Volume 214 — Massachusetts Reports

Tort, by the administratrix of the estate of John A. Weiberg, for causing the death of the plaintiff’s intestate on October 5, 1906, by reason of the alleged gross negligence of the defendant’s agents or servants in running into him with an electric street car of the defendant when he was crossing Hanover Street in Boston in the exercise of due care. Writ dated November 19, 1906.

<p>Contract, Implied in law. Fraud. Agency. Broker.</p> <p>An action for money had and received may be maintained against a defendant who fraudulently procured from a third person money that rightfully belonged to the plaintiff.</p> <p>In an action for money had and received, it could have been found that the plaintiff, who was a real estate agent, obtained from the owner of certain real estate authority to procure offers for it and entered into negotiations with the defendant for a sale of the property, whereby the defendant learned the terms on which the owner of the real estate would sell it, that the negotiations came to an end, and that thereafter the defendant, intending all the time to buy the property, fraudulently procured its purchase by a third person on the terms learned by him from the plaintiff together with a payment by the owner to the defendant of a commission as broker, that the defendant paid the owner of the real estate the amount of the purchase price less the amount of the commission, and that immediately thereafter the third person, who secretly had been acting for the defendant, conveyed the real estate to him. Held, that the plaintiff could recover from the defendant the amount of the commission which had been earned by the plaintiff and which the defendant fraudulently had procured for himself.</p>

<p> Eminent Domain. Bailroad. </p> <p>A railroad corporation, when Gen. Sts. c. 63, §§ 17, 19, were in force, authorizing such a corporation to “lay out its road not exceeding five rods wide” and to acquire necessary land outside its location, but providing that such land outside its location could not be taken " without the permission of the owner, unless the [county] commissioners on the application of the corporation and after notice . . . first prescribed the limits,” made a taking more than five rods in width, and afterwards secured a determination of the limits by the county commissioners. Held, that the entire taking was void.</p> <p>Statutes authorizing the exercise of the right of eminent domain must be complied with strictly.</p> <p>Where a railroad corporation, authorized by statute to take land only five rods in width, makes an unauthorized taking exceeding that width, the entire taking is void and cannot be considered valid to a width of five rods, because it did not purport to be a taking of land of that width.</p> <p>The location of a railroad, so far as it constitutes the taking of land, must identify the tract taken with the same definiteness and precision required in a deed of land. •</p>

<p>Boiler, Inspection. Constitutional Law, Police power, Federal jurisdiction, Interstate commerce. Words, "Jurisdiction,” “Vessel,” "Equipment,” “Barge,” "Sea-going.”</p> <p>In St. 1907, c. 465, as amended by St. 1909, c. 393, § 1, providing in part that "All steam boilers and their appurtenances, except . . . boilers under the jurisdiction of the United States, shall be thoroughly inspected,” the words, “boilers under the jurisdiction of the United States,” mean boilers over which the power of the United States already has been exercised and as to which, because they are solely subject to federal law, a State law in no event could be effectual.</p> <p>A flat-bottomed barge, moved only by towing and carrying cargo only upon its deck, is a “vessel” within the definition stated in U. S. Rev. Sts. § 3.</p> <p>The fact that a vessel is licensed and registered under the federal laws does not necessarily remove it from the police power of a State.</p> <p>The word “equipment” as used in 35 U. S. Sts. at Large, c. 212, § 10, which among other things directs local inspectors of steamboats to “inspect the hull and equipment of every sea-going barge of one hundred gross tons or over” and to be satisfied that such barge “is in a condition to warrant the belief that she may be used in navigation with safety to life,” does not mean merely the appliances referred to in § 11 of the statute, but means everything connected with the barge which may affect the safety of life and includes a boiler used in the moving of the cargo.</p> <p>At the trial of a complaint for a violation of St. 1907, c. 465, as amended by St. 1909, c. 393, requiring the inspection and approval of steam boilers not “under the jurisdiction of the United States,” the alleged violation being a failure to inspect a boiler on a barge of three hundred and thirty net tons, one hundred and fifteen feet long over all and thirty-five feet wide, with two bulkheads extending its entire length, both ends square, a flat bottom, and no sails nor means of self-propulsion nor rudder, the question whether such a barge is a '/sea-going barge” within the meaning of 35 U. S. Sts. at Large, c. 212, so that it is subject to inspection by federal inspectors of steamboats and is specifically excluded from the operation of the State statute, is a question of fact to be determined by the jury.</p> <p>St. 1907, c. 465, as amended by St. 1909, c. 393, § 1, requiring the inspection and approval of steam boilers not "under the jurisdiction of the United States," is not unconstitutional as encroaching upon a field of federal authority merely because it may affect a vessel afloat on tide water.</p> <p>St. 1907, c. 465, as amended by St. 1909, c. 393, § 1, requiring the inspection and approval of “all steam boilers and their appurtenances except . . . boilers under the jurisdiction of the United States,” although it may affect commerce on the high seas or interstate or foreign commerce, is a proper exercise of the police power by the Commonwealth, and is constitutional.</p>

<p>Food. Constitutional Law, Federal jurisdiction, Interstate commerce, Police power, Separable unconstitutional provision.</p> <p>The federal statute, 34 U. S. Sts. at Large, 669, 679, providing for the inspection, among other articles of food, of all cattle intended for slaughter for producing food products to be used in interstate or foreign commerce, and exempting from its inspection requirements “ animals slaughtered by any farmer on the farm and sold and transported as interstate or foreign commerce,” leaves open to State regulation shipments into such State of meat produced outside it by the slaughter of cattle by farmers on their farms.</p> <p>St. 1912, c. 248, § 1, making certain requirements as to the inspection of carcasses of neat cattle, sheep or swine slaughtered without the Commonwealth and shipped here for human food, is constitutional, being a reasonable police regulation, not conflicting with or encroaching upon any federal regulation, and affecting interstate commerce only incidentally.</p> <p>Whether those provisions of St. 1912, c. 248, § 1, referring to the size of letters and other details of the stamp to be placed upon the carcasses of certain animals slaughtered outside the Commonwealth for shipment here for human food, are valid, here was not decided, but it was held, that, even if they were invalid, the constitutionality of the entire statute would not be affected, they being separable and subsidiary.</p>

<p>Equity Pleading and Practice, Appeal.</p> <p>On an appeal by the defendant from a decree for the plaintiff in a suit in equity for a recovery and an accounting as to certain personal property of which the plaintiff claimed to be the owner but the title to which stood in the name of the defendant, his wife, where the defendant alleged that the property was hers both by virtue of a decree in a suit for divorce instituted by her in another State and because it was given to her by the plaintiff, and also because the consideration for its purchase moved from her, the defendant also contending that the plaintiff’s bill was barred by loches, it appeared upon facts found by a master that the defendant’s contentions were unfounded, and, the evidence upon which the master made his findings not being reported and the findings not being plainly wrong, the decree, which was founded on the master’s report, was affirmed.</p>

<p>Practice, Civil, Rulings of judge sitting without jury, Exceptions.</p> <p>Where a judge, before whom, sitting without a jury, an action at law was tried, ruled as matter of law that upon all the evidence the plaintiff was not entitled to recover, and the plaintiff excepted to this ruling, if the ruling was wrong the exception to it will be sustained, although after making the ruling the judge found for the defendant and there was evidence amply warranting such a finding on the facts.</p>

<p>Tort, against a corporation engaged in the construction of the battleship North Dakota, by a workman in its employ for personal injuries sustained on March 18, 1909, by falling from a platform or staging in consequence of the sudden going out of the electric light in the fire-room, in which the plaintiff was working, when he was stepping from the platform to another staging in the manner described in the opinion. Writ dated March 17, 1910.</p> <p>In the Superior Court the case was tried before Ratigan, J. The plaintiff introduced evidence of the facts stated in the opinion, and made the offer of proof there quoted. The judge thereupon excluded the evidence offered and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Ship. Dock. Deed, Construction. Eminent Domain.</p> <p>At the close of the evidence at the trial of a proceeding at law, the presiding judge, in the absence of the jury, discussed with the counsel the rulings asked for by one of the parties and told the counsel that he should give as instructions certain of the rulings, and thereupon the counsel for the adverse party stated that he wished his exception recorded to the judge’s "acquiescence” in those rulings. In his charge to the jury the judge gave in substance the rulings referred to, but no further exception was taken. Held, that the objecting party excepted to the part of the charge which in substance adopted the proposed rulings thus excepted to.</p> <p>Whether the public right of navigation includes a right of a shipowner to have his vessel, while lying in the waters of a private dock open to the sea, overlap an adjoining wharf on the same private dock, here was referred to as a question which it was not necessary to decide.</p> <p>Apart from the public right of navigation, the right of a wharf owner to lay vessels at his wharf is confined to the side lines of his property, and he has no property right to have vessels lying at his wharf project beyond such side lines and occupy under any circumstances the wharf front of an adjoining proprietor, unless such a right has been acquired by grant or prescription.</p> <p>A deed of one of a number of wharves adjoining a private dock opening upon the Charles River contained the following words: “Together with the privileges of a dock one hundred feet in width on the southwesterly side of the afore-granted premises, said dock to be kept open forever for the common use and benefit of the owners and occupants of the land or wharves on either side and at the head thereof.” Held,, that this provision was intended to secure to such owners and occupants free passage between their respective wharves and the Charles River and so to the sea, and that it did not include a right for one wharf owner to use the wharf front of another either in whole or in part.</p> <p>Where a statute authorizes a city to construct a bridge with a suitable draw across a private dock, and does not require such city to make a written statement of what is taken by it under the statute, a taking consists in doing acts under and authorized by the statute; or at any rate such acts may be treated as a taking by a person whose property thus is appropriated.</p> <p>Where the owner of a private dock or canal and of the land on both sides of it conveys a lot of land, describing it in the deed as bounded by the dock, the title of the grantee goes to the centre line of the dock.</p>

<p>Equity Jurisdiction, To enjoin continuing trespass, Mandatory injunction, Remedy at law.</p> <p>In a suit in equity against a railroad corporation to enjoin a continuing trespass committed by the defendant by the maintenance of a retaining wall, adjoining the plaintiff’s land, the foundation of which projected underground from five to fifteen inches into the land of the plaintiff, it appeared that the boundary line between the plaintiff’s land and the defendant’s location was marked correctly by a fence that had existed for more than twenty years, that the plaintiff before the wall was built sent an engineer to the defendant to protest against any encroachment on his land and also had served on the defendant a notice of warning through an attorney. The defendant contended that the plaintiff’s remedy should be restricted to compensation in damages, because the plaintiff had suffered no substantial injury from the encroachment and the removal of the wall would subject the defendant to great inconvenience and loss. Held, that the plaintiff was entitled to a mandatory injunction ordering the removal of the wall, and that under the circumstances shown he should not be deprived of this right merely because such an injunction might subject the defendant to an expense and inconvenience disproportionate to the benefit afforded to the plaintiff.</p> <p>In a suit in equity to enjoin a continuing trespass upon the plaintiff’s land which if unrestrained would ripen into an easement, the fact that the plaintiff by proceeding under R. L. c. 186, § 3, might, after obtaining judgment in a second action for a repetition of the same trespass, have had a judgment for the abatement and removal of the nuisance, does not deprive him of the right to seek prompt redress in a court of equity and thus avoid the delay and expense of successive actions at law for trespass.</p>

<p>Equity Jurisdiction, To set aside mortgage. Corporation.</p> <p>In a suit in equity to set aside a mortgage purporting to have been made by a corporation and alleged to have been executed without authority, the trial judge found, upon evidence warranting such a finding, that not more than one director of the corporation took part in authorizing the execution of the mortgage or in passing a vote under which such mortgage was given, and that the mortgage did not bind the corporation. Held, that this finding, not being clearly wrong but on the contrary supported by the evidence, must stand.</p>

<p>Conversion. Evidence, Presumptions and burden of proof. Practice, Civil, Findings of judge without jury, Exceptions.</p> <p>Where the plaintiff in an action for the alleged conversion of an article of personal property relies upon a demand and refusal as independent and basic evidence of a conversion, it must appear that at the time of the demand and refusal the defendant had the control of the article so as to be able to comply with the demand, and the burden of proving such facts is upon the plaintiff.</p> <p>Where a judge, who without a jury heard an action for the alleged conversion of an article of personal property, ruled that the only evidence of conversion in the case was a refusal of the defendant to deliver to the plaintiff upon his demand the article alleged to have been converted, and erroneously refused to rule that the burden was on the plaintiff to show that at the time of the demand the defendant had it in his power to return the article to the plaintiff, and then found for the plaintiff, exceptions alleged by the defendant should be sustained, even if there was evidence warranting a finding that the defendant could have complied with the plaintiff’s demand.</p>

<p>Bill in equity, filed in the Superior Court on July 12,1911, and afterwards amended, seeking an accounting by the defendant as the manager of a teaming business of the plaintiffs.</p> <p>The case was referred to John F. Volk, Esquire, as master. His report contained no report of the evidence.</p> <p>From an interlocutory decree overruling exceptions by the defendant to the master’s report and confirming the report, no appeal was taken.</p> <p>A final decree was entered directing the defendant to pay to the plaintiffs $625.05 and costs; and the defendant appealed.</p> <p>The case was submitted on briefs.</p>

<p>Contract, against Jean and Bertha S. De Peiffer, with a declaration in three counts. Writ dated October 3, 1907.</p> <p>The first count of the declaration was for $180 had and received by the defendants to the use of the plaintiff at various times between July 14 and October 1, 1905. The second count was upon a contract in writing and under seal, described in the opinion, under the terms of which a portion of wages of $40 per week, paid to the plaintiff by the Foreign Language Press Company, a corporation controlled by the defendants, was paid each week to the defendants toward the purchase of an interest in the corporation. The third count was upon an account annexed, the items of which were as follows:</p> <p>“ (1) To amount paid to Jean De Peiffer and Bertha S. DePeiffer from July 14, 1905 to October 1, 1905, for eleven weeks at the rate of $15 per</p> <p>week................... $165.00</p> <p>(2) To amount paid to Jean De Peiffer and Ber-</p> <p>tha S. De Peiffer from October 1, 1905 to October 1, 1906, fifty-two weeks at $15 per week . . 780.00</p> <p>(3) To amount paid to Jean De Peiffer and Bertha S. De Peiffer from October 1, 1906, to April</p> <p>24, 1907, 29 weeks at $10 per week...... 290.00</p> <p>(4) To amount due as forfeiture under written</p> <p>agreement,........... 1235.00</p> <p>Total................. $2470.00. ”</p> <p>The case was heard by Crosby, J., without a jury.</p> <p>The entire text of the ninth paragraph of the contract, referred to in the opinion, was as follows:</p> <p>“ 9. That the parties of the first part [the defendants] shall, upon the failure to conform to the terms of this agreement, and shall also upon a breach of the said contract of employment between the Foreign Language Press Company and the party of the second part [the plaintiff] herein, if the said breach is made by them or committed by the said Foreign Language Press Company pay and forfeit to the said party of the second part in addition to returning to him all payments made by him on account of the purchase of stock an amount equal to that which he has paid to them should such breach occur within a year from the date hereof. Should such breach occur after the expiration of one year from the date, hereof, then the parties of the first part shall in addition to returning and paying to the party of the second part all amounts due to him under the terms of this contract, forfeit and pay to him an amount equal to the amount which has to the date of the breach, accrued to the party of the second part from or under the terms of this agreement or the aforementioned agreement of the party of the second part with the Foreign Language Press Company relative to the paying to the party of the second part of one-third Qz£) of the net profits of the said Foreign Language Press Company and upon such breach by either the parties of the first part herein or the said Foreign Language Press Company the party of the second part shall be released from any further obligation to purchase stock under the terms of this agreement.”</p> <p>The material facts are stated in the opinion.</p> <p>At the close of the evidence, the defendants in a series of requests asked the judge to rule that on all the evidence the plaintiff could not recover on the first, the second, or on any item of the third count, and also to give the following rulings among others:</p> <p>“8. The plaintiff can recover nothing under his third count on items two, three and four of the account annexed thereto, if it appears that he relies in support thereof upon a breach of contract under seal.”</p> <p>“10. That the following words of paragraph nine of the contract declared on in count two of the plaintiff’s declaration to wit: ‘ The amount which has to the date of the breach accrued to the party of the second part from or under the terms of this agreement or the aforementioned agreement of the party of the second part with the Foreign Language Press Company relative to the paying to the party of the second part one-third of the net profits of the said Foreign Language Press Company,’ mean and relate to nothing beyond the amount of the said one-third of the net profits, if any, and do not warrant including in that ‘ amount’ any of the specified weekly payments which may have been paid to the defendants as provided by this contract.”</p> <p>The judge found that the plaintiff was discharged from his employment with the Foreign Language Press Company and that the discharge was in violation of the terms of his contract with it and was without justification or legal excuse.</p> <p>He also found that no profits were made or earned by the company, so that the plaintiff was not entitled to recover anything under that part of paragraph nine which referred to profits.</p> <p>He also found and ruled that “paragraph nine also provides that if the contract is broken without fault on the part of the plaintiff, and such breach occurs after the expiration of one year from October 1, 1905, then the defendants shall, in addition to returning and paying to the plaintiff all amounts due him under the terms of the contract, also forfeit and pay to him an amount equal to the amount which has to the date of the breach accrued to the party of the second part from and under the terms of the agreement. I construe this latter clause of the paragraph as providing for a penalty upon breach of the contract, as distinguished from liquidated damages, and I find that the amount which the plaintiff is entitled to recover is $1,250 with interest as above, in full of all damages sustained by him, and that the plaintiff is not entitled to recover any additional amount under the forfeiture clause of the contract above referred to.”</p> <p>He accordingly found “that under the ninth paragraph of said contract between the plaintiff and the defendants, the plaintiff is entitled to recover from the defendants, . . . the amount of wages earned by the plaintiff and paid to the defendants, as follows:</p> <p>"Amount paid to defendants between July 14,</p> <p>1905, and Oct. 1, 1905 ............. $180.00</p> <p>Amount paid to defendants between Oct. 1,</p> <p>1905, and Oct. 1,1906,52 weeks at $15 per week . . 780.00</p> <p>Amount paid to defendants from Oct. 1, 1906, to Apr. 24,1907,29 weeks at $10.00 per week . . . 290.00</p> <p>Total................. $1250.00</p> <p>With interest from the date of the writ..... 300.00</p> <p>Total................. $1550.00”</p> <p>He accordingly found for the plaintiff in the sum of $1,550; and the defendants alleged excéptions.</p>

