Volume 212 — Massachusetts Reports

<p>Corporation, Directors, Officers. Equity Jurisdiction, Bill by minority of stockholders of corporation, Res judicata. Libel. Equity Pleading and Practice, Parties. Res Judicata. Judgment.</p> <p>If the directors of a corporation, acting wholly outside the legitimate business of the corporation and for their own personal ends, publish in the name of the corporation a false and malicious libel concerning a person, who brings an action for the libel against the corporation and recovers substantial damages, the corporation can recover from the directors in an action at law the amount paid by the corporation upon the judgment in such action and the expenses incurred in defending it; and, if those in control of the corporation refuse to enforce such liability, a minority of the stockholders can maintain a suit in equity against the directors and the corporation to compel the directors to pay the amount of such judgment and expenses into the treasury of the corporation.</p> <p>In such a suit in equity, where the treasurer of the corporation is made a defendant, a demurrer by him should be sustained, if it appears on the allegations of the bill that he did not participate in the publication of the alleged libel and merely did his duty as treasurer in paying the execution on the judgment against the corporation. An allegation, that demand was made upon him to proceed "in accordance with the by-laws of said corporation” to collect from the directors the sums expended in paying the judgment and expenses, is insufficient to show liability on his part without setting forth by-laws that authorized the institution of such proceedings by the treasurer.</p> <p>In a suit in equity by a minority of the stockholders of a corporation, against the directors and the corporation, to compel the directors to pay into the treasury of the corporation the amount of a judgment paid by the corporation in an action at law against it for a false and malicious libel published by the directors in the name of the corporation, if it appears that when the judgment was obtained against the corporation an action also was brought against the defendant directors for the same libel in which judgment was entered for the defendants, such judgment is not a bar to the suit in equity, the issues and the parties in the two proceedings not being the same.</p>

<p>Bill in equity, filed in the Superior Court on May 4, 1908, to restrain the defendant Boynton from further prosecuting an action at law against the plaintiff on a certain promissory note described in the opinion, and to determine the rights of the parties under an agreement in writing by which certain shares of stock were placed in the name of the defendant Gould as trustee.</p> <p>The case was referred to Edwin D. Sibley, Esquire, as master. The findings contained in his report are stated in substance in the opinion. The case came on to be heard before Fox, J., who reserved it upon the pleadings, the master’s report and the exceptions thereto for determination by this court.</p>

<p>Undue Influence. Deed, Validity.</p> <p>In a suit in equity brought in the name of an aged woman by the conservator of her estate to set aside a deed of real estate and a bill of sale of personal property executed by the plaintiff when she was more than seventy-five years of age to the defendant, who was one of her two daughters, and alleged to have been procured by the undue influence of the defendant, where the evidence was contradictory and the testimony of the defendant could have been found to be contradictory and unsatisfactory, a finding of the trial judge, that the plaintiff was in a weakened state of mind and body and executed the deed and bill of sale by reason of the dominance and undue influence of the defendant, was sustained on the ground that, whichever way the judge had decided the case, it could not be said that his decision was plainly wrong. •</p>

<p>Two ACTIONS OF tort, the first by a boy, ten years and four months of age when injured, for personal injuries sustained on the evening of April 10, 1909, when the plaintiff was crossing Washington Street in Boston upon a cross walk at its intersection with Thorndike Street, and the second action by the father of the plaintiff in the first for loss suffered by reason of his injuries. Writs dated respectively April 28 and June 11, 1909.</p> <p>In the Superior Court the cases were tried together before Dubuque, J., who refused to order verdicts for the defendant and submitted the cases to the jury. The jury returned verdicts for the plaintiffs, in the first case in the sum of $900 and in the second case in the sum of $40. The defendant alleged exceptions.</p>

<p>Tort at common law for personal injuries suffered by the plaintiff while in the employ of the defendant and operating an elevator in its mill in Lowell, and alleged to have been due to a defective and unsafe condition of the elevator. Writ dated July 15, 1910.</p> <p>In the Superior Court the case was tried before Morton, J. The material facts 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>Tort against a constable for alleged unlawful acts in attaching property of the plaintiff. Writ in the Municipal Court of the City of Boston dated December 14, 1908.</p> <p>On appeal to the Superior Court the case was tried before Fox, J.</p> <p>It appeared that at the time of the alleged unlawful acts of the defendant the plaintiff was conducting the business of “ladies tailoring” in two rooms leased to him by one Stone, the lease containing a provision, “that if the lessee or his executors, administrators or assigns do or shall neglect or fail to perform or observe any of the covenants contained in these presents, and on his or their part to be performed or observed . . . the lessor, or his heirs or assigns, lawfully may, immediately, or at any time thereafter, and without demand or notice, enter into and upon the said premises or any part thereof in the name of the whole, and repossess the same as of their former estate, and expel the lessee and those claiming through or under him and remove their effects (forcibly, if necessary) . . . and upon entry as aforesaid this lease shall determine.” A rear room was fitted up as a workroom and contained benches, machines and other implements and tools incidental to the plaintiff’s business, and a front room was used as a reception and show room for customers. There was an entrance leading from the rear room into the corridor, which was used exclusively by the plaintiff’s employees, and an entrance from the corridor into the front room. In the workroom were several garments belonging to customers, on which the plaintiff had no claim for labor or material. The larger part of the furniture in the front room was held by the plaintiff under contracts of conditional sale, but some of the articles, such as pictures and other small article's, belonged to him, as did the tools and implements in the rear room.</p> <p>The plaintiff becoming in arrears in the payment of rent, Stone brought an action against him and the writ was given to the defendant for attachment and service. The defendant went to the plaintiff’s place of business and placed a keeper in charge on December 10, 1908. There was evidence that the defendant at once put a lock on the door of the rear room and prevented the plaintiff and his employees from using that door. On December 12, while the defendant still was in possession of the premises under the writ of attachment, Stone took possession of the premises for breach of covenants in the lease and left the defendant in charge of the premises on his behalf, and thereafter the defendant prevented the plaintiff from using the premises except that he permitted the removal of tools and implements of trade.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tax, Exemption. Charity. Dense and Legacy.</p> <p>Where by the residuary clause of a will real estate and personal property are given to a city to constitute a. fund, the income of which is to be applied to the maintenance and improvement of a common and parks, and the city by an order of its council accepts the gift and appoints the city treasurer to receive the property, the title of the real estate passes to the city without any formal tender or conveyance to the treasurer or the city; and therefore after the order of the council and so long as the city retains the property under the will, no tax can be assessed upon it. Following Burr v. Boston, 208 Mass. 537.</p> <p>Where a city, which owns certain real estate that was given to it by a will to form a fund for a public charitable purpose, unlawfully assesses a tax thereon to the “devisees” of the testator and then sells the real estate, the purchaser cannot be compelled to pay the tax, although in the agreement for the sale was the provision, “Rents, taxes and insurance are to be adjusted as of the day of the delivery of the deeds,” and the deed stated that the conveyance was "subject to taxes for the current year.”</p> <p>In determining the validity of a tax assessed by the city of Boston upon' property which it had received and was holding as the residuary legatee and devisee under a will for public charitable purposes, it was stated, that neither in Burr v. Boston, 208 Mass. 537, nor in the present case had this court considered whether real estate situated in other towns and included in the same devise to the city was liable to taxation in those towns.</p>

<p>Corporation, Social club, By-laws. Contract. Practice, Civil, Special findings by jury.</p> <p>Where the by-laws of a social club incorporated under R. L. c. 125 provide that, if a member’s “written resignation be delivered to the secretary on or before” a certain date, such member “shall not be liable for the annual dues of the next year,” a resignation not received by the secretary is of no effect although it may have been delivered seasonably to some other officer or agent of the club.</p> <p>The by-laws of a social club incorporated under R. L. c. 125 constitute in effect a contract between the different members and the corporation.</p> <p>The by-laws of a social club incorporated under R. L. c. 125 provided that the “fiscal year” should terminate on November 30; that each member should pay “an annual assessment of $50;” that the “dues” were “payable quarterly in advance . . . but any member who so” desired could “pay the whole annual assessment in advance,” and that “any member who” was “not at the time indebted to the club” might “send to the secretary his written resignation and upon acceptance thereof by the executive committee he” should “cease to be a member.” A member, who had paid his dues to and including November 30 of a certain year, without making any further payment sent to the secretary of the club a resignation in writing on December 9. Held, that the resignation was of no effect to relieve him from liability for the dues which had accrued on December 1, because the by-law allowed resignation under such circumstances only if the resigning member was not indebted to the club when his resignation was tendered.</p> <p>Where by the by-laws of a social club incorporated under R. L. c. 125 annual dues become due on December 1, and are “ payable quarterly in advance,” the facts, that on a May 5 the property of the club is placed in the hands of a receiver by order of the Superior Court and that the members are deprived of some of the benefits of membership, do not exempt members from liability for dues for the entire year which began on the preceding December 1.</p> <p>Under a by-law of á social club incorporated under R. L. c. 125 which provides that, “upon failure” of a member “to pay [his club dues] within two months after they become due [such member] shall cease to be a member of the club,” mere failure of a member to pay an annual assessment within two months after it becomes due does not cause his membership to cease so as to exempt him from liability for the year’s dues.</p> <p>Where at the trial of an action of contract the presiding judge submits several special questions to the jury, some of which are immaterial, and on the answers of the jury to those of the questions which are material the judge correctly orders a verdict for the plaintiff, exceptions by the defendant will not be sustained merely because it appears that an answer of the jury to one of the immaterial questions may have been inconsistent with their answers to others of the immaterial questions.</p>

<p>Negligence, Street railway. Evidence, Materiality.</p> <p>At the trial of an action for personal injuries against a street railway company by one who was thrown down by the starting of a car as he was attempting to alight, there was evidence tending to show that the defendant at the place of the accident maintained a single track with a turnout and a signal box, that it was the duty of the motorman to stop the car on the turnout and of the conductor to leave the car and change the signal, that there was no white post or other indication that it was a regular stopping place for cars, but that passengers had alighted from and entered cars at that point; that when the car stopped on the occasion in question the conductor left it to change the signal and the plaintiff was attempting to alight when, before the conductor returned, the motorman started the car and the plaintiff was thrown down. There was no evidence that either the motorman or the conductor knew that the plaintiff was attempting or desired to alight. Held, that there was no evidence of negligence on the part of either the conductor or the motorman.</p> <p>The mere fact that passengers are accustomed to alight from a steet car at a point near a town line, which is a fare limit, where there is not a regular stopping place for the cars for the reception and discharge of passengers, but where there is a switch and it is the duty of the conductor to leave the car to change a signal, does not impose upon the motorman the duty, before he starts the car in the absence of the conductor, of seeing that no passenger is attempting to alight.</p> <p>At the trial of an action against a street railway company for personal injuries where it appeared that the plaintiff was thrown down by the starting of a car as he was attempting to leave it, that neither the conductor nor the motorman was informed or knew of the plaintiff’s intention, that the conductor in the performance of his duties was absent from the car changing a signal, and that the car had stopped at a turnout near a town line which was a fare limit where passengers got on and off cars but where there was no white post or anything else to indicate a regular stopping place, evidence tending to show that at that point conductors were in the habit of calling out and announcing the limit of the car fare properly was excluded as immaterial, there having been no evidence that such an announcement was made on the occasion in question.</p>

<p> Devise and Legacy. </p> <p>A testator, who had nine grandchildren, by the terms of a clause of his will gave to trustees $1,000 for each grandchild living at his death, "to invest the same in some safe productive property,” to pay the income to each of such grandchildren while under age and upon the arrival of each at the age of twenty-one years to pay over the principal. About two years after the execution of the will he made a codicil. Six of the nine grandchildren were of age or soon would be, including the oldest son of the testator’s son C, then twenty-eight years of age. The other three grandchildren were children of the testator’s son C and were much younger, the oldest of them being about eleven years of age. By the codicil the testator changed this clause of his will and gave $1,000 absolutely to each of the six older grandchildren, naming among them the oldest son of his son C. He then provided as follows: “The clause . . . in my will is amended in this codicil so that my . . . trustees are to receive $1,000 for each of the children of my son C, and invest the same as set forth in my will.” Held, that the children of the testator’s son C for whom these trusts were provided were the three youngest children of C, there being a manifest intention to exclude from the class the oldest son of C to whom an absolute legacy had been given and to whom the provision for a trust investment was not applicable.</p>

<p>Petition, filed in the Supreme Judicial Court on November 4, 1911, under St. 1909, c. 490, Part III, § 70, by a corporation organized under the laws of the State of Pennsylvania to recover the amount of an excise tax assessed upon the petitioner by the Tax Commissioner of the Commonwealth under Part III, § 56 of the same statute and paid by the petitioner.</p> <p>The case was submitted to Braley, J., upon an agreed statement of facts, containing the facts which are stated in the opinion. The petitioner asked the justice to make certain rulings of law to the effect that the statute, so far as concerned the petitioner, was unconstitutional upon the three grounds which are stated in the opinion. The justice refused the requests for rulings and ordered that the petition be dismissed, and at the request of the petitioner reported the case for determination by this court. If the rulings of the justice were correct, a decree was to be entered dismissing the petition; otherwise, a decree was to be entered for the petitioner in the sum of $200 with interest from the date of payment of such excise tax and costs.</p>

<p>Tax, Excise. Corporation, Foreign.</p> <p>A foreign corporation maintaining a factory in this Commonwealth for the manufacture of watch movements, which in this Commonwealth are combined with cases manufactured in other States and then are sold principally upon orders solicited and accepted outside the Commonwealth, not more than two per cent of the product being sold to purchasers in this Commonwealth, is engaged in this Commonwealth in the business of manufacturing, which is separable from the subsequent commerce involved in the sale of the product and is subject to the excise tax imposed by St. 1909, c. 490, Part III, § 56.</p>

<p>Contract, originally with six counts. Writ in the Municipal Court of the City of Boston dated November 2,1901.</p> <p>On appeal to the Superior Court the case was tried before Pierce, J. All of the counts of the declaration except the fourth" and sixth were waived by agreement before the trial. The evidence is described in substance in the opinion. At the close of the evidence the defendant asked for certain rulings of which the first four were to the effect that the plaintiff was not entitled to recover on the fourth and sixth counts. At the suggestion of the presiding judge the pleadings then were amended as stated in the opinion. The amended declaration was on a contract in writing as there quoted, and alleged that the plaintiff lent the defendant $1,000 as provided in the agreement but that the defendant refused and neglected to give him a second mortgage upon the real estate in Malden described in the agreement, and neglected to improve and develop that property from which he had agreed that the plaintiff should receive twenty-five per cent of the net profits.</p> <p>The answer contained an allegation that the plaintiff waived any right to a note and mortgage signed by the defendant by receiving, accepting, recording and foreclosing a mortgage on the premises in Malden signed by Austin R. Smith together with the receipt of the note signed by Smith.</p> <p>The judge then refused to make the following rulings requested by the defendant:</p> <p>“6. Upon all the evidence as a matter of law, the plaintiff waived his claim to receive the defendant’s personal note by recording and foreclosing the mortgage given to him by Austin R. Smith to secure Smith’s note to the plaintiff, and in so doing the plaintiff made an election to receive that note and mortgage instead of the defendant’s.” [The mortgage of Smith was upon the real estate in Malden mentioned in the agreement, which had been conveyed to Smith by the defendant.]</p> <p>"8. As a matter of law, the plaintiff cannot recover in this action upon the written contract in evidence, but must bring an action for an accounting between himself and the defendant.”</p> <p>The judge submitted the case to the jury, giving, upon the question of waiver, the instructions described in the opinion. The jury returned a verdict for the plaintiff in the sum of $881.87; and the defendant alleged exceptions.</p>

<p>Municipal Corporations, By-laws and ordinances.</p> <p>A city, which has accepted the provisions of R. L. c. 104, § 1, and by that section is authorized for the prevention of fire and the preservation of life to regulate by ordinance “the inspection, materials, construction, alteration and use of buildings and other structures within its limits,” has no power to prohibit by ordinance the erection of any building for mercantile purposes without a license from the board of aldermen.</p> <p>A provision in a building ordinance of a city that has accepted the provisions of R. L. c. 104, § 1, which is void because it exceeds the power of the city in prohibiting the erection of any building for mercantile purposes without a license from the board of aldermen but which is separable from other parts of the ordinance dealing generally with the subject of building regulation and inspection, does not render invalid a provision in the ordinance for the issuing by the building inspector of permits for the erection of buildings in accordance with plans and specifications which comply with the requirements of the ordinances of the city.</p>

<p>Contract for money paid to the defendants, a firm of stockbrokers, by the plaintiff while under age, to be used in the purchase and sale of shares of stock designated by the plaintiff. Writ in the Municipal Court of the City of Boston dated October 22,1910.</p> <p>On appeal to the Superior Court the case was heard by Crosby, J., without a jury, upon an agreed statement of facts, from which the following facts appeared.</p> <p>The plaintiff was born on October 27, 1889. On August 16, 1909, he gave to the defendants an order to purchase for him ten shares of a certain corporate stock and paid to them for that purpose $868.75, and the defendants on the same day purchased the shares for the plaintiff from certain other brokers in the open market for the designated sum, and upon receipt of the stock certificates placed them in a private envelope marked with the plaintiff’s name, separate and apart from their own securities, and held them at his disposal. Subsequently the shares were sold by the defendants for the plaintiff upon his order at a slight profit, and, with the proceeds thereof and some further cash provided by the plaintiff, the defendants purchased for him in the same manner twenty shares of another corporate stock. There were several further transactions of purchase and sale, all conducted in the same manner and during the plaintiff’s minority. The plaintiff from time to time drew from his account with the defendants various sums in cash, aggregating $397.40, the account finally being closed on October 20, 1910, upon which date he received from the defendants a check for $171.25. The net result of the transactions was a loss to the plaintiff of $471.35.</p> <p>On October 22, 1910, Sophia Benson, the plaintiff’s mother, was appointed his temporary guardian and on the same day she demanded from the defendants in the name of the plaintiff the return of $471.35.</p> <p>The defendants asked for the following rulings:</p> <p>"1. Relations between the defendants and Alfred S. Benson were those of principal and agent.</p> <p>“2. The facts disclosed an executed agency which cannot be avoided.</p> <p>“3. The facts disclosed payment by an infant’s direction which cannot be avoided after the infant becomes of age.”</p> <p>The judge refused the rulings and found for the plaintiff in the full amount claimed with interest. The defendants alleged exceptions.</p>

<p>Tort against the Boston Elevated Railway Company and the New York and Boston Despatch Express Company for personal injuries sustained on April 1, 1905, when, as the plaintiff was on the sidewalk on State Street in Boston and just emerging from the archway for pedestrians at one end of the Old State House, he was struck by a horse which was hitched to a wagon of the defendant express company, the wagon and horse having been pushed by a car of the defendant street railway company. Writ dated April 10, 1905.</p> <p>In the Superior Court the case was tried before Brown, J.</p> <p>On the following page is a reduction of the main features of a plan which was introduced in evidence.</p> <p>There was evidence tending to show that a car of the defendant street railway company was proceeding on the right hand track on Devonshire Street toward State Street; that nearly abreast of it and proceeding with about equal speed was the team of the defendant express company; that a police officer was standing between the street car tracks at the point where Devonshire Street enters State Street; that on the policeman’s signal the car and the team passed him slowly, the car a little in the lead; that it was the intention of the driver of the team to turn enough to the left to continue past the end of the Old State House down Devonshire Street; that, as the car rounded the curve into State Street, the rear vestibule caught the front left hand hub of the express wagon and pushed the wagon forward, and that, although the driver of the team pulled back hard on the reins, the horse was pushed against the plaintiff, who was just coming out of the archway at the point marked with a cross on the plan, and the plaintiff was knocked down and rendered unconscious.</p> <p>At the close of the plaintiff’s evidence, the defendant Boston Elevated Railway Company rested its case, and at the close of all the evidence the judge ordered a verdict in its favor; and the plaintiff excepted.</p> <p>At the close of all the evidence the defendant express company asked the judge to rule that the plaintiff could not recover against it. The ruling was refused and the express company excepted. There was a verdict for the plaintiff against the express company for $2,000, and the judge reported the case for determination by this court under an agreement which provided that, “if upon the evidence introduced by the plaintiff there was sufficient evidence of negligence on the part of the Boston Elevated Railway Company to warrant a verdict against that defendant, and the rulings in respect to the defendant express company were, correct, then judgment was to be entered for the plaintiff against the Boston Elevated Railway Company jointly with the other defendant for the amount of the verdict.”</p> <p> </p>

<p>Damages, For land taken or damaged under statutory authority. Evidence,' Remoteness, Of value.</p> <p>At the trial of a petition for the assessment of damages for a taking by the Commonwealth of a tract of land by right of eminent domain, it appeared that the land in question comprised a tract of nearly thirty acres fronting on a public way and that the petitioner had divided it into building- lots, some of them fronting on the public way and some on private ways running into the interior of the tract. The lots fronting on the public way were more valuable than those in the interior of the tract. None of the lots had been sold. On the other side of the public way, directly opposite the petitioner’s land, was another tract which had been divided by its owner into lots substantially like those of the petitioner, and there had been sales of lots in that tract fronting on the public way, some for cash and some where only a part of the purchase price was paid in money, the payment of the balance being secured by a mortgage from the purchaser. Evidence of such sales was admitted. Held, that the determination of the question whether the evidence should have been admitted was within the discretion of the trial judge, and that he had not exercised his discretion improperly.</p> <p>At the trial of a petition for the assessment of damages for land taken by the Commonwealth by right of eminent domain, it appeared that the petitioner’s land comprised a tract of thirty acres, and the Commonwealth in cross-examination of a witness for the petitioner introduced without objection evidence of a sale at public auction of a tract of eleven acres adjoining the petitioner’s land, of similarity of the tracts, and that for thirty years both tracts had been unoccupied except for agricultural purposes. With the consent of counsel and accompanied by them the judge viewed the premises and thereafter on his own motion excluded the evidence of the price paid for the eleven acre tract on the ground that that tract was not sufficiently similar to the petitioner’s land to make it a fair standard of value. There was no statement by the judge of the topographical differences upon which the ruling was based. The Commonwealth excepted. Held, that it could not be said as a matter of law that the judge had exercised his discretion improperly.</p>

<p>Practice, Civil, Interrogatories.</p> <p>The limitation in R. L. c. 173, § 63, as interpreted in Wilson v. Webber, 2 Gray, 558, of the right to interrogate an adverse party given by § 57 of that chapter, so that such right did not include a right to a disclosure either of the facts by which or the medium through which the interrogated party proposed to prove his case, is not affected by St. 1909, c. 225, which amends § 57 by inserting in its place a provision giving a right to interrogate an adverse party “for the discovery of any facts and documents admissible in evidence at the trial of the action, except as hereinafter provided.”</p>

<p>Insurance, Marine. Deceit. Contract, Implied in law.</p> <p>A policy of marine insurance on wool being shipped from Liverpool, England, to Boston contained the provision that the goods insured “are valued (premium included) at as per form attached . . . .” The form attached stated, “Valued, premium included, at $5.50 to the £ Sterling and if invoiced in American Gold at invoice and 10%.” The policy also provided, “All risks to be reported as soon as known and amounts declared as soon as ascertained.” U. S. St. of June 10, 1890, c. 407, § 3, among other things required of the shipper that he should make a declaration in writing befqre the United States consul that the invoice, which should be attached to that declaration, was in all respects correct and true. The shipper’s invoice was false in overstating the value of the wool. The wool was lost under circumstances which rendered the insurance company liable and it paid the shipper a sum calculated on the basis of the value stated in the invoice and afterwards, in an action against the shipper for deceit and for money had and received, sought to recover the excess of that payment over what should have been paid if the invoice had been true. The defendant demurred. Held, that the policy of insurance was in form a valued policy, but that, in order for it to take effect as such, it was necessary that the insurer should be notified of an invoice such as was required by law; that in the absence of such an invoice the policy took effect as an open policy, and that therefore the plaintiff was entitled to recover the excess of payment.</p>

<p>Indictment, found and returned in September, 1910, charging the defendant with a violation of the provisions of St. 1910, c. 567, in refusing to sell to one Barker, a boy fifteen years of age, who was a pupil of the Lawrence Independent Industrial School, tickets in lots of ten for his transportation between the school house of that school and bis home at a rate of fare not exceeding one half the regular fare charged by the defendant for the transportation of passengers between those points.</p> <p>In the Superior Court the case was submitted to Bell, J., upon an agreed statement of facts. The defendant presented fourteen requests for rulings, in which it asked the judge to rule that the defendant did not appear to have been guilty of any offense at law, that the jury must return a verdict of not guilty, that St. 1910, c. 567, was unreasonable, that it was unconstitutional, and was unconstitutional as applied to the defendant, under various provisions of the Constitution of the Commonwealth and of the Constitution of the United States, the questions raised being stated in the opinion.</p> <p>The judge refused to make any of the rulings requested, and left the case to the jury. The jury returned a verdict of guilty; and the defendant alleged exceptions to the refusal of the rulings and to the submission of the case to the jury.</p>

<p>Evidence, Admissions and confessions, Competency. Constitutional Law, Rights of defendant in criminal case. Practice, Criminal, Right of defendant not to incriminate himself, Minutes of proceeding before grand jury.</p> <p>At the trial of an indictment it may be shown that a statement of a person concerned with the defendant in the commission of the crime, which tended to show the defendant’s guilt, was read to the defendant when he was under arrest upon the indictment and that he replied in substance that he had nothing to say at that time, and such equivocal reply of the defendant may be found by the jury to have been in substance an admission that he could not deny the statement, but it is error for the presiding judge to leave it to the jury to say whether the defendant should have made a statement and whether his failure to do so aided them in coming to a conclusion as to his guilt or innocence.</p> <p>At the trial of an indictment, where the Commonwealth has introduced evidence of the flight and avoidance of the defendant in another State in proceedings for his extradition, after he had been arrested and held on bail upon the charge in the indictment, the defendant may introduce evidence to explain his avoidance for the purpose of showing that it was due to a cause other than a consciousness of guilt.</p> <p>A defendant in a criminal case has no right to require the production of the minutes of the testimony taken before the grand jury, who found the indictment against him, for the purpose of contradicting witnesses for the Commonwealth who testified before the grand jury. In the present case it did not appear that there were such minutes.</p>

<p>Municipal Corporations, Officers. Bills and Notes. Estoppel. Words, “ Corporation.”</p> <p>Before the enactment of St. 1910, c. 616, a town clerk had no duty whatever to perform in regard to notes of the town, and representations made by a town clerk before the passage of that statute that a certain note purporting to be the note of the town was a binding obligation, and a letter from him stating that the note was “correct in every particular,” relying upon which a holder in good faith purchased the note, do not estop the town in an action brought against it by such holder from showing that the alleged note was not executed according to law because the signatures upon it of a majority of the selectmen were forged by the treasurer.</p> <p>A town treasurer has no authority to bind the town by his indorsement of a note as treasurer in the name of the town.</p> <p>In R. L. c. 73, § 59, relating to the indorsement of a negotiable instrument by a fiscal officer of a bank or corporation, the word “corporation” does not include a town or city.</p> <p>No custom or usage can enlarge the authority of a town treasurer beyond the limits prescribed by statute.</p>

