 25.</p> <p>Where, at the trial of an action upon a written agreement by the defendant to receive and pay for certain volumes, a year’s subscription to the “ Scientific American” to be given to the defendant free, there is evidence from which the jury may find that, although the volumes were sent to the defendant, the “ Scientific American ” was sent to him only for two weeks, and that, upon his returning the volumes, the vendor kept them for nearly three months without notifying the defendant that acceptance of them was refused and that they were held subject to his order, and that the full contract price was not claimed from the defendant for eleven months after the volumes were delivered to him, a verdict should not be ordered for the plaintiff for the full contract price.</p>

<p>Negligence, Street railway.</p> <p>In an action against a street railway corporation for personal injuries from being run into by a car of the defendant when the plaintiff was driving a pair of ¡horses attached to a covered express wagon, there was evidence on which it could have been found that the plaintiff was driving on a city street with the right hand wheels of his wagon close to the curbstone on the right hand side of the street, where the nearest rail of the defendant’s tracks was twelve feet distant from the curbstone, and that he was approaching an intersecting street at the corner of which a curved track of the defendant came within three feet of the curbstone, that on the track by the side of which the plaintiff was driving the defendant’s cars were running as often as once a minute, more than one half of them proceeding straight ahead in the direction in which the plaintiff was going, and the others turning by a switch around the curve into the intersecting street, that a short distance behind the plaintiff a car was approaching on the straight track, that the motorman was driving it slowly on account of the congested traffic, that the plaintiff’s wagon was in plain sight and apparently about to cross the intersecting street, when the defendant’s motorman, without ringing any warning gong, entered upon the curved track which crossed the plaintiff’s path and ran the car into the wagon behind its forward left wheel, causing the injuries sued for. There was no direct evidence that the plaintiff listened and no evidence that he looked backward before driving upon the curved track, but according to some of the evidence, even if he had looked backward when the horses reached the curved track, he then would have seen the car upon the straight track and apparently proceeding to cross the intersecting street instead of turning the corner. Held, that there was evidence for the jury of due care on the part of the plaintiff and of negligence on the part of the defendant.</p>

<p>Tort for deceit, to recover the sum of 1844.90 paid to the defendant on a loss of household furniture and other articles of personal property under a policy which was issued by the plaintiff when the property described in it was in a frame apartment house with stores underneath it, on Ocean Avenue in Revere, known as the Irving Cottage. Writ in the Municipal Court of the City of Boston dated September 19, 1905.</p> <p>On appeal to the Superior Court the case first was tried before Hitchcock, J. The jury returned a verdict for the defendant, and exceptions alleged, by the plaintiff were sustained in a decision reported in 197 Mass. 354.</p> <p>There was a new trial of the case before Sanderson, J., at which the jury returned a verdict for the plaintiff for the whole amount claimed; and the defendant alleged exceptions, raising the questions which are stated in the opinion.</p> <p>The following facts appeared in the bill of exceptions: The fire was in the Irving Cottage at Revere. The defendant had bought a house at Randolph and was arranging to move from her tenement in the Irving Cottage. From this'1 tenement the defendant’s husband had carried to Randolph a one horse load of furniture and bedding, which he had placed in the barn at Randolph, because the occupant there had not removed from the house. A few days before the fire the defendant’s husband “ had started to move the piano and some furniture, but had not been able to depart in time so had taken the piano and other articles which had been brought down from the tenement into the Nickel Palace,” a building separated from the Irving Cottage by a passageway a few feet wide. The Nickel Palace, which formerly had been used as a theatre, belonged to the defendant, and the plaintiff had refused to insure it. In the proof of loss, signed and sworn to by the defendant, the insured property was stated to have been destroyed or injured by fire in “ the building insured.” On June 4,1905, the Irving Cottage and also the Nickel Palace with their contents were totally destroyed by fire.</p> <p>The “ rider ” referred to in the opinion was as follows: “ Permission is hereby given the assured to remove the within insured property to frame dwelling building situated e/s/ South Main Street, between Union and Maple Streets, Randolph, Mass. This policy to attach and cover the same in both locations during removal in proportion as the value in each location shall bear to the value in both and after removal shall attach and cover in new location only.”</p> <p>The statements of the defendant and her husband, which are referred to in the opinion, were made to a deputy chief of the district 'police in charge of the detectives and fire inspectors, upon an official inquiry instituted by him to investigate the fire and the matters relating thereto. The statements were testified to by the stenographer who took them down at the inquiry. The judge, in admitting the testimony against the defendant’s objection, said that it was “ admitted solely for its tendency, if it has any, to contradict the witnesses who have testified.”</p>

<p>Trust. Frauds, Statute of. Nuisance. Negligence, Of one owning or controlling real estate.</p> <p>In an action for personal injuries alleged to have been sustained by reason of a defective condition of the defendant’s land at its junction with a public sidewalk, where it appears that at the time of the accident the land in question was held by a person other than the defendant under a deed absolute on its face, under R. L. c. 147, § 1, the plaintiff cannot show by oral evidence that the defendant formerly owned the land and conveyed it with an understanding of the parties to the conveyance that the defendant should retain the beneficial interest in the land and should receive the rents and profits ; but, if the plaintiff could prove such a beneficial interest in the defendant, that would not make the defendant liable for injuries caused by the alleged defect without showing that the defendant was in occupation of the land or had undertaken its management and control.</p>

<p>Negligence, Street railway, Res . ipso loquitur. Practice, Civil, Findings of trial judge, Presumptions and burden of proof, Exceptions. Damages, In tort.</p> <p>At a trial before a judge, without a jury, of an action by a woman against a street railway corporation for personal injuries sustained when the plaintiff was a passenger on a car of the defendant, where there is evidence that the plaintiff’s injuries were occasioned by a jolt which caused one side of the forward part of the car to rise and lifted the plaintiff some inches from her seat so that she fell back with a hard thump, if the judge finds, on evidence warranting such findings, that the jolt was not due to a defective condition of the car or to any defect in the roadbed or track or to any negligence in the operation of the car, these findings of fact, depending on the weight of testimony and the credibility of witnesses, are not open to review upon exceptions.</p> <p>At the trial before a judge, without a jury, of an action by a woman against a street railway corporation for personal injuries sustained when the plaintiff was a passenger on a car of the defendant, where it appears that the plaintiff’s injuries were occasioned by a jolt which caused one side of the forward part of the car to rise and lifted the plaintiff some inches from her seat so that she fell back with a hard thump, this is not to be regarded as an ordinary incident of travel, and, if unexplained, is evidence of the defendant’s negligence, but it does not change the burden of proof which still is upon the plaintiff, and if the judge finds, on evidence warranting such findings, that the jolt was not due to a defective condition of the car or of the roadbed or the rails, but probably was due to a small obstruction upon the surface of one rail, which the forward wheel probably removed or crushed, and that the motorman was not negligent in failing to see this small obstruction which must have been upon a curved portion of the track, a finding of the judge that the plaintiff has not sustained the burden of proof is justified.</p> <p>In an action of tort by a woman against a street railway corporation for personal injuries alleged to have been caused by a violent and unusual jolt of a car of the defendant in which the plaintiff was a passenger, where there was evidence that . the plaintiff was suffering from physical conditions which made her peculiarly susceptible to a particular form of injury from the violent jolting of the', car, it was said, that if the plaintiff proved that the unusual jolt was caused by the defendant’s negligence and that it was the proximate cause of her injury, it was not necessary for her “ to prove that the jolt was such that it would have caused, or was sufficient to cause, actual injury to a passenger in normal health in the same situation.”</p> <p>An exception of a plaintiff in an action of tort to a ruling of the judge before whom the case was tried without a jury, which was an incorrect statement of law unfavorable to the plaintiff, will not be sustained if the findings of fact made by the judge, on evidence warranting such findings, establish conclusively that the defendant was without fault and was not liable to the plaintiff in any event, so that the erroneous ruling became immaterial and the plaintiff was not harmed by it.</p>

<p>Breaking and Entering. Larceny. Evidence, Circumstantial.</p> <p>At tlie trial of an indictment under R. L. c. 208, § 18, for breaking and entering a dwelling house with intent to steal and the larceny therein of three automobile tires, where there is no direct evidence connecting the defendant with the crime charged, if there is evidence that before the discovery of the larceny the defendant was at the owner’s house ostensibly as a plumber to remedy a leak in the pipes of a radiator, that afterwards the tires, which were kept in a closed storeroom, were missing, and that, within a period of about two weeks thereafter, the defendant had the tires in his possession, sold them under a fictitious name and received the proceeds less a commission of a person whom he employed to effect the sale, and if the defendant offers no evidence to explain or control the facts thus testified to, although it appears that at the time of his arrest he made a statement to a police officer denying the theft and his employment of the person who effected the sale, the facts presented are sufficient, in the absence of any explanation, to sustain the burden of proof which rests on the Commonwealth and to warrant a verdict of guilty.</p> <p>In order to prove by evidence wholly circumstantial that the crime charged in an indictment was committed by the defendant, it is not necessary to show that the .defendant’s opportunity to commit the crime was exclusive, where the circumstances, although tending to show an opportunity of others, point to the defendant as the actual offender.</p>

<p>Complaint, received and sworn to in the Municipal Court of the City of Boston on January 2,1911, charging the defendant and another with the crime of attempting to commit larceny from the person of an unknown man. The defendant pleaded not guilty, was tried in the municipal court on January 2,1911, convicted and sentenced. He appealed to the Superior Court, and the complaint was entered in that court" on February 6. A motion to quash the complaint and a motion for a bill of particulars were filed by him on February 8. He was called to come into court and prosecute his appeal on September 5, and did not appear but made default. On October 25, 1911, the defendant was brought into court and filed a motion to remove the default, which motion was overruled. He then filed a motion in arrest of judgment, which motion was denied. He was thereupon sentenced to the house of correction and filed a motion to stay the execution of sentence, and this motion was denied.*</p>