<p>Tort for personal injuries caused by the plaintiff on November 4, 1907, falling between an elevated train of the defendant and the platform of the Park Street station of the subway in Boston as she was leaving the train. Writ dated April 16, 1908.</p> <p>The declaration as amended was in two counts. Tho first count alleged that the plaintiff was “forced violently” from the train, and stated as the cause of the accident negligence of the defendant in suffering and permitting a large concourse of people to be in the car and on the platform of the station, in failing to maintain order and quiet in the crowd of people on the car and on the platform of the station, and in failing to furnish and maintain a sufficient number of guards properly to control the large number of passengers. The second count alleged that the train was negligently stopped at an unusual and dangerous place and that the plaintiff, by reason of its crowded condition, was forced violently from the train and was caused to fall between the train and the platform.</p> <p>The case was tried before Jenney, J. The plaintiff testified that for three or four months she had been taking an elevated train in the subway at Scollay Square station for Park Street station at between five minutes before and five minutes after eight in the morning, and that the train at that time each day was crowded when it entered the Scollay Square station.</p> <p>The plaintiff offered to show that for two years such train was accustomed to stop at such a place at the Park Street station, and that the rear door of the second car, which she was accustomed to use, was opposite the straight part of the platform and not opposite any curve. The evidence was excluded.</p> <p>The plaintiff also offered to show that, before she entered the crowded car at Scollay Square station on the day in question, she hesitated, on account of the crowded condition of the car, about getting in, and that, as she was standing after the other passengers had entered the rear door of the next to the last car, the guard put his hand behind her back and pushed her into that rear door against the crowd so that there was just room enough for her between the crowd and the door when it was closed. Counsel for the defendant, on inquiry by the judge, having stated that the defendant did not contend that there was any negligence on the plaintiff’s part in riding on the car, the judge excluded the evidence offered.</p> <p>The plaintiff testified that, when the train reached Park Street station, the door was opened in the car where she was and she “went to step” and before she “had a chance to step the crowd pushed” her and she fell out, her leg going down between the car and a portion of the station platform which curved away from the car about two feet.</p> <p>The defendant offered no evidence.</p> <p>At the close of the plaintiff’s case the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort for personal injuries caused by a collision at the intersection of Dorchester Avenue and Summer Street in Boston on October 2, 1909, between a street car of the defendant and a team driven by the plaintiff.- Writ dated October 27, 1909.</p> <p>In the Superior Court the case was tried before Wait, J. The material facts are stated in the opinion. There was a verdict for the plaintiff in the sum of $7,500, and the judge, in accordance with an agreement between the parties described in the opinion, reported the case for determination by this court.</p>

<p>Tort for personal injuries sustained by the plaintiff on the morning of November 1, 1909, from being knocked down by an • electric automobile operated by a servant of the defendant when the plaintiff was attempting to cross Commercial Street in Boston at a cross walk at its intersection with Clinton Street, on the right hand side of which the plaintiff had been walking. Writ dated April 29, 1910.</p> <p>In the Superior Court the case was tried before Wait, J. It appeared that the defendant had a contract to transport United States mail matter between the post office in Boston and the post offices in East Boston and Chelsea, and that at the time of the accident the defendant’s automobile was proceeding with mail matter on one of its regular trips. The plaintiff testified that at some time between half past nine and a quarter before ten o’clock in the morning he was struck and knocked down on the cross walk when he was about two-thirds of the way across Commercial Street; that when he got to Commercial Street there were four lines of teams, two going south and two going north; that he worked his way through the two going south; that there was a break, as he remembered it, in the third row going north; that there was a large loaded dray with a very nice pair of horses; that the tail end of the dray was on the crossing, and he remembered the driver trying to start the horses; that one horse was very frisky and jumped up in the air and finally moved on; that just as that team moved the plaintiff, who was looking straight ahead to get through, “just stepped one step; . . . that this step was taken with his left foot and his right foot was behind him; that the car came up and ran right on to the instep of his right leg and held the foot; that the automobile struck him and knocked him flat on his face on the crossing.”</p> <p>The character of the evidence is described in the opinion. At the close of the evidence the defendant asked the judge to instruct the jury that there was not sufficient evidence to warrant a finding that the plaintiff was in the exercise of due care at the time of the accident and further that there was not sufficient evidence to warrant the jury finding that the defendant was guilty of negligence. The judge refused to give either of these instructians and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $3,000. The defendant alleged exceptions.</p>

Tort for personal injuries sustained by the plaintiff on November 16, 1909, when in the employ of the defendant. The declaration as amended contained six counts, of which only the sixth is material.

<p>Tort for personal injuries sustained on September 18, 1908, when the plaintiff was a passenger on an electric street car of the defendant, alleged to have been caused by a collision of such car with a cart on North Beacon Street in that part of Boston called Brighton. Writ dated September 19, 1908.</p> <p>In the Superior Court the case was tried before Dubuque, J. The character of the evidence is described in the opinion. The jury returned a verdict for the plaintiff in the sum of $6,000; and the defendant .alleged exceptions to certain portions of the charge, raising the questions which are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p> False Weight or Measure. Intent. </p> <p>Under St. 1907, c. 394, § 1, which provides for the punishment of one who “himself or by his servant or agent” gives false weight or measure, a defendant can be convicted upon evidence of short weight in a sale made by a servant of the defendant in the defendant’s absence.</p>

<p>Tort for personal injuries sustained by the plaintiff on September 30, 1910, when he was in the employ of the defendant and had been put at work upon a milling machine in the defendant’s factory. Writ dated October 7, 1910.</p> <p>In the Superior Court the case was tried before Fox, J. It appeared that the plaintiff, a young man about twenty-three years of age, entered the employ of the defendant on August 29, 1910, and that at the time of his injury he had been operating the milling machine for about two days and a half; that the machine was one for cutting keyways in pieces of steel intended for shafting; that the plaintiff had been instructed to keep the steel well oiled so that it would not get hot and so that the cutter would cut well; “that he thought that if the end of the nozzle [of the oil can] came in contact with the cutter it would cut the end of the nozzle off; that he thought, if it was sharp enough to cut the steel, it would cut the end of the can and no accident could happen; that the day before the accident he had an oil can with a nozzle about five or six inches long and that, as he was oiling, the nozzle got caught and the end of it was cut off; that his hand was not drawn in on that occasion; but that on the day of the accident he was standing on the side of the machine holding the oil can at an angle; that he was oiling between the work and the cutter; that he had his left hand over the lever waiting to shut the machine off, and was about to finish the work, when the cutter caught hold of the end of the nozzle and pulled his right hand in and took part of the index finger of his right hand off.”</p> <p>' At the close of the plaintiff’s evidence, the judge ordered a verdict for the defendant and in accordance with an agreement of the parties reported the case for determination by this court with the stipulation that, if there was any evidence to submit to the jury judgment should be entered for the plaintiff in the sum of $750 and costs; otherwise, that judgment should be entered for the defendant.</p>

<p>Contract, Implied. Marriage and Divorce, Annulling marriage. Superior Court. Equity Jurisdiction.</p> <p>In granting a decree of nullity of marriage on a libel brought by a man under R. L. c. 151, § 11, the Superior Court has no power to order the libellant to pay to the libellee a sum of money as compensation for services rendered by her to him during the existence of the supposed marriage relation.</p> <p>The Superior Court, when sitting to hear libels for divorce or for the annulling or affirmance of marriages, has not general equity powers.</p>

<p>Petition, filed in the Superior Court on January 1,1910, in the nature of a complaint under R. L. c. 12, § 78, on an appeal from a refusal of the assessors of taxes of the respondent to abate a tax assessed upon the petitioner for the year 1909.</p> <p>The case was referred to James F. Jackson, Esquire, as a commissioner under R. L. c. 12, § 80. The material portions of the commissioner’s report were as follows:</p> <p>The Essex Company was incorporated under St. 1845, c. 163. In the exercise of its chartered rights the company constructed a dam across the Merrimack River at Lawrence with two canals, that on one side of the river called the North Canal, and that on the other the South Canal.</p> <p>The activities of the Essex Company in developing its water power plant and incidental real estate holdings were undoubtedly the potent factor in giving to Lawrence its importance as an industrial community.</p> <p>In 1909 the local assessors, abandoning the form of assessment previously used, assessed the real estate and machinery of this corporation at a valuation very largely in excess of the valuation of previous years.</p> <p>The petitioner waived its petition for abatement except as to the following items:</p> <p>Dam and wing walls............$435,000</p> <p>North Canal and land under same...... 360,000</p> <p>South Canal and land under same, including iron penstock leading from easterly end of canal to easterly line of Union Street........ 225,000</p> <p>The items of property above named embrace the entire water power plant of this corporation, except the land under the dam and wing walls, not assessed. No question is raised as to the form of assessment.</p> <p>In May, 1909, the petitioner had long since sold to companies operating manufacturing plants along or near its canals all of what is known as its permanent water power, conveying it under the name of mill powers. The deeds from the petitioner to the respective purchasers contained an habendum clause conveying the mill site and the mill power to the purchaser “to have and to hold” to him “and his assigns to their own use and behoof forever,” with the provision as to annual payments described below. There were one hundred forty-two and one twelfth of these mill powers, each being defined as “the right to draw twenty-five cubic feet a second when the fall is thirty feet.” In assessing to their several owners the sites to which these mill powers had been made appurtenant the assessors in 1909 had enhanced their valuation of the land to the extent of $4,000 for each mill power. In the aggregate these sites thus were enhanced in value by the amount of $568,333 on account of appropriated water power.</p> <p>The consideration named in these deeds was wholly or in part a perpetual annual payment, the paragraph relating thereto reading as follows: “In order to continue in the grantors an interest in common with the grantees for the preservation and support of the mill powers which may be granted and to secure a fund to indemnify the grantees for expenses which may be incurred by them for mating repairs if the grantors should improperly neglect to make them; it is proposed that part of the consideration of every sale, and all that is to be allowed the grantors for the repairs, etc., by them assumed, should be paid or secured to them in the form of a reservation of rent. It is therefore declared that each mill power with the land to which it is annexed shall forever be subject to a perpetual annual rent of at least two hundred and sixty ounces troy weight of silver of the present standard fineness of the silver coin of the United States, or an equivalent in gold, at the option of the grantee at the time of payment; which rent is to be paid in yearly payments forever, free from all charges or deduction whatever for taxes or assessments of every description which may be assessed or levied upon any granted premises after the mating of the deed, all of which are assumed by the grantees; and a perpetual annual rent, at least equal to the above shall be reserved for every mill power hereafter sold; and no rent shall be reduced or extinguished by the grantors but by consent of all the grantees.”</p> <p>Under another written agreement between the parties, the company had agreed to sell at a stipulated price under certain conditions to the owners of the permanent mill powers their proportionate parts of what is known as its surplus water power.</p> <p>"No accurate evidence of the original cost of the dam, canals and appurtenant structures was offered, but it is safe to say that independent of expenditures for land it considerably exceeded $650,000. The dam and walls being of stone the plant suffers little if any depreciation.</p> <p>"I find upon expert testimony that the cost of replacing the dam, wing walls, and canals, in May, 1909, using stone as in the existing structures, would have been $757,094. Using concrete, which was then an equally durable and efficient substitute for stone and to some extent probably more desirable in permitting the flow of water with less friction, the cost would have been $688,268.</p> <p>“I find upon expert testimony that of this amount the cost of that part of these structures which was built and has been maintained exclusively for purposes of navigation would have been $94,000 using stone, and $86,000 using concrete.”</p> <p>“There was no evidence to show the price paid for the land occupied by this plant, but this land is devoted like other adjacent lands to a commercial use. Taking into consideration that use, presently and prospectively profitable, and weighing the testimony as to sales of adjoining lands, I find that the land under the North Canal on the first day of May, 1909, had a fair cash value of $189,443 and that the land under the South Canal then had a fair cash value of $45,600.</p> <p>“I therefore find that upon the basis of replacement values the items of real estate and machinery under consideration, exclusive of the property wholly devoted to navigation, had on the first day of May, 1909, a fair cash value of $898,000.</p> <p>“The dam, canals, land and incidental structures make up commercially a unit of property. No one of them apart from the others has any considerable market value, but taken as contributing parts of a productive whole they make up a property that would readily attract capital. The physical features of the plant are of a lasting character. The flow of the river though varying more or less in different seasons furnishes a reliable water supply that can be safely estimated and that is converted by a simple instrumentality into a product which has an assured market value.</p> <p>“The gross annual revenue of the company from the sale of its surplus water power and a negligible quantity of water for other uses has averaged for a series of eight years ending with 1909 approximately $69,000. The gross annual revenue from permanent mill powers for the same period has been approximately $54,000. The total gross revenue of the company annually would be safely estimated at $123,000.</p> <p>“The expenses fairly chargeable to the water plant can be distinguished from expenses chargeable to the other business of the company. From an examination of figures covering the eight years ending with 1909, 1 find that leaving taxes out of consideration the company has realized a net income annually from its water power plant of at least $72,000. Using as a factor a reasonable percentage of return upon capital I find that under the conditions described on the first day of May, 1909, this water plant upon the basis of its productive power had a market value approximately $1,000,000, practically the amount of the replacement values of all of its several parts as they were and in the uses to which they were devoted.</p> <p>“The surplus water power of the petitioner can be used most advantageously in connection with the mill sites to which the permanent mill powers have been annexed and this surplus water customarily is, and upon May 1, 1909, was so used.”</p> <p>“ I find that the dam, wing walls, canals and land under consideration have no substantial value for any other use than that of producing water power and that their entire capacity is practically exhausted in producing the permanent mill powers and the surplus water power which have been described.</p> <p>“I further find that the tax assessed at the several mill sites in the enhancement of these several parcels of land in the aggregate by $568,333 is not a tax upon the whole productive capacity of the land and structures by which the water power is created.</p> <p>“I further find that omitting from consideration property ex-elusively devoted to public uses of navigation and making due allowance for the assessment of $568,333 on account of water power at mill sites, the real estate and machinery of the petitioner described in the items under consideration had on the first day of May, 1909, a fair cash value for taxation of $329,667 which I apportion among those items as follows:</p> <p>“ Dam and wing walls............$92,307</p> <p>“North Canal and land under same..... 158,240</p> <p>“ South Canal and land under same, including pen-</p> <p>stock leading from the easterly end of the canal</p> <p>to the easterly line of Union Street..... 79,120</p> <p>$329,667 I</p> <p>“I therefore find that the petitioner was assessed and has paid a tax for the year 1909 upon valuations which were in the aggregate $690,333 more than the fair cash value of the property on ' which said tax was assessed.”</p> <p>The case was heard by Quinn, J., upon "the commissioner’s report. The respondent asked for the following rulings:</p> <p>“1. Upon the completion of the dam and canals two classes . of value were created. One was a value that attached to the strips of land lying between the canals and the river as mill sites by reason of their proximity to the canals. The values of these various mill sites was more or less according to the extent of the privilege to use power, as indicated by the number of mill powers, but this value was merged in the price of the land. The other is a value that sprang from the operation of the canal as a business in supplying water power for which a perpetual rent was reserved in the indentures and this value is inherent in the dam and canals as the property of the Essex Company. Both are land values. The first value is assessed to the various mills. The second value is legitimately assessed to the Essex Company.</p> <p>“2. The evidence in the case is insufficient to warrant a revision of the assessment.</p> <p>“3. The question in this case is not affected by the valuation put by the assessors on water power as an enhancement of the value of the land of the mills. Whether that is too high or too low or what revenue it would afford if received as income on the cost of construction of dam and canals is of no consequence. It is entirely distinct from the productive value that is in the dam and canals as a part of the water power business of the petitioner.</p> <p>“4. Upon the evidence no water power has been sold to the mills but merely a right to have water power furnished in return for future payments by way of rent for both permanent and surplus power.</p> <p>“5. The fact that the method of disposal of its permanent water power, so called, by the petitioner under its indentures is described therein as a sale is of no consequence, since the terms of the indentures show that it was not a sale but an agreement in the nature of a lease of or license to use water power, for which a perpetual rent was reserved. As to surplus water power, the method of disposal shown in the regulations for the use of surplus water power is not described therein as a sale and the terms thereof show that it was not a sale but an agreement for the use of surplus water power. The methods for the disposal of permanent water power, so called, and of surplus water power are essentially the same, and, as matter of law, no distinction can be made between them.</p> <p>“6. Upon the facts found by the commissioner the fair cash value of the property of the petitioner for purposes of taxation is $898,000.”</p> <p>The respondent also moved that the petition be dismissed on the ground that the Superior Court had no jurisdiction of it.</p> <p>The judge refused to make any of these rulings, and denied the motion to dismiss. He reported the case for determination hy this court.</p> <p>Other facts are stated in the opinion.</p>