<p>Tort by the administratrix of the estate of Stephen Otis Jacobs, junior, for the suffering and' death of the plaintiff’s intestate, a boy fifteen years of age, caused by the explosion of a railroad torpedo belonging to the defendant. The plaintiff’s substituted declaration contained two counts, the first at common law for the conscious suffering of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant, its agents and servants in permitting the torpedo to come into the hands of the intestate, knowing that it was a dangerous explosive and unmarked in any way to indicate its character, and the second count under St. 1906, c. 463, Part I, § 63, for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant or by the unfitness or gross negligence of its.servants or agents while engaged in its business. Writ dated March 12, 1908.</p> <p>In the Superior Court the case was tried before Dubuque, J. Facts which could have been found upon the evidence are stated in the opinion. The explosion occurred on March 31, 1907, and the plaintiff’s intestate died on April 9, 1907. There was evidence that on March 22, 1907, the intestate with other boys was waiting about the defendant’s station at Rockland for the purpose of seeing off some high school scholars who were going to Washington, that while they were there a train stopped at the station and the baggage master upon it put off a piece of baggage and that when he did so the torpedo, which was described as a tin disk wholly unmarked, fell to the platform, that one Turner, one of the intestate’s companions, who was between nine and ten years of age, picked up the torpedo and put it in his pocket, that after the train had gone Turner showed the disk to the other boys, that by shaking it they could hear something rattle and they tried to open it with their knives to find out what was inside, that on the following Sunday, March 24, the boys were together and Turner found the disk in his pocket and produced it and the boys again tried to open it but without success, that on the Sunday after, which was March 31, the same boys were together after Sunday school, that Turner again found the disk in his pocket and the boys again tried to open it, and that finally Turner gave the disk to the plaintiff’s intestate who put it on a stone and struck it with his right foot, when the explosion occurred. There was evidence that none of the boys knew that the disk was of a dangerous character.</p> <p>At the close of the evidence, the defendant asked the judge to rule that upon the evidence the plaintiff was not entitled to recover either upon the first or the second count of her substituted declaration. The judge ordered a verdict for the defendant on each of the counts, and reported the case for determination by this court, with a stipulation of the parties which has become immaterial.</p>

<p>Tort for expenses alleged to have been incurred by the plaintiff in consequence of personal injuries sustained by his wife by reason of the negligence of the defendant on August 26, 1909. Writ dated January 25, 1911.</p> <p>In the Superior Court the case was tried before Bell, J., together with an action by the plaintiff’s wife for the injuries. The jury returned a verdict for the plaintiff in the sum of $625; and the defendant alleged exceptions, raising the questions which are stated in the opinion.</p>

<p>Railroad, Passenger. Boston Terminal Company. Agency, Existence of relation. Negligence, Railroad. Joint Tortfeasors.</p> <p>One, who is waiting in the south terminal station in Boston outside a fence separating the tracks and the platforms between them from the rest of the station, and who has purchased a ticket and intends to board a train of one of the railroad companies which are compelled by St. 1896, c. 516, § 9, to use that station, is not a passenger of such railroad company.</p> <p>-One, who was injured in the south terminal station in Boston as a result of confusion in a crowd waiting there for a train of one of the railroad companies which are compelled by St. 1896, c. 516, § 9, to use that station, when the train in backing into its place in the station ran over a bumper at the end of the track, broke down a fence separating the track area from the crowd and ran into the crowd, brought two actions, one against the Boston Terminal Company and the other against the railroad company, and the actions were tried together. Under §§ 8 and 9 of the statute and rules adopted by the Boston Terminal Company, trains in the station were operated solely by that company, but they continued in charge of the employees of the railroad company owning them, whose duty it was to operate them under the rules of the terminal company. There was evidence of negligence of the terminal company, and also evidence tending to show a violation, on the part of the employees of the railroad company who were in charge of the train, of the rules of the terminal company and a careless management of the train. The trial judge ruled, subject to exceptions by the plaintiff, that the plaintiff could recover in only one of the actions. The jury found for the plaintiff in the action against the terminal company, and for the defendant railroad company. Held, that the exceptions should be sustained, because there was evidence of negligence on the part of both defendants which concurred to cause the plaintiff’s injury.</p> <p>The Boston Terminal Company which, in accordance with the provisions of St. 1896, c. 516, owns, operates and maintains the south terminal station in Boston, under § 8 of that statute made a rule that trainmen in the employ of one of the railroad companies which by the statute was compelled to use the station for its trains “will remain in charge of the train while passing over the track of ” the Boston Terminal Company, and also made other rules governing the way in which the trains should be operated. Held, that the employees of the railroad company while they were in charge of a train of the railroad company in the station remained servants and agents of the railroad company, and that the railroad company was liable for the consequences of their negligent acts.</p> <p>Where, at the trial together of two actions by the same plaintiff against different defendants for personal injuries caused by concurring negligence of the defendants in the two actions, the presiding judge wrongly rules that the plaintiff can recover in but one of the actions, and the plaintiff receives a verdict in one of the actions and in the other a verdict is returned for the defendant, the plaintiff is prejudiced by the error and an exception by him should be sustained.</p>

<p>Judgment. Trustee Process, Adverse claimant.</p> <p>Where, in an action of contract brought by trustee process in the Superior Court, an agreement for judgment has been made between the plaintiff and the defendant, and on the first Monday of a month, after interrogatories of the plaintiff to the only remaining trustee have been answered, a motion to charge such trustee has been allowed, the action on that day goes to final judgment under R. L. c. 177, § 1, and Rule 23 of the Superior Court; and thereafter that court has no jurisdiction to allow a motion to vacate the order charging the trustee mine pro tune as of the day it was made, nor to allow the filing of a petition under R. L. c. 189, § 32, by one asserting an adverse claim to the property in the hands or possession of the alleged trustee.</p> <p>After final judgment in an action brought by trustee process, one claiming goods, effects or credits in the hands of a supposed trustee in the action cannot be admitted as a party for the purpose of establishing his claim under R. L. c. 189, §32.</p>

<p>Negligence, In use of highway.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries caused by a street car of the defendant running into the plaintiff, it appeared that in the forenoon of a clear day the plaintiff, holding by the hand a granddaughter four years of age and followed by her daughter and another grandchild, was about to cross upon a cross walk a street upon which the defendant maintained double tracks, that the plaintiff had an unobstructed view of the tracks for a considerable distance, that she saw no car approaching on the farther track and, seeing one approaching on the nearer track, waited for it to stop on the cross walk, when, with nothing to distract her attention or to interfere with her freedom of movement, she started forward, that her daughter, seeing a car approaching on the farther track, called to her not to go, but that she continued forward around the standing car and was struck at once by a car on the farther track. There was evidence that, in violation of a rule of the defendant, no warning gong was rung on the car which struck the plaintiff. Held, that as a matter of law the plaintiff was not in the exercise of dué care.</p>

<p>Contract, Rescission, Performance and breach. Assignment.</p> <p>In an action of contract against a building contractor the plaintiff alleged that he was the assignee of a sum of money which the defendant owed a subcontractor. At the trial of the action before a judge without a jury there was evidence tending to show that the subcontractor had made a contract to do certain construction work for the defendant and that the plaintiff lent money to use in performing the contract to the subcontractor, who assigned to the plaintiff as security all sums due and to become due to him under the contract, and that the assignment was “ accepted ” by the defendant in writing; that thereafter because of lack of funds the subcontractor informed the defendant that he would have to "give the job up,” and the defendant agreed with him that he should go on with the work, that the defendant should pay his debts already incurred for labor and material, should advance what money was necessary for the remainder of the work and should pay him $25 per week for his services in superintending the work and for the use of his tools. The work which originally the subcontractor had agreed to do then was completed without any ostensible change in the relations of the defendant and the subcontractor. The action was for an amount alleged to have become due to the subcontractor under the original contract after the date of the new arrangement between the defendant and the subcontractor. The judge found for the defendant. Held, that the facts warranted a finding that the original contract had been rescinded by the new arrangement between the defendant and the subcontractor, and that therefore the judge’s finding was warranted.</p>

<p>Bill in equity filed in the Superior Court on June 27, 1911, under R. L. c. 159, § 3, cl. 8, as stated in the opinion.</p> <p>A plea of the defendant Glines and demurrers of the other defendants, described in the opinion, were sustained by Hardy, J., and decrees were entered dismissing the bill as to all the defendants except Nickerson, as to whom an interlocutory decree was entered that the bill be taken pro confessa. The plaintiff appealed from the decrees dismissing the bill as to the defendants other than Nickerson.</p>

<p>Sale, Conditional.</p> <p>By a contract of conditional sale the buyer of certain horses agreed “that if said goods and chattels . . . shall be attached or if I shall sell, mortgage, pledge or attempt to sell, mortgage or pledge the same . . ., or shall fail to pay said note at maturity, said [seller] shall have the right without any demand or notice to take immediate possession of said property and hold the same absolutely free from all claims and demands from me.” It was said, that by the terms of this condition the title to the property would seem to have passed to the buyer subject to be divested at the option of the seller upon the happening of any of ■ the contingencies named and the taking possession of the property by the seller pursuant to the condition.</p> <p>One, who is in possession of a chattel under a contract of conditional sale by which the title is to pass to him upon the performance of the conditions of the contract, after he has made a part payment and when he has committed no breach has an interest in the chattel which he can convey by a mortgage, properly recorded, so as to give the mortgagee the right to enforce the contract against the seller, and, if later the buyer is in default, such mortgagee by tendering to the seller the amount due on the conditional contract before the seller has taken possession of the chattel acquires the title to the chattel as against the seller.</p>

<p>Petition, filed in the Supreme Judicial Court on November 16, 1911, by the city of Boston under Res. 1910, c. 109, as amended by St- 1911, c. 482, asking for the appointment of a commission to consider and report what proportion of the expenses of the county of Suffolk, if any, should be borne by the city of Chelsea and the towns of Revere and Winthrop. The respondents the city of Chelsea and the town of Revere demurred and the respondent the town of Winthrop filed an answer containing a demurrer, all of them alleging that the resolve and statute were unconstitutional. The case came on to be heard by Braley, J., who, deeming that the question raised was of such importance that it should be decided finally before any further steps were taken, reported the case for determination by the full court. If the demurrers and so much of the answer as was by way of demurrer were overruled, commissioners were to be appointed; if the demurrers were sustained, the petition was to be dismissed.</p>

<p>Bill in equity, filed in the Superior Court on August 23, 1910, by the son and sole heir at law of John Collins, late of Malden, who died intestate on March 22, 1910, against the widow of John Collins to enforce the provisions of an agreement printed below.</p> <p>The bill alleged that the maiden name of-the defendant was Bridget Davis, that she was married to John Collins on February 22, 1900, and that, before such marriage, on February 14, 1900, John Collins and the defendant entered into the contract printed below, that John Collins at the time of his death was seised of the real estate referred to in the contract, that he had owned it since 1869 and that it was estimated to be worth about $4,000, that after the death of John Collins the plaintiff had tendered to the defendant the sum of $1,000 and demanded a release of the defendant’s interest in the estate of John Collins in accordance with the terms of the contract, but that the defendant refused to release her interest in the estate. The plaintiff offered to pay the defendant $1,000 and to comply with all the terms of the contract and prayed for a decree for the specific performance of the contract.</p> <p>The defendant demurred to the bill.</p> <p>The contract sought to be enforced was as follows:;</p> <p>“This agreement made and entered into this fourteenth day of February, A. D. 1900, by and between John Collins and Bridget Davis both of Malden Commonwealth of Massachusetts Witnesseth: that in consideration of the promise and agreement of the said John Collins to marry the said Bridget Davis and of the said Bridget Davis to marry the said John Collins it is hereby mutually agreed that both the said parties shall retain their respective estates with such as may hereafter accrue to them, separate and apart from the other, subject to the payment of their respective debts, with power to each to manage and dispose of their estates as they shall see fit, and at their decease to have the same descend to their respective heirs at law or otherwise dispose of as they may respectively by last will and testament order and appoint. In case of the decease of the said John Collins she, the said Bridget surviving him there shall, within six months from the time of his decease be paid to the said Bridget the sum of one thousand dollars from his estate. In order to secure the payment of the said sum, she, the said Bridget, immediately upon the decease of the said John Collins shall have the sole use and possession of the premises numbered 29 Brackenbury Street, in Malden being the northerly portion with the buildings thereon of the premises conveyed to the said John Collins by Elijah B. Putnam and Susan E. Putnam. ... If at the expiration of the six months, the said sum of one thousand dollars has not been paid to the said Bridget, then she shall have the said estate in fee with power to dispose of the same. Upon the death of the said John Collins, she the said Bridget surviving shall by deed release all interest in his estate excepting the said claim of one thousand dollars and the security of the payment thereof.”</p> <p>Here followed the attesting clause with the signatures of the parties, an acknowledgment by John Collins and a certificate of the recording of the contract.</p> <p>The case first was heard upon the demurrer by Richardson, J. He made an order overruling the demurrer, and the defendant appealed. The defendant filed an answer and a final decree was entered by order of Jenney, J., overruling the demurrer, and ordering the defendant, upon tender to her of the sum of $1,000 by the plaintiff, to execute a release of all her interest in the real estate of her late husband, John Collins. The defendant appealed.</p>

<p>Equity Pleading and Practice, Appeal.</p> <p>On an appeal from a decree dismissing a bill in equity after overruling the plaintiff’s exceptions to a master’s report, the evidence on which the master’s findings were based was not before this court and the only question was whether the decree lawfully could be entered upon the facts found and stated in the report of the master and the memorandum of the trial judge. It being manifest .that such was the case, the decree was affirmed.</p>

<p>Writ of entry, dated October 19, 1908, for a lot of land in Cambridge alleged by the demandant to belong to him in fee.</p> <p>In the Land Court the case was tried before Clark, J. The facts which appeared in evidence and the proceedings in the Land Court are stated in the opinion. At the request of the parties the judge reported the case for determination by this court of the questions which are considered in the opinion.</p>

<p>Insurance, Accident. Negligence, In use of canoe.</p> <p>A fraternal beneficiary certificate providing an indemnity for death of the insured contained a condition that no indemnity should be paid for death resulting from “any injury caused wholly or in part, directly or indirectly, by . . . voluntary exposure to unnecessary danger; . . . nor for any injury which the member, by the exercise of ordinary care, prudence, and foresight, might have averted or prevented, or to which the member’s own negligence shall have contributed.” The certificate holder was drowned from the capsizing of a canoe in which with a companion he was paddling on Moosehead Lake in Maine. It appeared that in the morning of the day of the accident he with his companion had made a difficult trip to a point near a mountain, and during the trip had passed through waters as rough as any on the lake, that there was a strong wind blowing from the mountain over the lake in such a way that from the shore the water did not look excessively rough, but that a mile and a half from the shore it became dangerous, that before the certificate holder and his companion started on their afternoon trip they were warned by several experienced guides that the lake was so dangerous that no canoes were on it, and that, without further inquiry they embarked and about a mile and a half from the shore were drowned. Held, that the catastrophe was not one resulting from over confidence for which there were reasonable grounds or from an error of judgment in regard to a matter concerning which prudent men might differ, but that it involved a lack of ordinary care and a hazardous exposure to risk of such a nature that there could be no recovery on the certificate.</p>

<p>Bill in equity, filed in the Superior Court on June 16,1908, and afterwards amended, alleging that the plaintiff’s household furniture had been sold to the defendant Masofsky illegally at a sale in foreclosure of a mortgage, and seeking to enjoin the defendants from taking measures to remove it. In the amendment there was an allegation of readiness to pay what was due upon the mortgage.</p> <p>In the Superior Court the suit was referred to Francis M. Carroll, Esquire, as master. Among facts found in his report and in a supplemental report were the following:</p> <p>On December 7, 1907, the plaintiff, to secure a note for $205, gave to one Ready a mortgage “covering certain household furniture enumerated therein and which was examined by Ready before the loan was made.” The mortgage provided that the amount borrowed was to be repaid in six equal monthly payments with interest at the rate of $6.15 per month. On April 8, 1908, there was due to Ready $72.10. On May 22, 1908, Ready assigned the mortgage to the defendant Goldstein, who immediately took steps to foreclose it by advertisement and sale, the sale to take place at eleven o’clock in the forenoon of June 15. The plaintiff received notice of the sale on June 8. The notice contained no statement of the terms, whether cash or otherwise, under which the sale would be conducted. At about ten o’clock in the forenoon of the day of the sale, the defendants Goldstein and Masofsky and an auctioneer went to the plaintiff’s residence for the purposes of a sale. The plaintiff refused them admittance. There were some negotiations as to settlement of the amount due on the mortgage. There was talk about the plaintiff giving a note for the amount due, the note to be signed by the plaintiff and his wife and indorsed by his father-in-law, who was financially responsible. Goldstein was willing to accept this, but the plaintiff would not agree to the; proposal. The bargaining continued until nearly eleven o’clock without resulting in any agreement. Between 10.45 and eleven o’clock, the wife of the plaintiff asked to be allowed to go for money to her mother who lived at a walking distance of four or five minutes. Goldstein stated to her that the sale would have to be started before eleven o’clock or the proceedings abandoned and that he would not wait for her, The auctioneer then announced that the sale must begin if it was to be conducted at that time and at about three minutes- before eleven he put up his flag. When the sale was started, the first bid was by the defendant Masofsky at $60, the second by the plaintiff at $61, and the third by the plaintiff’s sister-in-law at $62. The property was finally struck off for $65 to the defendant Masofsky, who was there as a friend of the defendant Goldstein and to whom Goldstein furnished the necessary cash.</p> <p>The master further found as follows: “I find as a fact that the plaintiff had known for several days that the sale was to take place at eleven o’clock on the morning of June 15,1908, that a paper containing the notice of foreclosure was mailed to and received by him, and that the plaintiff’s wife had had time to go to her mother for money between ten o’clock and the time when the sale actually began had she so desired. Mrs. Lipsohn [the plaintiff’s wife] testified she knew the sale was to take place at least one day before said June 15. I find as a fact that Goldstein did nothing to hinder or prevent the plaintiff from having a1 fair opportunity to get the money to pay off the mortgage or bid at the sale.”</p> <p>“From the talk he had been having with the plaintiff, the defendant Goldstein must be held to have known that the plaintiff did not have sufficient money at that time to pay cash for the goods if struck off to Lipsohn. But in view of the fact that care had been taken to notify the plaintiff that the sale was to take place and that the plaintiff knew of the sale in season to supply himself with cash to pay the balance due if he was able to do so, and from the further fact that the plaintiff had rejected the overtures to make a settlement by giving a note, I find that under all the circumstances there was no bad faith or unreasonableness in making the terms cash.”</p> <p>“There was no evidence submitted by either party at any of the hearings as to the value of the chattels in question. These chattels were enumerated in the mortgage given .by the plaintiff and consisted of various articles of household furniture. On the day of the foreclosure, the plaintiff refused the auctioneer admission to his house, and the sale was finally made without the purchaser, or any of the other parties who came or were there with him, having seen the chattels. In conducting the sale, the auctioneer first read the list of articles enumerated in the mortgage, and called for bids on the several articles separately. No bids were made on the individual pieces as offered and they were then offered for sale as a whole. On the evidence, I cannot find that the price at which the chattels were struck off was low in proportion to their real value.”</p> <p>Exceptions by the plaintiff to the master’s reports were overruled and the reports were confirmed by Jenney, J., and a final decree was entered dismissing the bill. The plaintiff appealed.</p>

<p>Devise and Legacy, Cy pres, What estate, Intestacy. Charity. Widow.</p> <p>The residuary clause of a will gave all the residue of the testator’s property to his widow for her life and gave her “full power to sell, exchange, invest and reinvest the same,” except certain real estate thereinafter specifically devised, and also contained specific devises of real estate to two charitable institutions to take effect after the death of the widow with limitations over to a mece of the testator in case within twenty years after the widow’s death the institutions • were dissolved or removed from the Commonwealth, and also pecuniary legacies amounting to $61,000 to many other charitable corporations. Held, that it did not appear from the will that the testator had any general intent to give to charitable purposes all of the residue of his estate not given to his widow.</p> <p>The residuary clause of a will read as follows: “All the rest and residue of my estate ... I give, devise and bequeath unto my wife, N; to have and to hold during her natural life. And she shall be entitled to have and receive the rents, income, interests, dividends and profits from said rest and residue during her natural life, precisely the same as I might do, were I living; and giving my said wife full power to sell, exchange, invest and reinvest the same . . . [subject to certain exceptions] ... At her decease I give, devise and bequeath said rest and residue as follows:” Then followed specific devises of real estate and pecuniary legacies amounting to 361,000 to many charitable corporations. The residuary estate was far in excess of the property disposed of by specific devises and legacies. Held, that the widow took a life estate only in the residue, and that there was an intestacy after her death as to so much of the estate as was not disposed of by specific devises and legacies. Held, also, that it appeared from the will that the testator intended that the provision which he had made for his widow should be a full and final provision for her, and therefore that she could not share in the intestate estate as a statutory heir,</p>

<p>Agency, What constitutes. Negligence, Railroad.</p> <p>Where a contractor is engaged in constructing for a railroad company an abutment for a bridge to be placed across the railroad under a contract which provides that the work shall be done under the general direction of a civil engineer of the railroad company, and the contractor, being obliged to get certain elevations and lines from the engineer, sends one of his employees to do in that regard what he is asked to do by the engineer, such employee while performing such duty under the engineer’s direction does not become a servant of the railroad company.</p> <p>At the trial of an action against a railroad company for personal injuries there was evidence that the plaintiff was an employee of a corporation which was constructing for the defendant abutments for bridges across the railroad tracks under a contract providing that the work should be done under the general direction of the defendant’s civil engineer, that the plaintiff under orders from his employer was assisting the engineer in marking levels and elevations about the abutment and was standing on a plank, which rested in part on a form into which concrete for the abutment was being put.and extended beyond the form toward the track, when the end of the plank which projected toward the railroad track was struck by a passenger train passing on the track and he was injured, that before the accident the plank had been in position three or four hours during which trains frequently had passed, that the track curved away from the abutment at that point, that, because of the construction of the abutment, the railroad company maintained a flagman there to inform engineers of approaching trains about the work going on and to warn men standing on the timbers around the abutment of the approach of trains, if eM, that the questions, whether the plaintiff was in the exercise of due care and whether the defendant was negligent, were for the jury.</p>

<p>Tax, Excise. Corporation, Taxation. Constitutional Law, Excise tax.</p> <p>The tax upon a domestic corporation provided for by St. 1909, c. 490, Part III, § 43, is an excise upon its franchise and not a tax upon its property.</p> <p>Wool, purchased in a foreign country by a Massachusetts manufacturing corporation owning only real estate, machinery and merchandise, and by it brought to this Commonwealth and entered for warehousing in a United States bonded warehouse where it remains in the original packages subject to an unpaid duty to the United States, is not property of the corporation “situated in another State or country and subject to taxation therein,” the value of which, under St. 1909, c. 490, Part III, § 41, cl. 3, § 43, is to be deducted from the value of the corporate franchise, or from the value of its real estate, machinery and merchandise, in ascertaining the basis for computation of the excise provided for by the statute.</p> <p>In St. 1909, c. 490, Part III, § 43, which among other things provides in substance that in computing the excise to be paid by a domestic corporation as provided by that act, an amount, less certain deductions provided for in § 41, "twenty per cent in excess of the value? ... of [the corporation’s] works, structures, real estate, machinery, underground conduits, wires and pipes, and merchandise, and of securities which if owned by a natural person resident in the Commonwealth would be liable to taxation” is to be taken as a basis for the computation in case the value of the' corporate franchise as ascertained by the tax commissioner exceeds that amount, the word “merchandise” includes wool purchased in a foreign country ,by such a corporation and by it brought to this Commonwealth and entered for warehousing in a United States bonded warehouse where it re-' mainsdn the original packages subject to an unpaid duty to the United States; and such a construction of the statute does not affect its constitutionality.</p>

<p>Tax, On legacies and successions. Power. Constitutional Law.</p> <p>By St. 1909, c. 527, § 8, a succession tax is imposed upon the equal distribution of certain property among the children of the beneficiary for life under a deed of trust, made before September 1, 1907, in accordance with a provision of the deed, by reason of the failure of the beneficiary for life, who died after the passage of the statute, to exercise a power of testamentary appointment given to him by the deed to fix the proportions in which such property should be distributed among his children or grandchildren. The statute as so applied is constitutional.</p>

<p>Tort for personal injuries sustained by the plaintiff on December 17,1909, when he was in the employ of the defendants and was at work on a school house which the defendants were building for the city of Lynn, from the breaking of a derrick boom which fell and struck the plaintiff. Writ dated January 15, 1910.</p> <p>The declaration contained three counts, two under the employers’ liability act, and the third at common law alleging a failure of the defendants to provide safe and suitable machinery and appliances. At the trial in the Superior Court before Stevens, J., the plaintiff waived the first two counts. It was admitted that at the time of the accident the plaintiff was in the exercise of due care. The material facts which could have been found upon the evidence are stated in the opinion. The case was submitted to the jury upon the third count. The jury returned a verdict for the plaintiff in the sum of $6,000; and the defendants alleged exceptions, relating to the admission by the judge of evidence introduced by the plaintiff in regard to the price paid for the derrick, in regard to a “ crimp” in the boom as a defect distinct from rottenness, and the opinion of an expert that the boom was not a proper one for the purpose [for which it was being used. In the brief of the defendants at the argument before this court it was stated that “there was evidence from which the jury could find that the boom was defective- in that it was rotten on the inside.”</p>

<p>Practice, Civil, Exceptions. Negligence, Employer’s liability. Evidence, Competency. Witness, Cross-examination.</p> <p>No exception can be sustained to the refusal of a presiding judge to rule as matter of law that on the evidence the jury must find certain facts, which should be determined by the jury under suitable instructions.</p> <p>In an action by a workman against his employer for personal injuries, in which a defense relied upon is that the injuries were caused by the negligence of a fellow workman, who died before the trial, where evidence of declarations of such fellow workman that the plaintiff was injured through his negligence has been admitted properly, evidence offered by the defendant to show that on the afternoon of the day of the plaintiff’s injuries the defendant paid the fellow workman his wages is incompetent, as is also a declaration of the deceased fellow workman that he was blamed by others for having caused the injuries and had decided to leave the defendant’s employ.</p> <p>Questions allowed to be put to the defendant in an action of tort upon his cross-examination here were held not only to have been permissible as within the discretion of the presiding judge but also to have been plainly relevant to the issues on trial.</p>