<p>Tort for personal injuries received by the plaintiff on March 11, 1905, while in the employ of the Pullman Company and at work upon one of its cars in the Exeter Street yard of the defendant in Boston. Writ dated March 16, 1905.</p> <p>In the Superior Court the case was tried before White, J.</p> <p>It appeared that in January, 1901, at the time the plaintiff entered the employ of the Pullman Company and also at the time he received the injuries for which the action was brought, a contract was in force between that corporation and the defendant with regard to the furnishing of cars by the Pullman Company to the defendant and the use and operation of them on the defendant’s trains, by the tenth section of which the Pullman Company agreed to fully indemnify the defendant against any and all claims that might at any time be made by “ employees of the Pullman Company, or of their representatives, on account of death, personal injury or otherwise, howsoever occurring or sustained.”</p> <p>At the time he entered the employ of the Pullman Company, the plaintiff signed a contract entitled, “Contract of Employment,” by which he accepted employment by that corporation upon certain “express terms, conditions and agreements,” of which there were six, covering one and one half pages of the printed record. Those numbered fourth and fifth were as follows:</p> <p>“ Fourth: I assume all risks of accidents or casualties by railway travel or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit and discharge The Pullman Company, and its officers and employees, from any and all claims for liability of any nature or character whatsoever, on account of any personal injury or death to me in such employment of service.</p> <p>“ Fifth: I am aware that said The Pullman Company secures the operation of its cars upon lines of railroad, , and hence my opportunity for employment, by means of contracts wherein said The Pullman Company agrees to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part to the employees of said The Pullman Company in cases provided for in such contracts, and I do hereby ratify all such contracts made or to be made by said The Pullman Company and do agree to protect, indemnify and hold harmless said The Pullman Company with respect to any and all sums of money it may be compelled to pay, or liability it may be subject to, under any such contract, in consequence of any injury or death happening to me, and this agreement may be assigned to any such corporation or person and used in its defense.”</p> <p>The testimony regarding the circumstances under which the plaintiff signed the contract is described in the opinion.</p> <p>The testimony of Joyce referred to in the opinion was as follows : “ Q. On days before this accident, tell us what you observed the conductor do with reference to men on top of the trains before the engine would come down and back on ? A. Well, he would come down and notify them, tell them to get off; that he was going to pull the car away.” That of Burke was as follows: “ During the years that I have been there I always saw the conductor come and notify the men on top of the cars before the coupling was made until that time. What I always saw done was that the conductor of the train came and notified whoever was on top or underneath working, said he was going to pull out the train, going to back the engine on to the train, or going to pull out some or back some.”</p> <p>Both Joyce and Burke, in their cross-examination, were shown statements in writing which they admitted were signed by them and which contained statements more or less contradictory to their direct testimony. Each statement closed with the words, “ I have read this and it is all right.” Both of them disavowed knowledge of the contents of the statements.</p> <p>In his closing address to the jury the counsel for the plaintiff argued that inasmuch as Joyce and Burke had each denied that he “ had made the statement to the claim agent who wrote the body of the written statements, signed by them, and had asserted that they had never read the statements notwithstanding that it appeared in their handwriting upon the written instruments 11 have read the above and it is all right; ’ — that from the defendant’s failure to produce the man who wrote the statements the jury ought to infer that if he were produced his testimony would not contradict Joyce and Burke on that point.”</p> <p>At the close of the charge, the defendant asked for the following additional ruling:</p> <p>“ 12. Enough facts do not appear in evidence to warrant the jury in drawing any inference unfavorable to the defendant from the failure to produce as a witness the man who wrote the statements of Joyce and Burke.”</p> <p>Other facts are stated in the opinion.</p> <p>The jury found for the plaintiff in the sum of $2,000; and the defendant alleged exceptions.</p>

<p>Negligence, Elevated railway, Street railway. Passenger. Evidence, Relevancy and materiality.</p> <p>One who has arrived, upon a surface street car of a-corporation operating both a surface and an elevated railway, at the lower level of a station of two levels maintained by the corporation, and then passes from the lower to the higher level to take a car which is to leave the station there, is a passenger of the corporation and is entitled to have the corporation exercise every reasonable precaution for his transportation in safety and for his protection against unlawful violence of other passengers and of its servants.</p> <p>At the trial of an action against a corporation operating both a surface and an elevated railway for injuries alleged to have been received by a passenger who had arrived, on a surface street car operated by the defendant, at the lower level of a station of two levels maintained by it, and, having passed to the upper level, was caused to fall into a pit by violence of the crowd as he was attempting to board a car there, testimony, given by superintendents of various divisions of the defendant’s system having knowledge of the subject matter, in regard to the arrangements at the station for the transfer of passengers from car to car and from level to level, to the methods necessary to effect such changes, and to the volume of travel and the .sufficiency of the mode of service adopted at the station for the protection of passengers, is admissible.</p> <p>At the trial of an action by a woman against a corporation operating both a sur. face and an elevated railway for injuries alleged to have been received by the plaintiff, who had arrived, on a surface street car operated by the defendant, at the lower level of a station of two levels maintained by it, and, having passed to the upper level, was caused to fall into a pit by violence of the crowd as she was attempting to board a car there, there was evidence tending to show that, as the plaintiff left the first car and was on her way to the second, she gradually was encompassed by other passengers moving toward the second car until, as she neared it, she was carried forward by a crowd which was eager to board it, that as she reached the step to the car platform the weight of the mass of people had increased so that she was crowded and whirled to one side into the pit by contact with passengers who themselves could not resist the pressure, that the conductor of the car was absent and no measures were taken by any employee of the defendant then present to protect the plaintiff from the increasing danger to which she was exposed involuntarily, and that the congestion of passengers at that time of day, resulting from their number and eagerness to board cars waiting for them, was not an extraordinary circumstance. Held, that the question, whether the plaintiff's injuries were due to negligence of the defendant, was for the jury, who might have found that from the nature of its business the defendant should have foreseen the condition which gave rise to the plaintiff’s injury and have provided against that injury by the adoption of reasonable expedients.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff while she was a passenger on an open street car of the defendant and to have been caused by the car starting as she was in the act of alighting from it. Writ dated January 4, 1909.</p> <p>In the Superior Court the case‘was tried before Lawton, J.</p> <p>The witness Alexander, referred to in the opinion, was a witness for the defendant. He had been conductor of the car from which the plaintiff alleged that she had been thrown, and in his direct examination had testified to having his attention called to the plaintiff falling by screams of other passengers. He was cross-examined on the subject. In redirect examination the defendant’s counsel asked him, “ You were asked about reasons why persons screamed, as you understood. Why did they scream when she was getting off ? ” On objection by the plaintiff, the answer was excluded. He then was asked, “In view of the cross-examination I will call your attention to this — put this question: Just what was she doing at the moment the screams took place ? ” and answered, “ Why, she was stepping off the- car while it was in motion, stepping off backward.”</p> <p>Other facts are stated in the opinion. At the close of the evidence, the presiding judge refused to order a verdict for the defendant. The jury found for the plaintiff in the sum of $3,000; and the defendant alleged exceptions.</p>

<p>Appeal from a decree of the Probate Court upon the first account of Herbert L. Harding as guardian of the estate of Cornelia Phelps, late of Somerville.</p> <p>The account was filed on June 1, 1903, and covered a period from December 14, 1897, to May 1, 1903, and contained in schedule A items amounting to $35,012.24, in schedule B items amounting to $18,091.76, and in schedule C items amounting to $16,920.48. Among the items of schedule B were items of payments amounting to $6,700 for services of the guardian, others of payments to Austin and Hay, Esquires, attorneys employed by the guardian amounting to $1,029.25, and others of various payments to Mrs. Cornelia F. Coveil for services as caretaker and for expenses, board and lodging.</p> <p>In the Probate Court the account was objected to by various presumptive heirs of the ward and was referred to an auditor on June 15,1903. On December 20,1906, the ward died and later the respondent was appointed administrator of her estate. In the Probate Court the auditor filed his report on February 10, 1909, and on July 2, 1909, Chamberlain, J., made a decree disallowing $3,200 of the guardian’s charges for services and charging the guardian with $1,306.48, as overpayments to Mrs. Coveil.</p> <p>On appeal from the Probate Court, the case was referred to Frank W. Kaan, Esquire, as master. His report among other findings contained the following:</p> <p>In 1896 Cornelia Phelps of Somerville was over eighty years of age, lame and unable to leave her home or even to go up and down stairs. She was easily influenced by persons whom she liked. She had no property of her own and for several years had been supported by an aunt, who died in that year leaving an estate of about $90,000 and a will giving her only $8,000, while practically all of the residue of the estate was given to one Fitch.</p> <p>Herbert L. Harding, Esquire, the guardian, had been engaged in the practice of law in Boston since 1877. He was consulted in August, 1897, about the affairs of Cornelia Phelps. He called at her house in Somerville and her affairs were laid before him. Thereafter he rendered various services in controversies with John S. Patton, Esquire, who formerly had acted in a fiduciary capacity for the ward, with Fitch, executor of the estate of the ward’s aunt, with a young man who with Mr. Patton’s approval had received $5,000 as a gift from his ward, and in an advisory and conciliatory manner as to his ward’s daily life and surroundings.</p> <p>In July, 1899, the guardian received from the estate of the ward’s aunt $23,338.94. He did not have his bond increased and filed no inventories or accounts in the Probate Court and sought no authority for a payment of fees to himself, because he desired not to disclose the size of the estate and thus to avoid taxation of the estate.</p> <p>It appeared that, through a clerical error, Mrs. Covell had been overpaid by the guardian in the sum of $1,000. She, as found by the master, “ denied that the guardian had overpaid her, and made a further claim on him for earlier services rendered Miss Phelps. This claim was not ^assented to by Mr. Harding. He took the position that what.: might be due her, if anything, should be determined by legal proceedings. Accordingly,” on October 13, 1906, “she brought an action on the claim against Miss Phelps while Mr. Harding was guardian” and he accepted service of the writ on behalf of the defendant. “ This action, after hearings before an auditor and a report by him adverse to the claim of Mrs. Covell, was disposed of ” on January 18,1909, by an agreement for judgment for the plaintiff for $1,000 made between the plaintiff’s attorney and Mr. Patton .as attorney for the administrator of the estate of Cornelia Phelps, as allowed by the court. The respondent “ paid Mrs. Covell in settlement of her claim a certain sum of money, with the approval of the heirs at law of Miss Phelps, and with knowledge on his part and on their part of the above mentioned overpayment to her by Mr. Harding. The administrator made this settlement without consulting Mr. Harding and without his assent thereto. The action so disposed of was brought to recover a sum additional to all that the guardian had paid Mrs. Covell. At the request of the guardian I find as a fact that the claim of Mrs. Covell, on which her said action was based, was in existence against Miss Phelps while the latter was under the guardianship of Mr. Harding. The guardian contends that this settlement relieves him from liability for the above mentioned overpayment of $1,000. On the foregoing facts I rule that I am obliged to find and I do therefore find that this contention cannot be sustained and I rule also that I am obliged to find and I do therefore find that items of payment making up the overpayment of $1,000 should not be allowed.” The master also found that certain sums of payments to Mrs. Covell amounting to $1,265.38 should be disallowed.</p> <p>The master found that the amounts paid by the guardian to Austin and Hay, Esquires, for services,-were less than the services were worth and that the services were obtained by the guardian at the smaller cost because of the relations existing between him and Mr. Hay.</p> <p>He also found: “The services rendered by the guardian during the period covered by his account were necessary and proper under the circumstances then existing and according to the information then at his command. They involved much time, labor and responsibility and related to difficult, perplexing and disagreeable matters. He took part in about three hundred consultations with the ward and her relatives, with attorneys and others, drew and examined many legal papers, conducted important litigation, studied problems of law and carried on correspondence amounting to about four hundred letters received and written. He was obliged to antagonize an old acquaintance, take part in domestic and family disputes and on important business matters, deal with persons who appear on the evidence to have been hostile, unreliable and unscrupulous. The amount of property involved and the resultant benefits were large. There was some uncertainty as to the receipt of compensation. The services were rendered with painstaking care and the highest degree of fidelity to the interests of the ward. I find that the sums charged in the account by the guardian for his services are fair and reasonable and should be allowed.”</p> <p>The master found, therefore, that, except for the disallowed payments to Mrs. Coveil and interest thereon, the guardian’s account was proper. He also found that payments by the guardian which he disallowed were all made in good faith, and therefore charged him only with four per cent interest from the dates when they were made.</p> <p>A decree was entered by Braley, J., in accordance with the master’s report; and both parties appealed.</p>