<p>Petition, filed in the Police Court of Lowell on November 6, 1911, for the enforcement of mechanics’ liens claimed by the petitioners by reason of labor performed by them under a contract made with them by one Michael Salerno for the performing of labor as carpenters upon buildings to be erected upon three separate lots of land on Webber Street in Lowell, then owned by Salerno, but owned at the time of the filing of the petition by the respondents Ellen L. McClellan and Annie McLean. The Central Savings Bank of Lowell was admitted as a party respondent.</p> <p>On appeal to the Superior Court the case was heard by Fessenden, J., upon an agreed statement of facts, from which the following facts appeared:</p> <p>On May 18, 1910, there were placed on record a deed from one Eager to Salerno of the three lots in question, three separate mortgages from Salerno to James J. Smith and Philip J. Neary, each being “for $3,500,” dated May 2, 1910, and covering one of the lots, and assignments of such mortgages to the Central Savings Bank dated May 3, 1910. No money was advanced directly on any of the mortgages, but whatever was advanced was advanced by the bank directly upon a note for $9,000 signed by Neary, Smith and one Joel H. Lucas, dated May 3, 1910, to secure which the assignments of the mortgages to the Central Savings Bank were made. The consideration for the note was money to be advanced by the Central Savings Bank to Smith and Neary in accordance with an agreement under seal dated May 2, 1910, signed by Neary, Smith and Salerno, and reading in substance as follows:</p> <p>“Whereas Michael Salerno ... on May 2, 1910, executed and delivered to Philip J. Neary and James J. Smith . . . three several mortgage deeds of the sum of $3,500 each covering lots [in question] . . . and</p> <p>“Whereas said James J. Smith and Philip J. Neary have this day assigned said mortgage, deeds and the three notes to The Central Savings Bank of Lowell, Mass., as collateral security for a loan of $9,000 and</p> <p>“Whereas, certain buildings are about to be constructed on said land described in said mortgages:</p> <p>“Now, therefore, Know all men by these presents, that we jointly and severally do hereby agree for ourselves and our heirs and assigns with said The Central Savings Bank and its successors and assigns not to demand said sum of $9,000 or said sum of $3,500 on each of said mortgage notes or any part or parts thereof from said Bank; and further agree that said Bank may advance such sum or sums on account of said note or notes as the Board of Investment of said Bank from time to time may approve, and we further agree that there shall be no obligation on the part of said Bank to advance any sum or sums of money by reason of said notes or mortgages or either of them.”</p> <p>The Central Savings Bank did not ask Michael Salerno to mortgage the premises to Smith and Neary. The bank took assignments from Smith and Neary instead of mortgages direct from Salerno because Smith and Neary made application for a loan and Salertio did not.</p> <p>Money was lent by the bank in accordance of the above agreement as follows: May 28, 1910, $1,000 to Smith and Neary; June 4, 1910, $1,000 to Smith and Neary; June 18, 1910, $600 to Smith and Neary; July 6, 1910, $2,000 to Smith and Neary; July 21, 1910, $1,000 for account of Smith and Neary.</p> <p>At the time the mortgages were recorded the officers of the Central Savings Bank knew that buildings were to be constructed upon each of the three lots and that mechanics were to perform labor upon them, and before more than $1,000 was advanced on the mortgages such officers knew that mechanics were actually at work upon the premises but did not know who the mechanics were. The petitioners were the mechanics so working.</p> <p>The petitioners’ contract with Salerno was made on June 3, 1910. The certificates required by law to be filed in the registry of deeds upon the claiming of a mechanic’s lien were so filed by the petitioners on July 14, 1910.</p> <p>When the bank made the payment of $1,000 on July 21,1910, it had no actual knowledge or notice of the claiming of the liens, and had no actual knowledge or notice that the petitioners had not been paid for their labor.</p> <p>The judge made the following memorandum:</p> <p>“The petitioners’ liens to be established in the sum of $106.02 as debt or damage and . . . costs ... as against the respondents, and as against the Central Savings Bank subject to certain mortgages amounting to the sum of $4,600 and no more, that being the total amount which had been advanced by said bank under said mortgages prior to the daté of the filing of the petitioners’ claim of lien in the Registry of Deeds.”</p> <p>A decree of sale was made in accordance with the memorandum. The Central Savings Bank alone appealed.</p> <p>The case was submitted on briefs.</p>

Two actions of tort, the first action being for personal injuries received by reason of a street railway car of the defendant in the night-time running into the rear of an open Concord buggy in which the plaintiff in the first case was riding by invitation of the driver, one David H. Woodward, the intestate of the plaintiff in the second action; and the second action being under St. 1906, c. 463, Part I, § 63, for the death of Woodward caused by the collision.

<p>Conversion. Husband and Wife. Agency, Existence of relation.</p> <p>The husband of the owner of certain unimproved land, from which loam has been taken wrongfully and converted, has no right of action for conversion against the wrongdoer, although at the time of the wrongful act the wrongdoer was upon the premises by reason of a contract between him and the husband for certain digging, grading and masonry work, and the husband during the progress of the work was constantly about the premises, such acts of the husband being done as the agent of his wife and not giving him any rights of property or of possession in the premises.</p>

<p>Tort for personal injuries sustained on August 2, 1907, when ■the plaintiff was attempting to board an open electric street car of the defendant on Washington Street near Forest Hills Square in Boston. Writ dated November 15, 1907.</p> <p>In the Superior Court the case was tried before Jenney, J. The facts as disclosed by the plaintiff’s evidence are stated in the opinion. At the close of the plaintiff’s evidence the judge ruled that the plaintiff could not recover and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on January 11 and amended on April 17, 1912, by the trustees under an indenture of trust made between Quincy A. Shaw of Boston and James B. Thayer and Lemuel Shaw, trustees, on April 21, 1875, praying for instructions in regard to their duties.</p> <p>The provisions of the second article of such indenture of trust, under which the questions arose, are quoted in the opinion, where the other material facts also are stated. Frances C. Hulbert died on December 23, 1887. Edwin J. Hulbert died on September 24, 1910. Their issue living at his death were Elizabeth S. Barnwell, a daughter, two children of Elizabeth S. Barn- , well, and Allen S. Hulbert, a son of a deceased son. Edwin J. Hulbert also left an adopted daughter, Carlotta M. H. Caruso. Boaz Duncan claimed under an instrument dated December 10, 1901, as the assignee of the rights of Elizabeth S. Barnwell under the trust. The last quarterly payment made by the plaintiffs to Edwin J. Hulbert was on July 1, 1910, and included all the net income received during the preceding quarter.</p> <p>The case was heard by Hammond, J., upon the bill and answers. He ruled that the discretionary power of the plaintiffs as trustees continued after the death of Edwin J. Hulbert both as to the income in the hahds of the trustees at the time of his death and as to that accrued at the time of his death and since collected by the trustees; that the estate of Edwin J. Hulbert was not one of the members of the class to whom the plaintiffs had discretion to pay the income or any portion thereof; and that whatever the trustees apportioned to Elizabeth S. Barnwell should go to her and not to Boaz Duncan. At the request of the defendant George Hoague, special administrator, and of the defendant Carlotta M. H. Caruso, so far as she had any standing to make such request, the justice reported the case and all questions of law therein for determination by the full court, such decree to be entered as law and justice might require.</p>

<p>Bill in equity, filed in the Superior Court on March 18, 1912, by the mortgagee under certain mortgages made by James F. Costello of all his interest in the estate of his father James J. Costello, to secure the payment of certain promissory notes, alleging that, under the will of James J. Costello, James F. Costello was entitled to two ninths of the annual net income of certain trust property and that in the event of such net income not amounting to the sum of $10,000 per annum he was entitled to have sufficient of the trust property sold to equal together with such income the sum of $10,000 in each year during the continuance of the trust, in which sum he was entitled to a share of two ninths; that the income of the trust property never amounted to $10,000 per year and that the trustees never by sale of trust property made up the sum of $10,000 to be annually distributed as directed by the will; that at the termination of the trust at the expiration of seven years the trustees distributed all the principal of the trust fund and conveyed by deed to the residuary devisees named in the will all the real estate which they held as trustees; that James F. Costello died on or about December 25, 1910, intestate, leaving as his sole surviving issue Mary A. Costello and Richard W. Costello; that administration never had been taken out on his estate; and that there was owing to him at his death by the trustees under the will of James J. Costello a sum in excess of $8,000 as his share in the sum of $10,000 directed to be raised annually from such trust estate.</p> <p>The bill prayed, among other things, that the amount of the indebtedness of the estate of James F. Costello to the plaintiff on such promissory notes might be established and determined; that it might bé declared that under the provisions of the will of James J. Costello a charge and lien on the trust property was created in favor of James F. Costello for the payment of his share in the sum of $10,000 annually to be paid as directed therein; that the amount of the arrears of such annual payments payable by the trustees under the will of James J. Costello to James F. Costello at the time of his death might be established and determined; that it might be declared that, under the assignments and mortgages made by James F. Costello to the plaintiff, the plaintiff became entitled to the payment of sufficient of the arrears of such annual payments to satisfy his claims on such promissory notes and that he was entitled to enforce such charge on such trust property for this purpose; and that it might be declared that the charge and lien of the plaintiff were prior in time and right to a mortgage to the Liberty Trust Company, which was one of the defendants.</p> <p>In the Superior Court the case was heard by Hardy, J., who made a finding of facts in accordance with an agreed statement presented to him by the parties, and made a final decree that the bill be dismissed with costs. The plaintiff appealed, and at the request of the plaintiff the judge made a report of material facts under R. L. c. 159, § 23. The facts necessary to an understanding of the decision of this court are stated in the opinion.</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, Bill for instructions. Trust, Construction, Reimbursement of trustee for overpayments. Probate Court, Allowing counsel fees out of fund. Equity Pleading and Practice, Counsel fees. Words, “ Representatives.”</p> <p>In a suit in equity by a trustee for instructions as to his duty under the terms of a Will and codicil in distributing the income of the trust and the final distribution of the principal, if it appears that the time for the distribution of the principal has not arrived, the plaintiff is entitled to receive instructions only as to the present distribution of the income.</p> <p>A trust created by will provided that each of the two brothers of the testatrix should receive one half of the net income from the trust property during his life and that, upon the death of one brother, the other surviving, the heirs of the deceased brother should succeed to his share of the income until the death of the surviving brother, whereupon the net income should be distributed in equal shares among the six children of the two brothers, who were designated by their names, “or their representatives”• until a certain event, when the principal of the trust should be distributed. The six nephews and nieces of the testatrix named all were living at the time of her death. After the deaths of both of the brothers of the testatrix and of certain of the six nephews and nieces, the trustee brought a suit for instructions as to the distribution of the income. Held,, that the six nephews and nieces of the testatrix named in the will took upon the death of the testatrix vested interests in the income of the trust, subject to the previous life interests, and that in using the words “or their representatives,” in designating the persons to whom the share of a nephew or niece in the income should go upon his or her death before the termination of the trust, the testatrix meant those who would take as the next of kin of such deceased nephew or niece under the statute of distributions, and not the executor or administrator.</p> <p>On a bill for instructions as to the distribution of the income of a trust, if it appears that by a mistake certain beneficiaries have received from the trustee each one quarter of certain net income instead of a one sixth share to which each was entitled, the trustee may be authorized to retain so much of the future income coming to such beneficiaries as will reimburse him for his overpayments.</p> <p>The sufficiency of the amounts of counsel fees, in a suit by a trustee for instructions, ordered by a judge of the Probate Court to be taxed as costs to be paid from the principal of a trust fund, is a matter of discretion, and the decision of the judge will not be disturbed where his discretion does not appear to have been exercised arbitrarily or unjustly.</p>

Bill in equity, filed in the Superior Court on May 9,1912, alleging that the plaintiffs had established mechanics’ liens on certain land and a building thereon in that part of Quincy called Wollaston, amounting to $1,851.33; that the defendant Exchange Trust Company took a construction loan mortgage on the land for the ostensible sum of $6,000 dated March 29, 1911, and recorded in the Norfolk registry of deeds, that the contracts on which the plaintiffs’ liens were…

<p>Equity Pleading and Practice, Findings of judge, Appeal. Undue Influence.</p> <p>A judge who heard a suit in equity by an executor to compel a reconveyance of certain property alleged to have been procured by the defendant from the testator through undue influence and because the testator was of unsound mind, filed a memorandum in which he stated findings that the testator at the time in question was of sound mind and that the defendant had not exercised any improper or controlling influence over him. Later, upon a motion by the plaintiff for specific findings upon designated facts, the judge filed an additional memorandum, the last sentence of which was as follows: “In finding the foregoing facts I do not intend to change in any respect the memorandum filed . . . [previously] . . . but hereby reaffirm the same.” Held, that by the above statement in the second memorandum the judge clearly indicated that his findings stated in the first memorandum were not inferences from findings made on the particular facts detailed in the plaintiff’s later motion, but were independent findings based on the whole evidence.</p> <p>Although it is true that, on an appeal from a final decree in a suit in equity, where all the evidence is reported, the case is to be decided by this court upon their own judgment as to the facts, yet, where the evidence is entirely oral, the rule is well settled that the findings of the trial justice are to stand unless shown clearly to have been erroneous.</p> <p>On an appeal from a decree dismissing a bill in equity by an executor to compel a reconveyance of certain personal property alleged to have been procured by the defendant from the plaintiff’s testator by undue influence and because at the time in question the testator was of unsound mind, where the record contained a report of all the evidence, which was oral testimony, and two memoranda of facts found by the judge, this court after a careful study of the evidence found, not only that the findings of the trial judge did not appear to be erroneous, but that they seemed to be overwhelmingly sustained by the evidence.</p>

<p>Bill ln equity, filed on February 15, 1908, in the nature of a creditor’s bill to reach and apply certain property of the defendant in satisfaction of an alleged claim against the maker of a promissory note payable to Albert C. Jahl and Company, and indorsed in blank by Albert C. Jahl and Company and by Henry Genaske.</p> <p>The case was referred to Franklin T. Hammond, Esquire, as master, for a hearing and a report upon seven issues framed. These issues were as follows:</p> <p>1. “Was said note ever effectually delivered? ”</p> <p>2. “Was said note obtained from the defendant William M. Conant by fraud? ”</p> <p>3. "Was said note fraudulently put in circulation? ”</p> <p>4. “Is the signature of Albert C. Jahl and Company on said note genuine? ”</p> <p>5. “Is the signature of Henry Genaske on said note genuine? ”</p> <p>6. “Was the Boylston National Bank a holder of said note in due course? ”</p> <p>7. “Has the plaintiff the rights of a holder of said note in due course?”</p> <p>The master found that the note was discounted by the Boylston National Bank for the payee, and answered the first six issues in the affirmative.</p> <p>On the seventh issue, after a detailed finding of facts, stated in substance in the opinion, the master found as follows: “The facts stated in this report fully disclose all the evidence bearing upon the question whether or not Genaske, at the time he indorsed the note in suit, was a party to or had knowledge of the fraud practised upon the defendant Conant. Upon all the evidence in the case I find that Genaske was a party to the fraud affecting the note in suit and had notice of such fraud and that accordingly the plaintiff does not have the rights of a holder of said note in due course.”</p> <p>The defendant filed exceptions to the master’s report, which were overruled by Pierce, J., who confirmed the report, made a decree dismissing the bill, and reported the case for determination by this court.</p>