<p>Contract for the alleged breach of covenants of warranty and against incumbrances in a deed from the defendants dated and delivered on March 8, 1908, conveying to the plaintiff a certain lot of land in that part of Boston called Dorchester. Writ dated February 1, 1911.</p> <p>In the Superior Court the case was tried before McLaughlin, J. The incumbrance complained of was a sewer assessment levied by a vote of the board of street commissioners of the city of Boston on December 8, 1908.</p> <p>The plaintiff, subject to the defendants’ exception, put in evidence a certified copy of the following notice recorded in the registry of deeds on the day of its date:</p> <p>“City of Boston. Sewer Department. Nov. 28, 1906.</p> <p>“The undersigned, the Superintendent of Sewers of the City of Boston, hereby states that it is his intention to construct a house sewer of 12 inch earthen pipe in Morton Street from Blue Hill Avenue about 410 feet westerly in the Dorchester District, and that he estimates that the cost thereof will be fourteen hundred and forty-five ($1,445.00) dollars. John J. Leahy, Superintendent of Sewer Department of the City of Boston. Approved John F. Fitzgerald, Mayor.”</p> <p>There was evidence that John J. Leahy, superintendent of sewers, was the officer designated by the mayor under St. 1903, c. 268, to construct sewers, and that after the filing of the notice he constructed a house sewer in Morton Street in front of the land conveyed by the defendants to the plaintiff; that work on the sewer was completed on January 31, 1907, and that on December 8, 1908, the superintendent of sewers certified the cost of the sewer to the board of street commissioners, who on the same day passed an order assessing a portion of the cost of the sewer upon the land in question.</p> <p>It was admitted that there was no order of the board of street commissioners ordering the construction of the sewer or any order by that board in connection therewith before the order levying the assessment on December 8, 1908.</p> <p>The defendants asked the judge to make the following rulings:</p> <p>"1. On all the evidence the plaintiff cannot recover, and the verdict must be for the defendants.</p> <p>“2. Neither the superintendent of sewers of the city of Boston nor any other official designated by the mayor of said city, has any authority to construct a sewer in said city and assess any part of the cost therefor on adjoining property, without a previous adjudication by the board of street commissioners of said city adjudging said sewer necessary for the public convenience or the public health.</p> <p>“3. The notice of intention to construct a sewer in Morton Street, dated November 28, 1906, signed by John J. Leahy, superintendent of sewers of the city of Boston, recorded with Suffolk Deeds, Book 3172, 464, did not impose any lien or liability for assessment on the property deeded by the defendant to the plaintiff, as there was no order of the street commissioners of the city of Boston adjudging that said sewer was necessary for the public convenience or the public health.”</p> <p>The judge refused to make any of these rulings, and ordered judgment for the plaintiff. The defendants alleged exceptions.</p>

<p> Street Railway. Elevated Railway. Negligence, Res ipso loquitur. </p> <p>In an action against a corporation operating by electricity a surface railway and also an elevated railway, it appeared that the plaintiff, when travelling as a passenger in an open surface car of the defendant beneath the defendant’s elevated structure on which a train was passing, looked up and was struck in the eye by a spark, which could have been found to have been a minute piece of hot iron that fell from the elevated road and was assumed to have been thrown off by the action of the contact shoe of the passing train. Held, that on these facts alone, without any evidence that the defendant ought to have foreseen this danger or that there was any practicable method of guarding against the emission of sparks or of preventing their falling to the street which the defendant had failed to adopt, there was no evidence of negligence on the part of the ' defendant.</p>

<p>Way, Public: relocation, layout. County Commissioners. Certiorari.</p> <p>A petition by residents of two adjoining comities to the county commissioners of' one of the counties, representing that a certain “town road” in that county “as also” a certain “ancient way ... is crooked, narrow and with limits undefined,” and petitioning the board “to lay out a county highway over the route aforesaid, except that we petition that a new layout be established” at a certain point “as public necessity and common convenience would seem to require,” contains as to the two ways described a single averment and a single prayer; and the county commissioners have no jurisdiction to divide the prayer of the petitioner, relocating under R. L. c. 48, § 12, the way described as the “town road” and laying out under § 1 the way described as an “ancient way.”</p> <p>Action to be taken by county commissioners under R. L. c 48, § 1, which provides for the laying out of a new highway from town to town or from place to place within the same town, or for the alteration or discontinuance of an existing highway, is fundamentally different from that to be taken under § 12 of that chapter, which provides for the relocation of a way within a town.</p> <p>A petition to a board of county commissioners contained a single prayer asking them “to lay out a county highway over the route” of a town way and of a way called an "ancient way.” The board in dealing with the petition acted outside of their jurisdiction in laying out a highway under R. L. c. 48, § 1, over the course of the alleged “ancient way” and relocating the town way under § 12 of the statute. The whole course of their proceedings with regard to the petition indicated that they regarded the two ways as designed to be used together and to serve one main purpose in common. It did not appear that the commissioners would have dealt as they did with either way if they had recognized their lack of power to act under § 1 as to one way and under § 12 as to the other. The owner of land through which the alleged “ancient way” passed petitioned for a writ of certiorari quashing the proceedings. In granting the writ, it was held that the entire proceedings of the commissioners should be quashed because their error went to the root of their action.</p>

<p>Tort or contract, the first count being in tort for the conversion of a diamond ring, and the second, after amendment, for a breach of a contract in failing to deliver such a ring. Writ dated July 30,1908.</p> <p>In the Superior Court the case was tried before Hitchcock, J. Facts which the jury were warranted in finding are stated in the opinion. The date of the purchase of the diamond therein referred to was October 11, 1907. The plaintiff’s offer to rescind was by a letter dated March 6, 1908. The plaintiff’s tender of $400 and demand for the ring was on July 30, 1908.</p> <p>At the close of the evidence the defendant asked for the following rulings, which were refused:</p> <p>“1. If the contract between the plaintiff and the defendant for the purchase of the ring was executory and if something remained to be done by the defendant before delivering it to the plaintiff, no title to the ring passed from the defendant to the plaintiff and the plaintiff cannot maintain an action for conversion.”</p> <p>“8. If at the time of the demand upon the defendant by the plaintiff for the delivery of the ring, the ring was not then in the possession of the defendant, the refusal of the defendant to deliver the ring would not constitute conversion.”</p> <p>“11. Upon all the evidence the plaintiff is not entitled to recover.”</p> <p>The jury found for the defendant on the second count, and on the first count for the plaintiff. The defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability, Causing death.</p> <p>At the trial of an action under R. L. c. 106, § 73, by the widow of an employee of the defendant to recover for the employee’s death, there was evidence tending to show that at the time of his death the plaintiff’s husband was a common laborer employed under a foreman who was subject to the orders of one who on behalf of the defendant was in charge of certain rock blasting operations, that in the course of the blasting of rock the foreman placed an ignition battery too near the place of explosion, which caused a piece of rock to strike and kill the plaintiff’s husband, that the defendant had furnished to the foreman sufficient wire to keep the battery placed at a safe distance from the explosion, that the wire at first used on the battery was two hundred feet in length, but that, after being 'used several times, it had become shortened, by being melted by the explosions and by being cut by rocks, to less than one hundred feet in length at the time of the accident. Held, that there was evidence of negligence of the foreman who could have been found to have been a superintendent of the defendant, that the risk of such negligence was not assumed by the plaintiff’s husband, and that it could not be said as matter of law that he was not exercising due care in relying on the skill and judgment of his superior whose orders he was bound to obey.</p>

<p>Evidence, Competency, Medical books and opinions. Witness, Cross-examination. Practice, Civil, Exceptions, Conduct of trial, New trial. Actionable Tort.</p> <p>Neither medical books, although of recognized authority, nor the opinions of medical experts, unless testified to by themselves as witnesses, can be received as evidence.</p> <p>At the trial of an action of tort against a street railway company for personal injuries alleged to have been caused by a collision of cars, a medical expert testifying for the defendant cannot be asked in cross-examination whether he is familiar with any authorities which say that a certain disease, with which the plaintiff contends that he is suffering as a result of the accident, might come as the result of a blow, nor can he be asked questions about books written by persons other than himself.</p> <p>At the trial of an action for personal injuries, where material issues were, whether the plaintiff had suffered any damage as alleged by him, and, if so, how much, the plaintiff’s counsel improperly was allowed, against repeated objection and exception by the defendant, in cross-examination of a medical expert called by the defendant to make inquiries regarding medical text books by medical writers other than the witness, the plaintiff’s counsel framing his questions from such a medical treatise and displaying several medical books upon his table. The objectionable cross-examination filled more than five pages of the printed record. In his charge to the jury the judge instructed them, with emphasis and elabora^ tian, not to consider the opinions expressed by the authors of the medical books, the context of the charge showing that he meant only that they were not to consider such opinions as bearing upon the medical questions raised in the case; but he did not strike out the incompetent evidence and the jury were left at liberty to consider such opinions as differing from those of the defendant’s medical expert and so bearing upon the weight of his testimony. Held, that the defendant’s exceptions should be sustained, since even after the charge the error remained prejudicial to the defendant.</p> <p>Where, at the trial of an action of tort for personal injuries resulting from alleged negligence of the defendant in which the defendant does not admit that the plaintiff has been damaged, the trial judge commits error in the admission of incompetent evidence which is prejudicial to the defendant on the question of damages, a new trial should be ordered on all the issues of the case, since the plaintiff’s right to recover at all depends upon whether he has suffered any damage.</p>

<p>Contract for the balance of the purchase price of three car loads of potatoes alleged to have been sold to the defendant by the plaintiff. Writ in the Municipal Court of the City of Boston dated March 24, 1908.</p> <p>On appeal to the Superior Court, the case was tried before Bell, J. There was evidence tending to show that the plaintiff, a shipper of potatoes in Maine, through a produce broker in Boston sold to the defendant three car loads of potatoes at a certain price, and that in the potato trade a “ car load ” meant as many bushels as would about fill such a car as the shipper chose to load, the exact number being named in an invoice; that in accordance with a custom in the potato business in Boston, the plaintiff, having loaded and shipped to the defendant the three car loads of potatoes, drew separate drafts upon the defendant for the contract price, less the freight, of the number of bushels of potatoes which he was satisfied each car contained, and attached to the draft the bill of lading of that car; that the defendant paid one draft and received and resold the carload it related to; and afterward, contending that the car which that draft covered contained fifty-nine bushels less than the plaintiff’s invoice stated, five hundred and fifty bushels, refused to accept the potatoes in the other cars or to pay the other drafts until the alleged shortage could be adjusted.</p> <p>At the close of the evidence the defendant asked for the following ruling:</p> <p>“If the jury finds as a matter of fact on all the evidence in this case, that the defendant entered into a contract with the plaintiff for the purchase of three cars of potatoes at ninety cents per bushel to be delivered in Boston with the number of bushels in each car as stated by the plaintiff, and the cars were delivered in Boston, and if the jury further finds that bills of lading were in the bank, with drafts attached, drawn for the full value of the cars according to the number of bushels stated by the plaintiff, and if the jury further finds that the defendant took up one of these drafts on a car containing five hundred and fifty bushels with draft drawn for the value of the car, and if the jury further finds on all the facts in this case that there w;as a shortage of fifty-nine bushels, or thereabouts, then the plaintiff has failed to carry out his contract, and the defendant is not obliged to take the other two cars.”</p> <p>The ruling was refused. The jury found for the plaintiff in the sum of $334.14; and the defendant alleged exceptions.</p>

Bill in equity, filed in the Supreme Judicial Court on December 19, 1911, by the Massachusetts Baptist Missionary Society, trustee under the will of Asa Wilbur, as the holder of sixty-five out of one hundred and seventy-five pews in the church of the Bowdoin Square Baptist Society, to enjoin the recording of a deed dated June 23, 1911, from that society to the Tabernacle Baptist Church and for a reconveyance, and also for a determination of the rights of the plaintiff in the…

<p> Bills and Notes. </p> <p>tinder R. L. c. 73, §§ 46, 136, 137, if the holder of a negotiable promissory note, knowing that it was made for the accommodation of the payee who indorsed it to the holder, by agreement with such indorser for a valuable consideration extends the time of payment without the consent or knowledge of the accommodation maker, this does not discharge such maker from liability on the note.</p>

<p>Practice, Criminal, Appeal, Motion to withdraw plea of guilty.</p> <p>An appeal to the Superior Court by a defendant in a criminal case who pleaded guilty in the court below does not entitle such defendant to a trial unless he is permitted by the appellate court to withdraw his plea of guilty.</p> <p>Upon a motion of the defendant in a criminal case for leave to withdraw a plea of guilty the judge may refuse to receive as evidence an affidavit of the defendant if he declines to testify or to offer other evidence in support of his motion.</p>

<p>Way, Public: defect in highway. Municipal Corporations.</p> <p>An excavation on private land adjoining the sidewalk of a highway of a city, “cut right down square or nearly so from the edge of the sidewalk” to the depth of from three to three and one half feet, may be found to have made the use of the sidewalk so unsafe for travellers as to require the maintenance of a railing, for an injury caused by the want of which the city is liable under R L. c. 51, § 18.</p>

<p>Contract for the alleged breach of a contract in writing as to the sale of an invention for preventing vehicles from skidding, known as a “ chain traction device.” Writ dated May 14, 1909. In the Superior Court the case was tried before King, J.</p> <p>It appeared that on January 28, 1907, the plaintiff executed specifications preparatory to applying for United States letters patent upon his invention.«On February 4,1907, he sold, assigned and transferred to the defendant “the full and exclusive right to said invention as” set forth and described in the specifications “together with all improvements which may be made thereon under the scope of said patent,” and authorized the commissioner of patents to issue the letters patent to the defendant. On the same day, as party of the first part, he made with the defendant as party of the second part the contract which is the subject of this action. The substance of the contract was as follows:</p> <p>“Whereas the party of the first part has invented a certain new and useful improvement in anti-skidding devices known as a 'chain traction device' as set forth and described in the specifications prepared and executed by the party of the first part on or about the 28th day of January A. D. 1907 preparatory to obtaining letters patent of the United States therefor, and</p> <p>“Whereas the party of the first part has this day assigned to the party of the second part all his interest to and in said invention, together with all improvements which may be made thereon under the scope of said patent,</p> <p>“Now therefore in consideration of one dollar and other valuable considerations by each of the parties hereto, to the other paid, the receipt whereof is mutually acknowledged, it is further agreed as follows: —</p> <p>“1. Upon the final allowance of said patent the party of the second part agrees to pay forthwith to the party of the first part the further sum of one thousand dollars in cash.</p> <p>“2. The said party of the second part shall pay to the party of the first part the sum of three cents royalty upon each of said devices, as sold, up to and including two hundred thousand of said devices, when said royalty shall cease.”</p> <p>On February 1, 1907, the plaintiff by his attorneys had filed with the United States commissioner of patents an application for letters patent with specifications of three claims of novel inventions as follows:</p> <p>"1. An anti-skidding attachment for wheels, comprising a member crossing the tire and a connected attaching device adapted to be maintained in its operative position by a spoke.</p> <p>“2. An anti-skidding attachment comprising a member to cross the tire and a flexible attaching device adapted to be knotted about a spoke.</p> <p>“3. An anti-skidding attachment, comprising a chain and a flexible attaching device engaging the chain and held in position by a spoke.”</p> <p>The claims were examined at the patent office and were rejected because of lack of novelty, patents previously having been issued to other persons covering the same inventions.</p> <p>The plaintiff’s attorneys then amended the application by cancelling the previous claims and substituting therefor as the claim, “an anti-skidding attachment for wheels comprising a tire crossing member, a flexible attaching member adapted to be knotted about a spoke and an end thereof removably connected to an end of the tire crossing member.” This claim also was rejected and the plaintiff’s attorneys cancelled it and substituted the following two claims:</p> <p>“ 1. An anti-skidding attachment for wheels comprising a metallic tire crossing member, a flexible cord-like attaching member adapted to be wound and knotted about a spoke, and a hook secured to each end of the attaching member and removably connected to the adjacent end of the tire crossing member.</p> <p>“2. An anti-skidding attachment for wheels comprising a flexible cord adapted to be wound and knotted about a spoke, a hook attached to each end of the cord and having an open, contracted throat, and a chain to cross the tire and adapted to be connected at its end with the hooks, the end-most links of the chain having a portion reduced in thickness to enter the contracted throats of the hooks.”</p> <p>The first of these claims was rejected and, finally, letters patent were issued on the second.</p> <p>The defendant admitted the due execution of its contract with the plaintiff, the tender by the plaintiff to the defendant of the letters patent and that it had not paid the plaintiff the sum of $1,000 provided for in the agreement.</p> <p>There was some evidence, admitted without objection, tending to show that the plaintiff had failed to submit to the defendant any improvements which he might make upon the patented device, and the judge ruled that that raised the only question for the jury. He therefore submitted to them the question, “Were any improvements on the device involved in this suit made by the plaintiff prior to the issuance of letters patent and not submitted to the defendant? ” and upon that subject charged them in part, as follows:</p> <p>“Are you satisfied from the evidence that any actual, physical improvement was made of the device which has been submitted before you? ... If it was an improvement thought of by the plaintiff, but never in fact worked out, I charge you that he would not be under any obligation to convey that until he had worked out that improvement in some feasible shape. . . . Consider whether there is anything you can put your finger on in the evidence which warrants you in saying that any actual improvement was made — not thought of. And if any was made, what was it? And in what respect was it an improvement? And if any was made ... is there any evidence that warrants you in finding that the plaintiff was not ready to give it to the defendant?”</p> <p>The defendant asked for the following rulings:</p> <p>“2. There is no evidence that the plaintiff has performed the special contract sued upon according to its terms.”</p> <p>“5. The plaintiff cannot recover on the evidence in this action for a breach of the contract sued upon.</p> <p>“6. The verdict must be for the defendant.</p> <p>' “7. The plaintiff did not secure the final allowance of a patent which was in accordance with the specifications referred to in its declaration.</p> <p>“8. The device described in the specifications referred to in the plaintiff’s declaration differs materially from the device described in the patent as issued.</p> <p>“9. The rejection of the plaintiff’s three claims by the patent office conclusively determined that the matter contained in those claims is not covered by the patent as issued.</p> <p>“10. The extent of a patent is determined by the matter set forth in the claims.</p> <p>“11. Under a patent obtained on the specifications originally submitted by the plaintiff the defendant would have the right to prevent all other persons from maintaining such a device in operative position by means of a spoke; under the patent as granted the defendant has no such right.</p> <p>“12. Under a patent obtained on the specifications originally submitted the defendant would have, the right to prevent other persons using any flexible attaching device in connection with similar appliances; under the patent as granted the defendant has no such right.”</p> <p>"14. All parts of the device in evidence could be made freely by any other person without infringing on the plaintiff’s rights except the hook with the contracted throat and the links in the chain reduced in thickness.”</p> <p>“16. Unless the patent as finally issued is the same as set out in the [original] specifications . . . the plaintiff cannot recover the $1,000 claimed.</p> <p>“ 17. Unless the patent as finally issued is substantially the same as set out in the [original] specifications . . . the plaintiff cannot recover the $1,000 claimed.”</p> <p>The rulings were refused. The jury answered the question submitted to them in the negative and found for the plaintiff in the sum of $1,110. The defendant alleged exceptions.</p>

<p> Equity Jurisdiction. Corporation. </p> <p>A foreign corporation cannot maintain a bill in equity against a Massachusetts corporation of which it is not a shareholder to enjoin it from carrying out a vote, passed at a special meeting of its members and within the scope of its chartered powers, merely because of irregularities and other defects in the - meeting and the vote.</p> <p>A New York corporation, organized as a national body for a philanthropic purpose which contemplated separate organizations in different localities having the same purpose and practically the same constitution and under a provision of their constitutions paying half of their membership fees to the national body, cannot maintain a suit in equity to enjoin a Massachusetts corporation, organized under R. L. c. 125 as a local organization of the national body, from carrying out a vote passed by its members at a special meeting to withdraw from the national body. If such vote and such proposed action are ultra vires, they should be remedied in appropriate proceedings instituted by the public authorities or by individual members of the Massachusetts corporation. So far as the acts of the Massachusetts corporation constitute a breach of contractual relations with the national body, the remedy is at law.</p> <p>A New York corporation, organized as a national body named a “council” for a philanthropic purpose, which contemplated separate organizations in different localities called “sections of the council” having the same purpose and practically the same constitution and under provisions of their constitutions paying one half of their membership fees to the national body and devoting contributions otherwise received to the purposes of the national body, cannot maintain a suit in equity to enjoin a Massachusetts corporation, organized under R. L. c. 125 with the corporate name “Boston Section of the Council,” as such a section of the council from carrying out a vote to withdraw from the national body and from refusing further to pay one half of its membership fees to the plaintiff, and from expending other contributions independently of any action of the plaintiff, where the bill alleges merely that the defendant proposes to announce its severance from the plaintiff and to continue the use of its corporate name, and that it is the purpose of certain of the defendant’s officers by holding themselves out as officers of the “ Boston Council ” “ to obtain contributions and receive moneys intended to be devoted to the work of the ” plaintiff, there being no allegation of a fraudulent intent on the part of the defendant or that it has received any money in trust for the plaintiff.</p> <p>A New York corporation, organized as a national body called a “council” for a philanthropic purpose which contemplated separate organizations in different localities called “sections of the council,” after it has permitted a Massachusetts corporation to be organized under R. L. c. 125 and to assume as its corporate name the “Boston Section of the Council,” cannot maintain a bill in equity under R. L. c. 109, § 8, to enjoin the Massachusetts corporation from continuing the use of its corporate name after it has voted to withdraw from the national body.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 23, 1910, and afterwards amended, in which it was alleged that the defendant New England Order of Protection, a Massachusetts fraternal beneficiary corporation, issued to one of its members, one Merritt B. Crane, a, benefit certificate, that the defendant John W. Crane, a cousin of the member, was named the beneficiary therein under an agreement between him, Merritt B. Crane and the plaintiff, that he would pay the proceeds of the certificate after the death of Merritt B. Crane to the plaintiff. Merritt B. Crane having died and John W. Crane refusing to collect the amount due on the certificate and pay it to the plaintiff, the bill prayed that he should be compelled to do so.</p> <p>The widow, a brother and the children of a deceased brother of Merritt B. Crane were allowed to intervene as defendants.</p> <p>The case was heard by Braley, J., who filed a memorandum of his findings. The facts are stated in the opinion. A decree was entered for the plaintiff; and the defendants appealed.</p>

<p>Practice, Civil, Appeal.</p> <p>Under R. L. c. 173, § 96, as amended by St. 1906, c. 342, § 2, no appeal lies from a ruling of a judge of the Superior Court sustaining an answer in abatement and ordering judgment for the defendant, where no judgment has been entered.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on May 11, 1911, by the trustee under the will of Betsey Tirrell late of Weymouth, for instructions.</p> <p>The case was reserved by Braley, J., upon the bill, answers and an agreed statement of facts, for determination by this court.</p> <p>The will of Betsey Tirrell was dated December 22, 1880, and contained three articles. The first article provided for an immediate payment of the debts and funeral expenses of the testatrix. The third article nominated a trustee and executor. The second article was as follows:</p> <p>“ Second. All the rest and residue of my estate, both real and personal and wherever the same may be, I give devise and bequeath to my son Alfred Tirrell of said Weymouth, to have and to hold the same in trust for the equal benefit of my children James Tirrell, Hannah Tirrell, the said Alfred Tirrell, Mary J. Bates, widow of James L. Bates, late of said Weymouth, and all of said Weymouth and Tirzah W. Durrell, wife of Moses T. Durrell of Boston in the County of Suffolk and during the respective lives of said children, but said principal or trust fund shall in no way be liable for nor subject to any debt or debts of any cestui que trust named, and to pay 'the income thereof as often as once in six months to said respective children or others entitled to same.</p> <p>“In case the said James or Mary J. shall die before my decease, then his or her share shall go to and be divided among his or her respective children free and discharged of all trust —</p> <p>“In case of the death of said Alfred, his share, shall be held in trust for his wife during her life, and upon her death to the survivors of my said children or to those to whom their several shares shall have passed or who have become entitled thereto. And in the case of the death of said Hannah or Tirzah W. before my decease their respective shares to go to the survivors of my said children or to those to whom their several shares shall have passed or who have become entitled thereto.</p> <p>“Meaning and intending hereby that my estate shall be held in trust for the benefit of my children, during their several lives and upon the decease of any one of them, having children of his or her body such children to take his or her share free and discharged of any trust, but if he or she shall not have any children of his or her body then such share to be added to the share of my surviving children or to whom his or her share shall have passed or who have become entitled thereto. The property is to be kept for my children and the children of their respective bodies and for no one else, except as provided for the wife of said Alfred.</p> <p>“Said Alfred as such trustee is to have the power to sell any and all of the said estate and re-invest the proceeds in such manner as he may deem most expedient and advantageous, exercising his best judgment.</p> <p>“Whatever may be due, payable or owing from the said James or the said Alfred and either of them to me on the first day of May a.d. 1880 is not to be deducted from their share or portion of my estate but is to be cancelled and discharged and deemed paid.”</p> <p>There was a codicil dated March 5, 1883, the provisions of which are not material.</p> <p>The testatrix died on August 13, 1888, her daughter Hannah having died before her, unmarried and without issue.</p> <p>The testatrix was survived by the following children: Alfred Tirrell, James Tirrell, Mary J. Bates and Tirzah W. Durrell, all of whom had died before this suit was begun.</p> <p>Alfred died without issue on May 7, 1890, and left surviving him his widow, M. Frances Tirrell, who was a defendant.</p> <p>Mary J. Bates died on August 22, 1905, and left surviving her a daughter, Bessie T. Nevin, who was a defendant.</p> <p>Tirzah W. Durrell, died on December 30, 1907, and left no husband or issue surviving her.</p> <p>James Tirrell died on March 27, 1909, and left surviving him his widow, two grandchildren, Cranmore W. Brook, bom in 1901, and Tirrell Brook, born in 1906, children of his daughter Helen F. Brook, who were defendants, and a son James Tirrell, junior, who was a defendant. Helen F. Brook was thirty-six years old at the time of her death on April 25,1906. Her husband, Fleeming Brook, was appointed the administrator of her estate and was a defendant.</p> <p>No distribution had been made of the principal of the trust.</p> <p>[The plaintiff asked for instructions on the following questions:</p> <p>“1. Should one half or the whole of the share for the benefit of James Tirrell be paid to James Tirrell, Jr.?</p> <p>“2. If only one half of the share for the benefit of James Tirrell should be paid to James Tirrell, Jr., should the other half be paid to the administrator of his deceased daughter, Helen F. Brook, or to Cranmore W. Brook and Tirrell Brook, children of said Helen F, Brook?</p> <p>- "3. Should the share for the benefit of Tirzah W. Durrell be added to the share for the benefit of James Tirrell, who was the only child of the testatrix living at the time of the death of said Tirzah, or should it be divided between the shares for the benefit of James Tirrell and Mary J. Bates, or should it be divided between the shares for the benefit of James Tirrell, Alfred Tirrell, and Mary J. Bates?”</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 21, 1912, by the trustees under the will of Augustus Hemenway, late of Milton, for instructions as to whether a certain extra corporation dividend described in the opinion and received by the plaintiffs should be added to the principal of the trust fund or paid over to those entitled to receive the income of that fund.</p> <p>The case was reserved by Braley, J., upon the bill and answers for determination by the full court. The answers admitted the allegations of fact in the bill. From the bill it appeared that the Delaware, Lackawanna and Western Railroad Company, desiring to avoid a long, crooked and billy route between Slateford, Pennsylvania, and Port Morris, New Jersey, for two years previous to.1907 had engineering parties locating a new cut-off line between those points and, a satisfactory line having been located, in that year took preliminary steps for the organizing of a new corporation under the laws of New Jersey for the purpose of procuring the right of way and building the line. Such a corporation was organized on February 8, 1908, and was called the Lackawanna Railroad Company, and the construction of the line was begun, the Delaware, Lackawanna and Western Railroad Company advancing from its surplus all the money necessary for the enterprise, for which it received capital stock of the New Jersey corporation at par and thus became the owner of all of that corporation’s capital stock excepting such shares as were necessary to qualify directors. The perpetual lease by the New Jersey corporation to the Pennsylvania corporation described in the opinion included provisions that the New Jersey corporation should continue its corporate existence and that its stockholders should receive from the Pennsylvania corporation "interest at the rate of four per cent per annum upon the .par value of” their stock. Other facts are stated in the opinion.</p>