<p>Tort, brought in the name of the plaintiff for the benefit of certain insurance companies, to enforce an alleged common law liability of the defendant to the plaintiff for the amount paid by such companies to the plaintiff by reason of a fire alleged to have been caused by the negligent construction, maintenance and use of locomotive engines by the defendant. Writ dated August 11,1910.</p> <p>The declaration contained, among others, the following allegations: “And the plaintiff further says that it was said defendant’s duty to so operate its road and its engines running thereon that fire shall not escape and be communicated therefrom, but that on said twelfth day of March, 1910, defendant carelessly and negligently used and employed locomotive engines and other machinery that were improperly and negligently constructed or maintained and so carelessly and negligently used the same 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 plaintiff being in the exercise of due care, fire was communicated to the grass, weeds, or other material which the defendant had negligently suffered to accumulate upon its location and which escaping from defendant’s said location was communicated to the pine boards so piled and stacked upon said land so owned by the plaintiff adjacent thereto as aforesaid and burned, injured and damaged a part thereof.”</p> <p>The defendant demurred, assigning as causes of demurrer the following:</p> <p>“ 1. That the said declaration does not state a cause of action substantially in accordance with the rules contained in chapter 173 of the Revised Laws of Massachusetts.</p> <p>“ 2. That section 247, Part II, chapter 463 of the Acts of 1906 provides the sole and exclusive remedy for persons or corporations whose buildings or other property have been injured by fire communicated by the locomotive engines of a railroad corporation or street railway company.</p> <p>“ 3. That section 247, Part II, chapter 463 of the Acts of 1906 provides a remedy for persons or corporations whose buildings or other property have been injured by fire communicated by the locomotive engines of a railroad corporation or street railway company, which remedy is in abrogation of and a complete substitution for any right of action at common law based upon the negligence of such railroad corporation or street railway company in the premises.”</p> <p>The case was heard upon the demurrer by Fessenden, J., who made an order overruling the demurrer, from which the defendant appealed; and thereupon, by agreement of the parties, the judge, being of opinion that the matter ought to be determined by this court before further proceedings were had in the Superior Court, reported for that purpose the questions of law raised by the appeal. If no error was found in the ruling of the judge, the case was to stand for a trial upon the merits; if the ruling was wrong and the demurrer should have been sustained, final judgment was to be entered for the defendant.</p>

<p>Tax, Assessment. Statute, Construction. Estoppel. Words, “Debt”</p> <p>A claim for damages for real estate taken for highway purposes under a statute providing for the abolition of certain grade crossings, to recover which a petition for an assessment by a jury is pending, is not taxable as a debt under St. 1909, c. 490, Part I, § 4, cl. 2, providing for the taxation of “ other debts due the person to be taxed more than he is indebted or pays interest for.”</p> <p>The rule, that a claim for land damages is not a debt within the meaning of our tax statutes until it becomes fixed and receivable, having been established by the decisions of this court during a period of forty years, and, although many changes have been made in the laws relating to taxation, the phrase “ other debts due the persons to be taxfed more than they are indebted or pay interest for,” as used in Gen. Sts. c. 11, § 4, having remained and being found in substance in St. 1909, c. 490, Part I, § 4, cl. 2, it must be held that, in using the word “ debts ” in this phrase in the various codifications in the same connection as before, the Legislature adopted the interpretation given to it by the decisions of this court as not including such unliquidated claims for damages.</p> <p>Upon an appeal from a refusal of the assessors of a city to abate a tax, where it appears that the tax was assessed wrongfully upon a pending unliquidated claim of the petitioner for land damages, which was not taxable as a debt under Sfc 1909, c. 490, Part I, § 4, cl. 2, the fact that the petitioner under protest had included the claim, when its amount had been fixed by a settlement, in a list filed by him on the May 13 after the April 1, as of which the tax was assessed, does not estop him from claiming an abatement, the rights of the parties being determined by the situation of affairs on April 1.</p>

<p>Adulterated Food. Food, Adulteration of. Sale, Validity.</p> <p>A sale of “ blended maple sugar,” which is a well known article in the trade in which the parties to the sale are engaged, consisting in part of maple sugar and in part of granulated sugar and having been ordered as such mixture, is not a sale of adulterated food or of an imitation within the meaning of R. L. c. 75, §§ 16-18.</p> <p>At the trial, before a judge without a jury, of an action for the price of certain “ blended maple sugar ” sold and delivered to the defendant, where the defense set up was that the sale was in violation of R. L. c. 75, §§ 16-18, the judge found, on evidence warranting such findings, that the mixture which was ordered by the defendant and delivered by the plaintiff was not adulterated food or an imitation within the meaning of the statute. It appeared by the evidence that at the request of the defendant the packages containing the sugar sold were not marked and were not labelled as containing a mixture or compound with the name and per cent of each ingredient therein. It was suggested that the defendant might have sold some of the packages as pure maple sugar, thus causing deception of the public which it was the object of the statute to prevent. On this point the trial judge found that a part of the sugar was resold by the defendant to other persons, but that, even if such sales by the defendant were in any respect unlawful, the plaintiff did not participate in them and was wholly indifferent as to the use which the defendant might make of the sugar and had no knowledge of any intention of the defendant to resell in violation of law, if any such intention existed. Held, that under these findings neither the transactions of the defendant after the sale nor the intention of the defendant at the time of the sale could prevent the plaintiff's recovery.</p>

<p>Bill in equity, filed in the Superior Court on July 3,1908, by one brother against another, for an accounting between the two as partners in a wholesale and retail liquor business carried on by them in Newbury port in the years 1903, 1905 and 1906, and also in a “ soft drink ” business carried on by them in 1902 and 1904, which were no-license years in that city.</p> <p>The contract between the parties of March 10, 1908, referred to in the opinion, was as follows:</p> <p>“ This agreement made and entered into this tenth day of March, 1908, by and between John J. Coffey, Newburyport, Commonwealth of Massachusetts, party of the first part, and Thomas J. Coffey of said Newburyport, party of the second part, witnesseth, that:</p> <p>“ Whereas the said parties have heretofore been engaged as partners under the firm name and style of Coffey Brothers, in the liquor and hotel business, and it is mutually agreed to terminate said partnership, and Whereas the affairs of said firm are still unsettled, it has assets on hand and demands and claims due it, and unsettled firm matters which have to be adjusted and closed up.</p> <p>“ In order to bring about a final and full settlement of the business affairs of said firm, said John J. Coffey and Thomas J. Coffey do now enter into this agreement, each binding himself to faithfully carry out the same.</p> <p>“ First. All liabilities of the firm to be paid out of the funds of the firm.</p> <p>“ Second. The stock of liquors which were on hand May first, 1907, shall be valued by appraisers, two to be chosen, one by each party, and the two so chosen to select a third.</p> <p>“Any liquors which may have been taken from said stock since May 1st, 1907, or any money collected on claims of the firm since said May 1st, 1907, by either of said partners, shall be accounted for.</p> <p>■ “ The furnishings in the Adams House belonging to said firm shall be appraised, as also the bar, drainer, piping and registers, Straiter pump, and other personal property in the stores and store houses, and also any uncollected claims of the firm, by the aforesaid appraisers.</p> <p>“ Third. The rent for said stores and said Adams House which may have been paid by either member of the firm shall be considered a firm liability.</p> <p>“ Fourth. Either party may take any of the property at its appraised value and be charged therefor. In case a portion of said personal property is not divided by mutual agreement, it may be apportioned by said appraisers at its appraised value.</p> <p>“ Fifth. The appraisers shall be paid out of the funds of the firm.</p> <p>“Sixth. After the division of said personal property at its appraised value, the balance of the firm money shall be divided between the parties, so that after taking into account any accounting for liquors or moneys collected or claims settled as provided in this instrument, there shall be a balance arrived at between the parties.</p> <p>,, john j. Coffey.</p> <p>Thomas J. Coffey.”</p> <p>The case was referred to Thomas C. Simpson, Esquire, as master. The material facts found by the master are stated in the opinion.</p> <p>The case was heard by Bell, J., upon the defendant’s exceptions to the master’s report. The judge made a final decree, confirming the master’s report and ordering that the defendant pay to the plaintiff the sum of $3,409.30, with interest from September 24, 1908, at the rate of six per cent per annum, and that the plaintiff also recover $62.46 as costs. The defendant appealed.</p>