<p>Appeal from a decree of the Probate Court for the County of Middlesex appointing Frank M. Copeland and Frank H. Stevens administrators with the will annexed of the estate not already administered of George H. Shapley, late of Newton.</p> <p>Upon the proof of the will of George H. Shapley, Charles H. Shapley was appointed executor and died without having fully performed his duties. Thereupon, Frank M. Copeland, Esquire, who had been counsel for the executor during his lifetime and was counsel for his estate, petitioned for his own appointment as administrator with the will annexed of the estate not already</p> <p>administered of George H. Shapley. The petition was heard by Mclntire, J., and was opposed by the widow of the deceased, Sarah C. Shapley. The judge appointed Mr. Copeland and Frank H. Stevens, Esquire, as co-administrators, and the widow appealed.</p> <p>The case was heard on appeal by Braley, J., and a decree was entered, which, after reciting the facts as to Mr. Copeland’s having been counsel for the executor and being counsel for his estate and being “interested in the allowance of” the accounts of the executor, reversed so much of the- decree of the Probate Court as related to the appointment of Mr. Copeland and “confirmed” so much of it as related to the appointment of Mr. Stevens, and remanded the case “to the Probate Court for further proceedings, with authority to said Probate Court to appoint an administrator ... in the place of said Frank M. Copeland.”</p> <p>The widow appealed.</p> <p>No evidence was reported.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 24, 1903, which, as afterwards amended, was by Elwyn W. Love-joy against William C. Bailey, W. Frank Fowle, Fred L. Blendinger, the Orange County Trust Company, executor of the will of Francis W. Clems on,* the Bailey-Blendinger Manufacturing Company, and the Clemson-Bailey Company; also a</p> <p>Bill in equity, filed in the same court on March 19,1904, which, as afterwards amended, was by W. Frank Fowle, alleged to be an insane person, who brought the suit by John L. Fowle, his guardian,- against Bailey, Lovejoy, the Bailey-Blendinger Manufacturing Company, the Clemson-Bailey Company, and Julia A. Scalley, administratrix of the estate of Thomas Salmon.</p> <p>The allegations of the bill in the first suit were in substance as follows: On May 5, 1900, Bailey and W. Frank Fowle formed a partnership under the name of Fowle Brothers and Company, to carry on the business of manufacturing and dealing in knives, saws and other articles, and on that day Lovejoy lent $5,000 to Bailey and he and Bailey made an agreement in writing by the provisions of which Bailey was to put the money into the partnership business and was to give Lovejoy, for the use of the money,one half of all his share in the profits of the business during the continuance of the copartnership, and in payment of the principal one half of all his share of the assets remaining upon dissolution of the firm and settlement of the accounts between the partners. On July 3, 1900, Lovejoy lent Fowle $5,000, and made with him a similar agreement in writing, and Fowle and Bailey agreed with Lovejoy in writing that certain real estate of the firm should remain as a part of the partnership assets. When these agreements were made there were two outstanding mortgages on ■the partnership property, one on its real estate and the other on its machinery. The business carried on by the firm was successful and prosperous and large profits were realized, and Bailey and Fowle received from time to time large sums of money as profits from it; but the plaintiff never received from either Bailey or Fowle any part of the share of either Bailey or Fowle in the profits, or any share of the assets of said firm. Bailey and Fowle never rendered any account of the business to the plaintiff, and the plaintiff was ignorant of the amount of the profits derived from the business or of the amount received by either Bailey or Fowle for his share of the profits. About November 24, 1902, Fowle absconded, and Bailey, with the assistance of Clemson and Blendinger, caused the defendant corporations, the Bailey-Blendinger Manufacturing Company and the Clemson-Bailey Company, to be organized for the purpose of absorbing the assets and business of the partnership, and to those two corporations, each taking part, the assets of the partnership were conveyed in fraud of the plaintiff’s rights, the real estate being conveyed by means of a colorable assignment to Clemson of a mortgage thereon, a color-able foreclosure by Clemson and a colorable conveyance in foreclosure to Blendinger and from him to the Bailey-Blendinger Company. Similar methods were used with regard to a foreclosure of a mortgage on part of the personal property of the partnership, and the remainder of it was conveyed to one or the other of the defendant corporations, all the facts being known to all of the officers of the two corporations.</p> <p>t The prayers of the bill were for (1) specific performance of the agreements with Bailey and Fowle; (2) the dissolution of the co-partnership; (3) an accounting for the shares of Bailey and Fowle in the profits and assets of the firm; (4) a setting aside of the conveyances of partnership assets and the foreclosures; (5) the appointment of a receiver for the firm; (6) an injunction restraining the defendants fromi meddling with the partnership property; and (7) general relief.</p> <p>The allegations of the bill in the second suit were in substance that the copartnership agreement between Bailey and Fowle, the agreement with Lovejoy referred to in the other bill, and all acts of Fowle during the period covered by the transactions in question were void because he was of unsound mind; that Bailey’s conveyances of property and the foreclosures of the mortgages were fraudulent and void, and that the two defendant corporations took with knowledge of the fraud.</p> <p>The prayers of the bill in the second suit were (1) that all the property of the alleged partnership be reconveyed to Fowle; (2) that all his alleged contracts be declared void; (3) that a receiver be appointed pending the suit; and (4) that the defendant be compelled to account for all rents and profits.</p> <p>In the first suit, the defendants demurred to the bill, assigning, among other grounds for demurrer, want of equity and multifariousness. The demurrers were heard by Braley, J., and were overruled. The defendants appealed.</p> <p>The suits were referred to Homer Albers, Esquire, as a master to be heard together.</p> <p>In his first report the master found in substance, among other facts, the following:</p> <p>Previous to June 12, 1899, Fowle had been engaged in the business of manufacturing belt knives and similar articles, and owned certain land at Woburn and buildings, machinery and tools which were used in the business. On June 12,1899, Fowle mortgaged the real estate to the City Institution for Savings of Lowell to secure a loan of $6,000, of which, before the events alleged in the bill, $1,000 was paid. One Thomas Salmon indorsed the mortgage note with Fowle and Fowle gave him a mortgage on his machinery and tools to indemnify him against loss which might arise from such indemnity.</p> <p>Previous to October 31, 1899, Bailey had been employed by a firm of which Love joy was a member. At about that time Fowle and Bailey entered into partnership and there were a series of partnership agreements made between them until an agreement was made on July 3, 1900, and was dated back to May 5, 1900. In the meantime Lovejoy had made the two loans of $5,000 each to Bailey and to Fowle, described in the bill in the first suit. The partnership agreement referred to provided that Fowle and Bailey should be and were equal partners in the assets (including real estate) and profits and recited that Bailey had “purchased” an additional interest and “now owns one half part of all” the real estate and personal property and accounts; that Bailey should have the sole and exclusive management and control of the business, and that Fowle should personally assume all debts of the firm which did not appear on a schedule attached to the agreement. This schedule (which was made up by the bookkeeper) omitted about one hundred items of indebtedness amounting to $14,722.53 and also omitted the mortgage indebtedness of $5,000.</p> <p>The master found that “at this time Bailey had acquired an undue influence over Fowle; that Fowle did not understand, and that his mental condition was such that he could not without careful explanation understand, the effect of the clause by which he assumed the indebtedness and that Bailey knew this; that the clause was not carefully explained to him and that this clause was inserted by reason of the undue influence of Bailey, and” he therefore ruled “that Bailey should take no profit or advantage from, said clause of said agreement.”</p> <p>The master further found that Lovejoy had no notice or knowledge of any impairment of the mental capacity of Fowle at the •time of the making of his two loans to Bailey and Fowle, and he ruled that there was nothing to justify setting aside the agreements between Lovejoy and Fowle relating to those loans.</p> <p>In the summer of 1902 Fowle discontinued all active participation in the business. Bailey knew that Fowle probably would know nothing of whatever he might do.</p> <p>In July and August, 1902, the firm of Fowle Brothers and Company being again in financial straits, Bailey associated with Clemson and caused the defendant Clemson-Bailey Company to be organized. In August, Bailey sold or made a pretence of selling the belt knife business, which theretofore had been a part of the business of Fowle Brothers and Company, to the Clemson-Bailey Company, receiving $4,200 which he put into the business of Fowle Brothers and Company, using it in payment of partnership debts. Bailey immediately received one half of the shares of the capital stock of the Clemson-Bailey Company, and gave his ■ (Bailey’s) unsecured note for $2,500 to Clemson for this stock. After its organization the Clemson-Bailey Company manufactured and furnished knives for Fowle Brothers and Company for a fair and reasonable price. The business of the Clemson-Bailey Com-pony, after the sale, was conducted in the works formerly of Fowle Brothers and Company, and was profitable. The Clemson-Bailey Company paid to Fowle Brothers and Company a rental of $50 a month until the foreclosure of the mortgage of the real estate. Clemson and Bailey each drew salaries from the Clemson-Bailey Company of $50 a week. About September 19, 1904, Clemson bought back from Bailey his one half of the capital stock of the Clemson-Bailey Company, Bailey delivering the certificates of stock to Clemson and Clemson returning to Bailey his note of $2,500, upon which nothing' had been paid, and in addition $3,355.35.</p> <p>In September, 1902, Salmon consulted George W. Norris, Esquire, regarding his mortgage on the machinery.. On September 19, Mr. Norris, by arrangement with Bailey, delivered or caused to be delivered to Bailey the statutory notice of intention to foreclose this mortgage, Bailey in behalf of Fowle Brothers and Company accepting service of the notice. Bailey then arranged that Clemson should purchase from the City Institution for Savings the mortgage on the real estate, and on September 24, 1902, this mortgage on the real estate was assigned to Clemson for $5,000 paid to the bank. At the time of this assignment the principal of the mortgage note was due, but Bailey paid the interest to the date of the assignment, so that no interest was overdue and the mortgagee was not pressing for payment of the principal, though it had notified Fowle Brothers and Company that $1,000 of the principal must be paid by July, 1902.</p> <p>At some time in September, 1902, Lovejoy told Bailey that he (Lovejoy) intended to take a hunting trip in the autumn in Maine. Bailey knew that Lovejoy almost annually took such a trip. On October 25, 1902, Lovejoy started on this trip. On October 31, 1902, Bailey consulted Mr. Norris in regard to “foreclosure.” The next day Clemson consulted Mr. Norris and gave to him the real estate mortgage to have it “foreclosed,” and Mr. Norris on the same date caused the first notice of a mortgagee’s sale to be published in a small daily paper which had recently been established in Woburn, to wit, the Daily Times, which, while not a paper unsuitable for the publication of mortgagees’ sales, was the paper in Woburn which would be the least likely to come to the attention of Lovejoy. Bailey was anxious to keep from Lovejoy all knowledge of the sale, and Clemson was desirous of doing whatever Bailey wished.</p> <p>On November 4, 1902, Bailey consulted Mr. Norris “concerning machinery, fixtures, corporations, etc.” On November 8, 1902, articles of incorporation of the defendant Bailey-Blendinger Manufacturing Company were signed, Mr. Norris acting as attorney for the incorporators. At about this time Blendinger agreed with Bailey that if he, Blendinger, bought the factory he would go into business with Bailey and give Bailey one half of the stock of the corporation, which should own and conduct the business.</p> <p>The master found “that Bailey deliberately arranged the foregoing for the purpose of defrauding Fowle and Lovejoy of any possible interest in the business. If his plans as outlined above were successfully accomplished he, or he and his associates, would own the real estate and machinery, but there remained considerable stock on hand which belonged to the partnership and which was not covered by the mortgages. So on or before November 15, 1902, Bailey consulted Mr. Norris as to his right as a partner to sell the stock on hand and other personal property of the firm. Mr. Norris gave a written opinion that Bailey had this right, with certain qualifications, if it was to pay debts of the firm. On November 24, 1902, the sale of the real estate under the power of sale mortgage took place as advertised. Blendinger was there with money to purchase. He testified that he was ready and willing to pay $5,000 for real estate and machinery, but how to divide his offer or bid so that after buying the real estate he would be sure to get the machinery, and both for not more than $5,000, he did not know. He testified that he left this and all other details to Mr. Norris, who was acting as his attorney. It is clear that Mr. Norris would have been faithless to his duty and would have been acting for conflicting interests if his several clients were all acting in good faith and in the performance of their obligations and apparent interests. But all these clients were acting in concert for the purpose of getting the business and property of Fowle Brothers and Company, so Mr. Norris was not actually acting for conflicting interests. Salmon wanted nothing more than to be relieved from his liability on the mortgage note, and that was being accomplished.”</p> <p>Blendinger bought the real estate at the foreclosure sale for $2,500, and gave his uncertified check for $500 on account of the purchase price. Upon the same day and immediately after the mortgagee’s sale a deed, which had already been prepared by Mr. Norris, was executed by Clemson under the power in the mortgage, conveying the real estate to Blendinger, but the check for the balance of the purchase money was not given until November 25, 1902. On the day of the sale (November 24) the organization of the defendant Bailey-BIendinger Manufacturing Company was completed by Bailey, Blendinger and associates.</p> <p>Salmon received from Blendinger a check for $2,886.07, which he immediately indorsed to Clemson and delivered, with a bill of sale of what was covered by the personal property mortgage, to Mr. Norris as attorney for Clemson. Mr. Norris then cancelled Salmon’s name from the note secured by the mortgage of the real estate. Thereupon Bailey gave a bill of sale executed by him in the name of Fowle Brothers and Company to Blendinger of the merchandise and stock on hand, and for this Blendinger paid $10,110. This money was used by Bailey in paying some of the debts of Fowle Brothers and Company. Thereupon Blendinger conveyed and transferred all that he had purchased to the defendant Bailey-BIendinger Manufacturing Company, and gave to Bailey one half of the shares of capital stock of that company in accordance with the previous arrangement.</p> <p>The price paid at the auction sale of the land and that paid for the machinery were inadequate. The business carried on by Fowle Brothers and Company was special in character, there being only about twenty-five such manufactories in the United States. No effort was made to bring the sale of this business to the attention of the other persons engaged in such business. A prudent man owning such property and desiring to secure a purchaser would have caused such other manufacturing concerns to be notified of such sale.</p> <p>Lovejoyhad no knowledge or notice of any of the transfers until January 10, 1903.</p> <p>The master further found that the sale of a portion of the business to the defendant Clemson-Bailey Company was made by Bailey for the purpose of defrauding Fowle and Lovejoy and that Clemson and the Clemson-Bailey Company knew or had notice of this purpose; that the foreclosure of the personal property mortgage and the sale thereof by Salmon, the mortgagee’s sale of the * real estate by Clemson, the sale of the personal property by Bailey in the name of Fowle Brothers and Company, and the sales by Blendinger to the Bailey-Blendinger Manufacturing Company were all made in pursuance of a fraudulent scheme by the parties to defraud Fowle and Love joy, and that the sales were a mere pretence and cover to procure an apparent title to the property so transferred.</p> <p>The master refused to find that the parties engaged in the foreclosure knew of the interest of Love joy in the business, and found that Mr. Norris knew that Love joy had an interest, that Clemson and Bailey knew that Love joy had an interest, and that, from the knowledge of those persons the defendant corporations and Blendinger had notice or knowledge of Lovejoy’s interest.</p> <p>The defendants filed exceptions to the master’s first report, among which were the following:</p> <p>18. To the ruling of the master that Bailey should take no profit or advantage from the clause in the partnership agreement dated May 5, 1900, by which Fowle assumed all indebtedness not mentioned in the schedule attached thereto.</p> <p>23.' To the ruling of the master that the facts found would justify setting aside the clause in the copartnership agreement dated May 5, 1900, between Fowle and Bailey, whereby Fowle agreed to assume and pay debts not on the schedule referred to in said agreement.</p> <p>32. Because the master passed upon the question of the validity of the foreclosure of the Salmon mortgage, neither Salmon nor his personal representatives being parties to either of the bills.</p> <p>33. Because the master failed to find that Clemson paid the City Institution for Savings the entire $5,000 then due on their mortgage when he took the assignment thereof.</p> <p>The exceptions were .heard by Morton, J., who made a decree which was entered on August 8, 1906, and which overruled the exceptions to the report and confirmed the report, dissolved the partnership between Fowle and Bailey, declared the foreclosure sale under the mortgage upon the real estate to be void, ordered the Clemson-Bailey Company, Blendinger and the BaileyBlendinger Company to convey to a receiver of Fowle Brothers and Company, if appointed, whatever had been transferred to them of the property formerly of the partnership, ordered accountings of the profits of the Clemson-Bailey Company and of the Bailey-BIendinger Company since their respective organizations, declared that portion of the copartnership agreement between Fowle and Bailey, dated May 5, 1900, whereby Fowle assumed payment of all previous indebtedness of the firm not included in the schedule annexed to the agreement to be void and of no effect, and also ordered as follows in substance: That the defendants give bond with Bailey as principal to the plaintiff Love-joy in the penal sum of $20,000, with surety satisfactory to the clerk of the court within thirty days from the date of the decree, conditioned upon the payment by the defendants or either of them within thirty days after final decrees of all sums that might by such decrees be determined to be due from them and either of them to the plaintiff Lovejoy and to the plaintiff Fowle or his guardian or to Fowle Brothers and Company; and in default of the giving of such a bond, John G. Maguire of Woburn was appointed receiver of the firm of Fowle Brothers and Company to collect and receive the assets of that firm and preserve them until the further order of the court.</p> <p>The decree, as afterwards amended, also directed the recommittal of the cases to the master for the stating of the accounts between Fowle and Bailey and between Fowle Brothers and Company and Lovejoy and between Bailey and Lovejoy and Fowle and Lovejoy from and after May 5, 1900, to state the value of the assets of Fowle Brothers and Company taken by the defendants or by any of them, the net profits of the Clemson-Bailey Company and the net profits of the Bailey-BIendinger Manufacturing Company from the dates of their respective organizations as above provided, and the proportions of such net profits that might equitably be regarded as derived from the property and business taken from Fowle Brothers and Company as a going business, including the good will.</p> <p>The defendants appealed from the foregoing decree.</p> <p>The defendants not giving the bond described in the foregoing decree, the receiver was appointed on September 7, 1906, in accordance with the decree.</p> <p>On March 5, 1907, a petition of the plaintiff that Julia A. Scalley, administratrix of the estate of Thomas Salmon, be admitted as a defendant, was allowed. She filed an amended answer alleging among other things that her intestate “received no funds or other proceeds” of the mortgage, and that, being relieved from any liability as an indorser of Fowle’s note to the ' bank, he ceased to have any interest of any kind under the mortgage; that Salmon had died on January 9,1903, that she had given bond as administratrix on January 15, 1903, had made due publication of notice of her appointment and affidavit thereof, had fully administered the estate and had filed her final account in the Probate Court which had been allowed on June 13, 1905. The plaintiff in'both cases filed a stipulation that “all allegations of fact in the amended answers of” the administratrix “are admitted to be true.”</p> <p>On September 20, 1907, one Gordon Parker, a creditor of Fowle Brothers and Company, filed by leave of court an intervening petition setting up a claim of $1,399.87. This claim, with interest, afterwards was allowed by the receiver together with claims of John L. Fowle and the Clemson-Bailey Company. Claims of the estate of Clemson for $5,000 and of Blendinger for $19,016.26, were disallowed by the receiver.</p> <p>The master filed a second report containing detailed statements of the accounts called for by the interlocutory decree of August 8, 1906. In his findings, as directed by that decree, as to “the assets of Fowle Brothers and Company taken by the defendants or any of them,” he found that the Clemson-Bailey Company took a good will worth $500 and merchandise worth $4,200, for which it paid $4,200; that the Bailey-Blendinger Manufacturing Company took a good will worth $1,000, and merchandise, supplies, machinery and other personal property and real estate worth $21,625.89, for which it paid $15,066.39. He found that Bailey was liable to the partnership for the foregoing, among other items, but made no finding as to any asset that any other defendant had taken or as to any liability of any other defendant for the property taken by the two corporations.</p> <p>In his findings, as directed by the interlocutory decree of August 8,1906, as tq the net profits of the Bailey-Blendinger Manufacturing Company, the master computed the amount of such net profits ■due to the partnership in proportion to the amount of property of the partnership which the corporation was using in its business.</p> <p>Other findings of the master in his second report, which are material to the decision, are described in the opinion.</p> <p>The plaintiff Lovejoy, among other exceptions to the report, filed the following:</p> <p>“26. For that the master has failed to state the account on the theory that the defendants Clemson and Bailey are jointly and severally liable with the Clemson-Bailey Company for the fair value of all the assets of Fowle Brothers and Company taken by the defendants and transferred to said Clemson-Bailey Company, and for all the profits derived by said Clemson-Bailey Company therefrom; whereas the master, as matter of law, should have so stated his account.</p> <p>“ 27. For that the master has failed to state the account on the theory that the defendants Clemson, Bailey and Blendinger are jointly and severally liable with the Bailey and Blendinger Manufacturing Company for the fair value of all the assets of Fowle Brothers and Company taken by the defendants and transferred to the Bailey and Blendinger Manufacturing Company, and for all the profits derived by said Bailey and Blendinger Manufacturing Company therefrom; whereas, the master, as matter of law, should have so stated the account.”</p> <p>The plaintiff Fowle filed similar’exceptions.</p> <p>The defendants filed many exceptions to the second report, the twenty-sixth of which was to the method in which the master computed the net profits of the Bailey-BIendinger Manufacturing Company, setting forth that those computations of the master “are erroneous because the net profits as there made up by him, do not include any deduction from the gross income of the BaileyBIendinger Manufacturing Company because of their liability to pay rental.”</p> <p>The exceptions were heard by Rugg, J., on July 28, 1910, and a decree was entered sustaining those above described, and in all other respects confirming the report, and recommitting the case to the master for certain further findings.</p> <p>The master filed a third report containing findings on the matters specified in the decree, findings as to payments by the Bailey-BIendinger Manufacturing Company for taxes, insuranee and repairs on the property which it had received from the partnership, and the following:</p> <p>“No additional evidence was offered before me bearing on the question of the joint and several liability of the defendants Bailey, Clemson, Blendinger, Bailey-Blendinger Manufacturing Company and the Clemson-Bailey Company, but upon the evidence heretofore submitted and reported by me with my first report, which evidence was also by agreement of parties to be considered by me so far as it bore upon the matters involved in my second report, I make the following additional findings:</p> <p>“ (a) The defendants Blendinger and Salmon had nothing to do with the organization of the Clemson-Bailey Company, or with the sale by Bailey of any portion of the business of Fowle Brothers and Company to said company, did not participate in any way in said transaction, nor in the business of said company, nor derive any profit therefrom.</p> <p>“(b) The Clemson-Bailey Company had nothing to do with the foreclosure of either the Salmon mortgage or the mortgage which Clemson acquired from the City Institution for Savings, nor with any of the sales of property to Blendinger, or to the BaileyBlendinger Manufacturing Company, did not participate in any way in said transactions or in the business carried on by said BaileyBlendinger Manufacturing Company, nor derive any profit therefrom, excepting, however, that Bailey as an individual devised the entire plan of acquiring the parts of the property of Fowle Brothers and Company and of transferring one part to one corporation and another part to another corporation, and excepting that Clemson took such part in the matter as has been heretofore reported, and that Bailey and Clemson practically owned all of the stock of the company and caused it to be organized and that Clemson was an officer of the Clemson-Bailey Company, and Bailey was an officer in both of said corporations. If as a matter of law the corporations are to be charged with participation in the final fraud because all was done in conformity with Bailey’s original scheme of fraud, then as a matter of law the corporation could not be said to have had nothing to do with the foreclosure, but in so far as it is a matter of fact, I find that the corporation (Clemson-Bailey Company), had nothing to do with the foreclosure of either mortgage.</p> <p>“ (c) The defendant Clemson had nothing to do with the organization of the Bailey-BIendinger Manufacturing Company, but he lent his aid to the foreclosure of the two mortgages, with the knowledge and purposes heretofore reported, and he received the proceeds of the foreclosure sales; he did not thereafter have any interest in the Bailey-BIendinger Manufacturing Company, nor in its property or the business it carried on, nor did he ever derive any profit therefrom.</p> <p>“(d) The defendant Bailey-BIendinger Manufacturing Company, had nothing to do with the organization of the Clemson-Bailey Company, nor with any sales made to it by Bailey, nor with the business it carried on, and never participated in any of said transactions of the said Clemson-Bailey Company, nor in any of the profits of said Company, excepting, however, that Bailey as an individual devised the entire plan as set out in my first report, and it was a part of his plan to ultimately have two corporations, and he was an officer in both of such corporations.</p> <p>“ (e) Whether on the facts herein and heretofore reported, all the defendants are jointly liable is a question of law over which I have no jurisdiction. As a matter of fact I find that there was no further joint participation than as has been specifically reported.”</p> <p>The third report of the master was confirmed, and the cases were reserved by Morton, J., for determination by the full court.</p> <p>Other facts are stated in the opinion.</p>