<p>Municipal Corporations. Statute, Construction.</p> <p>R. L. c. 34, § 28, providing, that “a city or town which owns or operates a gas or electric lighting plant shall be liable for any injury or damage to persons or property caused by its maintenance or operation, in the same manner and to the same extent as a private corporation,” imposes no liability for causing death, the liability set forth in this section being the same created by St. 1891, c. 370, § 16, which created no liability for death, and not having been enlarged by the codification of such § 16 into § 28 of R. L. c. 34.</p> <p>R. L. c. 171, § 2, as amended by St. 1907, c. 375, relating to the liability of “a person or corporation” for causing death “by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business,” does not apply to a town or city in connection with its maintenance or operation of an electric lighting plant under the provisions of R. L. c. 34.</p> <p>St. 1897, c. 416, relating to the liability for loss of life of “a corporation operating a gas or electric light plant or system,” which with St. 1898, c. 565, was codified into R. L. c. 171, § 2, did not apply to a town or city operating a gas or electric light plant.</p>

<p>Executor and Administrator, New assets.</p> <p>In an action against an executor by a creditor of the defendant’s testator, brought under R. L. c. 141, § 11, after the expiration of the two year period of limitation alleging that the defendant had received new assets of which the plaintiff first had notice within one year, it appeared that the defendant was the sole legatee and devisee under the will of his testator, that he filed an inventory in which he set forth as all the estate of the testator 825 of personal property and no real estate, that about a year and a half after his appointment the defendant brought a suit in equity in his own name as devisee against a person to whom the testator had given a deed of real estate absolute in form, alleging that the deed was in fact a mortgage and seeking to redeem the real estate, and that more than two years after giving notice of his appointment he obtained a decree for redemption under which he received a deed of the real estate on paying personally the - amount of the mortgage debt. It further appeared that the defendant when he filed the inventory knew that his testator had made the deed alleged to be a mortgage and of the grantor’s alleged promise to reconvey the real estate. The plaintiff brought his action within one year after notice of the decree and of the deed to the defendant thereunder. Held, that by the decree and the conveyance thereunder the real estate became new assets of the testator’s estate.</p> <p>St. 1907, c. 549, limiting the time within which real estate of a deceased person conveyed absolutely or in mortgage for value and in good faith can be taken or sold for payment of his debts, has no application to an action brought against an executor after the expiration of the two year period of limitation by a creditor of the defendant’s testator, alleging that certain real estate conveyed by the testator by a deed absolute in form and redeemed by the executor as sole devisee had become new assets of the estate under R. L. c. 141, § 11, of which the plaintiff first had notice within one year.</p>

<p>Practice, Criminal, Indictment.</p> <p>An indictment found on August 6,1910, under St. 1910, c. 424, § 5, charging that the defendant during the three months next preceding the finding of the indictment, knowing a certain woman to be a prostitute, did derive support and maintenance in part from the earnings and proceeds of her prostitution, is sufficient, although that statute did not go into effect until after the beginning of the three months named in the indictment and the acts charged to have been committed by the defendant were not indictable during the first part of the period described.</p>

<p>Practice, Civil, Report. Damages, In contract. Contract, Construction.</p> <p>After long hearings of an action of contract by an auditor and by a judge of the Superior Court without a jury, involving great expense to both parties, exceptions by the defendant to rulings of the judge of the Superior Court were sustained and a new trM ..as ordered, confined to the question of damages. Upon a motion by the pkiatift" asking for a ruling as to the scope of the inquiry at the second trial, which would have involved an extended investigation at the trial into complicated facts, a judge of the Superior Court made an interlocutory order narrowing the inquiry so that the trial would be brief, and reported the question raised by his order for determination by this court under R. L. c. 173, § 105, as amended by St. 1910, c. 555, § 5. Held, that under the peculiar circumstances the report was made properly under the statute.</p> <p>Moot, speculative or subsidiary questions should not be reported to this court for determination under R. L. c. 173, § 105, as amended by St. 1910, c. 555, § 5.</p> <p>An English manufacturer of machinery and a Boston merchant made a contract . in writing providing for the sale of the manufacturer’s goods in the United States and Canada by the merchant during a period of five years. The contract covered two main subjects, one the purchase and sale of the machinery, which was its dominant purpose', and the other the maintenance of an American agency. There was a provision that the merchant should “not during the continuance of this agreement be engaged or interested in the sale” of any other machinery in the territory named “similar to or made and used for the same purpose as” the English manufacturer’s, and the manufacturer agreed to sell in the described territory only through the merchant. The merchant broke the contract by selling other goods similar to the English manufacturer’s, and, in an action by the manufacturer against him, it having been decided that the manufacturer could not recover damages for the loss of prospective profits under the aspect of the contract which contemplated purchases and sales because of the uncertain character of such damages, it was held further, that the provisions of the contract, confining the purchases and sales contemplated by the contract to the parties to it, was not a main or independent agreement, but was subsidiary and supplementary to the dominant agreement relating to purchases and sales, and therefore that no damages could be recovered for the breach of such provision since none were recoverable for breach of the agreement to which it was subsidiary.</p>

<p>Two actions op tort, the first by a married woman for personal injuries sustained by her on September 18, 1909, when she was a passenger in a car of a train of the defendant at the Northampton Street station in Boston of the elevated railway operated by the defendant, from the plaintiff’s hand being caught between the sliding side door of the car and the casing into which the door opened, by reason of the alleged negligence of the servants of the defendant, and the second action by the husband of the plaintiff in the first action for consequential damages. Writs dated October 12, 1909.</p> <p>In the Superior Court the cases were tried together before Pratt, J. The plaintiff in the first case (who hereafter is referred to as the plaintiff) did not contend that there was any defect in the condition of the door or that the manner in which the train came to a stop was in itself evidence of negligence in the operation of the train. The plaintiff testified as follows: “Well, when the train was nearing Northampton Street I got up from my seat to get to the door' and when I got to the door the car gave an awful sudden and severe jolt and threw me right against the door and I put my right hand out to save me and my hand went right into the door.”</p> <p>One Pasho, the superintendent of the elevated division of the defendant’s railway, called as a witness by the plaintiff, testified that the doors on the elevated trains were operated by air with a valve at the end of the car and that the brakemen or guards on the trains controlled the air which shut the doors. He testified that brakemen and guards were instructed to look at the part of the car in which a door was before opening it, and that they were instructed not to open or close the doors before the train had stopped. This witness, against the objection and exception of the defendant, testified, from a book of rules of the defendant “for the government of employees,” which was in force at the time of the accident, to the following rule:</p> <p>“Gates and Doors.” Rule 91. “Every precaution must be taken to avoid accidents. Gates and side doors must never be opened so that passengers can board or leave a moving train, nor must trains ever be started until gates and side doors have been properly closed and all necessary signals given. In all cases of doubt adopt the safe course. Great care must be used in operating gates and doors so that passengers will not be struck or their clothing caught by same.</p> <p>“Passengers should be induced to leave car by the side doors and enter by the end doors, provided doors and gates stop abreast of the same place on station platform. Passengers wishing to leave train must be allowed to do so before others are permitted to board.”</p> <p>The second paragraph of the rule numbered 99 in the book was admitted in evidence, subject to the defendant’s exception. It was as follows: “Always face the door when closing it in order to avoid shutting it against a person’s hand or clothing; never slam the door but use care to open and shut it noiselessly.”</p> <p>The plaintiff and her husband both testified that the door opened while the train was moving. There was evidence that the guard or brakeman who operated the door that injured the plaintiff opened it without looking at the door.</p> <p>There was evidence that before the accident the plaintiff was strong and well, weighing one hundred and fifty-two pounds,that at the time of the accident she was pregnant, that by reason of the accident a miscarriage occurred, from the results of which the plaintiff became very weak and was reduced in weight to one hundred and twenty pounds, and that about six months after the accident it was found that she was suffering from tuberculosis.</p> <p>The hypothetical question put to the witness Dr. Hawes and admitted against the defendant’s exception, referred to in the opinion, concluded as follows: "I want to know whether that condition of a woman which I have pictured to you would be a favorable condition for the development of tubercular germs in her system?” The witness answered, “I should consider that with those facts stated as you have given them to me, that the condition would be very favorable to the development of consumption.” The examination continued as follows: “Q. Why? A. For the simple reason that the woman’s resistance must necessarily have been lowered by the sickness which she went through. — Q. Now assume that that sickness had been eliminated and that she had continued a well, strong woman, I want to know whether under those conditions you would have expected the tubercular germs would have developed into the tuberculosis which you found? A. I can think of absolutely no reason why tuberculosis should develop under those circumstances.”</p> <p>At the close of the evidence the defendant asked the judge to rule that the plaintiff was not in the exercise of due care and that there was no evidence of negligence on the part of the defendant, and also asked for many other rulings, including a ruling that the tuberculosis from which the plaintiff suffered was due to a new and independent cause for which the defendant was not responsible and for which there could be no recovery in this action. The judge refused to make these rulings. He submitted to the jury certain special questions, which with the answers to them were as follows:</p> <p>“1. Was the door in which Mrs. Larson’s hand was caught opened while the car was in motion?” The jury answered “Yes.”</p> <p>“2. Is Mrs. Larson’s tuberculous affection directly attributable to the injury she received by having her hand caught in the car door?” The jury answered “Yes.”</p> <p>“3. As compensation for all damage sustained by Mrs. Larson, — aside from that due to her tuberculous affection, — the jury award the sum of $500.”</p> <p>“4. As compensation for all damage sustained by Mrs. Larson the jury award the sum of $3,000.”</p> <p>The jury returned a general verdict for the plaintiff in the sum of $3,000; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries sustained by the plaintiff on March 21, 1907, while in the defendant’s employ from the falling of an iron boiler head which was being hoisted to the table of a boring machine. Writ dated December 7, 1907.</p> <p>In the Superior Court the case was tried before DeCourcy, J. The boiler head was about seven feet in diameter and was over an inch thick. In the middle of it was a round hole about two feet in diameter with a three-inch flange around it. The hole was intended to be closed by an iron door and the work to be done on the boring machine was the drilling of holes for the hinges of this door. The method used to raise the boiler head was to fit a piece of timber about thirty inches long into the hole and then to place a chain around the piece of timber and hoist the boiler head by a tackle and fall made fast to a hook on a crane above the boring machine. While being hoisted under the direction of the defendant’s superintendent the boiler head tipped over and fell on the foot of the plaintiff.</p> <p>The verdict and the questions raised by the exceptions of both parties are stated in the opinion.</p>

<p>Negligence, Employer’s liability. Practice, Civil, Ordering verdict.</p> <p>In an action by an employee of one engaged in the alteration and reconstruction of a building, to recover for injuries received by reason of the breaking of a staging which had been laid across an elevator well and upon which the plaintiff was standing while at work under the direction of a superintendent of the defendant, one count of the declaration was at common law and alleged as the cause of the injury that the defendant had caused the staging to be constructed in a negligent manner and of unsafe and improper materials and insufficient strength. At the trial there was no evidence that the staging was constructed by the defendant, that it was furnished by him for the plaintiff to use, that the material of which it was constructed was furnished by the defendant, or that the defendant had adopted it for the use of his employees or had directed the plaintiff or others of his employees to use it, and a verdict was ordered for the defendant. Held, that the verdict was ordered properly.</p> <p>In an action by an employee against his employers to recover for personal injuries caused by the breaking of a staging upon which the plaintiff was standing while performing duties which he had been directed by the defendants’ superintendent to perform, a count of the declaration alleged that the accident occurred “ by reason of a certain defect in the condition of the ways, works and machinery of the defendants, connected with and' used in the business of the defendants, which arose from or had not been discovered or remedied owing to the negligence of the defendants or of some person or persons in the service of the defendants and entrusted by the defendants with the duty of superintending the construction of said work, and whose sole or principal duty was that of superintendence.” There was no evidence that the staging was erected by the defendants or that it was built with materials furnished by them or had been adopted by them for use by their servants. There was evidence that it was used occasionally by the defendants’ employees and that, when it broke, the plaintiff was on it by the direction of a superintendent of the defendants. Held, that the count charged a defect in the ways,' works or machinery of the defendants under St. 1909, c. 514, § 127, cl. 1, and that there was no evidence that the staging was a part of the ways, works or machinery of the defendants.</p> <p>The declaration in an action against an employer by an employee for personal injuries contained only a count at common law and a count under St. 1909, c. 514, § 127, cl. 1. At the trial there was no evidence to support the allegations of the declaration and the trial judge ordered a verdict for the defendant and reported the case for determination by this court, judgment to be entered for the defendant if the order was correct; otherwise, judgment to be entered for the plaintiff for a stipulated sum. In this court the plaintiff argued that there was evidence of negligence of a superintendent of the defendant which would entitle the plaintiff to recover under d. 2 of the section of the statute. Held, that such a contention need not be considered, because the order of the trial judge must be taken to have been made in view of the allegations of the declaration.</p>

<p>Tort for personal injuries caused by an explosion of gas in an apartment which the defendant had let orally- to the plaintiff, the plaintiff alleging that the explosion was caused by gas which had escaped by reason of the negligence, described in the opinion, of a plumber engaged by the defendant. Writ dated March 3,1910.</p> <p>In the Superior Court the case was tried before Sanderson, J. There was evidence that, being informed by an employee of the gas company that caps were needed upon certain pipes where gas fixtures had not been installed, the plaintiff went to the office of-Dr. Henin, the defendant’s husband, who was admitted to have been her agent. There was evidence, which was admitted de bene and afterwards absolutely subject to an exception by the defendant, that, Dr. Henin being absent from the office, Jacob Henin, his brother, who was in charge of his office, telephoned him at the plaintiff’s request with regard to the need of the caps. One Bergman, a plumber, testified that he was instructed by Dr. Henin to put on the caps.</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the defendant asked for the following rulings:</p> <p>“ 1.. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. There is no evidence of any negligence on the part of the defendant, or those having authority to act for him, entitling the plaintiff to recover.</p> <p>“3. There was no evidence that the plaintiff was in the exercise of due care. ”</p> <p>“8. Even if the defendant did agree to repair, did repair, and was negligent in so doing, and the injury resulted therefrom, she is not liable ‘if the undertaking to make repairs was gratuitous, and the plaintiff cannot recover unless it appears that such repairs were undertaken in pursuance of a legal obligation to make them.”</p> <p>“ 10. There is no sufficient evidence of any such agency on the part of Jacob Henin the brother of defendant’s husband, or such authority in him for her in the premises, as to entitle the plaintiff to recover.</p> <p>“11. There is no sufficient evidence of any ratification by the defendant or her husband of any act or conduct of Jacob Henin as to make anything he may have done in the premises binding upon her, or to entitle the plaintiff to recover in this action.”</p> <p>“18. If there was any agreement between the plaintiff and Dr. Henin that he would repair the gas pipes or put them in shape for use, that agreement was made after the commencement of the plaintiff’s tenancy, and was merely gratuitous, and even if negligently done by the defendant the plaintiff is not entitled to recover.</p> <p>“ 19. If the jury find that the defendant, acting by Dr. Henin, her agent, undertook to put the caps on the gas pipes at the request of the plaintiff on January 1st, 1910, this was merely a gratuitous act and imposed no liability on the defendant.”</p> <p>The jury found for the plaintiff in the sum of $391.48. In response to a question asked orally of the foreman of the jury by the presiding judge after the verdict was returned, the foreman stated in substance that the jury, found that the order for the plumber to place the caps came from Dr. Henin.</p> <p>The defendant alleged exceptions.</p>

<p>Corporation, Dividend, Promoter’s agreement. Contract.</p> <p>An agent of promoters of a corporation purchased all the corporation’s capital stock and part of its property, and as payment received the promoters’ notes, retaining the stock as security, and the agent and the promoters became the controlling stockholders of the corporation. They then doubled the capital stock of the corporation, one half of the increase being given to the agent for further security for the payment of the promoters’ notes, and substantially all the rest of the increase being given to a trustee to be held by him subject to an agreement between the promoters and the agent which in part provided that the promoters should manage the business of the corporation and should apply its net earnings monthly toward payment of their notes to the agent, and that, after those notes were paid, the stock should be distributed as the promoters might agree. A dividend was declared by the corporation, and on demand of the agent it was paid to him by the treasurer of the corporation in performance of the agreement between the agent and the promoters. Over a year previous to the declaration of the dividend one of the promoters had borrowed a sum of money from one to whom he promised to assign as collateral security all interest which he might obtain in the corporation or its stock, and two years and three months after the dividend had been paid to the agent certain shares of stock in the corporation and all dividends due thereon were assigned at such promoter’s request by the, trustee above described through others to the promoter’s personal creditor. Over three years later the assignee demanded the payment to him of the dividend above described, and, payment being refused, brought an action against the corporation therefor. Held, that by their agreement the promoters, including the plaintiff’s assignor, had appropriated the dividend' in question with the rest of the corporation’s net earnings to the payment of their notes to the agent; that, although the corporation had not assented to the agreement formally, it had not prevented its being carried out by the payment of the dividend to the agent, and that it was too late for the plaintiff’s assignor or any one claiming under him to contend successfully that he was entitled to the dividend.</p>

<p>Mortgage, Of real estate: foreclosure.</p> <p>At the trial of an action of contract for a balance due on a note secured by a mortgage of real estate after a sale in foreclosure of the mortgage, it appeared that the mortgage authorized the mortgagee or his assigns to purchase at the foreclosure sale, that the formalities required by the mortgage were complied with, that the mortgagee procured the attendance of several persons who he had reason to believe would bid, that the defendant knew of the sale but made no effort to attend it or to procure others to do so, that the sale was held inside a house on a January 10, that no auctioneer’s flag was displayed, and that the mortgagee bid at the sale for a person to whom the property was struck off. There also was evidence tending to show that the selling price was all that the premises reasonably could be expected to bring, and that in cold or stormy weather sales sometimes were held indoors. There was no evidence that the facts, that no flag was displayed and that the sale was indoors, operated to the prejudice of the mortgagor. Held, that findings were warranted that the mortgagee exercised good faith and did all he was bound to do to protect the interests of the mortgagor.</p>

<p>Assault. Agency. Evidence, Presumptions and burden of proof.</p> <p>In an action by an administrator against the proprietor of a bar room for injuries to the plaintiff’s intestate, which resulted in his death, caused by an assault committed by two bartenders of the defendant, the only question was whether the evidence would warrant a finding that the assault was committed by the bartenders in the course of their employment. There was evidence that the intestate had been drinking and was under the influence of liquor, that while he was standing at the bar taking a drink in this condition one of the bartenders came from behind the bar and struck him on the head with a bottle and that immediately afterwards the other bartender took hold of him by his clothing and ran him out of the room. The first bartender after he had struck the intestate went back behind the bar. There was nothing to show any ill will on the part of the bartenders toward the intestate. A verdict was ordered for the defendant. Held, that by drawing reasonable inferences of fact it could have been found that in ejecting the intestate the bartenders were acting within the scope of their duties in the preservation of order, and that on such a finding the defendant would be liable for their acts done in the performance of this duty, even if they used unnecessary force. Held, also, that if the facts were regarded as showing two separate assaults instead of a continuous one in which both bartenders participated, it was unnecessary to decide whether the evidence would warrant a finding that the first bartender was acting within the scope of his authority, because at any rate the plaintiff would be entitled to go to the jury in regard to the assault committed by the second bartender.</p> <p>The burden of proof may be sustained by the drawing of reasonable inferences from facts which appear in evidence.</p>

<p>Practice, Civil, Conduct of trial, Election of counts.</p> <p>At a new trial of an action of contract, after the sustaining of exceptions alleged by the defendant, where the declaration contains two counts and the plaintiff elects to go to trial on the first count and to waive the second, it is within the discretionary power of the presiding judge to deny a motion of the defendant for an amendment of the docket entries for the purpose of showing that the plaintiff at the former trial of the case waived his first count and elected to proceed on the second and to rule that, even if. the plaintiff made such an election at the former trial, he shall relieve him from it and allow him to elect to proceed at the new trial on the first count alone.</p>

<p> Fraternal Beneficiary Corporation. </p> <p>Where a by-law of an incorporated fraternal beneficiary order, conducting its business on the lodge system, provides that a member suspended by reason of nonpayment of an assessment to the collector within thirty days from notice of it shall be reinstated on payment of the assessment within the next thirty days, the collector, in the absence of any rule or by-law to the contrary, by agreement with a delinquent member may make such payment in his behalf, and such payment, if made in good faith and without any intent to defraud or injure the order, will operate to reinstate the member as if made by the member himself.</p> <p>Where a by-law of an incorporated fraternal beneficiary order provides, that a member suspended by reason of non-payment of an assessment within thirty days from notice of it shall be reinstated on payment of the assessment within the next thirty days, such a payment made in good faith within the last named period, in the absence of any requirement of good health as a condition of reinstatement, will operate to reinstate the member although when it was made he was suffering from an injury which later caused his death.</p>

<p>Practice, Civil, Amendment. Contract, Implied in law: common counts. Interest.</p> <p>Under R. L. c. 173, §§ 48, 52, the Superior Court may allow a suit in equity originally brought as an action at law, and changed by amendment into such suit, to be amended again into an action at law, with an appropriate change of parties, "to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought.”</p> <p>A contractor, who is unable to show complete performance of a building contract, may be found to be entitled to recover on a quantum meruit on the finding of an auditor that the plaintiff had endeavored in good faith to perform his contract and substantially had done so, although the auditor allowed the defendant a number of deductions on account of variations and omissions and inferiority of work and material. .</p> <p>An action at law on a building contract, made by the plaintiff’s assignor with the defendant, was amended into a suit in equity to compel the architect to give a final certificate for the balance due on the contract and to reach the interest of the defendant in a certain partnership, and afterwards such suit was amended back into an action at law on a quantum meruit to recover the money earned by a substantial performance of the contract, striking out all the defendants except the original defendant and substituting for the name of the assignee as plaintiff the name of his assignor, suing for the benefit of the assignee. On evidence warranting such a finding it was found by a judge, who heard the case without a jury, that the plaintiff had shown a substantial performance of the contract and was entitled to recover on the quantum meruit. Held, that the plaintiff was entitled to interest from the date of the writ in the original action at law, the cause of action having been the same throughout, and the suing out of the writ having operated as a demand for the sum that finally was found to be due.</p>

<p>Tax, Sale. Contract.</p> <p>Under B. L. c. 13, § 44, providing that if by reason of an error in a tax sale “the purchaser has no claim upon the property sold, he may within two years after the " date of the deed, offer by writing given to the collector, to surrender and discharge his deed or to assign and transfer to the city or town all his right, title i and interest in the premises, as the collector shall elect,” and that “ upon such surrender and discharge or assignment and transfer, the city or town shall pay to the purchaser the amount which he paid with interest at the rate of ten per cent per annum,” it is the duty of the collector upon receiving such an offer to elect within a reasonable.time whether he will take a surrender and discharge of the deed or an assignment and transfer of the title, and, if he makes no reply to the offer, his failure to elect within a reasonable time operates as a refusal to accept a surrender of the tax deed or an assignment of the purchaser’s title, and the purchaser has the same rights against the city or town that he would have had if there had been an actual surrender or transfer. It seems that after such a refusal the right of the purchaser to recover from the city or town would not be affected by his releasing his interest to the owner of the land. In the present action it was found that the plaintiff was in a position at the time of the trial to make a surrender or transfer at the election of the collector and offered to do so.</p>

<p>Petition, filed on September 6, 1907, under St. 1902, c. 534, § 8, for the assessment of damages sustained by the taking of land lying north of the Old South Meeting House in Boston for the purpose of making an entrance to and an exit from the Washington Street tunnel.</p> <p>Material portions of the petitioner’s charter, St.' 1877, c. 222, are as follows: .</p> <p>“An Act to incorporate the Old South Association in Boston, and to provide for the preservation of the Old South MeetingHouse.</p> <p>“Be it enacted, etc., as follows:</p> <p>“Section 1. The governor of the Commonwealth, the mayor of the city of Boston, the president of Harvard College, the president of the Massachusetts Historical Society, the president of the American Antiquarian Society, and the president of the New England Historic-Genealogical Society, ex offieiis, and William Gaston, John Lowell, Samuel E. Sewall, Edmund Quincy, Samuel A. Green, Henry Lee, Martin Brimmer and John D. Long, and their associates and successors, are hereby made a body corporate by the name of the Old, South Association in Boston, for the purpose of acquiring and holding the Old South Meeting-House in Boston and the land under and adjacent to the same upon the corner of Milk Street and Washington Street in said city, for public, historical, memorial, educational, charitable and religious uses and none other, with all the powers and privileges, and subject to all the duties, liabilities and restrictions set forth in chapter sixty-eight of the General Statutes and acts in addition thereto. Said corporation shall have the power to take and appropriate to the uses of said corporation, said meeting-house and land or any interest therein. . . . And said corporation shall also have power, until the foregoing powers are exercised, to take a lease of said meeting-house and land, or the interest so taken, and hold the same thereunder for the purposes aforesaid.</p> <p>“Section 2. The officers of said corporation shall consist of a board of managers, the number of which shall be fixed by the bylaws, and of which the six first named in this act shall be members ex officiis, and two shall be elected annually by the city council of the city of Boston, and the rest shall be elected by the members of the corporation; and said managers shall elect one of their number president, and shall also elect a secretary and a treasurer. All officers shall hold over until others are chosen in their stead. New members may be admitted in such manner as the by-laws shall provide.</p> <p>“ Section 3. Said corporation may make contracts with the Commonwealth for the use of said meeting-house for the annual election sermon, and with the Commonwealth or the city of Boston for its use for any public purposes not inconsistent with the provisions of this act.</p> <p>“Section 4. Said meeting-house and land shall be exempt from taxation while said meeting-house shall be used for any of the purposes aforesaid, and shall be exempt from any tax for the year eighteen hundred and seventy-seven.</p> <p>“Section 5. This act shall take effect upon its passage.”</p> <p>In the Superior Court the case was tried before Fessenden, J. After the jury had taken a view and before any evidence was introduced, the petitioner asked for the following rulings:</p> <p>1. “That the petitioner had a right under its charter to use the land adjacent to the meeting house in the most profitable manner whenever it saw fit to do so for the purpose of producing income to preserve the meeting house and to carry out its other charter purposes and that the jury should assess damages accordingly.</p> <p>2. "That in addition to the damages which would be awarded to an ordinary petitioner this petitioner is entitled to such a sum as will in the opinion of the jury compensate it for that feature or special damage contained in its loss by the taking which is created by the charter exemption from taxation of the space taken.”</p> <p>The judge gave the first ruling and refused the second. The trial then proceeded, and the jury returned a special finding of $100,000, representing the petitioner’s damage without interest, it having been agreed that interest from the date of the taking should be computed and added by the judge; and, it appearing that that sum had been paid to the petitioner by the respondent, a verdict was ordered for the respondent subject to an exception by the petitioner; and the case was reported for determination by this court, it being agreed that, if the first ruling above quoted was given rightly without the second, the verdict ordered was to stand, but that, if the second ruling should have been given, judgment was to be entered for the petitioner for the sum of $25,000, with interest from the date of the taking.</p>