<p>Tout for wrongfully causing the discharge of the plaintiff by his employer, one Cross, a shoe manufacturer in Lynn, by serving a notice on Cross falsely stating that the plaintiff had made an assignment of his wages to the defendant, and by wilfully refusing to withdraw such notice after the defendant had been informed by the plaintiff that he never had made such an assignment. Writ dated January 12,1909.</p> <p>In the Superior Court the case was tried before Schofield, J. It appeared that the defendant, who testified that he was engaged in the real estate, piano and storehouse business and in lending money on real and personal property, had lent money to a man named “ A. Lopes,” who had made to the defendant an assignment of his wages, and that one Phillips, a clerk of the defendant, having been informed that a man of that name was employed by Cross, caused a notice to be served on Cross, stating in substance that the plaintiff had made an assignment of his wages to the defendant, and directing Cross not to pay the plaintiff such wages until further notice from the defendant, that Cross withheld from the plaintiff three weeks’ wages payable to him on December 24 and 31, 1908, and January 7, 1909, and on January 8, 1909, discharged the plaintiff, afterwards paying the three weeks’ wages on January 14, 1909, when the defendant wrote on the back of the notice a release of the assignment he had claimed. The defendant testified at the trial that the plaintiff was not the man to whom he lent the money and who had made an assignment of wages to him. The plaintiff, among other matters, testified that he was a hand laster and had worked at his trade in Lynn about twenty years; that he had worked for Cross about five or six years up to January 8,1909; that he worked for Cross by the piece, and received his wages at the end of each week; that he earned on an average from $15 to $16 per week; that on December 24, 1908, the pay day, he did not receive Ms wages; that he saw the bookkeeper with reference to the non-payment of Ms wages, and as a result of his talk with her he went to the defendant’s place of business and the following conversation took place between him and the defendant: “I said, ‘Are you Mr. Connolly?’ He said, ‘Yes.’ I said, ‘ Are you the gentleman that trusteed the pay down to Cross’s office of A. Lopes?’ He said, ‘Yes.’ I said, ‘What for? ’ He said, ‘Well, you owe money to the office.’ I said, ‘I don’t owe you no money; I never got anything from you, Mr. Connolly. You must have made a mistake.’ He said, ‘I know what I am talking about; I know what I am doing.’ I said, ‘Mr. Connolly, you must have made a mistake somewheres. I don’t owe you nothing. I never got anything from you.’ He said, ‘I know what I am doing.’ I said, ‘ Well, Mr. Connolly, if you act that way I will have an action against you.’ Connolly said, ‘All right, bring it in. We will fix it.’ ”</p> <p>It was agreed “that the plaintiff worked at Cross’s by the piece, and could be discharged by Cross at any time and could leave his employment at any time.” Subject to exception by the defendant the judge allowed the plaintiff to testify in regard to the work that he had obtained after his discharge by Cross and the pay that he received for it. The plaintiff’s examination upon this subject covered a period from the time of his discharge until “ two weeks before Christmas, 1910.”</p> <p>At the close of the evidence the defendant asked the judge to give the following instructions:</p> <p>“ 1. Upon all the evidence the plaintiff is not entitled to recover and the jury should return a verdict for the defendant.</p> <p>“ 2. If the jury find that the defendant was the assignee under an assignment of wages from a man by the name of A. Lopes, and this defendant had reasonable cause to believe that said A. Lopes worked for John H. Cross, the plaintiff’s employer, and caused notice of such assignment to be served on said Cross, this defendant is not liable for damages occasioned the plaintiff by reason of said Cross refusing to pay the plaintiff his wages, or by reason of said Cross discharging the plaintiff from his employ.</p> <p>“ 3. If the jury find that the defendant was the assignee under an assignment of wages from a man by the name of A. Lopes, and caused notice of such assignment to be served on John H. Cross, the plaintiff’s employer, this defendant is not liable for damages occasioned the plaintiff by reason of said Cross refusing to pay the plaintiff his wages, or by reason of said Cross discharging the plaintiff from his employ.</p> <p>“ 4. If the jury should find for the plaintiff, they are not to consider as an element of damages that the plaintiff’s employer refused to pay him (the plaintiff) his wages when due.</p> <p>“ 5. If the jury find for the plaintiff, they are not to consider as an element of damages that the plaintiff’s employer discharged him from his employ.</p> <p>“ 6. If the jury should find for the plaintiff, then their verdict must be for nominal damages.”</p> <p>The judge refused to give any of these instructions, and submitted the case to the jury with other instructions.</p> <p>In regard to the evidence of the amount of the plaintiff’s earnings, referred to above, the judge gave the following instruction : “ Evidence was also introduced as to what the plaintiff had been doing since the time when he says he was discharged by John H. Cross and Company [Cross] and what wages he had been earning. I wish you to understand very clearly, gentlemen, the proper use to be made of the evidence in regard to what the plaintiff was earning both before and after the time of his discharge. If in the course of your deliberations you come to this matter of awarding damages for the discharge of the plaintiff from his employment you must understand that the evidence as to what the plaintiff was earning both before his discharge and after his discharge was admitted and can be used only as evidence to the jury to enable them to decide accurately, what was the employment or contract worth to the plaintiff at the time when he was discharged. It would not be proper, gentlemen, for you to take the evidence as to what the plaintiff has been doing since his discharge and figure up the amount of money which he has earned and compare it with the amount which he earned during a similar time before he was discharged and award the plaintiff a sum for loss of time since he was discharged from his employment. The plaintiff is not entitled to recover for loss of time since his discharge. He is, however, entitled to recover, if he proves liability and proves that his discharge was the natural and probable consequence of the act for which the defendant is shown to be liable, such sum as the jury deems measures the value of that contract to him at the time he was deprived of it by being discharged from his work. It is just the same as if it were a tangible piece of property which was destroyed. The question for the jury would be, what was the value of that property at the time it was destroyed ? In this case the immediate value under consideration is the value of an employment terminable at will at the time when the man is discharged by reason of the act of the defendant. That is a question for the jury in the exercise of their fair and impartial judgment to pass upon in the light of all the evidence, using the evidence for the purpose which I have stated.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $395.42. The judge submitted to the jury the special question, “ What sum, if any, did the jury allow as damages to the plaintiff for his discharge from his employment ? ” The jury answered, “ $95.42.”</p> <p>The defendant filed a motion for a new trial for the following reasons: “ 1. That the verdict is against the evidence. 2. That the verdict is against the weight of the evidence. 3. That the verdict is against the, law. 4. That the damages therein rendered are excessive.”</p> <p>, This motion was argued by counsel, and the judge filed the following order:</p> <p>“ 1. The court rules that the defendant is not entitled as matter of law to a new trial, and in the exercise of its discretion overrules the motion.</p> <p>“ 2. The jury were instructed that if Phillips, the defendant’s clerk, served the notice of assignment with the intention that it should apply to the individual working at the Cross factory under the name of Antonio Lopes and his wages were stopped as a result, the defendant would be liable. They were also instructed that the damages to be awarded must be confined to injury to the plaintiff in his property, excluding offense to his feelings. There were two principal elements of damage, unlawful detention of wages and discharge from employment. The jury were not told that they were limited to interest on the wages detained, nor instructed more definitely than above stated how to estimate the damages for detention of wages. No instruction was given to apply in case the jury should find that the tort was wilful or malicious.</p> <p>“ 3. There was evidence in the case from which the jury might have found that the clerk Phillips recklessly concluded without proper investigation that Antonio Lopes, the workman at Cross’s factory, was identical with A. Lopes, the defendant’s real debtor. They might also have found that when the plaintiff informed Connolly that his wages were stopped, Connolly asserted that the plaintiff did owe him money, and allowed the stop order to remain upon his wages wilfully under circumstances that might be found upon the evidence to be a wilful and wanton disregard of the plaintiff’s rights.</p> <p>“ 4. On this view of the facts, if it was the view finally taken by the jury, they might have had doubt as to how to apply their instructions. They were instructed in terms that they could not consider offense to the feelings of the plaintiff, but they might have supposed that they could consider insulting acts or conduct on the part of the defendant. The court believes that upon correct principles of law the jury would be at liberty to consider circumstances of wilfulness or wantonness on the part of defendant as an aggravation of the injury and to award reasonable compensation for the entire wrong, including the aggravation.</p> <p>“ This principle was applied in Meagher v. Driscoll, 99 Mass. 281, 285, in trespass to real estate, and was recognized as applicable in an action on the case in White v. Dresser, 135 Mass. 150, 152, if facts existed which would justify its application. In this case there was evidence which would fully justify the jury in finding circumstances of aggravation. If they did so, and considered those circumstances in estimating damages (and it is possible that they did), the court believes and rules that they would not have violated the law, in view of. the nature of their instructions and all the circumstances. The court is convinced that the jury made an honest effort to perform their duty conscientiously, and declines to interfere with their action.</p> <p>“ Motion for new trial overruled.”</p> <p>The defendant alleged exceptions, which, after the resignation of Schofield, J., were allowed by Hardy, J.</p>

<p>Contract, Whether joint or several.</p> <p>At the trial of an action, which was upon an alleged oral agreement by the defendant to indemnify the plaintiff for any loss he might sustain if he should become one of two sureties upon the bail bond of a third person, the defendant contended that the agreement which he made was to hold the plaintiff and the other surety harmless up to the amount of the bail bond only, that the agreement was joint and not several, and that he had been discharged from liability thereon by a settlement with the other surety, but, it appearing from an examination of the record before this court that there was evidence to substantiate the plaintiff’s contentions, the questions, whether the defendant made the promise alleged, and whether that promise was several or was joint, were held to have been questions of fact for the jury.</p>