<p>Contract for $891 according to an account annexed. Writ dated February 20, 1909.</p> <p>The items of the account annexed were as follows:</p> <p>“ 1 To work and labor done and materials furnished on three houses on Georgia Street, Boston, Mass.,</p> <p>as per contract............. $1095.00</p> <p>2 70 days extra work for plasterers at $5 per day . 350.00</p> <p>3 80 days extra work for tenders at $3 per day . 240.00</p> <p>Total.....$1685.00</p> <p>4 Credit by cash................ 794.00</p> <p>Balance .... $891.00” .</p> <p>The defendant’s answer contained a general denial and an allegation of payment.</p> <p>In the Superior Court the case was tried before Aiken, C. J. The defendant objected to the introduction of testimony as to the amount of extra work unless such testimony should be given specifically, stating the name of the person employed, the days or hours of such employment, the price paid such person and whether such price was reasonable, and to this end objected to a series of questions all bearing upon this matter. The Chief Justice ruled that such questions might be put in a general form, and the defendant excepted.</p> <p>At the close of the evidence the defendant asked the Chief Justice to make, among others, the following rulings:</p> <p>“1. That the plaintiff cannot recover upon the second and third items of account in the plaintiff’s declaration.</p> <p>“2. That there was no evidence offered in detail which would support the second and third items of the account annexed to the plaintiff’s declaration.</p> <p>“3. That the court charge in order for the plaintiff to recover he must show specifically the individual employment of each person who worked upon the job for the defendant, and the value of the service of such person.”</p> <p>The Chief Justice refused to make these rulings, and the jury returned a verdict for the plaintiff in the sum of $878.71. The defendant alleged exceptions, including an exception to a certain portion of the judge’s charge which was not argued by the defendant and was not referred to in his brief.</p>

<p>Negligence, In use of highway, Street railway.</p> <p>If a motorman operating a street railway car, as he approached a place where men at the side of the street were loading a large glass show case upon a truck, was glancing toward a store in which an auction was going on and gave no attention to the men at work, whom he could not have failed to see if he had looked ahead, and, without sounding a gong or giving any other signal, ran the car against one of the workmen who was stepping up by one of the wheels of the truck to help in unloading the show case, he can be found to have been negligent.</p> <p>A workman, who with fellow workmen was loading a large glass show case upon a truck that was standing by the side of the curbstone of a street so as not to obstruct the passage of street railway cars, and who was ordered by the foreman in charge to get upon the wagon, whereupon, looking and seeing no car approaching within a distance of fifty or seventy-five feet, he stepped up by one of the wheels of the truck and was struck by a street railway car that came upon him without sounding a gong or giving any other warning, can be found to have been in the exercise of due care, he having had the right to assume that the motorman of an approaching car would pay some attention to what was going on.</p>

<p>Negligence, Employer’s liability. Elevator. Practice, Civil, Exceptions.</p> <p>In an action by a machinist's helper against his employer for personal injuries caused by the falling of a defective freight elevator of a building while the plaintiff was using it in his work, if it appears that the defendant was the lessee of only the third story of the building and that the elevator was maintained by the lessor for the common use of all the tenants in the building, the defendant cannot be held liable for the results of the defective condition of the elevator.</p> <p>In an action by a machinist’s helper against his employer for personal injuries sustained from the falling of a defective freight elevator while the plaintiff was using it in his work, if it appears that a superintendent of the defendant told the plaintiff that there were some boxes that he wanted taken upstairs, this is not a direction to the plaintiff to ride on the elevator with the boxes, and, if there is no evidence that the superintendent knew or should have known that the workmen used the elevator for this purpose, there is no evidence that the plaintiff’s injuries were caused by the negligence of the superintendent.</p> <p>An exception by a plaintiff to the exclusion of competent evidence offered by him will not be sustained, if the plaintiff would not have been entitled to recover in case the evidence had been admitted and therefore was not prejudiced by its exclusion.</p>

<p>Evidence, Book entries, Self serving statements. Witness, Redirect examination.</p> <p>Upon the issue whether a sale of merchandise for which certain notes were given was an absolute sale at the time the notes were given or a conditional sale in which the title to the merchandise was to vest in the buyer from time to time as it was used, where the plaintiff contends that the sale was conditional, and a witness for the plaintiff on his cross-examination has testified that in the plaintiff’s ledger, which is put in evidence, the notes were credited in the buyer’s account in the same manner that all notes were credited that had been taken for merchandise sold, the plaintiff, to rebut the inference which might be drawn from this evidence that the sale was unconditional, should be allowed to show in redirect examination of the witness that by the plaintiff’s method of bookkeeping notes that were received for goods were entered in the usual cotuse of business, even if the sales were conditional, and that the entries of notes received upon conditional sales did not vary from the entries where the sales were unconditional and the notes were accepted in payment.</p> <p>Self serving statements made to third persons by a party to an action are not admissible in favor of such party.</p>

<p>Tort for personal injuries sustained on the evening of November 11, 1906, when the plaintiff was walking across Huntington Avenue in Boston upon a paved cross walk about opposite the Hotel Nottingham between Dartmouth Street and Exeter Street and was struck by an electric street car of the defendant that was being operated on the reserved space in the middle of Huntington Avenue. Writ dated January 4, 1907.</p> <p>In the Superior Court the case was tried before Brown, J., who at the close of the evidence ordered a verdict for the defendant. The plaintiff alleged exceptions to the ordering of the verdict, and also to the exclusion of certain evidence offered by the plaintiff in rebuttal. The facts necessary for an understanding of the decision of the court are stated in the opinion.</p>

<p>Petition, filed in the Land Court on December 30, 1911, by an adopted son of Hannah M. Walcott, afterwards Hannah M. Butterfield, who also claimed as a devisee under the will of said Hannah, and a grantee of an adopted daughter of said Hannah, against certain persons claiming as the heirs of said Hannah under such designation in the will of Elisha Woodward, to register the title to a parcel of land on Friend Street in Boston.</p> <p>In the Land Court the case was tried before Davis, J., who ordered that the petition be dismissed and reported the case for determination by this court.</p> <p>The will of Elisha Woodward is described in the opinion, where the fifth clause, on which the rights of the parties depended, is quoted.</p> <p>Hannah M. Walcott was the daughter of Elisha Woodward. She was born on May 10,1815, and was married on April 29, 1832, to Lewis Walcott of Boston. At the date of her father’s will, and at his death, her only children were living, namely, a daughter, named Hannah, and two sons, named respectively Lewis and George. The daughter Hannah married and had one son. Her husband and her son died in her lifetime, the son dying without issue. The daughter Hannah died, leaving her mother surviving as her only heir at law.</p> <p>Hannah M. Walcott’s son Lewis died about March 6, 1867, leaving a widow surviving him, but without issue, and leaving his mother as his sole heir at law.</p> <p>Hannah M. Walcott’s son George died on April 17, 1893, leaving no issue born in wedlock, but leaving a widow. He made a will in 1886, before his marriage, by the terms of which he devised alibis estate to his mother in the event of her surviving him. .He was the last surviving child of Hannah M. Walcott and she was his only heir at law. He left surviving him George Henry Innes and Chastina F. Sullivan, a natural son and a natural daughter by different mothers.</p> <p>Hannah M. Walcott’s husband, Lewis Walcott, died on July 12, 1873, and she married John Butterfield on June 10, 1885. The said Hannah and John, by proceedings in the Suffolk Probate Court adopted George Henry Innes and Chastina F. Sullivan as their children. Hannah M. Walcott Butterfield died on May 3, 1911.</p> <p>By her -will dated December 19, 1893, she gave her adopted son George Henry Innes Walcott one half her property, and also gave him the other half of her estate in trust for the said Chastina as beneficiary. Hannah M. Walcott Butterfield left no legitimate lineal descendants at the time of her decease. Her common law heirs, the respondents, were two sisters and the issue of deceased brothers and sisters.</p>

<p>Negligence, In selling injurious food. Food.</p> <p>In an action of tort for alleged negligence in selling poisonous food to the plaintiff, evidence tending to show merely that the plaintiff bought and ate food at a lunch room maintained by the defendant and suffered from ptomaine poisoning due to the food which he thus had eaten, will not entitle the plaintiff to go to the jury, because there is no evidence of the defendant’s negligence and no question of implied warranty is open.</p>

<p>Wagering Contracts, Proof of intent, Damages. Evidence, Presumptions and burden of proof. Damages, In contract.</p> <p>In an action under R. L. c. 99, § 4, by the executor of the will of a woman, for the value of securities alleged to have been delivered by the plaintiff’s testatrix to the defendant as margins on wagering contracts, where it appears that in the transactions in question a certain person acted as the agent of the testatrix in dealing with the defendant, it is error for the presiding judge to instruct the jury that the burden of proof is on the plaintiff to show that both the plaintiff’s testatrix and the person who acted as her agent affirmatively intended that there should not be actual purchases and sales by the defendant.</p> <p>In an action under R. L. c. 99, §§ 4, 6, 7, for the value of securities alleged to have been delivered by the plaintiff to the defendant as margins on wagering contracts, if it appears that the securities at the time they are alleged to have been delivered to the defendant had been pledged by the plaintiff to other persons to secure certain loans and that the plaintiff transferred to the defendant only his rights as pledgor, whereupon the defendant paid off the loans and obtained possession of the securities, the liability of the defendant, if it is established, extends only to the value of the securities subject to the pledges from which they were redeemed by him.</p>

<p>Negligence, Railroad, Protection from crowd, Due care of plaintiff. Carrier, Of passengers.</p> <p>In an action by a woman against a railroad corporation for personal injuries sustained from being obliged to jump from a train of the defendant by riotous and violent conduct of other passengers, which, it was alleged, the defendant ought to have foreseen and guarded against, it appeared that in the city where the plaintiff took the train a labor strike had been going on for more than a week, that strikebreakers, so called, had been employed, that they had been carried to and from the city by the defendant’s trains and had been escorted between the factory and the defendant’s station by policemen, that the train the plaintiff took was one by which strikebreakers were returning from their day’s work and that some strikers, who had been acting as pickets, also boarded the train, that the policeman who seemed to be in charge of the police escort told the conductor that there were some strikers and strikebreakers boarding the train, and that if they all got off at the same city the conductor ought to notify the city authorities, that, shortly after the train started, a fight and riot occurred, and that the plaintiff to escape injury jumped from the train before it had come completely to a stop and was injured. There also was evidence from which it could have been found that the conductor of the train, by warning the brakemen and another conductor who was present to be in readiness to suppress such an outbreak or by applying for aid to the policeman who gave him the warning or by asking the station-master for additional assistance, might have taken measures to avert a disturbance or to protect peaceable passengers from its consequences, and that he did none of these things. Held, that there was evidence for the jury that before the departure of the train the defendant through its conductor had notice that there was such danger of violent outbreaks among some of its passengers as to give it warning that there was need of providing for the protection of its other passengers, and that the defendant by its agents reasonably could have taken measures to avert the threatened danger or to guard its peaceable passengers against injury.</p> <p>Jumping from a steam railroad train before it has come to a full stop in order to avoid injury from fighting and rioting of passengers on the train is not negligent as matter of law.</p>

<p>Equity Jurisdiction, Remedy in Probate Court, Resulting trust. Trust, Validity, Resulting. Devise and Legacy, Validity.</p> <p>In a suit in equity by the next of kin of a testatrix, against the persons named as executors and trustees in her will and also made her residuary legatees, to establish a resulting trust in favor of the plaintiffs in a certain sum of money held by the defendants as residuary legatees on the ground that they claim it under an attempted trust which is bad for indefiniteness, it is immaterial whether the defendants have or have not settled their accounts in the Probate Court or whether the plaintiffs can enforce their rights against the defendants as executors or trustees by asking for an accounting in that court, as the suit is brought against them solely as residuary legatees.</p> <p>A testatrix by her will gave the residue of her estate to the persons named by her as executors and trustees "in trust,” and directed that, if she left no children, they should pay certain amounts as legacies, that, after the payment of such legacies they should pay the remaining residue of her estate, but not exceeding $15,000 in all, to a certain hospital, and then provided as follows: “Any surplus of my estate remaining after the payment of said fifteen thousand dollars to said ... hospital shall be disposed of by my executors (and trustees), at their absolute discretion and according to their own judgment.” The testatrix died leaving no issue, and there was a surplus of the residue of her estate after the payment of $15,000 to the hospital designated. Held, that the will showed an intention of the testatrix to give the surplus of the residue to the persons named as executors and trustees, not for their own benefit, but to distribute to others, that the attempted trust was too indefinite to be carried out, and that therefore a resulting trust arose for the benefit of the next of kin of the testator.</p>

<p>Tort for thé alleged conversion of one hundred and twenty bales of dry cowhides. Writ dated October 10, 1910.</p> <p>In the Superior Court the case was tried before Hitchcock, J., without a jury. The material facts are stated in the opinion.</p> <p>The defendants asked the judge to make the following rulings: “6. In so far as the provisions of St. 1910, c. 214, are applicable to foreign commerce, or to goods which are being imported from foreign countries or to bills of lading covering such goods before the importation has been concluded, it is contrary to the provisions of the Constitution of the United States.”</p> <p>“8. In so far as the provisions of St. 1910, c. 214, purport to transfer or change the title to goods by reason or as a result of the indorsement, delivery or transfer of a bill of lading without the intent or purpose of the owner so to transfer or change the title, the statute is unconstitutional.</p> <p>“9. St. 1910, c. 214, is contrary to the provisions of the Constitution of the United States.</p> <p>“ 10. St. 1910, c. 214, is contrary to the provisions of the Constitution of Massachusetts.”</p> <p>The judge refused to make any of these rulings. He made the following ruling, which was requested by the plaintiff:</p> <p>“The uniform bills of lading act is within the power of the Legislature to regulate and limit the making of contracts and the use and disposition of property, especially with reference to the transfer, sale and negotiation of bills of lading within this Commonwealth, and is constitutional.”</p> <p>The plaintiff asked the judge to make, among others, the following rulings:</p> <p>“l. Upon all the evidence the plaintiff is entitled to recover. “2. St. 1910, c. 214, known as the uniform bills of lading act, governs and applies to the bill of lading in this case which was sold by the Columbia Leather Company to the plaintiff.”</p> <p>“5. The liability of the indorser being governed by the law of the place of indorsement, the uniform bills of lading act governs the liability of the defendants in this case.</p> <p>“6. The defendants having indorsed the bill of lading to the Massachusetts Hide Company without accompanying the indorsement with words of .limitation or with any reference to any trust agreement or contract between them, passed the title, and the indorsement is governed by the uniform bills of lading act.”</p> <p>. “8. The bill of lading in question contained the words ‘order of ’ before the name of the consignee, was indorsed by the consignee to a specified person and was indorsed by said specified person in blank and is therefore negotiable.”</p> <p>The judge refused to make any of these rulings as well as other rulings requested by the plaintiff.</p> <p>At the request of the defendants, the judge ruled that the plaintiff was not entitled to recover, and also made other rulings requested by the defendants. He made certain special findings of fact, and made a general finding for the defendants. The plaintiff alleged exceptions.</p>

<p> Marriage and Divorce. Dower. Equity Jurisdiction. </p> <p>In a Rhode Island court a wife procured a divorce. Both parties were residents . of Rhode Island. A statute of Rhode Island provided in substance that, unless a woman so divorced claimed her dower rights in her former husband’s real estate by proceedings begun within six months, she forfeited such rights, that if during such six months she made a claim for alimony, such claim for alimony should constitute her only relief and her dower should be “ deemed to be waived and released,” and that “otherwise than as provided” in the sections of the statute containing such provisions, the wife, on a divorce being granted, should have no right in the estate of her husband. The wife within six months after the decree of divorce made a claim for alimony in the Rhode Island court, and the matter was referred to a master. Thereafter, also within six months from the decree of divorce, she brought a suit in equity in Massachusetts to enforce rights of dower in real estate of her husband here. Held, that the bill should be dismissed because, under the statute described, the plaintiff, by making a claim for alimony in Rhode Island, had waived her dower rights to real estate in Massachusetts of her former husband.</p>

<p>Equity Jurisdiction, To enjoin malicious injury to business. Malicious Conduct.</p> <p>A suit in equity, to restrain the defendant from maliciously interfering with the plaintiff’s business, cannot be maintained by a dealer in real estate owning certain lots of land against an owner of an adjoining house and land, who, desiring to sell his land and for that purpose, offers it for sale by a sign on the front of the house, concluding, “Best offer from Colored Family,” although one purpose of the defendant in so doing is to annoy the plaintiff and the plaintiff’s business has been injured thereby.</p> <p>It seems, that, if an owner of land, for the sole purpose or for the dominant and controlling purpose of annoying the owners of other land in the immediate vicinity, advertises his land for sale in a manner intended to annoy such other owners, and they are annoyed and injured, such malicious conduct is actionable.</p>

<p> Boarding House Keeper. Bailment. </p> <p>In an action against the keeper of a summer hoarding house for the value of jewelry alleged to have been lost through the negligence of the defendant, if it is shown that the plaintiff as a boarder and lodger in the house of the defendant deposited the jewelry with him for safe-keeping, it is to be presumed, in the absence of anything to the contrary, that the change of possession was-requested and granted as a part of the contract for board and lodging, and it cannot be ruled as a matter of law that the bailment was a “ naked deposit without reward.”</p>

Tort for the conversion of three rings and two watches. Writ in the Municipal Court of the City of Boston dated February 9, 1909. On appeal to the Superior Court the case was heard by Raymond, J., without a jury.