<p>Street Railway. Negligence, Street railway. Evidence, Relevancy and materiality.</p> <p>It is the duty of a street railway company to protect its passengers from injuries resulting from harmful misconduct on the part of other passengers so far as such misconduct reasonably can be anticipated and guarded against, and to that end to use all practicable means consistent with proper efficiency in the management of its business which experience or a due consideration of the circumstances suggest.</p> <p>At the trial of an action for personal injuries against a street railway company by a passenger who was knocked from the left hand running board of an open car by another passenger who was rushing to leave the car, there was evidence that at the time of the accident the car was crowded with passengers and was approaching a transfer station maintained and controlled by the defendant, that it was a practice of passengers, of which the defendant knew or should have known, at the time of day and at the place of the accident to leave cars on the left hand side, rush across an intervening track and take a train about to depart from the station, and that such conduct was likely to result in injury to other passengers. Evidence was offered by the plaintiff tending to show that by the use of a sidebar on the left hand side of the car or by the construction of a fence between the tracks such conduct on the part of passengers might be prevented. The evidence was excluded and a verdict was ordered for the defendant. Held, that the evidence was competent on the question whether the defendant had done all that was practicable to prevent such an accident as occurred, and therefore that it should have been admitted; and that the case should have been submitted to the jury.</p>

<p>Insurance, Life. Contract, Construction. Conflict of Laws. Words, “Children.”</p> <p>An application in writing for a policy of life insurance to be issued by an insurance company with its office in the State of New York was dated in Massachusetts and delivered to a local agent of the company, accompanied by a medical certificate also dated in this Commonwealth. The application contained a provision that “ under no circumstances shall the policy be in force until the actual payment to and acceptance of the premium by an authorized agent of the company.” The policy was received from the company by the agent and by him sent to the insured, and the premium was paid to the agent. Neither the application nor the policy contained any provision respecting what law was to govern its construction or what was the place where it was to be performed. Held, that the contract was made in Massachusetts and should be construed in accordance with Massachusetts law.</p> <p>Greater strictness is exercised in the construction of contracts than in the construction of wills.</p> <p>A policy of life insurance provided that, if the wife of the insured was not living at the time of his death, the amount of the insurance should be paid to the wife’s “children, for their use, or to their guardian, if under age.” The insured and his wife had three children, one of whom died before the insured, leaving children. The wife died before the insured. The children of the deceased child of the insured claimed the share of the insurance that would have been their parent’s had he survived the insured. Held, that the word “children” in the policy did not include grandchildren, and therefore that the insurance should be divided only between those children of the wife who survived the insured.</p>

<p>Labor. Weaving Fines. Words, "Fine.”</p> <p>In St. 1911, c. 584, providing that “no employer shall impose a fine upon an employee engaged at weaving for imperfections that may arise during the process of weaving,” the word "fine” must be taken to mean merely a penalty, arbitrarily inflicted by the employer upon an employee for an imperfection in weaving without regard to whether the imperfection arose from any fault of the employee, by a deduction from the amount of the wages to which the employee is entitled by his contract of employment, whether that amount has been determined by the value of his work or by a fixed rate of compensation.</p> <p>Where, at the trial of a complaint for an alleged violation of St. 1911, c. 584, which prohibits the imposition by an employer upon an employee engaged at weaving of a “fine” for imperfections that may arise during the process of weaving, it appears that before the alleged offense the employee had been in the employ of the defendant for several months, that there was posted in the room where he worked a "price list for weaving” setting forth the prices to be paid employees for “first quality” and for “second quality” cloth, from which it appeared that for the “second quality” one half as much was paid as for “first quality,” that the employee was working with knowledge of the terms of his employment as set forth in the list and had accepted them, that the work of the employee which gave rise to the commission of the alleged offense was examined by competent inspectors whose fairness was not questioned, and that they found that it was of “second quality” and that the employee was responsible for that condition. The employee thereupon was paid at the rate agreed upon for “second quality ” production, which was the alleged offense. The amount by which the employee’s wages were decreased as the result of the classification of the qualities of the cloth was less than the loss to the defendant resulting from the production of “ second quality” cloth. Held, that the defendant had not imposed a “fine” as prohibited by the statute, and that a verdict should have been ordered for him.</p> <p>St. 1911, c. 584, does not repeal St. 1909, c. 514, §§ 114r-116.</p>

<p>Insurance, Fire. Agency, Scope of authority. Waiver. Practice, Civil, Report. Words, “Facts.”</p> <p>Where the judge who presided at a trial, after the jury under his direction have returned a verdict for the defendant, reports the case to this court and the report states as one question to be determined, whether "upon the facts” the ruling of the judge was correct, the word “facts” will be taken to include not only facts stated in the report as undisputed but also evidence stated in the report as to facts in dispute.</p> <p>Seven policies of fire.insurance of the standard form prescribed by R. L. c. 118, § 60, covering a certain building were tried together and there was evidence tending to show that, a loss having occurred under the policies, the companies within six days thereafter sent persons called “special agents” to the premises for the purpose of agreeing with the insured “upon the amount of loss,” or, failing in that, “to have such amount determined by referees” in accordance with the provisions in the policy. One of such persons, in the presence of the others, in substance stated to the insured that the companies would not require him to make the sworn statement required of him by the policy after a loss, and consequently the insured never rendered the statement. The plaintiff contended that the requirement of the sworn statement was waived. Held, that there was no evidence that the “special agents” had any authority to waive such requirement on behalf of the defendants.</p> <p>Where, after a loss under a fire insurance policy of the standard form prescribed by R. L. c. 118, § 60, the parties fail to agree upon the amount of loss and an agreement of reference under the terms of the policy is signed by them which provides that "neither this submission nor the award of said referees shall in any way affect any other question than the amount of the aforesaid loss or damage, nor waive nor impair any right of any party hereto,” the insurance company by proceeding with the arbitration does not waive the requirement in the policy of a sworn statement signed and sworn to by the insured to be rendered to the company forthwith after the loss setting forth certain details as to the nature and use made of the property insured, the insured’s interest therein, other insurance thereon, and the time and cause of the fire.</p> <p>The owner of a building insured against fire under a policy in the form prescribed by R. L. c. 118, § 60, after a fire causing a loss under the policy failed to render to the company the statement under oath required by the policy. The parties having failed to agree on the amount of the loss, that question was referred to arbitrators under the terms of the policy. The report of the arbitrators was not recognized by the company as vahd. Correspondence then occurred between the attorneys for the parties in which, in reply to a letter from the insured’s attorney demanding payment and threatening suit, the company’s attorney wrote that there had been “No arbitration of the amount of” loss, and that no loss was "as yet payable to [the insured], if any liability exists on the part of” the company, and, in reply to the threat of suit, that the company would “rely upon aE” its “legal rights in the premises.” In a later letter, in response to an inquiry by the insured’s attorney, the company’s attorney merely stated why the referee’s proceedings were not satisfactory to it and suggested a new arbitration, and there was no withdrawal of the language of his previous letter. Held, that there was not in such correspondence any evidence of waiver by the company of the requirement in the poEcy of the sworn statement above described.</p>

<p>Equity Jurisdiction, Fraud, Trust.</p> <p>In a suit in equity by a woman against a promoter of mining schemes to compel the defendant to reassign to the plaintiff a mortgage which he was alleged to have induced the plaintiff by fraud to assign to him, the defendant testified that he took from the plaintiff an assignment of a mortgage for $4,700 to raise for the plaintiff $3,000 to enable her to purchase shares of stock in a mining company which he was promoting, that the defendant borrowed $3,000 from a trust company on an assignment of the mortgage and delivered to the plaintiff the shares of mining stock and that later he took up the loamfrom the trust company by borrowing $3,500 from one S on an assignment of the morgtage. It appeared that the plaintiff had been a dressmaker who had retired from business on account of ill health and was living in three rooms in a tenement house. There was evidence on which it could be found that the defendant visited her at her rooms where he talked to her about the mining company and its prospects, that as the result of one or more interviews he sold her the mining stock at $50 a share, and that the stock was of no value. Held, that on the defendants own statement he held the mortgage as trustee for the plaintiff both as to the loan obtained from the trust company and that obtained from S. Held, also, that the evidence warranted a finding that the defendant obtained the assignment from the plaintiff by deception and fraud, it being a reasonable inference from the facts shown that the plaintiff would not have purchased the mining stock at $50 a share unless she fraudulently had been imposed upon by the defendant’s representations; accordingly that the plaintiff was entitled to a decree requiring the defendant to pay his note for $3,500 to S and to reassign the mortgage to the plaintiff upon the surrender of the mining stock by the plaintiff to the defendant.</p>

<p>Equity Jurisdiction, For an accounting. Attorney at Law. Evidence, Presumptions and burden of proof, Opinion: experts. Equity Pleading and Practice, Exceptions to master’s rulings on evidence.</p> <p>In a suit in equity by a woman against an attorney at law for an accounting, it appeared that the defendant acting as attorney for the plaintiff had brought an action for her against a third person for a sum of money amounting to 86,000 which she believed to be due to her, and that the defendant without the knowledge or consent of the plaintiff caused a judgment for such third person to be entered in such action, in return for which the defendant received personally from such third person an option to purchase certain,real estate for a certain price which was $6,000 less than its market value and afterwards received a conveyance of the real estate for which he paid the price agreed, and that the defendant fraudulently concealed these acts from the plaintiff. Held, that the defendant had been guilty of a breach of trust and had committed a fraud upon the plaintiff, and that the plaintiff was entitled to an accounting for the profits realized by the defendant with interest from the date of the conveyance of the real estate to him; that it was immaterial whether the plaintiff had a good 'cause of action in the action which the defendant had caused to be disposed of for his own benefit; and that the plaintiff had the right to elect whether she would bring a suit to compel a conveyance to her of the property which the defendant had acquired by his breach of trust or the present suit to hold the defendant accountable for the gain which he had made.</p> <p>In a suit in equity for an accounting, against an attorney at law who committed a breach of trust and a fraud upon the plaintiff by receiving personally certain property in return for the surrender of a claim of the plaintiff entrusted to him for collection and the surrender of another claim in which the plaintiff had no interest, if the defendant wishes to show that a part of the consideration for his receipt of the property was the surrender of such other claim, the burden is upon him to show what that part was, and in the absence of evidence upon the subject it will be assumed that the whole of the consideration for the property was the surrender of the claim of the plaintiff.</p> <p>In a suit in equity, in which a material question was the market value of a block of apartment houses in Brookline which had been purchased by the defendant, who was an attorney as law, the defendant at a hearing before a master offered himself as an expert on the question of the market value of the property. It appeared that the defendant besides buying the property in question had bought one other piece of real estate in another part of Brookline, but that he never had acted as an agent in handling real estate or had to do with the buying or selling of store property in Brookline or of vacant land in the vicinity in question or of other apartment house property. The master found that he "was not qualified to testify as an expert and excluded the evidence. Held, that the question whether the defendant was qualified to testify as an expert was a matter to be determined by the master.</p> <p>An exception in a suit in equity to the admission by a master of evidence for the purpose of contradicting the testimony of the excepting party, where the evidence admitted tended only to contradict his testimony upon an immaterial matter and did not prejudice him, should be overruled.</p>

<p>Probate Court, Parties, Exceptions. Witness, Cross-examination. Executor and Administrator. Trust Company.</p> <p>In an appeal from a decree of the Probate Court allowing an instrument as a will, where no order has been made permitting a certain beneficiary to appear and be heard in support of the will, such beneficiary is not a party to the suit, although the record shows an appearance of an attorney at law in his behalf in favor of the petition of the executor; and accordingly the contestants, having summoned such beneficiary as a witness, have not the right to cross-examine him as an adverse party under R. L. c. 175, § 22.</p> <p>A trust company incorporated in 1890, "with all the powers and privileges and subject to all the duties, liabilities and restrictions set forth in all general laws which now are or may hereafter be in force relating to such corporations,” under the express provisions of R. L. c. 116, § 18, may be appointed the executor of a will.</p> <p>At the trial of an appeal from a decree of the Probate Court allowing a will, no exception lies to the refusal of the single justice to make a ruling which calls for a finding of fact that on the evidence before him he is not bound to make.</p>

<p>Will, Undue influence. Undue Influence.</p> <p>Exceptions, taken at the trial of issues in the Superior Court to the refusal of the presiding judge to rule that on all the evidence the execution of a certain will was not procured by the fraud or undue influence of certain persons or any of them, here were overruled on the ground that the questions presented were entirely questions of fact and that the findings were warranted.</p> <p>A finding that the execution of a will was procured by the undue influence of a certain person can be found to be warranted although the will contained no provision for the benefit of such person.</p>

<p>Equity Pleading and Practice, Master’s report. Equity Jurisdiction, To enjoin nuisance. ■</p> <p>In a suit in equity the findings of a master in regard to matters of fact have the weight and effect of the verdict of a jury in an action at law and will not be set aside or reversed unless they are plainly wrong.</p> <p>A suit in equity, to enjoin a nuisance from blasting done by the defendant in the construction of a tunnel for use in connection with water works and to recover damages for injuries to the plaintiff’s house and interference with his enjoyment of it, was referred to a master, who upon conflicting evidence and after taking a view of the house and the immediate locality made findings in accordance with the contentions of the plaintiff and reported the evidence before him at the hearing. A decree was entered for the plaintiff awarding damages as found in the master’s report. The defendant appealed. He did not complain of any error of law and his contentions raised only questions of fact. Held, that on the evidence reported the findings of the master were not plainly wrong, especially when considered in connection with the view that he took and his advantage of seeing the witnesses, but on the contrary were warranted by the evidence.</p>

<p>Pledge. Equity Jurisdiction, To compel marshalling of securities by creditor, To enforce rights of surety. Surety. Contract, Construction. Evidence, Extrinsic affecting writings. Equity Pleading and Practice, Memorandum, Bill, Decree.</p> <p>From a memorandum of a judge who heard a suit in equity involving the question whether the relation between the plaintiff and a partnership was, as to a debt owed to the defendant, one of surety and principal, or one of joint principals, it appeared that a certain contract in writing had been made between the plaintiff and the defendant by which the plaintiff furnished to the defendant security for a debt owed to the defendant by the partnership, and that on its face the contract could have been construed as creating the relationship of joint' principals between the partnership and the plaintiff, but that the plaintiff with the knowledge of the defendant furnished the security solely as an accommodation to the partnership. The judge in the memorandum stated, “I find . . . that the relations of principal and surety did not exist between the plaintiff and” the partnership. Held, that such statement was not a finding of a fact but was a conclusion of law.</p> <p>A partnership furnished to a creditor certain security for the payment of their debt, and a third person, solely as an accommodation to the partnership, which the creditor understood, gave to him additional security and made with him a contract under seal which did not designate the third person as a surety for the partnership and which on its face could be construed as making him jointly bound with the partnership as a principal, in which case the creditor might apply to the payment of the debt the security furnished by such third person before resorting to that furnished by the partnership. Held, that in equity the actual relationship of the parties might be shown by evidence outside the contract in writing, that the creditor was bound by his knowledge that the third person was a surety for the partnership, and that the third person by a suit in equity against the creditor might compel him first to apply toward satisfaction of the debt the securities furnished by the partnership before resorting to those furnished by the plaintiff as an accommodation to them.</p> <p>The allegations of a bill in equity were that the plaintiff, as additional security for a debt owed to the defendant by a partnership of which he was not a member, had given to the defendant his note and a mortgage of certain real estate, that without notice to or consent of the plaintiff the defendant had made a new and different agreement with the partnership as to the payment of the debt, so that the plaintiff had become entitled to a return of the note and mortgage, and that the defendant without consideration had assigned the note and mortgage to one who took them understanding the foregoing facts and who was about to foreclose the mortgage by sale. The prayers of the bill were for the enjoining of the sale, the discharge of the note and mortgage, and for general relief. At a hearing it appeared that the assignee of the mortgage was acting as the defendant’s agent, that the defendant knew that the relationship of surety and principal existed between the plaintiff and the partnership, but that he was proceeding for satisfaction of the debt against the security furnished by the plaintiff before resorting to that furnished by the partnership. It also appeared that the defendant had not made such a new agreement with the partnership as would release the security furnished by the plaintiff. Held, that, although the plaintiff was not entitled to the discharge of the note and mortgage which he sought in his bill, he was entitled under the prayer for general relief to a decree compelling the defendant to marshal the securities and to apply them in satisfaction of the debt in the order in which they were chargeable.</p> <p>The mere fact that a surety has not received any notice of, and has not consented to, an arrangement between the creditor and the principal debtor whereby immediate payment of the debt was not insisted upon at its maturity, payments were made from week to week and the rate of interest was changed from six to fifteen per cent, will not exonerate the surety from liability if there has been no agreement extending the time of payment for any definite period and it does not appear that such arrangement has acted to the surety’s prejudice.</p>

<p>Practice, Civil, Interlocutory order, Exceptions, Auditor’s report, Conduct of trial: requests and rulings, New trial, Mistake of jurors, Verdict, Brief before full court. Jury and Jurors. Contract, Performance and breach, Construction. Agency, Exclusive. Damages, In contract: loss of prospective profits. Evidence, Opinion: experts, Declarations of deceased persons, Photograph. Words, "Best energies.”</p> <p>After a hearing on a motion in an action of contract asking that a report of an auditor be recommitted and certain parts of it be stricken out, a paper entitled an “order” was filed by the justice who heard the motion, which, after detailed comments in four numbered paragraphs as to the parts of the report referred to in the plaintiff’s motion and after statements of rules of law bearing thereon and of what conclusions as to the parts of the report in question would “seem” to follow from such comments and rules, concluded as follows: “The report is recommitted to the auditor to consider further the first four matters mentioned ■above. The auditor may consider further any other matters which he thinks ought to be further considered in connection with these matters or not in connection with them.” In considering exceptions alleged by the defendant “to the rulings in the first four paragraphs of the . . . memorandum,” it was doubted whether the main part of the paper called an “order” was anything more than a “memorandum,” the contents of which would not be subject to exception.</p> <p>.At the trial before an auditor of an action for an alleged breach of a contract in writing which required the plaintiff to do certain things before a certain date, it appeared that ten days before that date the defendant had refused further to be bound by the contract. The auditor refused to admit evidence as to the ability of the plaintiff to perform what was required of him before the date in question, but in his report discussed that question. Held, that such discussion in the report of a question as to which evidence was excluded was improper.</p> <p>Where, in an action for an alleged breach of a contract in writing which required the plaintiff to do certain things before a certain date, it appears that before that date the defendant refused further to be bound by the contract, it is immaterial on the issue of the breach of the contract whether the plaintiff would have been financially able to perform what the contract required of him on the date designated.</p> <p>In recommitting an auditor’s report in an action of contract, it is proper for the court, with regard to a request of the moving party that the auditor be given instructions as to what rule of damages he should follow, to rule that “the time has not come for the court to lay down the rule of law as to the damages which the plaintiff is entitled to recover, if he is entitled to recover.”</p> <p>An auditor to whom an action of contract is referred is not required in his report to make findings of subsidiary facts or a detailed statement of all the contentions of the parties.</p> <p>The denial of a motion for the recommittal of an auditor’s report, where such denial involves no ruling upon a question of law, is within the absolute discretion of the court.</p> <p>In an action of contract where an auditor’s report has been admitted in evidence without objection, in which the auditor upon questions of fact finds for the plaintiff for substantial damages, it cannot be ruled as a matter of law that the plaintiff is entitled only to nominal damages.</p> <p>In June of a certain year a manufacturer of automobiles made an agreement in writing with a dealer whom he appointed his “exclusive agent” for a year beginning the following January 1 for a specified territory, the dealer ordering at once from the manufacturer twenty-five touring cars and agreeing to pay a certain part of the purchase price on or before February 1. Afterwards the parties made , a collateral and subsidiary agreement by which the manufacturer was to furnish a demonstrating car to the dealer and the dealer before January 1 was to give to the manufacturer specifications and make deposits for three cars other than the twenty-five named in the main contract. The demonstrating car furnished by the manufacturer was not such as was contemplated by the parties. The dealer did not give specifications or make deposits for the three extra cars before January 1. On January 21 the manufacturer refused further to be bound by the main contract. In an action by the dealer upon the main contract, it was held, that failure of the dealer to give the specifications and make the deposit before January 1 as to the three cars not included in the main contract did not justify the manufacturer in repudiating the main contract.</p> <p>A manufacturer of automobiles made with a dealer, who he knew maintained a salesroom and a repair shop for the sale and repair of bicycles and motorcycles in Boston, a contract in writing appointing him his “exclusive agent for the sale of ” his “motor cars” in the New England States for a year from a January 1, the contract leaving it to the dealer to conduct the business in his own way, requiring the dealer to maintain “proper salesrooms and repair and storage rooms for the transaction of the business” contemplated by the contract, to carry in stock at all times “at said store one or more new motor cars” of the manufacturer and “such reasonable supplies as may be necessary for replacing parts of motor cars sold by” the dealer “or repairing such ears.” The contract also required the dealer to make an advance payment before February 1 upon the purchase price of twenty-five automobiles of the manufacturer ordered by the dealer contemporaneously with the making of the contract. The only return provided for the dealer was a “commission or discount” on the sale price of motor cars of the manufacturer. The contract also required that the dealer “devote his best energies to the sale of the product of the” manufacturer. Held, that “best energies” meant such efforts as in the exercise of sound judgment would be likely to produce the most profitable results to the manufacturer in view of the nature of the business and the extent of territory over which it was to be conducted. Held, also, that the dealer was not precluded by the contract from making an agreement to act as agent for the sale in the same territory of automobiles of other manufacturers which did not compete with those described in his contract with the first manufacturer, but that he was precluded from making such an agreement as to a car competing with the first manufacturer’s.</p> <p>In determining whether in selling certain motor cars an agent was breaking a contract with a manufacturer which prohibited his selling cars which competed with those of the manufacturer, competing cars here were defined as those so similar in cost, design, size, power, carrying capacity and other characteristics as fairly to leave ordinary and reasonable customers in such doubt in making a choice between them as to permit the skill of a salesman to become a determining factor.</p> <p>A repudiation of a contract of agency by a principal is justified if the agent by a contract with a third person has placed himself under legal obligations inconsistent with those assumed under the pre-existing contract, even though at the time of the repudiation no actual injury has been suffered by the principal and he did not know of the existence of the contract with the third person.</p> <p>By the provisions of a contract between a manufacturer of and a dealer in Automobiles the dealer was appointed the “exclusive agent” for the sale<of the manufacturer’s automobiles in the New England States for a year beginning on a January 1, and was required to devote his “best energies” to the promotion of the sales of such automobiles. Contemporaneously with the making of the contract and as a part thereof the dealer ordered twenty-five automobiles of the manufacturer, and the contract required that before February 1 he should make specified payments on account of, and furnish specifications regarding, such automobiles. On January 21 the manufacturer withdrew from the dealer his authority longer to act as his agent in Boston. Held, that such act of the manufacturer was an instant breach of the contract, and that no further performance by the dealer could be required as a condition precedent to his right to maintain an action against the manufacturer.</p> <p>At the trial of an action against a manufacturer of automobiles for an alleged breach of a contract by which the manufacturer appointed the plaintiff his " exclusive agent” for the sale of his automobiles in the New England States for a year, evidence is admissible tending to show that during the first month of the year at an automobile show in the city of New York which prospective purchasers from New England among others were attending, persons in the employ of the defendant and in charge of his booth at the show solicited residents of New England to purchase automobiles directly from the defendant and not through the plaintiff, stating that the plaintiff no longer was the manufacturer’s New England agent; and, if evidence is introduced tending to show the existence of a custom assented to by the plaintiff whereby at such show other agents than the plaintiff were permitted to make sales in his territory and that such sales were credited to the plaintiff, it is sufficiently favorable to the defendant for the trial judge to leave the weight of such evidence to the jury and to charge them that, in the absence of such a custom, such sales and other conduct by the defendant’s authorized agents would constitute a violation of the defendant’s obligation under the contract.</p> <p>It is too late at the argument before this court of exceptions to the admission at a trial of certain evidence and to a certain portion of the charge to the jury, to urge as a ground for the sustaining of the exceptions that the subject with which the evidence and the portion of the charge in question dealt was not open ’ under the pleadings, if no such ground was urged at the trial.</p> <p>An auditor to whom an action of contract has been referred properly may include in his report statements of the conflicting contentions of the parties on the subject of damages in order to show the wide variation in the evidence and to indicate that his findings, which differ from the contentions of both parties, are not the result of complete credence of the evidence of either side.</p> <p>In an action for a breach of contract loss of prospective profits may be recovered when such loss appears to have been within the contemplation of the parties to the contract as a probable result of a breach, to have been its natural, primary and probable consequence, and to be susceptible of proof by evidence reasonably certain and not resting chiefly on speculation, conjecture or surmise.</p> <p>In an action for a breach of a contract it is not necessary in order that damages resulting from a loss of prospective profits may be recovered, that they should be capable of calculation with mathematical accuracy.</p> <p>In an action against a manufacturer of automobiles for a breach of a contract in writing by which the defendant appointed the plaintiff his “exclusive agent” for the sale of his automobiles in the New England States for a year, it appeared that the contract was repudiated by the defendant in the first month of the year, and the plaintiff claimed as an element of his damages loss of prospective profits. Contemporaneously with the making of the contract and as a part of . it, the plaintiff ordered twenty-five automobiles of the defendant. The only provision of the contract as to the plaintiff’s compensation was that “upon all sales” of the defendant’s cars, “parts of [and] supplies therefor made hereunder to the” plaintiff, “a commission or discount” of twenty per cent from the defendant’s “list prices, as they may be fixed from time to time, shall be allowed” to the plaintiff. Held, that the inference was warranted that loss of profits was likely to follow as a reasonable and probable consequence of a repudiation of the contract by the defendant.</p> <p>A manufacturer of automobiles, who had made a contract in writing with a dealer appointing the dealer his “exclusive agent” for the sale of his automobiles in the New England States during the year beginning January 1, 1903, repudiated the contract on January 21. In an action by the dealer for the breach of the contract, the dealer claimed as an element of his damages loss of prospective profits. The contract provided as the plaintiff’s compensation a certain percentage of the sale price of the defendant’s automobiles. The plaintiff was to pay practically all the expenses of the agency. At the trial, there was evidence tending to show that the business of selling automobiles, although it then was new, was not absolutely uncertain, that the plaintiff was intimately acquainted with that branch of the trade, was an expert mechanic and had a large number of subagents working or ready to work in soliciting orders for him in various parts of his territory, and that the defendant’s automobile had acquired a reputation as a representative car. It appeared that the defendant during the year 1903 had sold thirty-seven cars, and there was definite evidence as to the number of sales made by the plaintiff of another non-competing car after the defendant repudiated the contract and of sales by other persons of other competing cars, as well as what would have been the expense to the plaintiff of conducting the business of the defendant’s agency. Held, that a finding was warranted that as a natural and probable consequence of the breach of the contract the plaintiff had lost prospective profits the amount of which was capable of reasonable ascertainment.</p> <p>A manufacturer of automobiles made a contract in writing appointing a dealer his “exclusive agent” for the sale of his cars in a certain territory for a year. The contract did not prevent the dealer from also acting as agent for cars not competing with the manufacturer’s. The dealer made with a second manufacturer a contract to act as agent for the sale of his cars in the same territory during the same period. The first manufacturer repudiated his contract. At the trial of an action by the dealer for a breach of the first contract, it appeared that the plaintiff continued throughout the year to act as agent for the second car and his profits from that agency were shown. There was evidence tending to show and other evidence tending to disprove that the second ear was a car competing in the market with the first. The defendant contended that as matter of law the profits made by the plaintiff from the sale of the second car should be considered in mitigation of damages. Held, that the contention could not be sustained, because, if the second car was found to be a car competing with the first in the market, there was no breach of the contract by the defendant; and if it was a non-competing car the plaintiff properly might have sold both cars during the same period and in the same territory.</p> <p>A manufacturer made with a dealer a contract in writing appointing the dealer his “exclusive agent” for the sale of his product in a certain territory for a year beginning on a January 1. Contemporaneously with the making of the contract and as a part of it the dealer ordered a certain amount of the product and the contract provided that he should make certain advance payments therefor on or before February 1. The manufacturer repudiated the contract on January 21. In an action by the dealer against the manufacturer for breach of the contract, it was held that, if on January 21 the dealer was in such financial condition that it would have been impossible for him to make the payments on February 1, the plaintiff could not recover substantial damages.</p> <p>Where requests for rulings and instructions submitted to the judge by a party to an action on trial at the close of the evidence are voluminous and numerous, it is not a proper method of saving exceptions to the failure or refusal of the judge to grant some of the requests, for the excepting party at the close of the charge to the jury to ask generally that his exceptions be saved to the refusal of the judge to grant such requests as had not been covered by the charge, without first pointing out the requests for rulings which he contended had not been given.</p> <p>At the trial of an action by a dealer against a manufacturer of automobiles for a breach of a contract appointing the plaintiff the defendant’s “exclusive agent” for the sale of his automobiles for a certain period in a specified territory, it appeared that the contract required that the plaintiff make certain payments on a certain day. The defendant repudiated the contract ten days before that day. At the trial of the case before an auditor the defendant contended that at the time when he repudiated the contract it was evident that the plaintiff would be unable to make the payments when they were due, and a first report of the auditor contained comments on that phase of the case. That report was recommitted to the auditor and such comments were stricken out by him. Thereafter that issue dropped out of the case as a distinct subject for controverted evidence although there was some evidence which, liberally construed for the plaintiff, might be "taken to mean that the plaintiff was able to procure money to meet the obligation when it became due. At the close of the evidence the defendant submitted requests for rulings and instructions, which were very numerous, voluminous and multifarious, and one of which, numbered fifty-three, was that "the burden is upon the plaintiff in order to recover damages to show that” the plaintiff “was able and willing” to make the payments on the date specified. The ruling was not given in the charge. After the charge the defendant’s counsel, without objection on the part of the judge, excepted generally to the failure or refusal of the judge to give such requests as were not given therein. Held, that the defendant’s exception to the refusal or failure by the judge to give the fifty-third request must be overruled since under all the circumstances the error was immaterial.</p> <p>Where an exception to evidence is not taken until after the evidence has been introduced and no motion is made to strike out the evidence, the exception must be overruled although the evidence was inadmissible because of incompetency.</p> <p>A manufacturer of automobiles repudiated in January a contract with a dealer whereby he had appointed the dealer his “exclusive agent” for the sale of his product in a certain territory for a certain year. At the trial of an action by the dealer against the manufacturer for such breach of the contract, there was definite evidence on the question of damages as to the number of automobiles of several makes sold dining the year in question in the territory specified and of many other facts from which a fairly definite inference could have been drawn by the jury as to the number of automobiles the plaintiff would have sold for the defendant during the year of the contract. The defendant offered testimony from several witnesses as to their opinion of the number of automobiles the plaintiff would have sold in that time. The evidence was excluded. Held, that the circumstances were such that the exclusion of expert testimony was justified.</p> <p>An exception to the exclusion of evidence by a trial judge will be overruled if the exclusion was proper for any reason, irrespective of the reason which the trial judge gave for excluding it.</p> <p>Declarations made in good faith and on the personal knowledge of the declarant before the beginning of an action by him are admissible in evidence under R. L. c. 175, § 66, at a trial of the case after the death of the declarant, although before his death he had testified at a previous trial.</p> <p>The plaintiff in an action by an automobile dealer against a manufacturer for a ' breach of a contract by the provisions of which the dealer was appointed the defendant’s “exclusive agent” for the sale of his automobiles in a specified territory for a year, died before the case was tried and the administrator of his estate prosecuted the action in his stead. At the trial it appeared that the defendant repudiated the contract during the first month of the year during which the agency was to continue, and an issue was, how many of the defendant’s automobiles the plaintiff would have been able to sell during the year. As bearing on that issue the trial judge admitted in evidence a photograph of the dealer which, it was testified, was a “very good picture” of him at the time covered by the contract, and the defendant excepted. Held, that the exception must be overruled because, while the discretion of the judge would have been exercised more wisely by the exclusion of the photograph, it could not be said that his admission of it was plainly wrong.</p> <p>A general exception to the admission of certain evidence at a trial will be overruled if the evidence was admissible upon any issue.</p> <p>Where, after very extended testimony by a plaintiff at a trial of an action before an auditor where his testimony was taken down by a stenographer, the plaintiff dies and, at a trial of the ease before a jury each of the counsel for the respective parties thinks that portions of such testimony which the other desires to read are immaterial but they cannot agree as to what portions shall be omitted, it is proper for the presiding judge, in the exercise of his judicial power as to the order of proof and for the purpose of shortening the reading of all of the testimony, to permit each counsel in turn to read such of it as he desires without waiving his right to object to any of that read by the other counsel.</p> <p>Under the rule of law that the conduct, motives or grounds of action of jurors in the jury room are not open to subsequent investigation by examination of the jurors, but that their testimony may be received to show that an error was made in the recording of the result of their deliberations after it was reached, affidavits of all the members of a jury made after their separation, stating that they intended that the answer to a special question submitted to them, which was recorded in the negative, should be in the affirmative, are competent evidence in support of a motion to have the answer to the question set aside; but a sentence added at the end of the foreman’s affidavit in which he stated what question he put to the jury during their deliberations and what their answer was, is not competent. In this ease no objection was made to the incompetent part of the foreman’s affidavit, and, being separable, it was held not to have rendered the entire affidavit inadmissible.</p> <p>Where a jury, in recording their answer to one of several questions submitted to them by the presiding judge, make a clerical error in that they answered the question in the negative, which was favorable to the defendant, instead of in the affirmative, as they intended to, and their general verdict is in favor of the plaintiff, and the error escapes the attention of the judge and of both of the parties at the time the verdict is recorded, a motion by the plaintiff to have that answer set aside may be allowed without the general verdict being affected.</p> <p>Where, at the argument of a motion by a plaintiff to set aside a negative answer of the jury to a special question put to them by the judge on the ground, which was the fourth stated in the motion, that, as shown by affidavits of all the jurors, they had intended to answer the question in the affirmative and the answer recorded was a clerical error, the judge orally stated, “I shall rule that [the affidavits] are admissible, and if admissible, the finding is set aside. . . . The general verdict stands.” The defendant excepted to both such rulings. Subsequently the judge indorsed upon the motion “Motion allowed on the fourth ground, if affidavits are legally admissible. Otherwise motion disallowed.” Thereafter the judge changed the indorsement by striking out the words “if affidavits are legally admissible. Otherwise motion disallowed,” so as to make the statement accord with the original oral ruling. Held, that the indorsement as first made was inoperative as an adjudication on the motion, because it failed to express the unequivocal oral ruling earlier made, and that no error was committed by the judge in correcting the indorsement so that it conformed to the oral ruling.</p> <p>At a trial special questions were submitted to the jury and were answered by them. After the verdict the plaintiff filed a motion that the answer to one of the questions be set aside because through a clerical error it incorrectly recorded the jury’s answer. The defendant filed a bill of exceptions taken at the trial. Pending the allowance of the bill of exceptions there was a hearing on the plaintiff’s motion at which the judge orally ruled that the motion be granted. Later the judge changed his ruling and made an indorsement on the motion which was a conditional ruling and not a final adjudication upon the motion, and then, again changing his mind, before the bill of exceptions was allowed he amended the indorsement to accord with his former oral ruling. Held, that such proceedings did not cause harm to the defendant.</p> <p>If a defendant files a bill containing exceptions to rulings made at a trial and on a motion subsequent to the trial, and subsequently files another bill setting forth exceptions to some of the rulings made after the trial which are contained in the first bill, and the first bill is allowed, the second bill, so far as it relates to matters covered by the first, should be disallowed.</p> <p>Where a party to an action files a bill of exceptions containing two subjects distinguishable without difficulty, of which one improperly is included In the bill and the other properly is included and is truly stated, the bill should be disallowed as to the subject improperly in the bill and allowed as to the other subject.</p> <p>It is improper to include in a brief filed in this court at the argument of exceptions taken at a trial of an action in the Superior Court reference or comment as to the disappearance of letters which, in accordance with a stipulation of the parties, the trial judge has stated to the jury had “been lost, without fault on the part of any person whatsoever;” and if a brief of one party to the action improperly contains such matter, a motion by the other party made at the argument of the exceptions to have such matter stricken from the brief will be granted.</p> <p>At the trial of an action of contract by a dealer against a manufacturer it appeared that the defendant and the plaintiff had made a contract in writing by which the plaintiff was appointed the defendant’s “exclusive agent” for the sale of Ms goods throughout a certain territory for a year, and that the contract did not prevent the plaintiff from becoming selling agent for manufacturers of goods wMch did not compete in the market with goods of the defendant. The plaintiff had made with another manufacturer a contract by wMch he became selling agent for Ms goods in the same territory and during the same period, and one of the questions at issue at the trial was whether the goods of the second manufacturer competed in the market with those of the defendant. There was a long trial resulting in a verdict for the plaintiff for $14,000. The judge erred in chargmg the jury on the subject of the possible effect of the contract with the second manufacturer. In all other respects the trial was without error. In sustaining exceptions of the defendant it was ordered that the new trial should be confined to the single issue, whether the goods of the second manufacturer did or did not compete in the market with those of the defendant, judgment to be entered for the defendant if it was found that they did, and judgment to be entered on the previous verdict for the plaintiff, if it was found that they did not.</p>