<p>Contract upon an account annexed for “ rent due on gas meters.” Writ in the Second District Court of Essex dated August 3,1909.</p> <p>On appeal to the Superior Court, the case was tried before Fox, J. It appeared that the plaintiff relied upon that part of R. L. c. 58, § 12, which reads, “No charge for the use of a meter during any portion of twelve consecutive months shall be made if the consumer during said time uses gas to the value of seven dollars; ” that the items of the declaration represented the amounts by which the value of gas used at each meter each year fell short of $7; and that the meters were the property of the plaintiff and were of an automatic variety, whose operation was described in the.bill of exceptions as follows: “consumers wishing gas could- deposit a twenty-five cent piece into them through a slot. Gas then would flow through the meters until a certain amount had passed, when the meters would automatically stop the flow until another coin was inserted.”</p> <p>During the direct examination of a witness for the plaintiff, counsel for the defendant stated to the presiding judge : “ We admit that meter rent is collected and we admit under the law it may be demanded.”</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the presiding judge to rule and instruct the jury that, “ if the plaintiff failed during each of the years in question to keep throughout the year a supply of gas to flow through the meters of the defendant’s house and the defendant did not use gas to the value of seven dollars through any meter during each of those- years, the plaintiff could not legally make a charge against the defendant for the use pf a meter during either of those years.”</p> <p>The ruling was refused. The jury returned a verdict for the plaintiff on two items of the declaration in the sum of $5; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been due to a street car of the defendant being negligently run into a wagon in which the plaintiff was driving. Writ dated September 27, 1906.</p> <p>In the Superior Court the case was tried before Brown, J.</p> <p>There was evidence tending to show that the accident happened on September 15, 1906, and that at the time the plaintiff saw one Sloane on a sidewalk but a few feet away; that Norman E. McPhail, Esquire, then recently admitted to the bar, was employed by the plaintiff to act as his attorney in the case, that he interviewed Sloane on September 26, 1906, which was the day before this action was brought, and that Sloane made to him a statement as of his own knowledge relating to the circumstances of the accident. Sloane died March 9, 1907, before the trial.</p> <p>Mr. McPhail then testified as follows in reply to questions by the presiding judge: “ Q. Well, did you tell him [Sloane] you were proposing to bring suit ? A. He knew what I was there for, yes, sir. — Q. He knew he was giving testimony in relation to a prospective suit ? A. Yes. — Q. Did he know that bringing suit depended on what he said? A. I couldn’t say as to that.”</p> <p>The presiding judge then said to the plaintiff’s counsel, “ I don’t think I shall let you have it,” and the plaintiff’s counsel replied, “Well, your Honor, I supposed statements made in good faith before the beginning of the suit would be admitted.” The presiding judge then stated: “ If they were made for the purpose of bringing a suit, I should not allow them. It is not, in the sense of the statute, before the bringing of the suit. They are part of the bringing of this suit. The suit was brought the next day after this interview.”</p> <p>The witness further stated that he told Sloane that he would testify in an action which was to be brought.</p> <p>The bill of exceptions, after a recital of the foregoing facts and of an offer by the plaintiff as to what the statement of Sloane comprised, stated: “On the foregoing the presiding judge refused to permit the witness McPhail to testify as to the declaration or statement made to him by said Sloane, because he was not satisfied that they were made in good faith before the beginning of the suit and on the personal knowledge of the declarant within the meaning of the statutes.”</p> <p>The jury found for the defendant; and the plaintiff alleged exceptions.</p>

Contract by the trustee in bankruptcy of one James Salt-man to recover, under § 60, a, b, of the bankruptcy act of 1898 as amended in 1903, twenty payments alleged to have been unlawful preferences amounting to $1,614.89, made by Saltman to the defendant, a creditor. Writ dated October 9, 1908.

<p>Tort by a police officer, for personal injuries alleged to have been sustained by the plaintiff, who, while performing his duties at the corner of Cambridge Street and Charles Street in Boston, was compelled by negligence of employees of the defendant to get upon the step of a street car of the defendant, where he received the injuries complained of when the car through further negligence of the defendant’s employees was caused to run into another street car. Writ dated October 30,1907.</p> <p>In the Superior Court the case was tried before Bond, J. There were double tracks of the defendant upon Charles Street which intersected at right angles double tracks on Cambridge Street, and there were switches which allowed cars to pass to and fro between the Charles Street and the Cambridge Street tracks. Other material facts are stated in the opinion. At the close of the evidence the defendant asked for the following instructions:</p> <p>“ (1) Upon all the evidence your verdict must be for the defendant upon all counts of the plaintiff’s declaration.</p> <p>“ (2) Upon all the evidence the plaintiff is not entitled to recover.”</p> <p>“ (6) Upon the fourth count of the plaintiff’s declaration your verdict must be for the defendant.”</p> <p>“ (9) The plaintiff getting upon the left hand front step of the car assumed the risk of any injury that might happen to him while he was in that position, and cannot recover for such injury.”</p> <p>“ (12) The plaintiff was not in the exercise of due care, if, as he stood in the street, he relied wholly upon others to see that he was not struck by a City Point car.</p> <p>“ (13) The evidence does not warrant a finding that the plaintiff was in the exercise of due care.</p> <p>“ (14) One who is injured by reason of his having assumed a dangerous position, cannot justify his act in getting into such position by showing that he did so to escape from other danger, unless he shows affirmatively that his getting into the other danger was not due to his failure to exercise ordinary care for his own safety.</p> <p>“ (15) The evidence does not warrant a finding that the plaintiff was justified in getting upon the left hand front step of the car.</p> <p>“ (16) The evidence does not warrant a finding that the plaintiff was justified in remaining upon the car of the defendant until he was struck.</p> <p>“(17) A person getting upon the left hand front step of a closed street car, with a vestibule platform and the left hand door to the front vestibule closed, while the car is operating along double tracks, is a trespasser upon the car.</p> <p>“ (18) A police officer or patrolman has no more right than any private person to get upon a part of the car where he may be exposed to injury and where passengers are not invited or expected to ride.</p> <p>“ (19) The plaintiff in this case was a trespasser upon the car of the defendant.</p> <p>“ (20) All that the defendant is required to do with regard to a trespasser, is to abstain from wilfully, wantonly or recklessly exposing him to danger.</p> <p>“ (21) The defendant and its servants owed the plaintiff no duty, except to abstain from wilfully, wantonly or recklessly exposing him to danger.</p> <p>“ (22) There is no evidence warranting a finding that the defendant was guilty of wilful, wanton or reckless negligence.”</p> <p>The instructions Were refused. The jury found for the plaintiff in the sum of $2,000; and the defendant alleged exceptions, which, after the death of Bond, J., were allowed by Hitchcock, J.</p>

<p>Landlord and Tenant. Negligence, Of one owning or controlling real estate, Plaintifi’s knowledge of defect-</p> <p>In an action by a girl about nine years of age when injured, who was living with her father in a tenement hired by him from the defendant, for personal injuries caused by a defect in a plank walk at the side of a passageway leading from the house containing the tenement to a highway, if there is evidence that the defendant let the tenement to the plaintiff’s father with the right to use the passageway as the only approach to it, that the passageway remained in the sole control and charge of the defendant, that at the time of the letting the plank walk was in good condition, that the defendant recognized the duty of keeping it in the same condition and caused some repairs to be made upon it or a new walk to be laid either before or after the letting, and that after the letting the defendant allowed the walk to become defective and dangerous in such a way as to cause the plaintiff’s injury, the question of the defendant’s negligence is for the jury.</p> <p>In an action by a girl about nine years of age when injured, who was living with, her father in a tenement hired by him from the defendant, for personal injuries caused by the plaintiff’s foot catching in a hole in a plank walk at the side of a passageway, which was maintained by the defendant as the only approach to the house containing the tenement and was in the defendant’s charge and control, where there is evidence of the defendant’s negligence in failing to maintain the walk in as good condition as it was in at the time the tenement was let to the plaintiffs father, if it appears that the hole “ was about six inches wide and about the same in length ” and the plaintiff has testified that she “ had noticed the hole before pretty nearly every day for a month and a half,” and there also is evidence, that the accident happened at about seven o’clock on an evening early in August, when it was pretty dark, that the plaintiff had had trouble with her eyes and was wearing glasses, and that when she tripped in the hole she was with her father going to see the fire engines go by, the plaintiff’s previous knowledge of the defect, although it is a circumstance to be considered by the jury upon the question of her due care, is not conclusive against her upon that issue, and the question whether with reference to all the circumstances the plaintiff was in the exercise of reasonable care is for the jury.</p>

<p> Order. Compromise. Account Stated. </p> <p>In ,an action upon an order in writing drawn by a contractor, called the M. Company, for the payment of $500 and alleged to have been accepted by the defendant, it appeared that the defendant accepted the order in the following terms: “ The above order is accepted by me, payable only ont of such sums as upon a final accounting between the M. Company and myself shall be found due the M. Company . . . [under a contract named]. By accepting this order, I do not admit in any way that there is anything due or payable or that there will be anything due the M. Company.” Thereafter a settlement was made between the defendant and the M. Company by which the defendant paid to the M. Company a sum of more than $6,000, and received from the M. Company a release. Before the settlement there were pending an action of contract by the M. Company against the defendant for about $28,000, a petition by'the M. Company to enforce a mechanic’s lien for the same amount against the defendant, and an action by the defendant against the M. Company to recover $40,000 for breach of the contract named in the order. At the time of the settlement, in the action of contract brought by the M, Company an entry was made of judgment for the defendant, on the M. Company’s petition an entry was made of petition dismissed, and the action by the defendant was discontinued, all without costs and all by agreement of the parties. Evidence was admitted, against the defendant’s objection, of the negotiations between the counsel for the M. Company and the counsel for the defendant which resulted in the settlement.' A letter of the defendant’s counsel stating his requirements for the settlement and also the release given by the M. Company to the defendant were admitted in evidence against the defendant’s objection. On the evidence it could have been found that the payment by the defendant to the M. Company of the sum of more than $6,000 was not made as the payment of a balance agreed to be due or because the defendant admitted any liability whatever, but merely as a compromise for the sake of ending the three suits pending between the parties to the settlement in which much larger amounts were involved, and in that case there was no evidence of any final accounting between the defendant and the M. Company. But it also could have been found on the evidence that the transaction was something more than a compromise, and that there was an accounting between the parties to the settlement, who had unliquidated demands against each other none the less different because they grew out of the same contract. A verdict was ordered for the defendant. Held, that tlie case should have been submitted to the jury to pass upon the question of fact, whether the payment was the result of a final accounting between the M. Company and the defendant, which would fulfil the condition of the order.</p>

Contract or tort with a declaration, as amended, in four counts. Writ dated March 21,1906. In the Superior Court the case first was tried before Bond, J., who ruled that on all the evidence the plaintiffs could not recover and ordered a verdict for the defendant. Exceptions alleged by the plaintiffs were sustained by this court in a decision reported in 205 Mass. 592.