Tort, under the employers’ liability act and at common law, by a workman for personal injuries sustained on January 31, 1910, when the plaintiff was in the employ of the defendant, who was engaged as a contractor in constructing a school building in the town of Stoneham. Writ dated April 16, 1910.

<p>Marriage and Divorce. Slavery. Evidence, Presumptions and burden of proof.</p> <p>At common law, before the abolition of slavery, slaves actually held in slavery in a slave state could not contract a lawful marriage and have legitimate issue. The fact, that a testator in his will names a certain person as his grandchild, while it is evidence that such person was his legitimate descendant, is not conclusive evidence of that fact.</p>

<p>Sale, Implied warranty of identity, Parties. Words, “Financing,” “Held.”</p> <p>A contract to sell a certain number of cases of sardines, which contains no warranty of quality, whether it is made by a manufacturer or a dealer or by a casual owner, is a contract for the sale of merchantable sardines, and, if the goods delivered have no market value as sardines, the buyer is not bound to receive them, whether the defect that makes them unsalable is hidden or is discoverable by inspection.</p> <p>Where one who held a warehouse receipt for certain goods in his own name transferred it to a buyer, issued shipping directions for the delivery of the goods, rendered a bill for them in his own name and received the purchase money, he can be found to have sold the goods as their owner, although he wrote to the buyer that he was “financing” shipments of the goods made by another person and that the order was to be shipped from the goods “held” by him.</p>

<p>Tort for personal injuries sustained on Labor Day, September 7, 1908, at Hingham, when the plaintiff was returning from Nantasket Beach to his home in Brockton, from being thrown or drawn from an open car of the defendant when the conductor was puffing from the car an intoxicated passenger, who was sitting next beyond the plaintiff on the same seat of the car and whose fare the conductor had returned. Writ dated January 5, 1909.</p> <p>1. In the Superior Court the case was tried before Fessenden, J. The evidence is described sufficiently in the opinion. At the close of the evidence the plaintiff asked the judge to make certain rulings, which the judge refused to make. Among the rulings thus refused was one numbered five, which is quoted in the opinion. The other rulings requested have become immaterial for the reasons there stated. A material portion of the charge also is quoted in the opinion.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued at the bar in November, 1912, before Rugg, C. J., Hammond, Loring, Braley & Sheldon, JJ., and after-wards was submitted on briefs to all the justices.</p>

<p> Summary Process for Possession of Real Estate. Landlord and Tenant. </p> <p>In a summary process under R. L. c. 181 for the possession of certain land, there was oral evidence that by an unrecorded deed, which had disappeared, one who owned the land had conveyed it to the defendant in consideration of support, reserving to himself a life interest therein, and that he still was living. The defendant was in possession of the land and the plaintiff claimed the right to possession under a written lease given to him by the defendant’s grantor after his deed to the defendant. Held, that the defendant was not entitled to have a verdict ordered for him, as the evidence warranted a finding that the deed gave him no right of occupation during the life of the grantor, and that, if he had been a tenant at will under an oral agreement with his grantor, such tenancy was ended by the written lease to the plaintiff.</p>

<p>Practice, Civil, Amendment.</p> <p>The denial of a motion of a plaintiff in an action at law to amend his declaration is within the discretion of the presiding judge, to the proper exercise of which no exception lies.</p> <p>Where, after a rescript of this court affirming on exceptions an order of the Superior Court sustaining a demurrer to a declaration at law, a judge of the Superior Court denies a motion of the plaintiff to amend his declaration, and it appears that the alleged causes of action set forth in the proposed amendment, although described in some respects with greater detail, are the same as those contained in the original declaration which was adjudged to be bad, there is no ground for doubting that the discretion of the judge of the Superior Court was exercised properly.</p>

<p>Contract, by the tax collector of the town of Oakham against the executor of the will of William S. Spear, for taxes assessed for the years 1909 and 1910. Writ dated March 23, 1911.</p> <p>In the Superior Court the case was tried before Lawton, J., without a jury. The finding of the judge upon the question of residence, referred to in the opinion, was as follows:</p> <p>“As regards the residence the only evidence before me is the undisputed facts that William S. Spear had been for a long time previous to September 1, 1905, a resident of Oakham, that on or about that day he sold his house and substantially all its contents, went to Worcester and thereafter till his death remained in Worcester and that the executor, this defendant, in his petition for probate of the will asserts that the residence of the deceased was Oakham. Doubtless the defendant is not estopped by the affidavit in his petition or by the adjudication of the Probate Court now to deny that the residence of the deceased was Oakham. But I hold that it is evidence coming from the son of the deceased and in the absence of any explanation or contradiction it over-weighs inferences which I should doubtless draw from the fact of the father’s selling out and removing from Oakham in 1905 if that fact stood alone. I find that the deceased was a resident of Oakham at the time of his death.” He died on January 30, 1908.</p> <p>The finding of the judge, upon the contention of the defendant that the list brought in by him must be received as true because he had not refused “to answer on oath all necessary inquiries as to the nature and amount of his property,” was as follows:</p> <p>“As regards the second ground of defense I am satisfied that the assessors sent and that the defendant received the letter, a copy of which is in evidence marked exhibit 1, dated June 3, and which I find was sent in 1909. While the letter apparently assumes that the estate has been in part distributed and that the list as a list is therefore correct, I hold that it was intended as and must have been understood as a notice that the correctness of the defendant’s list was questioned, that he must appear and answer under oath, and that his neglect to reply to the letter was a refusal to do so. I cannot think it necessary that such a notice should contain the exact expression: ‘We question the correctness of your list and require that you should appear and answer under oath enquiries as to the nature and amount of your property.’”</p> <p>The letter referred to is quoted in the opinion, where the circumstance under which it was sent to the defendant as well as other material facts are stated.</p> <p>The judge refused to make certain rulings requested by the defendant, raising the two questions which are stated in the opinion. The judge found for the plaintiff in the sum of $70.12, being $27.92 with interest from October 1,1909, and $35.77 with interest from October 1, 1910, to the date of the finding. The defendant alleged exceptions, which included the following stipulation: “The parties are agreed that the two assessments stand or fall together; that if the plaintiff is entitled to recover on the assessment of 1909, he recovers on both; if he fails on the assessment of 1909, he fails on both.”</p> <p>The case was submitted on briefs.</p>

<p>Pleading, Civil, Declaration. Conversion. Contract, Implied in law.</p> <p>• There is no inconsistency between a count for the conversion of money and a count for money had and received joined in the declaration in an action of contract or tort which alleges that both counts are for the same cause of action.</p> <p>An action for conversion may be maintained where the defendant wrongfully retains money of the plaintiff paid to him in bank bills and silver coins.</p> <p>In an action of contract by a woman for money had and received, it appeared that the defendant was engaged in the business of selling merchandise on contracts of conditional sale, his method of business being for a customer to go to a retail store, select merchandise, come to him, make a deposit and sign a contract of conditional sale, whereupon he would deliver to the customer an order for the goods. The plaintiff, having selected goods at a retail store, went to the defendant’s place of business with a man, whom she falsely represented to be her husband and who signed a contract of conditional sale of the goods, in which he made a false representation as to his employment and in which he agreed that, if any statement therein was false, the' defendant might retain all sums of money paid under the contract “as. liquidated damages sustained through such deceit.” The plaintiff thereupon paid the defendant the money in question. The falsity of the representation by the plaintiff’s companion being discovered, the defendant refused to deliver to the plaintiff or to her companion an order for the goods or to return to the plaintiff the money she had paid. Held, that, even if the plaintiff’s companion were her agent, the defendant could not enforce against the plaintiff the provision in the contract as to liquidated damages, because he had refused to complete the sale and had repudiated the contract. Held, also, that the plaintiff’s deception should not preclude her from maintaining the action, although it was in its nature equitable, because the defendant had suffered no loss from such deception.</p>

<p>Physician. Release. Fraud. Evidence, Presumptions and burden of proof. Practice, Civil, Conduct of trial: requests and rulings, Exceptions. Waiver. Contract, Rescission.</p> <p>If, in an action for personal injuries sustained in a collision upon a highway, the defendant relies in defense upon a release and discharge from liability, and it appears that the defendant was the plaintiff’s physician and that the plaintiff executed the release because he relied upon a statement by the defendant of his opinion as to the time within which the plaintiff would recover his health, which the plaintiff contends was false, the burden is upon the defendant to show that he acted in good faith, because the relation of a physician to his patient is one of trust and confidence, and commercial relations between them, where fraud or undue influence is charged, are viewed with jealousy and are scrutinized carefully.</p> <p>At the trial of an action for personal injuries the defense relied on was a release and discharge of the defendant by the plaintiff, which the evidence of the plaintiff tended to show was procured through fraud of the defendant. The defendant contended that, by delay in making a tender to him of the money which he had paid as a consideration for the release, and by using that money, the plaintiff had waived his right to rescind the settlement and had reaffirmed it. At the trial the defendant did not ask for any specific instructions to that effect. At the close of the charge he did not call such contentions to the judge’s attention. He did ask for a ruling, which was refused, that on all the evidence the plaintiff could not recover. At the argument of an exception by the defendant to the refusal of the general ruling asked for, it was held, that the contentions above described were open to the defendant, but, upon the facts shown by the evidence, such contentions were held to be without merit.</p> <p>At the trial of an action for personal injuries the defense relied on was a release executed by the plaintiff and delivered to the defendant, who paid for it a certain sum of money, and who contended that the entire transaction was carried through by him in good faith. The plaintiff contended that the release was procured by fraudulent means. It appeared that two years after the release was given the plaintiff tendered to the defendant the money she had received from him and asked him to give up the release. The tender was refused. The plaintiff then used the money. There was evidence tending to show that the delay in making the tender after discovery of the defendant’s alleged fraud was excusable and that the tender was made with reasonable promptness. Held, that it could not be ruled as a matter of law that the delay in making the tender and the use of the money by the plaintiff operated as a waiver of her rights to rescind, or as a confirmation of the settlement.</p> <p>It is only where the facts attending a delay in action to enforce one’s rights are not in dispute and are susceptible only of the inference that the delay was a waiver of such rights, that the question of what is a reasonable time within which such action must be taken can be determined as a matter of law.</p> <p>Where, to maintain an action for personal injuries, the plaintiff must rely on an alleged rescission by him qn the ground of fraud of a settlement made with the defendant in which the plaintiff received a sum of money from the defendant and gave him a release, and it appears that the defendant refused to accept a tender by the plaintiff of the money he had received in settlement and he insists at the trial of the action that the settlement was made in good faith, a further .tender by the plaintiff at the trial is unnecessary; and, if the judge instructs the jury in substance that, if -they find for the plaintiff, they shall credit the defendant in the assessment of damages with the amount paid by him in the attempted settlement, the defendant’s rights are protected.</p>

<p>Damages, For property taken or damaged under statutory authority. Statute, Construction. Evidence, Public records.</p> <p>The owner of a tract of land, bordering on an arm of the sea, who has constructed thereon a wharf, has no right at common law to recover damages if,’by reason of a drawless bridge built under statutory authority between the property and the sea, navigation between his property and the sea is restricted.</p> <p>The terms of a statute giving a right to recover damages for injury to property resulting from an exercise of the police power by the Commonwealth are not to be extended by implication in favor of the party on whom the right is bestowed.-</p> <p>St. 1902, c. 464, § 1, giving to the owner “of wharf property used as such” on or before March 29, 1900, on the Charles River above the drawless bridge whose construction was authorized by Sts. 1898, c. 467; 1899, c. 180, and U. S. St. of March 29, 1900, c. 116, a right “to recover damages for any injury occasioned to such property by reason of interference with the access by water thereto, enjoyed” on March 29,1900, "and theretofore, because of the construction of said bridge without a draw,” does not give a right to recover damages so caused to an entire tract of fifty acres used on- or before March 29, 1900, in connection with two wharves included in the fifty acres, but only to recover the damage caused to so much of the property as customarily had been or then was in actual use for wharf purposes.</p> <p>Comments in the nature of a ship’s log, kept by a draw tender appointed by the superintendent of streets of Boston under an ordinance and in accordance with instructions of the superintendent which the ordinance required him to obey, are not a public record under R. L. c. 35, § 5.</p> <p>Records kept by draw tenders of a bridge in Boston containing entries descriptive of matters not known to the draw tenders but told to them by others, as well as entries made a long time after the event recorded, are not admissible in evidence, even if supported by the suppletory oaths of the draw tenders who made them.</p>

<p>Contract by the trustee in bankruptcy of the Corperdix Paper Tube Company, a corporation, for the amount of a preference * alleged to have been paid to the defendant by the bankrupt. Writ dated August 21, 1911.</p> <p>In the Superior Court the case was heard by Dana, J., without a jury.</p> <p>It appeared that on August 1, 1910, the defendant brought an action against the Corperdix Paper Tube Company to collect a debt of $816.24 and placed a keeper in that company’s place of business. On August 12, that company sold about one half of its plant for $1,500, and transferred to the defendant three notes, amounting to $626.23, which it had received from the purchaser, and that the defendant then removed the keeper, it being understood that the balance of the defendant’s account should be paid when the Corperdix Paper Tube Company had completed a certain cup machine, upon the completion of which it expected to realize a sum sufficient to take care of all its indebtedness. The cup machine referred to never was completed. The notes given to the defendant were paid to the defendant as they matured.</p> <p>There was testimony by an officer of the Corperdix Paper Tube Company to the effect that on August 12, 1910, before the sale of about one half of its plant, its assets at a fair valuation were worth $4,500, and its liabilities, before the payment to the defendant, were $6,500. In the evidence introduced by the defendant was a list of the creditors of the Corperdix Paper Tube Company on August 12, 1910, which contained the names of over forty creditors to whom the corporation owed $6,224.72, the debts varying in amount from $1 to $1,937.90.</p> <p>There was evidence tending to show that at a conference on August 12, 1910, when the payment to the defendant was made, the subject of the possible bankruptcy of the Corperdix Paper Tube Company was discussed by the attorney for the defendant and the officers of the Corperdix Paper Tube Company, and that one of the officers of the Corperdix Paper Tube Company was reluctant to make the payment because he thought that by so doing the corporation would enable the defendant to receive a greater percentage of its claim than other creditors could receive at that time, as the assets of that company before the sale would not exceed $4,500 in value and its liabilities before payment to the defendant would approximate $6,500, and that he so told the attorney for the defendant; and that the defendant’s attorney replied, in substance, that if the company went into bankruptcy the defendant would be obliged to repay the payment made at that time if such payment constituted a voidable preference, but that he, the attorney for the defendant, would take his chances as to that.</p> <p>At the close of the evidence the judge at the request of the defendant, made, among other rulings, the following: “The plaintiff must prove that the payment by the Corperdix Paper Tube Company to the defendant on August 12, 1910 had the effect of enabling the defendant to receive a greater percentage of its claim than other creditors of the same class could at that time have received.”</p> <p>The defendant also asked the judge to give the following rulings, which were refused:</p> <p>“1. Upon the evidence the plaintiff has failed to sustain the burden, and the defendant is entitled to a finding.”</p> <p>“7. There was no evidence bearing on the character of the indebtedness of the Corperdix Paper Tube Company to other creditors, nor the class to which other creditors belonged.”</p> <p>“10. The plaintiff must prove that, at a fair valuation, the assets of the Corperdix Paper Tube Company, which he as trustee received, will not enable the estate to pay a percentage to creditors of the same class as great as the defendant received.</p> <p>“ 11. The plaintiff introduced no evidence of the value of assets in his hands as trustee, or the percentage the estate could pay.”</p> <p>There was a finding for the plaintiff in the sum of $641.67; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been caused by the eating of an unwholesome blueberry pie manufactured by the defendant, sold to one Stewart, and by him sold to the plaintiff. Writ dated January 27, 1910.</p> <p>In the Superior Court the case was tried before Lawton, J. The material facts are stated in the opinion. At the close of the evidence the defendant asked that a verdict be ordered for it. The judge refused so to do, and the jury found for the plaintiff in the sum of $2,916.67. The defendant alleged exceptions.</p>

<p>Two actions of tort, by the administrator of the estate of Harry Evans, under St. 1907, c. 375, for causing the death of the plaintiff’s intestate who, when walking on the sidewalk of Columbus Avenue in Boston on September 14, 1910, was run into from behind by an automobile belonging to one Brownell, which was being operated by the defendant Hinchcliff, who was the manager of the defendant Winton Motor Carriage Company. Writs dated respectively October 17 and 31, 1910.</p> <p>In the Superior Court the cases were tried together before Dubuque, J. The evidence is described in the opinion. At the close of the evidence the defendant Hinchcliff asked for certain rulings, of which the first and second were as follows:</p> <p>“ 1. As matter of law this defendant was not negligent and the plaintiff cannot recover.</p> <p>“2. There is no evidence that this defendant was negligent and the plaintiff cannot recover.”</p> <p>The judge refused to make these and other rulings requested by this defendant. He gave as an instruction to the jury the twelfth ruling requested by him, which was as follows: “12. This defendant is not deemed to be careless merely because in an emergency he failed to do that which would have been best as shown by subsequent events.”</p> <p>The defendant Winton Motor Carriage Company asked the judge to make certain rulings, of which the first and second were as follows:</p> <p>“1. Upon all the evidence and pleadings, the plaintiff is not entitled to recover against the Winton Motor Carriage Company.</p> <p>“2. There can be no recovery as damages to compensate the plaintiff for the death of Mr. Evans, the deceased.”</p> <p>The judge refused to make these and other rulings requested by this defendant.</p> <p>The portion of St. 1909, c. 534, § 16, to which the judge called the attention of the jury as showing the rule as to the rate of speed of motor vehicles laid down by the Legislature was as follows: “Every person operating a motor vehicle on any way in this Commonwealth shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public.”</p> <p>The jury returned a verdict for the plaintiff in each of the cases in the sum of $3,500, finding each defendant liable for this amount. The defendants alleged exceptions.</p> <p>The cases were submitted on briefs.</p>