<p>Negligence, In use of highway, In use of automobile, Causing death. Law of the Road. Joint Tortfeasors. Practice, Civil, Parties, Exceptions, New trial.</p> <p>At the trial together of three actions, one under R. L. c. 171, § 2, as amended by St. 1907, c. 375, against the two owners of two automobiles by the administrator of the estate of a boy who was run into and killed by one of them, and the other two by a boy companion of the intestate of the first plaintiff against the respective owners of the two automobiles, there was evidence that before the accident the boys had been walking upon the extreme right of the travelled part of a highway, that a buggy drawn by a horse was between them and the left hand side of the street and a little in advance of them, when there was sounded the horn of the automobile of one of the defendants which was approaching at high speed from behind and was followed closely by the automobile of the other defendant, that the two automobiles had been racing for some distance and that the driver of the second had been taking no precautions to see whether other travellers were using the way, that the leading automobile at first bore directly down upon the boys and then swerved quickly to the right, passing them, that the boys meantime had become confused by the action of the first automobile and had sprung toward the middle of the highway where they were Struck and knocked down and one of them was killed by the second automobile. Held,, that there was evidence of negligence of the drivers of both automobiles which concurred to cause the injury of one boy and the death of the other; and that it could not be ruled that the law of the road, R. L. c. 54, § 2, relating to a vehicle passing another vehicle from the rear, had no application to the case.</p> <p>While a separate action may be maintained by an executor or administrator under R. L. c. 171, § 2, as amended by St. 1907, c. 375, against each of several persons whose negligent acts, otherwise disconnected, concurred to cause the death of the plaintiff’s decedent, a single action against the several persons so negligent cannot be maintained.</p> <p>An administrator in a single action under R. L. c. 171, § 2, as amended by St. 1907, c. 375, improperly joined two defendants whose negligence concurred to cause the death of the plaintiffs’s intestate. At the trial of the action the presiding judge wrongly refused to rule that the defendants were improperly joined, and there was a verdict for the plaintiff. In sustaining exceptions by the defendants, it was ordered that the plaintiff might apply for leave to amend by discontinuing the action against one of the defendants, and, upon a discontinuance being granted, that the new trial should be confined to the question of damages.</p>

<p>Tort for personal injuries received by the plaintiff while in the employ of the defendants at the Hotel Bristol in Boston and caused by a hydraulic passenger elevator starting up while the plaintiff was on its top assisting in repairing it. Writ dated August 1, 1904.</p> <p>In the Superior Court the case first was tried before Bond, J. A verdict was returned for the plaintiff and exceptions of the defendants were sustained, as reported in 204 Mass. 323.</p> <p>There was a second trial before Morton, J., at which there was evidence tending to show that because the plaintiff, whose duties were to operate elevators, to report to the defendants’ engineer if the elevators became out of order and to do anything the engineer asked him to do, had reported to the engineer that the elevator car in question had been stopping improperly between floors, the engineer went on top of the car and undertook to repair it and asked the plaintiff to come up to hold the “dog” on the shipper rope while he made a screw tight. The dog was intended to operate to lift the shipper rope automatically at the terminal floors of the building, the lifting of the shipper rope in turn operating on the water valves and stopping the elevator. As the plaintiff was complying with the engineer’s request, the elevator, without either of them having touched the shipper rope, shot up. The plaintiff seized the shipper rope and pulled upon it and it moved, but the elevator did not stop rising and he was injured.</p> <p>An expert testified for the plaintiff in direct examination in part as follows: “Q. Assuming that the . . . elevator such as has been described here . . . starts up without the shipper rope being used, whether or not in your opinion the starting is caused by means of some part of the machinery of the elevator connected with the dog? A. Nothing to do with the dog.</p> <p>“Q. Assume that . . . [such an] elevator is at rest and then starts up without the shipper rope being moved, and then in attempting to stop the elevator which is going up, the shipper rope is pulled and moved up, but the elevator fails to stop, whether or not in your opinion the failure to stop is caused by means of some part of the machinery of the elevator connected with the dogs? A. Nothing to do with the dog.”</p> <p>In cross-examination he testified as follows: “Q. If the valve was leaking and the dog was loose the car might continue to creep up? A. It would independent of the dog, whether the dog were there or not. — Q. But if the dog were there it would still continue? A. Yes, sir, it would still continue. — Q. It would go slower if the dog was tight? A. It would reverse itself if the dog were there. — Q. If the dog was loose it would still continue? A. Yes, sir. . . .</p> <p>“ Q. Suppose the dog was tight there, suppose the valve was leaking and the dog was tight, what would the effect be? A. The elevator would reverse itself.—Q. And go down? A. And go down.”</p> <p>Other facts are stated in the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendants and reported the case for determination by this court.</p>

<p>Bill in equity, filed in the Superior Court on August 22,1911, and on motion of the defendant Dillaway removed to the Supreme Judicial Court on October 23,1911, against William E. L. Dillaway and the American Pneumatic Service Company (hereinafter called the American Company), alleging in substance that the plaintiff, the defendant Dillaway and one Arthur S. Temple, deceased, who previous to June, 1907, were in the control of the defendant corporation, were ousted from control in June, 1907, and that thereafter they, as associates, organized a competing company called the United Store Service and Tube Company (hereinafter called the United Company), and carried on business until the winter of 1909 in competition with the defendant corporation; that in the winter of 1909 the defendant corporation entered into negotiations which finally resulted in the purchase of all the property and rights of the United Company, and in an agreement between the defendant corporation and Dillaway, Fordyce and Temple that they should cease competing with it; that these negotiations were carried on for the three associates by Dillaway as agent and trustee for himself and them; that at the time of such adjustment it was understood and agreed that all the consideration paid and to be paid by the defendant corporation should be delivered and paid to the defendant Dillaway as agent and trustee for himself and associates, including the plaintiff; that “after the delivery of certain property and payment of certain sums of money to employees and certain persons who had rendered services for the United Company enterprise, it was the agreement and understanding” that the defendant Dillaway should divide the stocks, bonds, and cash received and to be received as a result of settlement between himself and the plaintiff and Temple in" certain agreed proportions, different as to the stocks and bonds, but as to the cash three fifths to Dillaway, one fifth to Temple, and one fifth to the plaintiff, that the defendant Dillaway properly accounted for the bonds, but not for the stock; that about the close of the negotiations with the defendant corporation Dillaway informed the plaintiff and Temple, that because of certain legal reasons, in no way affecting their rights, the cash payment of $110,000 would come in instalments and would take the form of payment for personal or professional services to be rendered by him to the defendant corporation, but that he would receive it as trustee and pay over to each of them one fifth as he should receive it, $25,000 a year for the first two years and $20,000 for the next three years; that from time to time as partial distributions were made, the defendant Dillaway falsely represented that he had made payments to other persons of sums alleged to be due them, but not in fact due or paid to such persons, making said alleged payments an excuse for the retention by Dillaway of sums distributable one fifth to the plaintiff; that partial payments were received by the plaintiff during the first two years, and that on June 1, 1911, Dillaway refused to make any payment to the plaintiff out of the sum of $5,000 then received by him from the defendant corporation; that the plaintiff frequently had requested of the defendant Dillaway a full and complete accounting of the stock received by him and of all the money received by him from time to time, but that that defendant had neglected and refused to make such an accounting. The prayers of the bill were “ (1) that the defendant Dillaway, as trustee for himself and associates, may be ordered to account for all stock received from the defendant corporation and all cash paid tohimsince February 1, 1909, whatever the nominal consideration for which such transfer and payment, or either of them may have been made by the defendant corporation to the defendant Dillaway;” (2) that the defendant corporation be enjoined from making further payments to Dillaway on account pf the settlement, and (3) for general relief.</p> <p>The case was heard by DeCourcy, J., a commissioner having been appointed to take the evidence. The single justice filed the following memorandum of his decision:</p> <p>“The main issue of fact in this case is whether the quarterly payments of $1,125 from the defendant to the plaintiff were merely gifts, as claimed by the defendant, or were moneys due to the plaintiff in connection with the sale of the United Store Service and Tube Company to the American Pneumatic Service Company. On all the evidence I am satisfied that the latter is the fact. The consideration of the sale included cash, in which the plaintiff and Mr. Temple (since deceased) were to share. The defendant, who carried on the negotiations for the United Company, embodied the money consideration in the form of, or at least in connection with, a contract for his personal services, which secured the American Company from the competition of the defendant, the plaintiff, and Temple. His financial interest, experience, and relations with the plaintiff enabled him to dictate the form of the written agreements. Four thousand dollars of the annual $25,000 was to go to the plaintiff; and on Temple’s death $500 was added from Temple’s share.</p> <p>“I am satisfied that the plaintiff asked for and expected a written agreement from the defendant, and that he would have secured it if he were in a more independent position or of more aggressive disposition.</p> <p>“It is true that many of the exhibits seem inconsistent with this conclusion. But one was prepared to protect the plaintiff’s share from attaching creditors; and many of them were not known to the plaintiff or were prepared at the defendant’s dictation.</p> <p>“I am satisfied that the plaintiff has received all that was due to him before June 1, 1911. The defendant has paid to the plaintiff the stock and bonds to which he was entitled, and the plaintiff has not shown that he is entitled to an accounting.</p> <p>“Decree ordering the defendant Dillaway to pay to the plaintiff his quarterly share. As to the American Pneumatic Service Company, bill dismissed.”</p> <p>Later the single justice filed the following memorandum:</p> <p>“Since filing the memorandum of decision in which is stated my finding that the $4,500 a year paid by the defendant Dillaway to the plaintiff for the two years beginning March 1, 1909, was a payment of money due and not merely a series of gifts, counsel have submitted a stenographic report of the testimony and argued at length as to the amount of the share payable to the plaintiff.</p> <p>“I am satisfied that originally the plaintiff was to receive one fifth of the so-called ‘salary,’ viz., $5,000 a year for the first two years and $4,000 a year for the last three years. The $5,000 sum was later changed to $4,000, and upon the death of Mr. Temple (but relating back to March 1,1909) to $4,500; and this last amount was paid or credited to the plaintiff and accepted by him without objection, in quarterly payments, during the two years.</p> <p>“The evidence, unaided by conjecture, does not make clear the reason which induced the plaintiff to assent to this reduction from the $5,000 originally agreed upon. It may have been due, as contended by his counsel, to a statement made by the defendant that $3,000 a year was to go to one Maston, and that the plaintiff must contribute a portion of his share for that purpose.</p> <p>“The influence of the plaintiff’s testimony supporting this contention is weakened by his subsequent conduct, such as his failure to mention the Maston claim to Mrs. Temple. But, assuming that his testimony as to the Maston claim is true, in view of his failure to investigate this alleged claim for two years while his friendly relations to the defendant afforded ample opportunity, I am not satisfied that this was the inducing cause of his accepting the lesser amount. Under the circumstances disclosed his agreement to accept $4,500 a year for the first two years should not be set aside at this late day.</p> <p>“For the last three years the plaintiff is to receive $4,000 a year out of the defendant’s salary from the American Pneumatic Service Company, unless he has assented to a modification of the original agreement. I do not find that he ever agreed to any reduction from that amount. There is evidence which indicates that the defendant intended to pay the plaintiff only $3,000 a year during the last three years, and that the plaintiff had notice of such intention, yet took no action thereon. But this conduct of the plaintiff may be accounted for, in my opinion, by the facts that he had no-written evidence of his claim; that his only corroborating witness, Temple, was dead; that in order to shield himself from creditors he had signed papers that left him apparently in the hands of the defendant, and that throughout he had expected the defendant to pay him the amount agreed.”</p> <p>A final decree was entered in substance as follows:</p> <p>" (1) That the contract between the defendant Dillaway and the American Pneumatic Service Company . . . was duly executed by the parties thereto and is now outstanding and in force. . . .</p> <p>“ (2) That by virtue of an oral agreement and understanding entered into between the plaintiff and the defendant Dillaway at or shortly after the execution of said contract . . . the defendant Dillaway agreed that out of the sums payable to him from the defendant American Pneumatic Service Company under said contract the sum of $4,500 a year for two years and $4,000 a year for the next three years, should be received by him in trust and forthwith paid over in equal quarterly instalments to the plaintiff.</p> <p>“ (3) That the defendant Dillaway has neglected and refused to pay from the sums received by him from the \said American Pneumatic Service Company” sums amounting to $3,000, for which and for interest and costs an execution against Dillaway was ordered; that the defendant Dillaway, so long as there is no breach by said Fordyce of the agreement between the plaintiff, the defendant Dillaway and Temple, previously described, “ shall forthwith pay over to the plaintiff Fordyce, quarterly, said sums of $1,000 as and when payments accruing to the defendant Dillaway under said contract with the defendant American Pneumatic Service Company shall hereafter be made by said American Pneumatic Service Company to the said Dillaway.”</p> <p>As to the defendant corporation the bill was dismissed.</p> <p>Both the plaintiff and the defendant Dillaway appealed.</p>

<p>Marriage and Divorce. Domicil. Conflict of Laws. Evidence, Of intention.</p> <p>At the trial of a libel to annul a marriage between the libellant and the libellee in. this Commonwealth on the ground that the libellee had a former wife living, it appeared that the libellee was a Christian domiciled in Turkey and there had married a wife who was a Christian, that thereafter the libellee had come to this country intending to return to his domicil in Turkey, and had changed that intention only when he learned that his former wife, who had remained in Turkey, had married a Mohammedan and had adopted the Mohammedan religion, and that after this he married the libellant. It was found by the trial judge that by the law of Turkey when a wife changes from the Christian to the Mohammedan religion and marries a Mohammedan her previous marriage becomes null and void. Held, that, Turkey having been the domicil of the libellee as well as that of his former wife at the time of an event which under the law of that country dissolved their marriage, and' such law being in its essence not contrary to the moral sense of civilized nations nor inconsistent with our policy, the dissolution of the marriage would be recognized by our courts, and that accordingly the libellee was not under a disability at the time of his marriage with the libellant.</p> <p>A person whose domicil at a certain time is in issue may testify as to his intention at that time.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on March 15, 1911, and amended on May 23, 1911, under R. L. c. 141, § 10, against the executrix of the will of William H. Lyon.</p> <p>The amended bill alleged that William H. Lyon, the defendant’s testator, was appointed and confirmed as a constable of the city of Boston to hold office for one year from May 1, 1908, and after-wards gave bond as constable, which bond was approved on June 5, 1908, on which bond the American Surety Company of New York was surety; that on September 19, 1908, Lyon as constable made an attachment of personal property belonging to the plaintiffs by virtue of a writ issued from the Municipal Court of the City of Boston, which was dated September 17, 1908, and was returnable on September 26, 1908, and in which one Capillo was plaintiff, and that afterwards, on the same day, the plaintiffs deposited with Lyon, as constable, the sum of $200 which was the amount of the ad damnum of the writ and which Lyon held in place of the property attached, as provided in R. L. c. 167, § 124; that Lyon died on December 26, 1908, and that the defendant was appointed executrix of his will; that she gave her bond as executrix on February 25, 1909, and that notice of her appointment as executrix was duly published; that on February 17, 1911, the action of Capillo against the plaintiffs was settled by agreement of the parties and on that day an entry in that action was made of “Neither Party;” that on the same day demand was made upon the defendant for the return of the $200 deposited with Lyon and that the defendant referred the plaintiffs to her counsel and also to the American Surety Company, which was the surety on Lyon’s bond as constable; that the plaintiffs through their .agent saw the American Surety Company, and that the surety company took the matter under consideration, and did not report on the p matter until after February 25, 1911, at which time they refused to pay the claim until judgment first had been obtained against the estate of Lyon.</p> <p>The bill prayed for a judgment for the sum of $200 against the defendant..</p> <p>The defendant demurred to the amended bill. The demurrer was overruled by Morton, J., who made a memorandum of decision as follows:</p> <p>“The plaintiff was not in a position to make a demand on the estate for a return of the money till February 17, 1911, according to the allegations of the bill, and demand was made on that day on the executrix, and she referred the plaintiff to her counsel and also to the surety company. The surety company took the matter under consideration but did not communicate with the plaintiff till after February 25th when they refused to pay the demand. Under the circumstances it does not seem to me that the plaintiffs have been guilty of culpable neglect. Demurrer overruled.”</p> <p>Later the case was heard upon the merits by Morton, J., and the plaintiffs presented evidence in support of the allegations of the bill. The defendant’s answer alleged that on October 11, 1909, the estate of Lyon was represented to be insolvent and that commissioners were appointed by the Probate Court to receive and examine claims against the estate.</p> <p>The defendant offered in evidence a certified copy of the representation of insolvency of the estate of Lyon and the decree thereon, from which it appeared that the estate was represented insolvent and that commissioners to receive and examine claims against the estate were appointed by the Probate Court for the county of Middlesex on October 11, 1909. The admission of this certified copy was objected to by the plaintiffs solely on the ground that it was immaterial. The justice admitted it de bene.</p> <p>The justice found that the plaintiffs were not guilty of culpable neglect in not prosecuting the action within two years and that justice and equity required that they should have judgment against the estate for the amount claimed. He ordered a decree for the plaintiffs, and at the request of the defendant reported the case for determination by the full court.</p> <p>If the overruling of the demurrer was correct and if the finding in favor of the plaintiffs was justified upon the evidence, a decree was to be entered for the plaintiffs for the amount claimed with costs. If the overruling of the demurrer was incorrect, or if the finding in favor of the plaintiffs was not justified upon the evidence, the bill was to be dismissed with costs.</p>