<p>Practice, Civil, Question for jury, Judge’s charge, Exceptions. Deceit. Sale. Damages, Recoupment.</p> <p>In an action to recover damages for an alleged false and fraudulent representation of the defendant, whereby it was alleged that the plaintiff was induced to buy a share in a provision business carried on by the defendant and another, it appeared that the defendant made the statement alleged to be fraudulent, but upon the question whether the defendant’s representation or other considerations induced the plaintiff to purchase the share in the business the testimony of the plaintiff warranted a finding either way. The defendant alleged exceptions to a refusal of the presiding judge to rule that on all the evidence the plaintiff was not entitled to recover. No question was raised as to the judge’s charge and it was not reported in the bill of exceptions. Held, that the questión of fact upon the conflicting evidence properly was left to the jury and must be taken to have been submitted to them with full and correct instructions.</p> <p>In an action to recover damages for an alleged false and fraudulent representation of the defendant, that the defendant and his partner, who carried on a retail and wholesale pork business in a stall in a general market and a.storehouse on another street, were doing a business of $150,000 a year, whereby it was alleged that the plaintiff was induced to buy a share in the business, it cannot be said as matter of law that the fullest examination of a stall in a market or of other premises in which such a business at wholesale or retail was carried on would make manifest the truth or falsity of a representation as to the amount of business which was being done there, and, if it appears that the plaintiff was given a full opportunity to examine the stall and the warehouse and did examine them, this does not prevent his going to the jury on the question whether he ' was induced to buy the share in the business by the defendant’s false and fraudulent statement.</p> <p>The rule of Poland v. Brownell, 131 Mass. 138, that where goods are fully examined by a buyer he cannot hold the seller liable for “ mere seller’s statements,” is not to be extended.</p> <p>Two cases were tried together. The first was an action to recover damages for an alleged false and fraudulent representation of the defendant as to the profits of a business carried on by the defendant, whereby the plaintiff was induced to buy a share in the business. The second action was brought by the defendant in the first case against the plaintiff in that case on a promissory note given in part payment for the share in the business, and the only defense relied upon was that the making of the note was induced by the false and fraudulent representation as to the profits of the business which was alleged in the first case. There was evidence of a fals°e and fraudulent representation made by the defendant in the first case which induced the plaintiff in that case to buy the share of the business in question. The jury in the first case returned a verdict for the plaintiff in the sum of $4,500. The jury in the second case returned a verdict for the plaintiff in that case in the sum of about $3,500. The defendant in the second case alleged exceptions to the admission in the second case of certain evidence upon the issue of the alleged false and fraudulent representation of the plaintiff set up in the defendant’s answer. Held, that the defense of deceit, having been declared upon and recovered for in the first case, the damage to the defendant in the second case was made good by his recovery in the first case, and that he was entitled to no recoupment to be deducted from the amount of his note on account of a wrong for which he had been compensated in full, so that, even if the evidence was admitted improperly, the defendant in the second case could not be aggrieved by the error and would have no right of exception. It was not suggested that the effect of the evidence might have been to reduce the amount of the verdict in the first case, and no exception to its admission in that case was alleged.</p>

<p>Negligence, Employer’s liability, In a factory, Automatic machine, Res ipso loquitur.</p> <p>If a boy fourteen years of age who, after being employed in a can making factory for two days, is set at work upon a machine having an arm which by a treadle being pushed down is caused to descend with force upon a stationary projection and which, if the machine is in order, should not descend without the treadle being pushed down, is injured within two hours after being set at work upon the machine by the arm descending upon his thumb without the treadle being pushed down, he can be found to be in the exercise of due care although once during the two hours that he was at work at the machine he saw the arm descend while his foot was off the treadle, if he did not know what it meant.</p> <p>Where, at the trial of an action by an employee in a can making factory against his employer for injuries alleged to have been received because an arm upon a machine at which he was working, which should have descended only upon a treadle being pushed down, descended without any pressure having been applied to the treadle, there is evidence for the plaintiff tending to show only that the machine was comparatively new and had been used by the defendant less than six months, that if it had been built and maintained in proper order the arm should not have descended without pressure being applied to the treadle, and that there was no pressure upon the treadle at the time when the arm descended and injured the plaintiff, the question, whether the starting of the machine was due to negligence for which the defendant was liable, should be submitted to the jury.</p>

<p>Practice, Civil, Auditor’s report, Conduct of trial: order of evidence, requests and rulings. Contract, Implied in law, Performance and breach. Evidence, Presumptions and burden of proof, Opinion: experts. Stockbroker. Fraud.</p> <p>Where the report of an auditor to whom an action at law was referred contains certain paragraphs setting out merely a statement of rulings of law which one of the parties had asked him to make and his rulings thereon, it is proper for the Judge presiding at the trial of the case when the report is offered in evidence to exclude such paragraphs from the jury, since they are not strictly to be regarded as parts of the report, not containing any findings of fact and not being evidence for the jury.</p> <p>Where the report of an auditor containing an erroneous ruling of law has been ad-milled in evidence subject to an exception by the defendant, the defendant is not entitled at the close of the evidence to have the presiding judge rule that “ the jury must eliminate any consideration of the auditor’s report because of his application of an erroneous rule of law,” since the proper way to correct a mistake made by the auditor on a question of law is by instructions of the judge to the jury.</p> <p>In an action of contract against a stockbroker by a customer, the declaration was in two counts, the first count containing allegations in substance that the plaintiff gave to the defendant at various times ordqrs to buy and sell stocks for him upon margin and placed in the defendant’s hands various sums of money as security for the defendant in connection with such orders, that the defendant agreed to carry out such orders and reported in each instance to the plaintiff that he had done so by an actual purchase or sale, that the defendant did not carry out his orders by actual purchases and sales, and therefore that he owed the plaintiff the sums so paid to him. The second count was for money had and received by the defendant to the plaintiff’s use. Held, that, after the plaintiff had proved the payments to and the acceptance by the defendant of the sums of money for the purpose alleged, the burden was on the defendant to show that the money had been used in the manner authorized by the agreement with the plaintiff.</p> <p>In an action of contract against a stockbroker by a customer, in which the plaintiff sought to have repaid to him sums of money which he alleged that he had paid to the defendant for use in making actual purchases and sales of shares of stock, the defendant relied upon certain instruments signed under seal by the plaintiff and purporting to release and discharge the defendant from such liability. The plaintiff’s contention was that the defendant had procured the instruments from him because be relied upon false representations of the defendant that purchases and sales of stock actually had been made. At the trial of the case, after a report of an auditor to whom the case had been referred, which was favorable to the plaintiff on that issue, had1 been offered in evidence by the plaintiff, the plaintiff testified, and early in his direct examination was asked what knowledge he had with regard to the defendant’s purchasing stock at the time he signed the instrument of release, and answered that he “ did not know anything about it.” He then was asked “ What was your intention % ” and answered “ My intention was for ” the defendant “ to purchase them.” Held, that the evidence was admissible as tending to show the materiality of the alleged false representations upon which the plaintiff relied to avoid the releases, and that the regulation of the order in which the evidence should be admitted was within the discretion of the presiding judge.</p> <p>In an action of contract against a stockbroker by a customer, the declaration was in two counts, the first count containing allegations in substance that the plaintiff gave to the defendant at various times orders to buy and sell stocks for him upon margin and placed in the defendant’s hands various sums of money as security for the defendant in connection with such orders, that the defendant agreed to carry out such orders and reported in each instance to the plaintiff that he had done so by an actual purchase or sale, that the defendant did not carry out the orders by actual purchases and sales, and therefore that he owed the plaintiff the sums so paid to him. The second count was for money had and received by the defendant to the plaintiff’s use. The plaintiff, by cross-interrogatories in a deposition of a member of a firm who executed the defendant’s orders upon a stock exchange, asked for the details as to what was done by the deponent as to each order of the plaintiff to the defendant. The deponent answered in substance that because of the extent of the details asked for and the nature and extent of his firm’s business he was unable in the time allowed him to answer the questions as asked. Held, that the cross-interrogatories and the answers thereto were competent upon the issue whether the purchases and sales in question actually had been made and whether shares of stock purchased were ready and available to be delivered to the plaintiff through the defendant if he paid the balance due from him and called for by the certificates.</p> <p>It is for the judge who presides at the trial of an action where a question of the law of another State is in issue to decide whether a witness offered as an expert on such law is qualified as such. In the present case, in which the witness testified in direct examination that he had been a member of the' bar of this Commonwealth for seven and'a half years and that he had made a special study of the subject as to which his testimony was sought, and in cross-examination testified that he was not a member of the bar of the State whose law was in question, never had tried a case there, first had looked up the law of the other State on the subjects in question three and a half years before, had spent, at different times, enough time to amount to a day and a half in investigating the law with respect to the case on trial, and that he did not assume to be an expert on the law of the other State in general, but that he thought that he knew that State’s law on the questions at issue. The presiding judge allowed the witness to testify as an ex- . pert. Held, that the action of the trial judge could not be said to ha ve been clearly wrong. »</p> <p>In an action against a stockbroker by a customer for margins paid under an agreement by the stockbroker to purchase shares of stock in accordance with the customer’s orders, the customer alleging that the stockbroker did not carry out his orders by actual purchases, it is no defense for the stockbroker to prove that the shares of stock which the customer ordered him to purchase were for sale on a stock exchange of another city, that he transmitted the orders to a correspondent upon that exchange, who executed them and thereafter had under his immediate control certificates of stock of the description bought by the customer in greater number and amount than the customer was carrying with the defendant, which certificates he was in a position to deliver immediately upon demand and payment of the price, unless it also is proved that other customers of the correspondent can have no claim upon the shares so held by them; for, in order to make an adequate defense under such circumstances, the defendant must prove that the correspondent had under his control, free from the just demands of other customers and available for delivery to the plaintiS, the shares of stock of which upon payment the plaintiS was entitled to demand delivery. Following Fiske v. Doucette, 206 Mass. 275.</p> <p>In an action against a stockbroker by a customer for margins paid under an agreement by the stockbroker to purchase shares of stock in accordance with the customer’s orders, the customer alleging that the stockbroker did not carry out liis orders by actual purchases, it is not a sufficient defense for the defendant to prove that in good faith he transmitted the plaintiff’s orders to reputable correspondents upon the stock exchange of a city where they could be carried out and paid the demanded price for their due execution and obtained a valid contractual obligation with such correspondents, if it does not also appear that the purchases were . made as ordered by the plaintiff, the defendant being unable thus to shift .upon another the responsibility which he bad assumed by his contract with the plaintiff.</p> <p>In an action of contract against a stockbroker by a customer, the declaration was in two counts, the first count containing allegations in substance that the plaintiff gave to the defendant at various times orders to buy and sell stocks for him upon margin and placed in the defendant’s hands various 'sums of money as security for the defendant in connection with such orders, that the defendant agreed to carry out such orders and reported in each instance to the plaintiff that he had done so by actual purchase or sale, that the defendant did not carry out the orders by actual purchases and sales, and therefore that he owed the plaintiff the sums so paid to him. The second count was for money had and received by the defendant to the plaintiff’s use. The defendant asked the presiding judge to rule as follows; If the plaintiff understood that the contractual relation between him and the defendant was one by which the defendant agreed to execute all the plaintiff’s orders by taking up certificates in each case and putting them in his name and holding the specific paper, and if the defendant understood the contractual relation to be fulfilled on his part by wiring such orders to a correspondent upon a stock exchange wjiere the stocks ordered by the plaintiff were dealt in for execution by purchase on the exchange, without taking up any certificates or putting any in the plaintiff’s name, their minds never met and there never was any contract between them. Held, that the ruling could not be given, because, if the minds of the parties did not meet and there was no agreement between them, the defendant was not justified at all in using the plaintiff’s money and must account to him for it.</p> <p>In an action of contract against a stockbroker by a customer, in which the plaintiff sought to have repaid to him sums of money which he alleged that he had paid to the defendant for use in making actual purchases and sales of shares of stock, the defendant relied upon certain instruments signed under seal by the plaintiff, and purporting to release and discharge the defendant from such liability. The plaintiff’s contention was that the defendant had procured his execution of the instruments by false representations. There was evidence tending to show that such an instrument, prepared for the plaintiff’s signature, was sent by the defendant to the plaintiff each month with a statement apparently setting forth transactions in accordance with the plaintiff’s orders and involving actual purchases and sales by the defendant in the plaintiff’s behalf, that the defendant had not made sucli actual purchases and sales but intended that the plaintiff should think that he had and that the plaintiff, relying on such representations, should sign the instruments, that the plaintiff believed the transactions set forth in the account to be real as there shown and, relying thereon, signed the instruments. Held, that there was evidence for the jury on the question whether the instruments were procured by false and fraudulent representations of the defendant, and that it could not be ruled as matter of law that the releases contained in the instruments were binding on the plaintiff.</p>