<p>Contract, Construction. Equity Jurisdiction, Specific performance.</p> <p>Where a contract in writing for the sale of certain land and its conveyance by a deed “ conveying a good and clear title thereto ” also contains a provision, that “ if the vendor shall be unable to give title or to make conveyance as above stipulated, any payment made under this agreement shall be refunded and all other obligations of either party hereunto shall cease and this agreement shall be void without recourse to either party,” and the title to the land proves to be defective as to a certain undivided interest, the proposed purchaser under the contract, or his assignee, cannot maintain a suit in equity against the vendor to compel the vendor to acquire the undivided interest and convey a perfected title to the plaintiff or to convey the imperfect title to the land subject to the outstanding claim for a price correspondingly diminished, the defendant having agreed to convey the land only in case he was able to give a good title.</p>

<p>Lien, On real estate. Equity Jurisdiction, Equitable charge on real estate.</p> <p>Where, in consideration of a loan of money, the borrower delivers to the lender an instrument in writing by which he agrees that, as soon as he secures an interest in certain real estate, the equity of redemption of which then belongs to his trustee in bankruptcy, he forthwith will make a mortgage conveying such interest to the lender, this instrument is a mere executory agreement and creates no equitable lien upon the real estate; and, if the borrower subsequently acquires the contemplated interest, the lender cannot set up such instrument to establish an equitable charge on the real estate as against a creditor of the borrower who has brought a suit in equity to reach and apply such equitable interest to the payment of the debt to him.</p>

<p>Practice, Civil, Exceptions, Conduct of trial: illustrations in argument. Attorney at Law. Witness, Credibility: illustrations in argument to modify effect of record of conviction.</p> <p>A deliberate statement made by an attorney at law at a trial, that he is satisfied that there is nothing in an exception noted at his request by the presiding judge, commonly must be taken to mean, in the absence of any qualifying reservation, that the exception is waived, and under such circumstances, if the exception is disallowed by the judge, a commissioner is warranted in finding that the excepting party has not established its truth, although he further finds that the excepting party did not intend to waive it.</p> <p>An attorney at law taking part in a trial will be presumed, unless the contrary is shown, to be acting in the performance of his duty to the court and in accordance with his oath of office, so that a statement by him, that he is satisfied that there is nothing in an exception which has been noted by the presiding judge at his request, properly may be understood to be a waiver of the exception.</p> <p>"Where a petition to establish the truth of exceptions is before this court upon the report of a commissioner, if the truth of one of the exceptions is established on the report, such exception will be considered and passed upon by this court, although the other portions of the petition are not established.</p> <p>In an action, against a corporation operating a street railway, for personal injuries alleged to have been caused by the negligence of the conductor of a car of the defendant, where such conductor at the time of the trial is serving a sentence in the State Prison for an assault upon his wife with intent to kill and has been called by the defendant as a witness, and the plaintiff has introduced in evidence the record of his conviction to impeach his credibility as a witness, the counsel for the defendant in addressing the jury may argue that the crime, although of a serious character, might have been committed under such circumstances that it should not affect greatly the weight to be given to the testimony of the convict, and he has a right to illustrate this argument by putting hypothetical instances in which the moral turpitude involved in the commission of the crime might be minimized. And, although in such a case it is the duty of the presiding judge to restrain the counsel from saying anything from which it may be inferred that actual facts are being stated, yet the denial of the right of illustration by hypothesis is a material error for which an exception will be sustained.</p>

<p>Two actions of tort by the administrator of the estate of James Chisholm, the first action under R. L. c. Ill, § 267, for causing the death of the plaintiff’s intestate, when he was walking across one of the defendant’s tracks on Washington Street in that part of Newton called West Newton near the corner of Chestnut Street, by reason of the alleged gross negligence of the servants of the defendant in operating a street railway car, and the second action at common law for personal injuries of' the plaintiff’s intestate resulting in conscious suffering before his death and consequent expense for medical attendance and nursing, alleged to have been caused by the negligence of the defendant’s servants in the operation of one of its cars when the intestate was travelling on the highway in the exercise of due care. Writs dated respectively April 4 and May 18, 1905.</p> <p>In the Superior Court the cases were tried together before Bell, J. It appeared that the accident happened on January 12, 1905, at about 12.45 o’clock in the afternoon, and that the intestate consciously suffered and lived until about nine o’clock in the evening of January 14, 1905. The age of the intestate was stated variously by the witnesses as being from seventy-five to eighty-three years, but it was testified that his sight and hearing were unimpaired and that he was as active as a much younger man would be. There was evidence that the intestate was standing with two other men nearawhite pole station; that a car was approaching on the farther of the defendant’s parallel tracks; that the other two men signalled to thé car to stop and crossed the street followed by the plaintiff; that the motorman saw them but did not. stop and went by at “a strong twenty-five miles an hour; ” that they heard no bell or whistle; and that the intestate was struck by the car just as he was stepping over the last rail. The motorman of the car testified on cross-examination “that he was running faster than usual on that day making up time; that he had decided not to stop at the stations.”</p> <p>At the close of the evidence the judge ruled that the plaintiff was not entitled to recover and ordered a verdict for the defendant in each of the cases. The plaintiff alleged exceptions.</p>

<p>Tort for personal injuries alleged to have been caused by the starting of an open electric street railway car, operated by the defendant, as the plaintiff was in the act of entering it from the running board. Writ dated August 5, 1905.</p> <p>In the Superior Court the case was tried before Crosby, J. The only evidence relating to the cause of the starting of the car is stated in the opinion, where also are stated the other material facts.</p> <p>At the close of the evidence the defendant asked the judge to rule that on all of the evidence the plaintiff could not recover. The ruling was refused. The jury found for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in January, 1913, before Rugg, 'C. J., Morton, Hammond, Braley, & Sheldon, JJ., and afterwards ■was submitted on briefs to all the justices.</p>

<p>Contract for $50 alleged to be owed by the defendant as club dues for the year beginning December 1, 1907. The action was brought in the name of the plaintiff, a social club incorporated under R. L. c. 125, by Oscar A. Marden, Esquire, who was appointed receiver of its property by a decree of the Superior Court on May 5, 1908. Writ dated May 4,1910.</p> <p>In the Superior Court the case was tried before Lawton, J.</p> <p>It appeared that on December 26, 1906, the defendant made application for membership in the plaintiff upon a blank furnished by the clerk, such application stating that he was “Proposed by Fred C. Gilpatric” and “Seconded by Albion F. Bemis.”</p> <p>The by-law of the club relating to proposals for membership in force at the time of the making of such application, Article IV § 3, was as follows:</p> <p>“The form for proposing a person for membership shall be as follows — namely, a written application must be made out by the applicant; on blanks furnished by Club, indorsed by two members other than the member proposing him, giving the full name, place of residence, occupation and place of business of the person proposed, and the date of the proposal; and immediately the Secretary shall post a true copy of the application on the bulletin board of the Club House, and forward said applications to the Membership Committee, which shall remain posted at least a fortnight before being voted upon by the Executive Committee. Provided that fifteen members do not object in writing to said candidates or candidate by sending to said committee a negative ballot. A candidate who has been rejected cannot be proposed again for six months.</p> <p>“No candidate will be accepted who is under twenty-one years of age.”</p> <p>Section 4 of the same article provided that each resident member, when elected, should pay an entrance fee of $25 and an annual assessment of $50. Section 5, among other provisions, contained the following: “Every member shall within thirty days after his election pay to the Treasurer his entrance fee, and his membership shall commence from the date he complies with the above requirement, and will be equivalent to signing the constitution and by-laws.”</p> <p>The bill of exceptions stated that the plaintiff’s by-laws “provided for an executive committee of fifteen with the powers of directors, and that this executive committee should have the entire government and management of the business of the club, including the election of members; that it should appoint from itself a membership committee of five who should investigate the character, etc., of the applicants, and report their recommendations to the executive committee.”</p> <p>It further appeared that, at a meeting of the plaintiff’s executive committee on December 31,1906, the defendant’s application, made five days before, was acted upon favorably and he was elected to membership.</p> <p>The defendant never paid an entrance fee. In December of 1906 and in June and December of 1907, he made payments of $25 as dues.</p> <p>The other material facts are stated in the opinion.</p> <p>At the close of the evidence, the defendant asked the judge to give, among other rulings, the following:</p> <p>“The defendant never became legally a member of the club by reason of the failure to comply with the provisions of the by-laws as to his election, and because of the non-payment by him of the admission fee provided by the by-laws.”</p> <p>The ruling was refused and, “the defendant admitting that there was apparently no fact in controversy,” a verdict was ordered for the plaintiff; and the defendant alleged exceptions.</p>

Petition, filed in the Land Court on November 10, 1911, for the registration of the title to land numbered 68 and 70 on Henley Street in that part of Boston called Charlestown. In the Land Court the petition was heard by Davis, J. Both the petitioner and the respondent claimed title derived from the will of John Wall, late of Charlestown, the petitioner contending that, in the clause described in the opinion, by the words “sixty-eight . . . and seventy . . .

<p>Bill in equity, filed in the Supreme Judicial Court on May 13, 1912, by Charles E. Cotting and Francis C. Welch, trustees of the Department Store Trust, against the Otis Elevator Company, the Henry Siegel Company and Henry Siegel and Frank E. Vogel. The allegations of the bill in substance were as follows:</p> <p>The plaintiffs agreed with the defendants Siegel and Vogel to erect and to lease to them “a substantial building, suitable for use for dry goods and department store business, and equipped with movable stairways,” and, for the purpose of fulfilling such agreement, erected a building in Boston and leased it to Siegel and Vogel, who assigned their lease to the defendant Henry Siegel Company.</p> <p>In erecting the building the plaintiffs made an agreement with the defendant Otis Elevator Company whereby it “agreed to furnish, and erect in a workmanlike and substantial manner movable stairways, [and to install proper cabinet work connected therewith] and further agreed to make the necessary repairs without costs, should any imperfections or defects in material or workmanship of the said movable stairways develop within one year from the date of their completion, provided such imperfections or defects were not due to ordinary wear and tear, or improper treatment.”</p> <p>The bill further alleged that the defendant Henry Siegel Company “ claimed ” that, by reason of the negligent and defective construction of the escalators and of the cabinet work which was installed in said building, it had suffered great injury to its property, and had been compelled to pay large sums to business visitors, who without its fault had suffered injury by reason of the defective construction of the escalators and cabinet work; that the plaintiffs, under their contract with it, were liable to indemnify it for the loss thus sustained, and that, if the plaintiffs should be held to “respond in damages to the Henry Siegel Company or to the said Siegel and Vogel, or either of them, said liability ” would “have been caused entirelybythe fault of the Otis Elevator Company and by the breach of its agreements to install said •escalators and cabinet work.”</p> <p>The bill also alleged that the defendant Otis Elevator Company was causing to be prosecuted in the Supreme Court for the county of New York in New York an action against the defendant Henry Siegel Company for sums alleged to be due for repairs upon the escalator, and that the Henry Siegel Company contended that all such repairs and parts were rendered necessary by reason •of the failure of the Otis Elevator Company properly to perform its agreement with the plaintiffs, and had informed the plaintiffs that, if it was held liable in that action it would demand indemnity from the plaintiffs. The items claimed in that action, the bill alleged, represented repairs made necessary by defects in material and workmanship of the escalators, which developed within one year from the date of completion of the escalators, and were not due to ordinary wear and tear or to improper use of the equipment, but were due to the fact that the escalators were not erected in accordance with the terms of the agreement. A further allegation was that, if judgment was recovered against the Henry Siegel Company, it would demand indemnity from the plaintiffs, and that the plaintiffs were entitled to exoneration by the Otis Elevator Company from that claim.</p> <p>The prayers of the bill were (1) "that the defendant Otis Elevator Company shall be ordered to exonerate the plaintiffs of and from all liability to the Henry Siegel Company and Siegel and Vogel, or either of them, resulting from the failure on the part of the Otis Elevator Company to perform its agreements with the plaintiffs, (2) that upon such exoneration, the Henry Siegel Company and Siegel and Vogel may be enjoined from making any further claims against the plaintiffs for damages resulting from the acts of the Otis Elevator Company in failing to perform its said agreements, (3) that the Otis Elevator Company may be enjoined from further prosecuting the action” which it had caused to be commenced against the Henry Siegel Company in the New York court.</p> <p>The defendant Otis Elevator Company demurred. The demurrer was sustained by Morton, J., who at the request of the plaintiffs reported the case for determination by the full court.</p> <p>The case was submitted on briefs.</p>

<p> Equitable Restrictions. Adverse TJse. </p> <p>"The right to enforce an equitable restriction is wholly extinguished by a failure to enforce it for twenty years, if others during that period have used the land which was subject to the restriction in a manner inconsistent with the existence of the restriction.</p>

<p>Contract for $343.96 on an account annexed, containing three items, to recover the price paid by the plaintiff for certain defective iron castings sold by- the defendant to the plaintiff which the plaintiff claimed the right to return, the items being dated respectively December 12, 1907, June 30, 1908, and October 29, •1908. Writ in the Municipal Court of the City of Boston dated •June 9, 1910.</p> <p>On appeal to the Superior Court the case was tried before Fox, J. The facts which could have been found upon the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to instruct the jury as follows:</p> <p>“1. If the goods are defective it is the duty of the buyer to return them within a reasonable time.</p> <p>“2. A failure on the part of the buyer to return them 'within a reasonable time will bar the buyer from recovery for any defects in an action against the seller based on a right to return the goods. ■</p> <p>“3. That in the action at bar the dates of the different items in the account annexed are not such as to bring them within the limits of a ‘reasonable time.’”</p> <p>The judge gave the first-two of these instructions, but refused to give the third, and left it to the jury to determine whether the right of return was exercised reasonably in this case.</p> <p>.The jury returned a verdict for the plaintiff in the sum of .$316.73; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Tort, by the trustee in bankruptcy of the estate óf C. Richard Anderson, with two counts, each to recover the amount of an alleged fraudulent preference made by the bankrupt to the defendant, within four months of the filing of an involuntary petition in bankruptcy against him by certain of his creditors, in violation of the bankruptcy act of 1898, § 60 b, the first count alleging the making of a mortgage to one Lane, acting as the agent of the defendant and for its benefit, covering all the stock in trade, fixtures and other personal property of the bankrupt, and the second count alleging a fraudulent transfer to the defendant of a promissory note for $200 secured by a second mortgage of real estate given by one Rosval. Writ dated September 16, 1910.</p> <p>In the Superior Court the case was tried before Brown, J. Among other things, it appeared that the defendant foreclosed the mortgage of Lane by a sale at public auction, and that the purchaser was one Fatales, who bid the sum of $425. Owens, mentioned in the opinion, was the holder of a prior mortgage on the same property. The foreclosure sale was on July 2, 1909. There was evidence that Fatales had had previous dealings with Anderson and knew of his embarrassed financial condition at the time of the sale, and that he made the bid by which he purchased the property in accordance with a prearrangement with the defendant.</p> <p>On July 14, 1909, certain creditors of Anderson filed an involuntary petition against him in bankruptcy, and on or about July 17, 1909, the plaintiff was appointed receiver in bankruptcy of Anderson’s estate. On the same day, acting under an order from the bankruptcy court and by agreement of counsel for Anderson, Owens, Fatales and the petitioning creditors, the plaintiff took possession of the personal property then held by Fatales by virtue of the foreclosure sale. A part of the agreement of counsel was that the property should at once be appraised under the directions of the court, and that it then might be sold by the receiver, who should thereupon hold the proceeds in place thereof and subject to the liens and legal claims, if any, of Owens and of Fatales. All of this was done. The personal property was appraised by three appraisers, who were appointed on July 24, 1909, and made their appraisal on July 29, 1909. They appraised the property at $2,208.78 and a private sale was made by the receiver for seventy-five per cent of this amount. The evidence tended to show that between the date of the foreclosure sale, on July 2, and the date of the plaintiff’s taking possession Fatales had sold articles to the value of $245, but no more.</p> <p>Anderson was adjudged a bankrupt on August 2, 1909, and the plaintiff was appointed his trustee on August 24, 1909, taking over to himself, as such, the property which he previously had held as receiver. It appeared that he subsequently made a settlement with both Owens and Fatales on account of their respective claims.to the funds in his possession resulting from the sale of the personal property. What these settlements were was not in evidence. It did appear, however, that the defendant was not a party thereto and had no formal notice thereof.</p> <p>The claims proved and allowed against Anderson’s bankrupt estate were certified by the referee as $62.25 entitled to a preference and $4,031 held by general creditors, in addition to which there were pending, but not allowed at the time of the trial, claims of about $500. One of the claims proved and allowed was that of Hilmar Rosval, the maker of the $200 real estate mortgage. The amount of this claim was $100. The money due upon the Rosval mortgage itself was collected in full by the defendant on or about January 11, 1910. Other facts relating to the second count of the declaration are stated in the opinion.</p> <p>It was stated in the report to this court that “on all the evidence the jury would have been warranted in finding that Anderson was insolvent when he gave both the mortgages described in the two counts of the plaintiff’s declaration, and that the defendant knew, or had reasonable cause to know, that he was insolvent.”</p> <p>The defendant contended, in regard to the first count of the declaration, that the personal property covered by the mortgage there described came into the possession of the plaintiff and was sold by him and that he received the proceeds; and, in regard to the second count, the defendant contended that the Rosval mortgage was assigned to it for a present consideration, namely, the price of goods worth a little more than the amount of that mortgage which were sold to Anderson within three days of the time when he transferred that mortgage to the defendant.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant on each of the counts of the declaration, and reported the case for determination by this court. If the ordering of the verdict on the first count was wrong, judgment was to be entered for the plaintiff on that count in the sum of $250. If the ordering of the verdict on the second count was wrong, judgment was to be entered for the plaintiff on that count in the sum of $100.</p> <p>The case was submitted on briefs.</p>