<p>Petition, filed in the Land Court on July 28, 1910, to register the title to two parcels of land situated on opposite corners of Waverly Street and Putnam Avenue in Cambridge.</p> <p>In the Land Court the case was heard by Clark, J. The controversy related to a strip of land sixteen and twenty-five one hundredths feet wide at the end of one of the parcels of land where such parcel adjoined the location of the Grand Junction Branch of the respondent’s railroad. The respondent had no deed of the strip and admitted that the fee was in the petitioners subject to the easement for railroad purposes claimed by the respondent. The respondent claimed as successor of the Boston and Worcester Railroad Corporation. It contended that the easement extended to a line forty-one and twenty-five one hundredths feet from the centre line of its railroad location, while the petitioners contended that the easement extended only to a line twenty-five feet from such centre line.</p> <p>The judge found that the respondent had become entitled to use the strip for railroad purposes, but found that the Boston and Worcester Railroad Corporation and the respondent had abandoned the strip.</p> <p>The judge, subject to exceptions by the respondent, admitted evidence of the following matters: (1) Of the payment of taxes by the petitioners and their predecessors in title on the strip in dispute from 1855 to date; (2) that no petition for damages had been filed with the county commissioners for the taking of this land; (3) that an old fence had existed about on the twenty-five foot line from 1858 or earlier until about 1901; (4) that this fence was a continuation of an old fence extending in either direction for some distance beyond the petitioners’ land; (5) that in 1901 the petitioners built a shed close to the old fine of the fence and that it stood there for about six years, although used only for a little over a year; (6) that before 1901 the petitioners had used this lot for an orchard and a garden; (7) that the city engineer’s plans showed that the railroad location was fifty feet wide at this point [that is twenty-five feet from the centre fine].</p> <p>The testimony in regard to the city engineer’s plans was given by one Davis, called as a witness by the plaintiffs, who testified that he was employed in the office of the city engineer of Cambridge. It did not appear that the plans were offered in evidence.</p> <p>The rulings requested by the respondent, besides those referred to in the opinion as having been made immaterial by the findings of the judge, were as follows:</p> <p>“ 6. There is no evidence of abandonment of this right by the Boston and Worcester Railroad Corporation.</p> <p>“7. Non-use of any part of said location by the Boston and Worcester Railroad Corporation or the respondent is no evidence of abandonment.</p> <p>“8. Under St. 1861, c. 100, now St. 1906, c. 463, Part II, § 80, no length of possession or occupancy of the respondent’s location by the petitioners creates in them any right to such location of said respondent.”</p> <p>“12. Upon the whole case the burden of proof is upon the petitioners.”</p> <p>The judge made the ruling numbered 12 and refused to make the rulings numbered 6, 7 and 8. He ordered a decree for a registratian of the petitioners’ title free from any easement of the respondent; and the respondent alleged exceptions.</p>

<p>Sale, By sample. Contract, Performance and breach, Consideration. Waiver.</p> <p>In a contract of sale by sample there is an implied warranty that the goods shall correspond with the sample in quality, and if the goods shipped under such a contract are of a quality inferior to the sample the buyer either may refuse to receive them or may retain them and recover damages.</p> <p>Where there is a contract of sale by sample of cotton sweepings to be shipped in bags, the fact that the buyer had an opportunity for inspection before the bags were shipped to the consignee and that he made an examination of certain bags and rejected such portions as he observed to be defective, does not necessarily deprive 'him of the right to claim damages if on delivery to the consignee the cotton sweepings are found to be of a quality inferior to the sample, and it is a question of fact whether the buyer waived the implied warranty and accepted the contents of the bags as being in accordance with the contract.</p> <p>The relinquishment of a claim for damages for the breach of a contract of sale by sample by the delivery of goods of inferior quality is a good consideration for a promise of the seller to indemnify the buyer for any loss suffered by him in selling the goods.</p>

<p>Landlord and Tenant, Eviction. Emdence, Best and secondary.</p> <p>In an action on a covenant in a lease for the rent of a suite of rooms in an apartment house, the defense relied upon was an alleged eviction. By the terms of the lease the plaintiff covenanted to light and keep clean the common stairs of the building and to supply elevator service. There was evidence that the elevator was not run regularly and that frequently the defendant and his family were compelled to use the stairway, that the plaintiff failed to light the common stairs and the corridor through which the defendant and his family were obliged to walk and that this source of danger was aggravated and a nuisance created by the presence of garbage carelessly scattered on the floor of the corridor by the janitor and permitted to remain there for days, that the plaintiff persisted in thus maintaining the portions of the building under his control after notice that such maintenance would result in the departure of the defendant, and that thereupon the defendant abandoned possession of the suite. Held, that it could not be said as matter of law that there was no evidence on which the jury under proper instructions might find that the defendant was justified in treating the condition of the premises and the manner of their maintenance as an eviction.</p> <p>It is proper to admit in evidence a copy of a material letter written to a party in an action of contract, where there is evidence that the letter was mailed and that the party to whom it was addressed received and credited a check which was enclosed in the letter.</p>

<p>Dense and Legacy, Residuary clause.</p> <p>A will contained the following clause: “Whereas I wish to distribute my . . . personal effects among my friends but am not now ready to indicate what that distribution shall be, I therefore hereby declare that I intend to indicate such distribution by a letter to accompany this my last will which I wish to be taken and treated as a part of my said will.” It did not appear that any such letter ever was written. The will contained a general residuary clause. Held, that the testator’s personal effects, left undisposed of under the clause above quoted, were to be distributed in accordance with the residuary clause of the will, since there did not appear in the will an [intention that in no event should they so pass.</p>

<p>Contract, by the collector of taxes of the town of Milton to recover the amount of a tax assessed upon real estate and personal property of the defendant for the year 1906. Writ dated December 9,1907.</p> <p>The defendant admitted her liability to pay the tax upon her real estate.</p> <p>The case was heard by Fessenden, J., without a jury. The evidence relating to the decision of the board of appeal, referred to in the opinion, was a record of an appeal by the town of Milton from a decision of the tax commissioner giving to the town of Webster the corporation tax on certain shares of the stock of Massachusetts railroad corporations owned by the defendant on May 1, 1906. The board’s decision affirmed that of the tax commissioner. The trial judge admitted the evidence and ruled that it was not conclusive; and the defendant excepted.</p> <p>The defendant’s husband died on August 12,1899. The improvements on the Milton estate mentioned in the opinion began in 1902. Other facts are stated in the opinion.</p> <p>The judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Homicide, Insanity as a defence. Insane Person. Superior Court. Jury and Jurors. Practice, Criminal, Commitment of defendant to hospital for insane for observation, Examination of jurors in capital case, Argument of counsel. Evidence, Relevancy and materiality, Admissions and confessions, Opinion: experts, Absence of witness, Presumptions and burden of proof. Husband and Wife.</p> <p>St. 1909, c. 504, § 103, provides that if a defendant in a criminal case is, at or ibefore the time appointed for trial, "found by the court to be insane or in such mental condition that bis commitment to a hospital for the insane is necessary for” his “proper care or observation . . . pending the determination of his insanity, the court may commit him to a State hospital for the insane under such limitations as it may order,” and that, if in the opinion of the trustees and superintendent of the hospital he is restored to sanity, he forthwith shall be restored to the jail from which he was removed, there to be held in accordance with the terms of the process by which he was originally committed. Held, that the statute does not delegate solely to such trustees and superintendent the determination of the question, whether such defendant shall remain longer at the hospital.</p> <p>Where under St. 1909, c. 504, § 103, a defendant who has pleaded not guilty to the charge of murder is committed to a State hospital for the insane for observation "until the further order of court,” monthly reports to be made to the court by the hospital authorities, the court upon its own motion may order him returned to the jail from which he was transferred .and determine for itself the question of his insanity upon the reports made by the hospital authorities or upon any other competent evidence. Such action of the court would not be a violation of the Fourteenth Amendment to the Constitution of the United States.</p> <p>After a defendant in an indictment for murder returned in Hampden County had been committed to a State hospital for the insane in Plymouth County under St. 1909, c. 504, § 103, for observation as to -his sanity “until the further order of court” and had been under observation there for ten months, the Chief Justice of the Superior Court wrote a letter, which did not bear the seal of the court, to the sheriff of Hampden County directing him to “cause” the defendant “to be removed therefrom to the jail at Springfield” to be held there subject to the process by which he was committed to that jail originally, and the defendant was removed to Springfield accordingly. Three months and a half later, on the day assigned for the trial of the case, the defendant moved that he be committed to the State hospital for the insane on the ground that he had not been returned therefrom legally. In denying the motion on the ground that the court under the statute had power to make the order remanding the defendant to jail, it also was held, that the informal character of the order in this case was immaterial.</p> <p>The defendant in an indictment for murder, who relied upon a defense of insanity, asked the presiding judge before the empanelling of the jury to make specific inquiries of each proposed juror as to whether he believed in punishing crime if it was committed by an insane person, whether he believed that insane or degenerate persons should be put .to death and whether he would acquit the defendant if he believed him to have been insane when he committed the crime. The judge refused the request of the defendant and asked each proposed juror the questions specified in R. L. c. 176, § 28, after having explained carefully to all of the panel the meaning of those questions. It did not appear that there was any reason to fear that any juror would ignore the defense of insanity and there was no evidence with reference to any of the proposed jurors. Held, that the matter of putting such questions was within the judge’s discretion, and that he exercised his discretion wisely.</p> <p>At the trial of an indictment for murder an eyewitness of the crime, who is testifying as to events immediately preceding it and has stated that she was at her home and was engaged with the deceased in solving a picture puzzle when the clock struck eight, may be allowed to state that when the clock struck the deceased made a remark, if there is further evidence that at that very time the defendant was in the house and that the murder was committed very shortly thereafter.</p> <p>At the trial of an indictment for murder where the defense is insanity evidence is admissible which tends to show that, on the way to jail after his arrest the defendant said to the chief of police of the city where he lived, “Do with me what you wish. Send me to Siberia or wherever you see fit for life, but don’t send me to the electric chair;” and that, after he had inquired of a member of the State police whether he had “ got to go to the chair,” and had been asked in return what he would want done with a man who had shot Ms mother or sister, he replied, “I would want them to go to the chair. Oh, my poor wife!” such evidence having a bearmg on the question of the defendant’s samty and also being in the nature of a confession.</p> <p>While the rule, that, upon the issue of sanity, a witness having no peculiar skill or personal experience can testify only to facts withm Ms knowledge from wMch a condition of mind of a certain person may be inferred and is not permitted to state whether in Ms opimon, although that opimon is derived from personal observation, such person is or is not rnsane at a certam time, is relaxed when the witness is an attending or family physician, it is the duty of the trial judge to decide in the first instance upon the qualifications as an attendmg or family physician of a witness offered as such to give an opimon as to a person’s sanity, and Ms decision upon that question is largely a matter of discretion and is conclusive unless from the evidence it appears erroneous in law.</p> <p>At the trial of an indictment for murder where the defense is msamty and where much evidence has been introduced by the defendant bearing upon Ms physical condition from early boyhood, a physician, whose opimon, offered by the defendant on the question of Ms msamty, has been excluded on the ground that he was not a person peculiarly skilled on questions of msamty or an attending or family physician of the defendant, and who, it appears, had exammed the defendant in Ms boyhood as a candidate for a school as to Ms physical condition at that time, may be asked m cross-examination whether or not in a certificate as to such examination he had not answered in the negative the question, “Is the applicant suffering from any disease of the nervous system (chorea, epilepsy, etc.),” and to state that he had so answered and that the answer was true.</p> <p>At-the trial of an indictment for murder where the defense is insanity, persons who are neither physicians nor alienists should not be permitted to testify as to how certain actions of the defendant which they had observed compared with actions of insane persons whom they had seen.</p> <p>Under R. L. c. 175, § 20, cl. 2, a wife cannot be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against her husband, but the privilege of not testifying is hers and is to be asserted by her only, and if the defendant fails to call her to testify on a matter material to his defense of which she has knowledge, and does not explain his failure to do so, such failure is a proper subject for comment adverse to him in the closing argument for the Commonwealth.</p> <p>Where at the trial of an indictment for murder the wife of the defendant might have testified as to certain material facts and the defendant did not call her as a witness and offered no explanation of his failure to do so, it is proper for the presiding judge to refuse to rule that “the wife of the defendant is privileged by law from testifying if she desires, and consequently no inference is to be drawn against the defendant because she did not testify, but chose to avail herself of that privilege,” because it does not appear that the wife chose to avail herself of her privilege.</p> <p>At the trial of ari indictment for murder where the defendant contends and has introduced evidence tending to show that he was insane when he committed the murder, the jury, in determining whether the Commonwealth has sustained the burden of proving beyond a reasonable doubt that at that time the defendant was sane, should consider, with all the other evidence, the presumption of fact that he was sane at the time.</p>

<p>Devise and Legacy, Rights of adopted child. Adoption.</p> <p>Under a will which contains certain bequests to a son of the testator and makes no mention of a child or issue of the son, an adopted child of the son takes nothing if the son dies before the testator.</p>

<p>Seaman. Agency, Existence of relation. Contract, Implied in law. Practice, Civil, Exceptions, Parties, New trial.</p> <p>At the trial of an action by a seaman against the owner of a vessel for wages, it appeared that the plaintiff was hired by the master of the ship and the master testified that he orally hired the vessel from the owner. The terms of the hiring of the vessel were not offered in evidence and the owner did not testify. The jury found for the plaintiff and the defendant alleged exceptions. The bill of exceptions contained no part of the charge to the jury. Held, that, since if the master had hired the vessel he could not have been found to have had authority as agent to bind the owner in engaging the plaintiff and presumably the jury were so instructed, their finding for the plaintiff must have meant that they found that there was no hiring of the vessel by the master.</p> <p>A seaman who was hired by the master of an unchartered vessel may maintain an action for his wages against either the owner or the master; but he cannot maintain an action against both of them, because the liability of the owner is based upon an implied authority of the master to contract on his behalf, and the bringing of an action against the master is an election to treat him and not the owner as the principal.</p> <p>If the master of an unchartered ship, in making an express contract of hire with a seaman for a voyage from Boston, represents that he is going to take the seaman on a voyage to Maine, and instead takes him without his consent on a voyage to the South, such deviation from the voyage agreed upon puts an end to the express contract and entitles the seaman to recover his wages from either the owner or the master on a quantum meruit.</p> <p>If the master of an unchartered ship makes an express contract of hire with a seaman for a fishing trip to the coast of Maine and then without the consent of the seaman takes him on a voyage to the South for an illegal purpose of which the seaman did not know and in which he did not participate, the seaman can recover for his services either from the master or from the owner of the ship on a quantum meruit.</p> <p>At the trial of an action by a seaman for his wages the plaintiff improperly joined as defendants both the master and the owner of the ship. There was evidence warranting a verdict against either of the defendants. The defendants did not ask' the judge to rule that both of them could not be held liable. There was a verdict for the plaintiff against both defendants. In sustaining exceptions by the defendants, the plaintiff was given an opportunity with leave of the Superior Court to discontinue against one of the defendants, in which case the exceptions were to be overruled.</p>

<p>Insurance. Conflict of Laws. Statute, Construction. Set-off. Damages, Recoupment.</p> <p>Where a street railway corporation incorporated and doing business in this Commonwealth, desiring to procure insurance against liability for accidents, signs a printed form of application and mails it to the home office of an insurance company, organized and doing business in another State, and there the application is accepted and a policy payable at the home office is signed and issued and is deposited in the mail addressed to the railway corporation, the contract of insurance is made and to be performed in the home State of the insurance company, and is not illegal because that company has not complied with the requirements of our statutes in regard to foreign insurance companies doing business in this Commonwealth. And it seems that the contract is none the less made in such other State, if the secretary of the foreign insurance company,' when temporarily in this Commonwealth, without any intention to do insurance business here, solicits and receives the application for such insurance and takes it to the home office of the insurance company where it is acted on.</p> <p>The provision of St. 1894, c. 522, § 3, now contained in St. 1907, c. 576, § 3, that “all contracts of insurance on property, lives or interests in this Commonwealth shall be deemed to be made therein,” is not to be interpreted as attempting to regulate or prohibit contracts made in other jurisdictions or to deprive a citizen of this Commonwealth of the right to protect himself from loss through a contract of insurance made in another State.</p> <p>An action of contract for the collection of assessments imposed by an order of a court of another State on the holders of policies in an insolvent mutual insurance corporation organized under the laws of that State, under» a provision in the policies which would not be valid in a Massachusetts policy, may be maintained by the receiver of the property of the corporation in the courts of this Commonwealth, when the contracts of insurance were made and were to be performed in such other State and there are valid.</p> <p>In an action of contract by the receiver of the property of an insolvent mutual insurance corporation organized in another State, to collect an assessment decreed to be due by the order of a court of that State assessing the policy holders under the terms of a contract of insurance made in that State and there valid, which is held to be enforceable in the courts of this Commonwealth, the defendant can have no right of set-off or recoupment for the amount of his accrued claims under his policies, because this would give him a preference over other creditors and policy holders of the insolvent insurance company.</p>

<p>Evidence. Monopoly. Equity Jurisdiction, Specific performance. Restraint of Trade. Interstate Commerce.</p> <p>Evidence that an inventor, at the time of making a contract in writing to enter the employ of a manufacturer and to assign to the manufacturer all inventions made by him, already had assigned an invention to the manufacturer and that this was the reason he executed the contract when told by the manufacturer’s general manager to sign it, has no tendency to show that the inventor was not acting voluntarily when he made the contract.</p> <p>In a suit against an inventor to enforce the specific performance of a provision in a contract to assign to the plaintiff all patents obtained by the defendant upon inventions made by him while in the employ of the plaintiff and for ten years thereafter, where the patent of which the plaintiff seeks the assignment was taken out by the defendant after the termination of such employment, evidence, tending to show that the inventions assigned to the plaintiff by the defendant during the term of his employment were worth as much as he had received in weekly wages under the contract, properly is excluded as immaterial.</p> <p>The malting by a corporation, engaged in the business of manufacturing and leasing patented machinery used in the manufacture of footwear throughout the United States, of leases of patented machines containing conditions that the lessees shall use in the manufacture of footwear no other machines which are not manufactured by the lessor, although resulting in a monopoly, is not an infraction of U. S. St. July 2, 1890, 26 U. S. Sts. at Large, c. 647.</p> <p>Although the holder of letters patent lawfully may create an extended monopoly by imposing conditions on the use of the patent, a combination of patentees resulting in an extended, monopoly is subject to the prohibitions contained in U. S. St. July 2, 1890, 26 U. S. Sts. at Large, c. 647.</p> <p>A corporation, formed by the combination of seven or more corporations, each owning valuable patents for the making of machinery used in the manufacture of footwear, competing with each other in two thirds of the States of the Union and being all the principal shoe machinery manufacturers in the United States, which after its formation bought out competitors to at least the number of thirty and contracted with ninety-five per cent of the inventors of shoe machinery in the United States for the entire product of their inventive skill, whereby it controls from ninety to ninety-five per cent of all the shoe machinery in this country and has acquired a monopoly of inventions relating to shoe machinery, is an illegal combination in restraint of trade which has monopolized trade and commerce among the several States in violation of U. S. St. July 2, 1890, 26 U. S. Sts. at Large, c. 647.</p> <p>In a suit in equity by a corporation, engaged in the business of manufacturing and leasing patented machinery used in the manufacture of footwear throughout the United States, against an inventor, to enforce the specific performance of a provision in a contract in writing to assign to the plaintiff all patents obtained by the defendant upon inventions made by him while in the employ of the plaintiff and for ten years thereafter, the patent of which the plaintiff sought the assignment having been taken out by the defendant after the termination of such employment, where it was held that the plaintiff was formed and maintained by an illegal combination in restraint of interstate trade and commerce in violation of U. S. St. July 2, 1890, 26 U. S. Sts. at Large, c. 647, it appeared that an essential means by which the unlawful monopoly was maintained was the making by the plaintiff of contracts, like the one sought to be enforced, with ninety-five per cent of the inventors of shoe machinery in the United States. Held, that the contract sought to be enforced was an integral part of the unlawful scheme for monopolizing commerce among the several States, and would not be enforced by the court.</p>

<p>Three bills in equity, the first of which was filed in the Supreme Judicial Court on March 11,1908, and subsequently was amended. The second and third bills, as stated in the opinion, have become immaterial.</p> <p>The first suit originally was brought in the name of one Edward IC. Robinson as assignee for Edwin Ginn, the real party in interest, who afterwards by amendment was substituted as the plaintiff. The defendants were William F. Almy, Lillian W. Almy, Frank S. Wood, George R. Angus, the Argenta Mines Company, the Alcimento Mines Company, and the Alveoro Mines Company. The principal allegations of the bill were substantially as follows:</p> <p>In the summer of 1904 the defendants William F. Almy, Wood and Angus, represented to the plaintiff that the Argenta Mines Company, a corporation with $2,000,000 of capital stock, had been organized by them in April, 1902, for the purpose of purchasing and developing a copper, gold and silver mine in British Columbia; that at that time they had, “blocked out and in sight” and practically ready for shipment as soon as transportation facilities could be furnished, ore worth more than the par value of the stock, when in fact the surface indications upon which the mine had been purchased and promoted in 1902 had “pinched out” shortly after development began, so that in the summer of 1904 the mine was a demonstrated failure, as the defendants well knew. The plaintiff then was induced to purchase "treasury stock” for $50,000. At the same time the same defendants represented to the plaintiff that, they were able to get at very much less than the real value certain other shares of the corporation’s stock from the persons who owned it originally, having acquired it as part of the purchase price of the property paid to them by the corporation. In fact, such stock did not belong to the original owners but belonged to or was held in trust for one or all of the defendants. Relying on such and other misrepresentations of the defendants the plaintiff purchased a large number of shares of stock in the corporation, paying therefor large sums of money which were appropriated by the defendants for their own use.</p> <p>As to the Alcimento Company and the Alveoro Company, the substance of the allegations of the bill in the first suit was that the plaintiff agreed with the principal defendants to furnish $80,000 for the purpose of buying two placer gold mines in California; that two corporations were to be formed, to which respectively, the property was to be conveyed when purchased, that the capital stock of the corporations was to be divided, after using part in payment for the properties, between the promoters and the capitalists in the proportion of three to promoters and five to capitalists; and that the defendants fraudulently misrepresented to the plaintiff that the amount of the purchase price was larger than it was, and appropriated to themselves a large part of the $80,000 furnished by the plaintiff for the purpose of buying the two properties.</p> <p>Other allegations in the bill as to other defendants are described in the opinion.</p> <p>The bill contained offers of tender of the shares of stock sold to the plaintiff, three prayers for injunctions pendente lite, and prayers (4) for a rescission of all the transactions described and the repayment to the plaintiff of all sums paid out by him thereon, with" interest; (5) “that as to any and all the transactions hereinabove referred to, the said personal defendants may be found to have stood in a fiduciary relation to the plaintiff’s assignor, that said personal defendants may be held to account for all sums received by them, and the plaintiff decreed to recover, and execution issue therefor, all sums appropriated by them to their own use, contrary to the duty imposed upon them by such fiduciary relationship;” (6) “that the amount of stock of the defendant corporations held by the personal defendants, or any of them, may be ascertained or determined and proper decrees made for the application of the same to the payment of the plaintiff’s claim;” (7) that, “if, as to any or all the transactions hereinabove referred to, the plaintiff shall be found not entitled, for any reason, to a rescission, that, in the alternative, his damages by reason of the wrongs suffered may be assessed and execution issue therefor,” and (8) for general relief.</p> <p>The substance of the further proceedings and of the facts found by the master is stated in the opinion.</p> <p>The cases were reserved for determination by the full court.</p>

<p> Capital and Income. Trust. Voluntary Association. </p> <p>In a bill in equity by a trustee under a will for instructions as to whether he should treat as capital or as income certain preferred shares issued to him by the trustees of a voluntary association organized to acquire and hold securities and shares of the capital stock of certain street railway and other companies, the question of the propriety of the investment of trust funds in such shares was referred to as a question which was not presented by the record.</p> <p>A deed, conveying securities of certain street railway and other corporations to trustees for the benefit of a voluntary association, provided for the issue to the •associates of two classes of shares called preferred and common. The holders of preferred shares were given a preference to the amount of their holdings in the distribution of the assets of the association at the termination of the trust, and were entitled to preferential cumulative dividends of four per cent per annum. The trustees had power to dispose of or incumber the assets of the association, or to increase the issue of shares “for the purpose of providing means for the acquisition of additional property or otherwise accomplishing the purposes of the trust,” upon a vote of two thirds of each class of shareholders. At a time when, because for several years dividends of four per cent had not been paid to the preferred shareholders by reason of lack of income, they would have been entitled to be paid dividends of seventeen and three quarters per cent before any dividend could be paid to common shareholders, and when there was no income immediately available or reasonably to be anticipated to pay such arrears, the trustees with the consent of the necessary number of shareholders voted to issue new preferred shares “in payment of the dividend arrears on the preferred shares now outstanding.” Some of such new preferred shares were issued to a trustee under a will which provided for the payment of the income of the trust fund to certain beneficiaries for life, and the trustee by a bill in equity sought instructions as to whether he should treat such shares as capital or as income. Held, that the shares should be treated as capital.</p>

<p>Tort against the city of Boston under B. L. c. 51, § 18, for personal injuries sustained on November 25, 1901, and alleged to have been caused by a defect in the sidewalk of Salem Street, a highway of the defendant. Writ dated February 5, 1902.</p> <p>In the Superior Court the case was tried before Schofield, J. The alleged defect was an opening in the sidewalk of Salem Street containing a short flight of steps leading to the basement of a house. The width of Salem Street was thirty feet. The opening, the steps and the house had been in existence in the same place for over forty years before the date of the accident. The defendant relied on St. 1799, c. 31, § 4, which is quoted in the opinion, where also the evidence material to that defense is stated.</p> <p>The judge ordered a verdict for the defendant and reported the case for determination by this court. If the action could be maintained on the facts stated in the report, judgment was to be entered for the plaintiff in accordance with a stipulation of the parties, the terms of which have become immaterial. If the action could not be maintained, judgment was to be entered for the defendant on the verdict.</p>

<p>Landlord and Tenant, Covenant to renew. Covenant. Damages, In contract.</p> <p>In an action against a lessor of real estate for a breach of a covenant, in a lease for one year, to execute before a certain date at the request of the plaintiff a . new lease for the further term of two years at the same rent, it is no defense that before such request the lessor sold and conveyed the leased premises to a third person with notice of all the terms of the lease. In such an action it is not material to determine whether the plaintiff could enforce the covenant specifically against the defendant’s grantee.</p> <p>In an action for the breach of a covenant, in a lease to the plaintiff of a hotel in Florida for one year, to execute at the request of the plaintiff a new lease for the further term of two years at the same rent, where a breach of the covenant by the defendant was proved, it appeared that the property best could be used as a hotel for winter visitors and was intended so to be used, and that when the lease was made both parties understood that the plaintiff did not expect to make any substantial profit during the first year but did expect to do so during the next two years and that it was for this reason that the covenant for renewal was inserted. The plaintiff, who had had long experience in the hotel business, testified to his actual receipts and expenditures during the time that he was in possession of the hotel and as an expert testified to his opinion of what could be realized during the two following years and of the consequent value of the leasehold estate. Held, that in the assessment of damages the jury properly could consider the evidence of prospective profits and that this evidence was not so speculative or uncertain as to preclude the recovery of such profits as the plaintiff had shown that he would have realized.</p> <p>In an action for the breach of a covenant, in a lease to the plaintiff of a hotel in Florida for one year, to execute before a certain date at the request of the plaintiff a new lease for the further term of two years at the same rent, it appeared that before such request the defendant sold and conveyed the hotel to a third person, who, two or three months before the date when the plaintiff was entitled to the new lease from the defendant, informed the plaintiff of his purchase and offered to give the plaintiff a new lease at a somewhat higher rent. The plaintiff refused to accept such a lease and demanded from the defendant performance of the covenant of renewal. There was evidence of prospective profits which the plaintiff was entitled to have considered by the jury. Held, that the plaintiff was not bound to accept the offer of the third person for the purpose of reducing the damages which otherwise he might claim, because until the time for the performance of the covenant he had the right to assume that the defendant would perform or would procure the performance of his obligation.</p>