<p>Contract, originally brought by Horatio Adams upon a policy of fire insurance upon property in Kingston. Writ dated November 12,1908.</p> <p>In the Superior Court the case was heard by Pierce, J., without a jury, upon an agreed statement of facts which gave the court power to draw inferences from the facts therein stated.</p> <p>It appeared that Horatio Adams purchased the premises insured on April 30,1897. On the next day he gave a bond for a deed of the premises to one James Donley. That bond provided that, upon Donley paying $500 and accrued interest to Adams, “ said interest to be in lieu of rental for the use of said property,” Adams should convey the premises to him, that the payments should be monthly at the rate of $6 a month, and that “ Donley shall also pay all taxes, insurance, water rates, and all other public liens and charges now or hereafter due from or levied against said property including repairs. ” The monthly payments were made regularly. Adams never occupied the property. It always was occupied by tenants who paid rent to Donley.</p> <p>On May 1,1902, Adams insured the premises against fire with the defendant for $800, the policy to run for five years. He paid the entire premium, $6.</p> <p>Between April 2, 1904, and February 21, 1905, there were placed upon the property mesne attachments in nine different actions in which the ad damnums amounted to $157,000. These remained outstanding at the time this action was begun.</p> <p>On April 3, 1905, Donley sold and assigned his right and interest under the bond for a deed to one George E. Cushman and Adams assented in writing to the assignment. Cushman at once paid Adams the balance due on the bond. Adams did not give a deed of the premises to Cushman at this time “ because he thought all he had to do was to turn over the bond and that Cushman stood in his place.”</p> <p>The insured premises were destroyed by fire on November 15, 1906.</p> <p>It was agreed that, if Adams had such an insurable interest as would support a recovery, there should be judgment to the extent of such interest, not exceeding $800 with interest.</p> <p>The trial judge found for the defendant; and the plaintiff, who after the trial had been admitted to prosecute the action in the place of his intestate, Horatio Adams, appealed.</p>

<p>Tort under St. 1906, c. 468, Part I, § 63, for the death of the plaintiffs intestate. Writ dated November 8,1906.</p> <p>The case previously was before this court when exceptions taken by the defendant at a previous trial were sustained by a decision reported in 206 Mass. 557.</p> <p>At the second trial in the Superior Court, which was before Fox, J., the case was submitted to the jury only upon the first count, of the declaration, which alleged that the plaintiff’s intestate was a passenger on a train of the defendant at the time he was killed. The presiding judge ruled as a matter of law that there was no evidence of negligence of the corporation; that there was no evidence of unfitness of the servants and agents of the defendant company; and that there was no evidence of gross negligence of the servants and agents except on the part of the engineer of the express train, the engineer of the local train, and the conductor of the local train. The only issues for the jury were, whether the intestate at the time of his death was a passenger, and, if so, whether his death was caused by the gross negligence of any one or more of the above named servants and agents. There was evidence for the jury on both of these issues. Exceptions taken by the defendant and the matters to which they related are stated in the opinion. The jury returned a verdict for the plaintiff in the sum of $4,500; and the defendant alleged exceptions.</p>

<p>Frauds, Statute of, Sufficiency of memorandum.</p> <p>The owner of a large tract of land on a certain street in a certain town, which was bounded on one side by land of P, who owned no other land on the street, and on the rear by a stone wall, agreed to sell a part of it for $360, received from the purchaser $100 and signed and gave to him a receipt which, after stating the name of the town and the date, read as follows: “ Received $100 from [the purchaser] in part payment for a piece of land next to P, seventy feet on the road and back to an old wall.” Held, that the memorandum stated the boundaries of the lot with sufficient certainty to satisfy the requirements of the statute of frauds, R. L. c. 74, § 1.</p>

<p>Tort, by a minor by Ms next friend, for the loss of an eye through the alleged negligence of the defendant in permitting his son, nine years of age, to have possession and control of an air gun with which he shot the plaintiff. Writ dated May 5, 1909.</p> <p>In the Superior Court the case was tried before Hardy, J. The plaintiff discontinued against the defendant’s son, Charles Fish, who originally had been made a defendant.</p> <p>There was evidence that on Christmas, December 25, 1908, the defendant gave to his son Charles a King air gun from which small shot or other pellets could be discharged by means of compressed air. He also gave him some small shot to be used with the gun. On the same day the gun was discharged in such a manner as to cause a small shot to enter the plaintiff’s eye, so injuring it that its removal was necessary. Evidence was introduced by the plaintiff in support of his declaration, and the defendant introduced evidence in contradiction thereof, excepting that the fact of the injury to the eye necessitating its removal was not in dispute, and the questions of liability and amount of damage were submitted to the jury.</p> <p>The jury returned a verdict for the plaintiff in the sum of $200; whereupon the plaintiff filed a motion as follows: “ Now comes the plaintiff and says that the damages awarded are inadequate and moves that the verdict as to damages be set aside and a new trial ordered on the question of damages only.”</p> <p>The motion was heard by the judge, who indorsed the word “ Allowed ” on the back of the paper on which the motion was written. The defendant alleged exceptions.</p> <p>The case was argued at the bar in October, 1911, before Rugg, C. J., Hammond, Braley, & DeCourcy, JJ., and afterwards was submitted on briefs to all the justices except Boring, J.</p>

<p>Bill in equity, filed in the Superior Court on August 4,1908, by Henry O. Davis of Gloucester against Flora Downer, the plaintiff’s sister, Iretta Davis, the plaintiff’s mother, and Oscar S. Davis, the plaintiff’s brother and former partner, with a prayer for a decree that the two lots of land mentioned in the opinion, which were conveyed to the defendant Downer by the defendant Iretta Davis, were held by the defendant Downer for the use and benefit of the partnership consisting of the plaintiff and the defendant Oscar S. Davis, and that the defendant Downer be ordered to convey to the plaintiff one undivided half of said lots subject to any existing incumbrances thereon.</p> <p>The answers of the defendants, as amended, set up the statute of frauds.</p> <p>In the Superior Court the case was referred to William Perry, Esquire, as master, and later was heard by Schofield, J., who overruled exceptions to the master’s report and made a final decree confirming the master’s report as to all matters of fact contained therein and ordering that the bill be dismissed. The plaintiff appealed. The material facts found by the master are stated in substance in the opinion.</p>

<p>Judgment, Final, Motion to vacate. Superior Court. Practice, Civil, Motion to vacate judgment, Dismissal for want of prosecution, Discontinuance. Review. Error.</p> <p>A judgment of dismissal entered in due course in an action in the Superior Court, which was called and dismissed pursuant to a general order of that court to that effect applying to all cases in which no action has been taken within the year . next preceding, is a final judgment within the meaning of R. L. c. 193, § 16, which requires that a petition to vacate a final judgment shall be filed within one year after the entry of such judgment.</p> <p>Where, in an action which was dismissed under a general order of the Superior Court because nothing had been done therein within a year, it is shown by the records of that court that there had been proceedings in the action within the ’{!• year next preceding the judgment of dismissal but it does not appear that there had been any clerical error in the entry of that judgment, this does not give the Superior Court jurisdiction to grant a motion to vacate the judgment filed more than one year after the judgment was entered, the court having had jurisdiction to make the judgment of dismissal although the facts as afterwards shown did not warrant it.</p> <p>A petition for a writ of review of a judgment of the Superior Court, which was discontinued by the petitioner by leave of court without costs before any trial was had upon it, does not estop the petitioner from maintaining a petition for a writ of error to reverse the same judgment upon substantially the same grounds as those alleged in his petition for a writ of review.</p>

<p>Pleading, Civil, Replication. Practice, Civil, Order to strike out replication, j for rulings, Exceptions. Fraud, Evidence of intention,1 Fiduciary relation. Of fraud, Of intention. .</p> <p>In an action on a promissory note, where the defense set up in the answer was a release under seal given by the plaintiff to the defendant, the plaintiff filed a replication alleging in substance that the release set up in the defendant’s answer was procured from the plaintiff by fraud on the part of the defendant. The presiding judge ordered that the replication should be stricken out. Held, that under R. L. c. 173, §§ 31, 32, the presiding judge did not exceed his power in ordering the replication stricken out, it being open to the plaintiff in an action at law to prove that the release was obtained by fraud without filing a replication.</p> <p>No exception lies to the refusal of the judge presiding at the trial of an action at law to refuse to make rulings upon requests presented before the introduction of any evidence.</p> <p>In an action on a promissory note, where the only defense is a release under seal given by the plaintiff to the defendant, and the plaintiff offers to show that the release was procured from her by fraud on the part of the defendant, the plaintiff may show that she was induced to sign the release by a promise of the defendant, that when his sister should die, whereby he would come into a large ■ property, he would pay the note held by the plaintiff, notwithstanding the release, and thafat the time the defendant made this promise he did not intend to keep it.</p> <p>In an action by an executor on a promissory note, where the only defense was a release under seal given by the plaintiff’s testatrix to the defendant and the plaintiff contended and offered to show that the release was procured from his testatrix by fraud on the part of the defendant, the plaintiff excepted to a ruling of the presiding judge that there was no evidence that the defendant was a trusted and confidential adviser of the plaintiff’s testatrix. The only evidence which tended to show anything beyond a business relation between the parties coupled with great confidence of the plaintiff’s testatrix in the defendant was the testimony of one witness that the plaintiff’s testatrix in the absence of the defendant said to her, “ My husband told me before he died, if I was in trouble or needed advice to always call on [the defendant], and always to do as he told me.” There was nothing to show that this advice to the plaintiff’s testatrix was known to the defendant or that the plaintiff’s testatrix ever by word or conduct gave the [defendant to understand that she relied on him for counsel in the matter of the release or any other matter. Held, that the ruling of the judge was correct.</p> <p>In an action by an executor on a promissory note, where the only defense is a release under seal given by the plaintiff’s testatrix to the defendant and the plaintiff contends and offers to show that the release was procured by fraud on the part of the defendant, the plaintiff may show, if the presiding judge makes the preliminary findings required by R. L. c. 175, § 66, that the testatrix said to a witness, referring to the release, that the defendant “ made her think that it would be all right and she thought it would be,” this being admissible only as bearing upon the influence exerted upon the mind of the plaintiff’s testatrix by that which the defendant said.</p>