<p>Bills and, Notes, Consideration, Conditional delivery. Practice, Civil, Election between counts. Agency. Accord and Satisfaction.</p> <p>Under R. L. c. 73, § 42, a loan of money made to a person, who borrowed and used it for the joint benefit of himself and of other persons undisclosed, is a good consideration for the indorsement by one of such undisclosed persons of a note subsequently given to the lender and accepted by him in discharge of the obligation of the loan.</p> <p>Although in an action on a promissory note by the payee against an indorser it can be shown in defense that by an agreement between the parties the defendant’s indorsement was not to be binding until the note was indorsed by two other persons named, yet, where evidence to this effect is contradicted by evidence that the defendant signed the note as indorser unconditionally, the question of the credibility of the witnesses is for the jury and a request for a ruling that the plaintiff cannot recover must be refused.</p> <p>In an action of contract the declaration contained a count on a promissory note by the payee against an indorser and a count for money lent to recover the same debt for which the note was alleged to have been given. The defendant contended that his indorsement of the note was conditional upon other indorsements being obtained and that the condition had not been performed, and there was conflicting evidence on this issue. The judge refused to rule that the plaintiff could not recover on the count for money lent or to order the plaintiff to elect on which count of the declaration he would rely, but ruled that if the jury found for the plaintiff on the count on the promissory note they could not find for him also on the count for money lent. The jury found for the plaintiff on the count on the note. Held, that the rulings were refused rightly, as before the verdict it could not be known that the jury would not find that the defendant’s indorsement of the note was conditional, in which case the plaintiff would be entitled to rely on his count for money lent.</p> <p>Evidence, that the lender of a sum of money knew that it had been borrowed for the purpose of providing for the joint purchase by four persons of a controlling interest in the capital stock of a certain corporation, that the lender knew that in some way the payment of the loan was to be secured, and that shortly after- ; wards the lender’s son by his authority procured a note payable to the lender’s order for the amount lent signed as maker by one of the four persons and indorsed by another of them and by the lender’s son, is not evidence that the lender authorized his son to act as his agent in signing a subsequent agreement under seal relating to the joint enterprise, which was executed by the four persons engaged in the enterprise and by the lender’s son in the son’s own name.</p> <p>In an action on a promissory note, which was given to the plaintiff for a loan of money made by him to be used for the purpose of procuring for certain persons a controlling interest in the capital stock of a corporation, it was held on the evidence to be a question of fact for the jury whether certain shares of the corporation in question held by the plaintiff had been accepted by him in satisfaction of his claim in accordance with the provisions of an agreement under seal, of which he knew although he was not a party to it, or whether the shares had been transferred to him independently of the agreement in compliance with a promise of the maker of the note as a bonus or premium for the loan.</p>

<p>Damages, In contract: interest. Interest, Claimed as damages. Commonwealth. Interpleader. Tender. Waiver.</p> <p>On a petition by the trustee in bankruptcy of a contractor under R. L. c. 201 to recover a balance due to the bankrupt under a contract made with officers or agents of the Commonwealth for the construction of a public building, the Commonwealth admitted its liability for the amount named in the petition subject to the claims for labor and materials which had been filed in compliance with the requirements of R. L. c. 6, § 77. The contract contained a provision that the Commonwealth should have the right to retain an amount sufficient to indemnify it against such claims and the bond given by the contractor provided that the Commonwealth should retain the last payment until the discharge of all liens for such claims. By agreement of the petitioner, the Commonwealth and the claimants the amount of the claims without interest was paid to the claimants, leaving a small balance which the Commonwealth offered to pay to the petitioner. The petitioner contended that he was entitled to interest on the amount of the whole balance before the payment of the claims from the date of the filing of the petition to the date of such payment. Held, that there was no unlawful withholding from the petitioner of the unpaid balance of the contract price, which it was the duty of the Commonwealth to hold in trust as security for the claims filed under R. L. c. 6, § 77, and that this duty included the retention of the small balance left after the payment of the claims which would have been needed to pay the claims if the interest due on them to the time of settlement had been paid.</p> <p>Upon a petition of interpleader filed under R. L. c. 173, § 37, by the defendant in an action of law, or by the respondent in a petition in the nature of an action at law, the defendant or respondent by admitting his liability for the amount claimed subject to the claims of other persons named as claimants, without making a payment into court, does not make himself liable for the payment of interest for which he otherwise would not be liable.</p> <p>On a petition under R. L. c. 201 by a contractor against the Commonwealth to recover the balance due on a contract for the construction of a public building, the Commonwealth admitted its liability for the amount named subject to claims for payments for labor and materials filed under R. L. c. 6, § 77, and by agreement of the petitioner, the Commonwealth and the claimants the claims were paid without interest, leaving a balance due to the petitioner. The case was heard by a judge upon an agreed statement of facts, with the right to draw inferences. The agreed facts stated that after the payment to the claimants there remained in the hands of the Commonwealth the sum of about $550, which the Commonwealth “thereupon offered to pay to the petitioner, and has been at all times willing to pay to the petitioner unconditionally, and still stands ready to pay.” No payment into court was made. The petitioner contended that he was entitled to interest upon this balance from the time of the payment of the claimants to the time of judgment. The judge found that the petitioner was entitled to no interest. Held, that, even if the strict doctrine of tender was applicable as against the Commonwealth in a case of this character, the judge would be warranted in inferring that an actual tender or further steps toward it had been waived by the petitioner, and that therefore it did not appear that in disallowing interest on such final balance any error of law had been made.</p>

<p>Bill in equity, filed in the Superior Court on December 19, 1911, and amended on February 9, 1912, to enforce an equitable lien on certain lumber in the hands of the defendant as security for the sum of $584.28 paid by the plaintiff upon an order drawn by the defendant upon the plaintiff in favor of the Hutchinson Lumber Company and accepted by the plaintiff under the circumstances stated below.</p> <p>The case was heard by Jenney, J., who found the following facts:</p> <p>On October 21, 1911, the defendant gave a mortgage dated September 15, 1911, to one Collamore and others, trustees for the First Parish in Pembroke. This mortgage was given upon land in Saugus to secure a construction loan for $2,200. A dwelling house was to be constructed upon the mortgaged premises. The plaintiff acted *s the agent of the trustees in negotiating the mortgage and in ail things done under the mortgage while the trustees remained its owners. The defendant knew that the plaintiff was such agent. At or about the time of the execution of the mortgage, the trustees placed the entire consideration thereof in the plaintiff’s hands to advance for them as the building progressed. The plaintiff personally entered into a written contract with the defendant as to the manner of advancing the consideration of the mortgage as the house progressed. The plaintiff agreed with the trustees that he was to be responsible to them for the advancing of the consideration of the mortgage and for the sufficiency of their security under it. After the filing of the bill the plaintiff paid to the trustees the amount of their loan and took an assignment of the mortgage to one Jessie A. Stickney, a person in his employ, who at the time of the finding held the title to it exclusively for the plaintiff’s benefit.</p> <p>• At the time of the execution of the mortgage the plaintiff advanced to the defendant $400 on account of the mortgage loan. This was the entire amount paid by the defendant for the conveyance of the land to him, which was simultaneous with the execution of the mortgage, and the $400 so advanced was paid by the defendant for the deed to him. Afterwards, before the filing of the bill, the plaintiff advanced to the defendant $200 more on account of the mortgage and the construction contract.</p> <p>At the time of the execution and delivery of the mortgage the defendant asked the plaintiff to sign an order making the plaintiff responsible to the amount of $600 for lumber and other materials to be used in the construction of the house. The plaintiff and the defendant together went to the office of the Hutchinson Lumber Company. A list of materials desired for use in the construction of the house was delivered by the defendant to that company and the plaintiff accepted the order mentioned above and delivered it to the company. At the time the defendant asked the plaintiff to accept this order, and before going to the office of the company, the plaintiff told the defendant that he would have to be assured that the materials if. delivered would be used on the mortgaged premises, and the defendant agreed that the materials should be so used. The defendant further told the plaintiff that he had no credit that would enable him to get the materials without the order. At the office of the lumber company the plaintiff and the defendant agreed that the materials delivered, for which the plaintiff was to be responsible under his order, were to be delivered on the mortgaged premises and used in the construction of the building to be erected thereon under the contract between the plaintiff and the defendant. It was not specifically agreed that the plaintiff or the mortgagees should have a lien or claim upon the materials furnished under and by virtue of the contract or mortgage. The amount paid by the plaintiff under the order was to constitute a part of the consideration of the mortgage. The lumber company agreed also to deliver the materials on the mortgaged premises. It delivered the materials to the defendant, charging them to his account, but relying on the plaintiff’s order as rendering him responsible for the payment therefor. The materials delivered were of the value of $584.28. The title to these materials passed to the defendant. They were delivered on the premises described in the mortgage or upon vacant land adjoining, and on December 26, 1911, the plaintiff paid the lumber company $584.28 in settlement of his liability under the order.</p> <p>The defendant had begun the construction of the house on the mortgaged premises before the execution of the mortgage. After the execution of the mortgage he substantially completed the cellar, placed the sills and timbers of the first floor and laid part of the under floor thereon. He used a part of the materials purchased as aforesaid in this work. A part of the remainder of the materials was prepared by him to be fitted for use in the frame of the building but never was placed in position. Some of the materials were placed by the defendant for safe keeping in the cellar of another house -owned by him.</p> <p>On November 10,1911, the defendant negotiated a second mortgage through the plaintiff with the trustees for $750. This mortgage covered the premises described in the mortgage already referred to, and also other premises. This second mortgage was assigned to Stickney, who held it solely for the benefit of the plaintiff, and the plaintiff paid the entire consideration for the assignment thereof. On December 2, 1911, after this assignment, Stickney at the request of the plaintiff took possession of the premises described in the second mortgage, for alleged breach of its conditions. The defendant thereupon stopped work upon the building, and at the time of the filing of the bill was in possession of all the materials delivered under the order except such part thereof as had been used in the construction of the building. He claimed such materials as his own, free from any trust or other claim. The plaintiff contended that the materials were in equity liable as security for the first mortgage.</p> <p>The judge found that the materials held by the defendant were impressed with a trust in the nature of a lien to secure the amount due on the first mortgage, and that the plaintiff was entitled to have a decree entered to that effect, with such Incidental orders as might be required to effectuate that result.</p> <p>A final decree was entered, declaring that the lumber was impressed with a trust in the nature of an equitable lien as security for the amount due under the first mortgage, and that, upon failure by the defendant to pay to Jessie A. Stickney, the assignee and holder of the mortgage for the benefit of the plaintiff, the sum of $733.35, being the balance due on such mortgage above the amount of $550 realized at the foreclosure sale; a special master was appointed to sell the lumber by public auction and out of the proceeds to satisfy Jessie A. Stickney, as the assignee and holder of the mortgage, and to pay any balance to the defendant.</p> <p>The'defendant appealed.</p>

<p>Bill in equity, filed in the Superior Court on June 9, 1908, by the town of Enfield against Caroline D. Woods, the sole devisee under the will -of her late husband Cyrus F. Woods, to enjoin the defendant from removing a soldiers’ monument from a parcel of land of about three quarters of an acre known as-the “Common,” alleged to belong to the plaintiff and to have been acquired by an open, adverse and uninterrupted possession and use and occupation by the plaintiff of more than ninety years.</p> <p>The answer alleged ownership of the land by the defendant. The defendant afterwards filed a plea to the jurisdiction of the court, alleging that the case was within the exclusive jurisdiction of the Land Court.</p> <p>The case was referred to John C. Hammond, Esquire, as master. The facts found by the master which are material to the questions of law before this court are stated in the opinion. The master found that the fee of the land was in the plaintiff and that the defendant had no right, title or interest therein.</p> <p>Later the case was heard by King, J. He made an interlocutory decree, overruling the defendant’s plea to the jurisdiction, overruling the defendant’s exceptions to the master’s report “excepting only the master’s finding that the plaintiff acquired title to the land and premises in question by paroi gift from Robert Field,” and otherwise confirming the master’s report.</p> <p>The judge made a final decree, adjudging that the plaintiff was the owner of the parcel of land known as the “Common” on which the plaintiff had erected a soldiers’ monument, enjoining the defendant from interfering with the monument or the common, and giving the plaintiff costs. The defendant appealed from the decree.</p>

<p>Equity Pleading and Practice, Parties, Petition to intervene, Estoppel. Charity. Religious Society. Attorney General. Devise and Legacy. Words, “Balance.”</p> <p>In suit in equity by the officers of an unincorporated church, as constituting a corporation by virtue of R. L. c. 37, § 1, to compel á transfer to the plaintiffs of real estate devised to the church upon an alleged charitable trust by the residuary clause of a will, where the Attorney General had become a party and had set up as a bar R. L. c. 37, § 9, alleging that the plaintiffs were incapable of holding the property because the income from it exceeded $2,000 a year, the only heirs at law of the testatrix filed a petition to intervene, alleging that the residuary clause of the will was void by reason of the statute and the action of the Attorney General thereunder, and also that the alleged trust was invalid because contrary to public policy and because of indefiniteness and that the real estate devised vested in the heirs at law as intestate property. It appeared that the heirs at law had made settlements with the testatrix during her life, under which they had received large sums of money which they retained, had released all claims as heirs against her estate and had covénanted not to contest any disposition of her property that she might make. Reid, that the heirs at law should be allowed to intervene to the extent of being heard upon the validity of the trust, and that they were not precluded from being heard by their covenants or by their retention of the sums received by them.</p> <p>Under the provision of R. L. c. 37, § 9, that "the income of the gifts, grants, bequests and devises made to or for the use of any one church shall not exceed two thousand dollars a year, exclusive of the income of any parsonage land . . .,” the validity of a gift to a church of property yielding an income in excess of the limitation can be brought in question only by the Commonwealth; but this may be done by the Attorney General on becoming a party to a suit which was not instituted by him.</p> <p>A corporation under R. L. c. 37, § 1, consisting of the officers of an unincorporated church performing duties similar to those of deacons or wardens, is prohibited by § 9 of the same chapter, when objection is made by the Commonwealth, from receiving a gift of property to be held by it in trust and not for its own special uses which produces an income of more than $2,000 a year.</p> <p>The provision of R. L. c. 37, § 9, by which a church is prohibited, when objection is made by the Commonwealth, from receiving a gift of property which produces an income of more than $2,000 a year, although it prevents a church from taking such property devised to it as trustee, does not affect the validity of such a devise, which must be determined independently of the statute.</p> <p>Where a gift by will of the residue of a large estate provides that such portion of the income as shall be necessary shall be used for the repair of certain buildings, and “that the balance of said income and such portion of the principal as may be deemed wise shall be devoted and used” for a general purpose alleged to be charitable, the provision for the repair of the buildings can be regarded as a charge on the fund subordinate to the main purpose of the trust, so that, if this provision should fail or be unenforceable, it would not affect the character of the true residuary provision of the will as to the “balance” of the income.</p> <p>A gift by will of property of which the income shall be used for keeping in repair a church building used' as a place of public worship is a gift for a charitable use. ■</p> <p>A residuary trust provided for in the will of the founder of Christian Science “for the purpose of more effectually promoting and extending the religion of Christian Science as taught by me” is not void by reason of indefiniteness, assuming that such teachings are not more difficult of ascertainment than those of other Christian sects.</p> <p>The founder of "Christian Science” left by her will the residue of her property to “the Mother Church — the First Church of Christ, Scientist, in Boston, Massachusetts, in trust for the following general purposes : . . . I desire that the balance of said income, and such portion of the principal as may be deemed wise, shall be devoted and used by said residuary legatee for the purpose of more effectually promoting and extending the religion of Christian Science as taught by me.” In a suit in equity by the officers performing the duties of deacons or wardens of the church named as trustee, as constituting a corporation under R. L. c. 37, § 1, praying for the delivery of the trust property to them, in which the Attorney General was a party and set up as a bar R. L. c. 37, § 9, and in which it was decided that the plaintiffs were incapable of holding the property because the income from it exceeded $2,000 a year, the heirs at law of the testatrix were allowed to file an intervening petition in which they alleged that the residuary clause was void by reason of the action of the Attorney General under the statute and also that the alleged trust was contrary to public policy, but on this last ground they made no argument. Held, that, assuming that “the religion of Christian Science as taught” by its founder stood as a subject for charity upon the same footing as the religion of other Christian sects, the gift was one to a public charity; that the purpose of the gift and the trustee named were not so inextricably combined that they must stand or fall together; and that, the trustee named being incapable of taking, the trust would not be permitted to fail for that reason; but that an inquiry into the character of the teachings of the founder of Christian Science further than was possible upon the record would be necessary before it could be determined whether the assumption as to the religion so taught was justified. An order was made that the bill should be dismissed unless proper amendments to it were made within a time limited.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 28, 1912, to restrain the individual defendants and the defendant James A. Houston Company, a corporation, from using the name “Houston” as a part of any firm or corporate name and particularly as a part of the name "Magrane Houston Company,” the rights of the parties depending upon an agreement in writing between the plaintiff and the individual defendants dated February 24, 1906, a copy of which was annexed to the bill.</p> <p>The agreement is described in the opinion where its most material provisions are quoted. An important averment of the bill also is quoted in the opinion.</p> <p>The defendants demurred to the bill, and the case was heard by Hammond, J., who made a decree sustaining the demurrer. The plaintiff appealed, and, at the request of the plaintiff and with the consent of the defendants, the justice reported the case for determination by the full court.</p>

<p>Easement. Deed. Water Rights. Equity Jurisdiction, Mandatory injunction. Municipal Corporations. Way.</p> <p>A deed conveyed to the grantee and his heirs and assigns “the right to the use of the water from . . . two springs,” describing them, “after supplying the two houses, to which logs are now laid, from the large spring, with water necessary for domestic purposes. And also after supplying water necessary for domestic purposes at my dwelling house and barnyard . . . and the said” grantee “is to have the privilege of carrying the water, as now carried, ... to his house and tannery, with the privilege of the right to repair the same.” Held, that by the deed there was created an easement appurtenant to the grantee’s house and tannery land, and not an easement in gross.</p> <p>Mere non-user does not conclusively impair or defeat an easement created by a deed which contains no provision that it should do so.</p> <p>In a suit in equity to enjoin an alleged infringement by the defendant of a right, created by a deed of a predecessor in title of the defendant to a predecessor in title of the plaintiff, to use the waters of a certain spring upon the defendant’s land to the exclusion of the defendant, it appeared that the plaintiff and his predecessors in title had not used the spring for twenty-three years preceding the alleged infringement. A master found on evidence warranting the findings that, previous to the acts of the defendant complained of in the bill, there had been no use of the spring by the defendant and his predecessors in title inconsistent with the rights given by the deed to the plaintiff’s predecessor in title, and that there had been no abandonment of their rights by the plaintiff or his predecessors in title. Held, that the question of abandonment was a question of fact, and that it could not be said that the findings of the master were plainly wrong.</p> <p>In a suit in equity it appeared that the defendant infringed upon a right of the plaintiff to use to the exclusion of the defendant the water of a certain spring upon the defendant’s land and, after he had received notice of the commencement of the suit, for the purpose of conducting water from the spring to a distant house belonging to him, laid a pipe in part in land of the plaintiff under a highway in a town. Previous to the laying of the pipe within the highway the selectmen of the town after a public hearing had given the defendant permission to do so. Held, that a mandatory injunction should issue directing the defendant to remove the pipe laid in the plaintiff’s land. Held, also, that it was not necessary to determine either the meaning or the constitutionality of St. 1903, c. 459, relating to permission to be given.by municipalities to persons and corporations for the laying under public ways of pipes and conduits for the conveyance of water.</p>

Tort for personal injuries received by the plaintiff on March 14, 1907, while he was employed in the mule spinning department of a mill of the defendants. Writ dated June 26, 1908.

<p>Negligence, Street railway.</p> <p>At the trial of an action against a street railway company to recover for personal injuries alleged to have been caused by the plaintiff being thrown down by the starting of an open electric car of the defendant as he was alighting therefrom, there was evidence tending to show that the car had been stopped in response to a signal by the plaintiff, that the plaintiff then had risen from his seat, had proceeded to the side of the car and was about to step down upon the running board when the conductor, without giving any attention to that part of the car where the plaintiff was alighting, rang the bell for starting the car, the car was started at once and the plaintiff was caused to fall. Held, that there was evidence tending, to show that the plaintiff was in the exercise of due care and that the conductor was negligent.</p> <p>It seems, that the facts, that a passenger on an open electric street car which had been stopped to enable passengers to alight, arose from his seat in the middle of the car and proceeded to the side of it in an attempt to alight, after the conductor had rung a bell as a signal for the car to start, whereupon he was thrown down by the starting of the car, are not conclusive evidence of negligence on his part where it also appears that he did not understand the meaning of the ringing of the bell.</p>

<p>Bill in equity, filed in the Supreme Judicial Court oh July-30, 1912, by twelve taxable inhabitants of the city of Boston against the treasurer and the school house commissioners of that city, to restrain the raising or expenditure of money or the incurring of obligations for the purpose of constructing in the park known as the Back Bay Fens a building for the High School of Commerce or for that school and the administrative offices of the school committee and the board of school house commissioners.</p> <p>The answer of the defendant school house commissioners alleged that on January 2, 1912, the board of park commissioners of the city of Boston under St. 1911, c. 540, approved the plans for the building in question to be erected within the limits of the Back Bay Fens upon a site selected by the defendant school house commissioners with the approval of the school committee.</p> <p>The case was heard by Loring, J., who reserved and reported it for determination by the full court. The material facts are stated in the opinion.</p>

<p>Sale, Delivery.</p> <p>In pursuance of an agreement that a debt should be paid in hay at a certain price per ton, the parties went to a barn where two “bents” separated only by a post contained six or seven tons of hay, of which the creditor agreed to buy four and a half tons. The hay in one of the bents was measured and was found to fall short of that amount by somewhat less than a ton. The owner refused to sell the hay in the other bent but agreed that the buyer could take from it enough to make up the amount sold. He gave a bill of sale for four and a half tons of hay in his bam to be removed by the buyer at any time. Before removal by the buyer the hay was attached as the property of the seller. In an action by the buyer against the attaching officer for an alleged conversion, it was held, that it could be found that there had been a constructive delivery of the part of the hay which had been identified by measurement although it had not been separated physically from the hay in the adjoining bent and that the title to such part had passed to the plaintiff.</p>

<p>Tort at common law for personal injuries caused by a collision, at a grade crossing of the defendant’s railroad with Water Street in Orange, between a carriage of one Baker in which the plaintiff was and a freight train of the defendant or cars detached therefrom. Writ dated December 14, 1911.</p> <p>In the Superior Court the case was tried before Fessenden, J. There was evidence for the plaintiff tending to show that Baker and the plaintiff had driven to Athol from Orange to have some empty beer bottles of the plaintiff filled and were returning to Orange at eleven o’clock at night when the accident occurred. The plaintiff, who was the only witness as to his relations with Baker, testified that he knew of no other errand that Baker had that occasioned the journey to Athol. Baker was killed by the collision. . Other evidence on the question of the due care of the plaintiff and of Baker is stated in the opinion.</p> <p>There was evidence tending to show that, after the collision, marks were found as of something that had run into the side of the two cars just ahead of the caboose, had scraped the paint and had jammed the woodwork, that horse hairs were found on some of the iron work of the second car from the caboose, and that on the rear steps of the caboose on the side from which the team had approached there were indications of blood and of human brains. Other evidence as to the circumstances of the collision is described in the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Street railway.</p> <p>Evidence, that one riding a bicycle in the night-time on a wide street became so blinded by a “large night reflector” headlight on a street car coming round a curve that he was unable to guide his bicycle and ran into a team at a place where there was plenty of room for him to pass the team without collision if he had not become blinded by the light, that the light was “the same light on the cars that” he had seen “them ordinarily use,” and that the track of the street railway was at the side of the street, is not sufficient to show that the injury to the rider was caused by negligence in the use of the light.</p>

<p>Contract, upon the declaration printed below. Writ dated December 10, 1908.</p> <p>The declaration was as follows:</p> <p>“And the plaintiffs say that the defendants’ intestate made and entered into a written contract with the plaintiffs, a copy of which contract is hereto annexed, whereby and according to the terms whereof, the defendants’ intestate agreed to purchase a Trustee’s receipt for five hundred shares of the Utah-Bingham Mining Company at $4 per share and at the time of making said contract the defendants’ intestate paid to the plaintiffs the sum of $200 on account of the contract price and agreed to pay the balance, to wit: the sum of $1800 on the date set forth in said written contract, and the plaintiffs further say that they have fully performed their part of said written contract, made and entered into between them and the defendants’ intestate, but that the defendants’ intestate failed and neglected and refused to perform his part of said written contract, and failed and neglected and refused to pay the plaintiffs said sum of $1800, although often demanded so to do, and the plaintiffs say that they have demanded of the defendants the balance due on said contract, which sum the defendants have failed and neglected and refused to pay, and the defendants owe the plaintiffs the sum of $1800 and interest thereon from March 1, 1906."</p> <p>Copies annexed to the plaintiffs’ declaration were as follows:</p> <p>“No. 560 Springfield, 1 March, 1906.</p> <p>Bellows Brothers,</p> <p>Gentlemen: Allow me to order hereby Trustee’s receipt for five hundred shares of the Utah-Bingham Mining Company at $4.00 per share for which I herewith pay $200 — and agree to pay the balance ($1800) by note payable as follows: in 6 and 12 mos. and oblige. This order carries with it an option on five hundred shares more at the same price for a period of 6 months from March the first. Order fow’d.</p> <p>"J. C. Robertson."</p> <p>“Spg. Mass. April 24/06.</p> <p>“In connection with an order placed by Mr. J. C. Robertson with the firm of Bellows Bros. on March the first, 1906, it is understood and agreed that the giving of the note stated therein is hereby waived, but the payments are to stand as stated by agreement herewith.</p> <p>To this agreement both parties hereunto set their signatures.</p> <p>6 per cent interest will be charged on all balance.</p> <p>Bellows Bros.</p> <p>J. C. Robertson.”</p> <p>The defendants’ answer contained a general denial and by way of equitable defense alleged fraud in the transaction.</p> <p>In the Superior Court the case was heard by Hardy, J., without a jury. At the close of the plaintiffs’ evidence the defendants rested and asked the judge to make the following rulings:</p> <p>“1. That under the pleadings of the case it is not open to the plaintiffs tó prove a sale of the shares of stock of the Utah-Bingham Mining Company and they cannot recover the balance of the purchase price therefor.</p> <p>“2. If the trustee’s receipt was never delivered or tendered to the defendants’ intestate there was no transfer of title of the shares to him and the contract sued upon was an executory contract for purchase and not an executed contract of purchase.</p> <p>“3. That the measure of damages is the difference between the market value of the shares at the time of the breach of the contract and the contract price.</p> <p>"4. If the plaintiffs introduce no evidence as to such difference they are entitled to nominal damages.”</p> <p>The judge refused to make any of these rulings. He found that the contracts were made between the parties as set forth in the copies annexed to the declaration and that there was a waiver of the giving of the notes in accordance with the subsequent stipulation. He found that the allegations of fraud set forth in the answer were not sustained.</p> <p>The judge also made the findings which are stated in the opinion.</p> <p>He found for the plaintiffs for the balance of the purchase price as claimed in the declaration; and the defendants alleged exceptions.</p> <p>The bill of exceptions contained no statement of evidence. It contained the statement that “the question presented by these exceptions relates entirely to the measure of damages.”</p>