<p>Negligence, In use of highway, Street railway. Evidence, Estimate of distance, Admissions and confessions.</p> <p>If one, who is driving with a horse and buggy in a city from an intersecting street into a street on which are parallel tracks of a street railway running straight for more than a quarter of a mile, sees a car approaching on the nearer track more than one hundred and fifty feet away, and, thinking that he has time to get across, proceeds to cross the tracks with his horse “ trotting or walking or jogging,” and if the car, which is coming at an unreasonable rate of speed, strikes the rear part of his buggy, it cannot be said as matter of law that he necessarily was negligent in attempting to cross, he not being bound to apprehend an unreasonable rate of speed of the car.</p> <p>In an action by an administrator against a corporation operating a street railway for personal injuries sustained by the plaintiff’s intestate from the collision of a car of the defendant with a buggy in which the intestate was driving, if there is evidence that the plaintiff’s intestate, coming from an intersecting street, saw the car more than one hundred and fifty feet away approaching on a clear straight track and thought that he had time to cross in front of it but that the car coming at an unreasonable rate of speed struck the rear of the intestate’s buggy, the testimony of an eyewitness, called by the plaintiff, that in his judgment the car was only twenty feet away when the horse of the plaintiff’s intestate was driven from a place of safety into a place of danger, is not to be treated as an admission of the plaintiff’s intestate or of the plaintiff, but merely as an estimate of distance by a witness, which is to be considered by the jury with the other evidence.</p>

<p>Writ of entry to recover possession of certain land on Pratt Street in that part of the town of Framingham called South Framingham. Writ dated February 5,1909.</p> <p>In the Land Court the case was heard by Clark, J., who, on December 30, 1909, filed the following memorandum:</p> <p>“ The demandant to show his title introduced a sheriff’s deed, dated May 12, 1909, recorded September 1st, 1909, purporting to convey to him, the demandant, all the right, title and interest which George W. and Alice H. Cutler, or either of them, had in the demanded premises • on the 23rd day of March, 1909. He offered no evidence of the truth of the recitals contained in said deed nor did he offer evidence to show that said Cutlers, or either of them, had any right, title or interest in the demanded premises on said 23rd day of March, 1909, or at any other time. I ruled therefore at the request of the tenant that the demandant was not entitled to recover. Judgment for the tenant.”</p> <p>The demandant appealed to the Superior Court, where the case was tried before Fox, J., upon issues, as to only one of which there was any dispute between the parties, namely, whether the recitals contained in the sheriff’s deed hereinafter described were true.</p> <p>The demandant, to prove his title, relied upon a sheriff’s deed. No question was raised as to the execution and delivery of the deed or the title of the execution debtor or the identity of the land demanded with that described in the deed. A certified copy of the execution under which the alleged sale was made was introduced in evidence, and also, subject to an exception of the tenant, a certified copy of the officer’s return thereon and of amendments to the return. The judgment debtors were described in the execution as “ George W. Cutler and Alice H. Cutler of Boston in the county of Suffolk.” Material portions of the return as amended were as follows:</p> <p>“ Middlesex, ss. March 23rd, A. D. 1909.</p> <p>“ By virtue of this Execution, I this day at three o’clock in the afternoon seized and took as the property of the within named Judgment Debtors George W. Cutler and Alice H. Cutler or either of them all the right, title and interest which they or either of them have in and to the following described parcel of real estate the record title of which stands in the name of Florence M. Rogers, to wit . . . [here followed a description of the land in controversy] . . . and afterward within three days I deposited an attested copy of this Execution with so much of my return thereon as relates to said taking into the office of the Registry of Deeds, at Cambridge within and for the southern district of the county of Middlesex, and on the twenty-sixth day of said March being thirty days before the time appointed for the sale hereinafter mentioned I gave notice of the time and place of sale to the said George W. Cutler and Alice H. Cutler by sending to their address in Boston, prepaid by registered letters, each a copy of said notice,* [the said George W. Cutler and Alice H. Cutler not residing within my precinct and not being found by me therein] and caused notifications thereof to be posted up in the following public places, to wit: at the Post Office in South Framingham being the Town where said land lies and at the Post Office in Natick and at the Post Office in Marlborough and adjoining Town and City and afterward caused an advertisement of the time and place of sale, to be published three weeks successively before said sale, in the Marlboro Times, a newspaper printed in Marlborough in said County, to wit on the eighth, fifteenth and twenty second day of April 1909 and on the eighth day of May 1909 at eleven o’clock in the forenoon at the premises above described, the time and place appointed for said sale as aforesaid, I sold the said right, title, and interest, by public auction to Warren C. Blake Executor, as within named, who bid therefor the sum of twenty-five hundred dollars, which was the highest bid made therefore and I have made executed acknowledged and delivered to the said Warren C. Blake Executor, a good and sufficient deed of said right, title and interest . . . [here followed a statement as to the application of the amount received from the purchaser] . . . Chas. G. Whitman, deputy sheriff.” The return was sworn to before an assistant clerk of courts.</p> <p>The objections of the tenant to the admission of the return in evidence were that the return “ did not sufficiently set forth . . . (1) that written notice had been given to the debtors, (2) that a Qopy of said written notice had been mailed and addressed to the debtors at their residence as described in the execution, (3) that a notice of said sale had been posted, (4) that a notice of said sale had been published, (5) that a notice of said sale was published in a newspaper in Middlesex County.”</p> <p>The tenant offered in evidence the report of the judge of the Land Court set out above, and, both parties having rested, asked the presiding judge to rule that there was “ no evidence to support the truth of the recitals in the deed of the sheriff.” The ruling was refused.</p> <p>The presiding judge instructed the jury in substance that through the return on the execution the demandant had offered evidence of the steps taken in making the title, and that evidence had been offered tending to show that the recitals in that return were true and that no evidence- had been offered to the contrary on that point, and therefore that they were warranted in bringing in answers favorable to the demandant on the issues. The jury-found accordingly; and the tenant alleged exceptions.</p>

<p>Contract, Construction, Performance and breach.</p> <p>A manufacturer of bottles received and. accepted in writing the following order from a customer: “You may enter our order for our entire supply of . . . bottles, from August 1,1904, to January 1,1905, ... [at a certain price] . . . We agree to advise you two months in advance of our requirements.” The customer never notified the manufacturer two months in advance of his requirements, but with the customer’s knowledge the manufacturer made frequent visits to the customer’s place of business for the purpose of keeping in touch with his needs, and manufactured and kept on hand a reserve supply of bottles for the purpose of filling the customer’s orders as they were given. At the end of the period of the contract the manufacturer had on hand a large supply of bottles as to which the customer had given no notice that he would require them and no orders, and sought to compel the customer to pay therefor. Held, that, the manufacturer having made the surplus without an order or notice from the customer, the customer was not liable therefor under the terms of the contract.</p>

<p>Equity Jurisdiction, To restrain publication of private letters. Letters.</p> <p>Review by Rugo, C. J., of the authorities relating to the protection by courts of equity of the right of the author of an ordinary private letter, which is without -value as literature, to restrain its publication.</p> <p>The executor of the will of the author of friendly letters, which do not possess the qualities of literature and were written to a cousin about domestic and business affairs, referring to household matters, to health and to the work that the writer was doing, may maintain a suit in equity, to restrain the publication of such letters or their multiplication in any way in whole or in part, and to compel the holder of the letters to allow the plaintiff to make copies of them within a reasonable time; but he is not entitled to a decree restraining the sale and transfer of such letters as manuscripts.</p>

<p>On January 11,1912, a letter from the Governor, containing the following questions, was transmitted to the Justices of the Supreme Judicial Court. On January 12, 1912, the Justices returned the answer which is subjoined.</p> <p>The letter was as follows:</p> <p>In relation to the death sentence imposed in the Phelps case, I feel it incumbent upon me to ask the Supreme Court of Massachusetts for a decision as to the responsibility of the Governor in cases involving the capital sentence.</p> <p>Article eight, Section one, Chapter two, of the Constitution of Massachusetts, says that “the power of pardoning offences . . . shall be in the governor, by and with the advice of council.”</p> <p>From the existing statutes, I am unable to determine whether the commutation of a sentence is of the nature of a conditional pardon. I am also unable to determine whether in the event of either a pardon or a commutation of sentence, the Governor is expected to obtain the consent as well as the advice of the Council.</p> <p>In our Massachusetts reports No. 190, the court states in relation to the commutation of a sentence, as follows, —</p> <p>“They all recognize the fact that the act, first of all, and afterwards for all time, is to be the act of the Governor. The only connection that the Council can have with it is advisory. Whether the Governor takes advice or not, his conclusion must rest finally upon his own judgment. Inasmuch as the responsibility for his determination, with or without advice, must rest upon him, both in the beginning and forever after, the natural course of proceeding would seem to be that he should seek such aid as he might desire from any proper source, and not be obliged to ask advice, in the first instance, from an official body whose opinion could never relieve him from the duty of deciding.”</p> <p>In view of these uncertainties, it appears to be my duty to ask the Supreme Court also whether the Governor himself has the right to commute a sentence, as from death to life imprisonment.</p> <p>While the pending sentence of death in the Phelps case brings this matter to my earnest attention, my wish is, irrespective of any action which might result in this instance, to find out exactly what obligation rests upon the Governor under our Constitution and statutes in such instances.</p>