<p>Negligence, Of parent, Street railway.</p> <p>In an action by a child against a corporation operating a street railway for personal injuries from being struck by a car of the defendant when the plaintiff was upon the street unattended, it appeared that the plaintiff was two years and nine months of age, that the mother of the plaintiff had five other young children, two of them younger than the plaintiff, the youngest being three months old, and that she had no one to help her to take care of the children or to do the housework while her husband was at work, that she allowed the plaintiff to go out in the yard back of the house to play with her next older brother, who was four years and four months old, that the yard was surrounded by a fence and the only way to get out of it was by a gate, that the mother had tied the gate with a piece of clothes line so that it could not be opened without untying the rope, that while the plaintiff was in the yard the mother was attending to the babies and performing her household duties, that she did not look out of the window into the yard to see whether the children were there, that the plaintiff came in for a drink of water and then went out again into the yard, and that fifteen or twenty minutes later the plaintiff’s mother heard of the accident. Held, that it could not be said as matter of law that the plaintiff’s mother had failed to exercise the care which reasonably could be required of her, and that it was for the jury to say whether she had taken reasonable precautions to keep the plaintiff in the yard and in other respects had exercised reasonable care.</p> <p>In an action by a child, two years and nine months old when injured, against a corporation operating a street railway for personal injuries from being struck by a car of the defendant, it appeared that just previous to the accident two or three children of about the plaintiff’s age ran across the street ahead of the car, that the motorman reduced the speed of the car, and that he was putting on the power to start up again when the plaintiff ran across the street and was struck by the car. There was evidence that as soon as the motorman appreciated the impending danger of injury to the plaintiff he tried to stop the car, and he testi- ' fled that he could have stopped the car within a distance of twelve or fifteen feet and actually did so; but there also was evidence that the motorman either saw or might have seen the plaintiff in a position of danger at a distance of thirty feet. Held, that it might have been found that, even if the motorman did not see the plaintiff in time to stop the car before it reached her, yet in the exercise of proper care he ought to have seen her in time, and, in that case, it could be found that the accident was due to his negligence, although, as soon as he did see the plaintiff and perceived the danger of running into her, he made every effort in his power to look out for her safety.</p>

<p>Evidence, Materiality. Attorney at Law. Practice, Civil, New trial.</p> <p>In an action of tort by a woman for personal injuries, where it appears that the plaintiff was attended by a physician who was called in by a person into whose house she was carried after the accident and that the plaintiff paid him nothing, it is proper to refuse to allow the defendant to ask the plaintiff on her cross-examination whether she had any money to pay this physician, this having no bearing, either under St. 1907, c. 443, prohibiting the solicitation of employment by attorneys at law, or otherwise, upon any of the issues on trial.</p> <p>Upon a motion for a new trial after a verdict for the plaintiff in an action of tort, where at the trial the testimony of the plaintiff and of one other witness was contradicted by that of twelve witnesses for the defendant, the judge refused to rule as matter of law, “that where witnesses of equal candor, fairness and intelligence testify with equal opportunity of knowledge and memory, and their testimony is in all respects of equal weight and credibility,” if there is a conflict as to facts which cannot be reconciled, the number of witnesses constitutes a preponderance and the verdict should be in harmony with the testimony of the greater number of witnesses. Held,, that, whether or not the ruling requested might be correct as a theoretical proposition, in the present case it required the assumption of facts which were not shown to exist and therefore was refused properly.</p>

<p>Practice, Criminal, Joint trial in capital case, Challenge of juror, Question by juror, New trial. Jury and Jurors. Evidence, Best and secondary, Of identity of instrument in writing, Against one of two defendants in criminal case, Opinion. Homicide. Witness, Impeachment.</p> <p>The rule, that the granting of a motion for a separate trial made by one of two defendants indicted jointly is within the discretion of the presiding judge, applies to such a motion made by one of two defendants jointly indicted for murder, where it is known that a confession in writing made by the other defendant is to be offered in evidence at the trial.</p> <p>It is not a rightful cause for the challenge of a juror by the defendant in a trial for murder, that the juror in answer to a question by the presiding judge stated that he was prejudiced in favor of capital punishment, if in answer to further questions the juror stated that he would favor conviction only if guilt was established on the evidence beyond a reasonable doubt.</p> <p>At the trial of an indictment for murder a medical examiner, who performed an autopsy upon the body of the deceased, of which he filed an official report under the requirement of R. L. c. 24, §§ 9, 10, as amended by St. 1909, c. 273, § 1, properly can testify to the conditions that he observed at the autopsy, against an objection of the defendant on the ground that the official report is the best evidence.</p> <p>At the trial of an indictment for murder, upon the issue of the identity of a check, which the Commonwealth contended was taken from the body of the murdered person and was procured to be cashed by one of the defendants, a daughter-in-law of the deceased, who can neither read nor write and who has testified that she recognizes a check shown her as the one in question from a picture of vegetables upon it, properly may be allowed to testify, that from time to time she has seen other checks like the one thus identified by her.</p> <p>At the trial of two defendants indicted jointly for murder, an instruction by the presiding judge, not to consider in any way against one of the defendants certain evidence which is admissible against the other defendant, sufficiently protects the defendant as to whom the jury has been told to disregard the evidence.</p> <p>At the trial of two defendants indicted jointly for the minder of a woman, the son of the woman properly may be allowed to testify that both defendants, after having been in his house and having seen his mother, attracted his attention by the way in which they looked at him and that later they laughed at him as he was working in his barn; and, where there are circumstances about the presence of both defendants which can be found to indicate some design, evidence of the conduct and bearing of the defendants within two days before and at or near the place of the commission of the crime, if not admissible as of right, is at least admissible within the discretion of the presiding judge.</p> <p>At the trial of two defendants on an indictment for the murder of a certain person, evidence that on the evening of the day that the person was killed both defendants came into a liquor store and “appeared to be excited” is competent to show the conduct and appearance of the defendants after the crime was committed as bearing upon their guilt.</p> <p>At the trial of two defendants, named B and K, jointly indicted for the murder of a woman, there was evidence that on the evening of the day when the crime was committed the defendants, who were Boles, went together to a liquor store,. where B told K that the clerk spoke the Bolish language and then went out on the sidewalk while K indorsed and got cashed a check that had been on the person of the murdered woman, that B then returned to the store and told I< to hurry up and they departed together. There was other evidence tending to show a common design in their association on that-day and on the few days previous to the murder. Held, that the evidence was competent, and that there was sufficient evidence for the jury to consider whether the cashing of the check was with the knowledge and approval of B and for the joint benefit of both defendants.</p> <p>At the trial of two defendants jointly indicted for the murder of a woman, where there was evidence that the defendants on the evening of the day of the murder cashed for their joint benefit a check that was on the person of the murdered woman, evidence that a day or two after the murder a witness came suddenly upon one of the defendants who was counting money and that he acted “kind o’ sneaky about it ” is competent, it being a description of conduct and not the mere statement of an inference or conclusion.</p> <p>Where the defendant in a trial for murder has testified in his own behalf, and a court record has been introduced in evidence without objection showing a conviction of a certain person of a different name from that of the defendant, the defendant can be asked on his cross-examination whether he was not the person named in such record, who was convicted of an assault with a dangerous weapon on a certain date and was committed to the house of correction, if this description fairly calls the attention of the witness to the record in evidence, exact precision in the description of the record not being necessary in the framing of the question, and the record itself, if shown to relate to the defendant, being admissible to impeach his credibility as a witness.</p> <p>In a criminal case, as in a civil one, when the jury have returned to the court room after their deliberations have begun, the orderly conduct of the trial requires that a question from a juror to the presiding judge commonly should be presented through the foreman, who is the mouthpiece of the jury, this being a matter which must be left largely to the discretion of the presiding judge. In the present case, upon an exception to the denial of a motion for a new trial, no question in regard to the propriety of the action of the judge could be raised, because no objection had been made at the trial to the suggestion of the judge to a juror who had expressed a desire to ask a question, that he “had better communicate through the foreman in writing.”</p> <p>In capital and other criminal cases, as in civil cases, the granting of a new trial on the ground of newly discovered evidence is a matter of judicial discretion.</p> <p>Two defendants were indicted jointly for murder. They were tried together and both were convicted. After the trial, one of the defendants died and an autopsy was performed on his body. The surviving defendant filed a motion for a new trial on the ground of newly discovered evidence, consisting of the facts disclosed by the autopsy. The deceased defendant had testified as a witness at the trial and his testimony had tended to show the guilt of the surviving defendant. The motion for a new trial alleged that the autopsy showed such a diseased condition of the brain of the deceased defendant as to render his testimony given at the trial unworthy of belief. The motion was supported by an affidavit of physicians, who had taken part in the autopsy, to the effect that the brain of the deceased defendant was diseased and had been so for many years and that at the end there had been a fatal disintegration of brain substance. The affidavit concluded as follows: “Evidence of the final organic process which terminated life made itself clearly manifest on the day that the jury returned its verdict. Whether the process developed acutely or had been coming on for some time we are unable to say. Such a brain disease means a modified mentality. Statements made by the said [deceased defendant] at any time might be reliable or unreliable.” The motion was denied by the presiding judge. Held, that the matters to be passed upon were for the consideration of the presiding judge, who saw and heard the deceased defendant as a witness, and that the result of the exercise of his discretion in denying the motion for a new trial could not be disturbed.</p>

<p>Practice, Civil, Exceptions, Memorandum.</p> <p>Where a judge, who, without a jury, heard an action of tort for personal injuries, found, upon conflicting evidence, that the defendant was negligent but that the plaintiff received no substantial injury, and found for the defendant, this court, upon an exception by the plaintiff “upon the ground that as a matter of law the evidence” was “not sufficient to support” the findings, has no jurisdiction to review the findings, but only to say as a matter of law whether there was evidence which authorized the finding for the defendant.</p> <p>An action by a woman against a railroad company for personal injuries, alleged to have been caused by the starting of a train of the defendant as the plaintiff was in the act of alighting, was heard by a judge without a jury. The plaintiff testified that she was thrown against the car and against the railing and down to the edge of the car platform, and that she suffered injuries to her abdomen and spine. The testimony was controverted. The judge filed a memorandum stating that the defendant was negligent, that there was no unusual violence in the starting of the train, that he was-satisfied that the plaintiff “did not fall at all,” that it was “ possible that, by taking some of her testimony, some of the defendant’s testimony, and by finding against some of her contentions and in favor of others, a case might be made for her,” but that “neither from her account of what occurred at the train nor from her subsequent experience” was he “able to say” that she had satisfied him that she received any substantial injury; and he found for the defendant. Held, that it did not appear from the memorandum that the judge had believed the plaintiff’s testimony, and therefore that, on an exception by the plaintiff to the finding as not justified by the evidence, it was not necessary to consider an argument of the plaintiff based on the assumption that the judge had believed her testimony.</p>

<p>Negligence, In cutting rivets.</p> <p>In an action by a bricklayer for personal injuries from being struck by the head of a “ cold cut” alleged to have been used negligently by two employees of the defendant, who were cutting rivets on a steel tank above the roof of a building on the side of which the plaintiff was working in the employ of another person, there was evidence that the rivets were being cut by one of the defendant’s employees holding the cold cut against a rivet while the other employee struck the head of the cold cut with a maul, that many such blows were necessary to cut through a rivet head, that generally when a rivet head was nearly cut through the employee holding the cold cut warned the employee with the maul not to strike so hard, that at the time of the accident not nearly the number of blows .had been struck that usually were required to cut through a rivet, that the employee with the maul received no warning from the employee holding the cold cut, and struck with full force a blow that cut off the rivet head, whereupon the rivet head and the head and handle of the cold cut all went flying and the head of the cold cut landed on the plaintiff below. Held, that the jury were warranted in finding that the defendant’s employee holding the cold cut was negligent in not warning the employee with the maul that the rivet head was nearly cut through.</p>

<p>Writ of Entry, Rents and profits. Land Court. Damages, In writ of entry.</p> <p>Where in a writ of entry brought in the Land Court a trial by jury is claimed, and an issue upon the question of title is framed and sent to the Superior Court for trial, on which the jury return an answer in favor of the demandant, it is too late after the case has been taken up again in the Land Court for the demandant to claim for the first time damages for rents and profits, which by R. L. c. 179, §§ 12,13, 21, must be assessed at the time of the trial of the title unless a motion for postponement is made " before the verdict on the title is recorded.”</p>

<p>Tort for slander. Writ dated October 19, 1910.</p> <p>In the Superior Court the case was tried before Lawton, J. The material facts are stated in the opinion. The jury found for the plaintiff in the sum of $200; and the defendant alleged exceptions.</p> <p>The case was considered on a brief filed by the defendant, the plaintiff after notice from the court having failed to submit a brief.</p>

<p>Practice, Civil, Claim of jury. Jury and Jurors, Claim of jury. Words, "Notice.”</p> <p>The words “Plaintiff claims trial by jury,” typewritten at the top of the back of a writ, at the bottom of which below the printed words “From the office of” are typewritten the name and address of the plaintiff’s attorney, are a sufficient filing of a notice under R. L. c. 173, § 56, that the plaintiff asserts his constitutional right to a trial by jury.</p>

<p>Practice, Civil, Exceptions. Municipal Corporations, Officers and agents. Tax, Collector of taxes.</p> <p>In an action against the collector of taxes of the city of Lynn upon an alleged promise of the defendant to repay to the plaintiff sums of money, which were paid by the plaintiff for certain tax titles held by the city of Lynn and released to him by the defendant as collector, upon a reconveyance by the plaintiff to the city of such tax titles, it appeared that the only promise made by the defendant to the plaintiff was conditional upon the invalidity of the releases given by the city to the plaintiff, and that, after such conditional promise was made, such releases were held by this court to be valid by the decision in Rogers v. Lynn, 200 Mass. 354. The judge refused to give certain instructions requested by the plaintiff which omitted all reference to the assumption of the invalidity of the releases on which the alleged promise of the defendant was based. Held, that the refusal of the judge was right.</p>

<p>Land Court, Findings of judge, Appeal. Boundary. Deed, Construction, Extrinsic evidence. Equity Jurisdiction, To reform deed. Evidence, Extrinsic affecting writings. Estoppel.</p> <p>Upon a petition in the Land Court for the registration of the title to certain land, where a trial by jury is not claimed, the finding of the judge of that court, on the question whether a wall marking, a certain boundary has been moved and is some feet distant from its former site, that, “while the wall has been rebuilt, its location has not been materially changed,” is conclusive under R. L. c. 128, § 13, as amended by St. 1910, c. 560, § 1.</p> <p>Where by the terms of a deed a boundary line extends “to land of” a person named, which is admitted to be bounded by a wall, the line extends only to the wall, although by measurement of the distance named in the deed the line would extend beyond the wall and upon the land of the adjoining proprietor.</p> <p>Where the grantee of certain land, which is described in the deed as bounded on one side by the land of an adjoining proprietor, knew when he bought the land that this boundary was marked correctly by a wall, although the measurement of the distances named in the deed would carry the boundary to a line beyond the wall, if the grantor afterwards acquires title as trustee to the strip of land beyond the wall which is included in the distances described, this cannot operate to give the grantee a title to the strip by estoppel.</p> <p>Upon a petition in the Land Court for the registration of the title to certain land, where the description of the land in the deed of it accepted by the petitioner is clear and without ambiguity, the petitioner cannot be allowed to introduce evidence as to the site of a former wall on one side of the land and of conversations between him and his grantor before the making of the deed tending to show that the parties intended such former wall to be the boundary line on that side, although such evidence might be competent in a suit in equity to reform the deed on the ground that it did not express the agreement intended by the parties.</p> <p>Upon an appeal to this court from a judgment of the Land Court, findings of fact made by a judge of that court cannot be revised, such an appeal raising only questions of law apparent on the face of the record.</p>

<p>Witness, Impeachment. Commutation of Sentence.</p> <p>A conviction in a United States Circuit Court of fraudulently and knowingly concealing property of a bankrupt from a trustee in bankruptcy may be given in evidence under R. L. c. 175, § 21, to affect the credibility of the convicted person as a witness testifying in a court of this Commonwealth.</p> <p>A commutation of a sentence of imprisonment, after part of it has been served, so that it expires at once, does not do away with the conviction upon which the sentence was based nor prevent the conviction from being used as evidence to impeach the credibility of the convicted person as a witness.</p>

<p>Tax, Abatement, Good cause for delay in filing list of property. Practice, Civil, Findings of commissioner under R. L. c. 12, § 80.</p> <p>Where, on a petition to the Superior Court for the abatement of a tax, a commissioner appointed under R. L. c. 12, § 80, makes, upon findings of fact reported by him “and upon no others,” a finding that the petitioner had “a reasonable excuse and good cause” for his delay in returning a true list of his taxable personal property as required by law, and this finding is confirmed by a judgment of the Superior Court for the petitioner, upon an appeal to this court, the ‘ question, whether upon the basic facts found by the commissioner his finding of good cause for the delay was warranted, is a question of law to be passed upon by this court.</p> <p>A foreign business corporation, having a place of business in Gloucester and owning personal property there, brought a petition under R. L. c. 12, § 78, for the abatement of the tax assessed upon its property in the city of Gloucester, including therein its shares in certain vessels, to which the city of Gloucester set up the defense that the petitioner under R. L. c. 12, § 77, St. 1903, c. 157, was not entitled to an abatement because it had not returned a true list of its personal property taxable in Gloucester within the time required by the assessors and did not show a good cause for the delay. By the report of a commissioner appointed under R. L. c. 12, § 80, it appeared that, after the assessors had given notice of the time within which the lists must be filed, they had an interview with the president and the treasurer of the petitioner, who had charge of matters relating to the taxation of its property, in which all the property of the petitioner was discussed freely and the petitioner’s officers asserted that its shares in vessels were exempt from taxation by the respondent, this being denied by the assessors, that thereupon the assessors went away, expressing their intention to look over the list of vessels at the custom house and the petitioner’s other property in Gloucester and to render a tax bill based on what they should conclude to be the legal status of all the property. There was no further communication between the petitioner and the assessors until the tax bill was delivered. On these facts the commissioner found that the petitioner had “ a reasonable excuse and good cause” for its delay in filing the list. This finding was confirmed by the Superior Court, which gave judgment for the petitioner. On appeal by the respondent, it was held, that the finding of good cause for delay was not warranted by the facts reported and that the judgment must be reversed.</p> <p>On a petition to the Superior Court under R. L. c. 12, § 78, for the abatement of a tax, where the respondent relies on the defense that the petitioner did not file a true list of his personal property taxable by the respondent within the time required by the assessors and did not show a good cause for the delay, if it appears that six months after the expiration of the time within which the list was required to be filed the assessors of the respondent refused the petitioner’s application for an abatement upon another ground, this is immaterial and can constitute no good cause or excuse for the petitioner’s failure to bring in a list six months before such refusal.</p>

<p>Two actions of contract, the declarations in which contained counts alleging that the defendants Bennett and Bourget were liable as indorsers of five promissory notes of a corporation, the Bennett-Bourget Company, and also counts alleging, as to each note, that, before its maturity, the corporation made an assignment for the benefit of its creditors and the defendants promised the plaintiff that if the plaintiff would assent to such assignment and would not hold the defendants responsible for the entire amount of the note, the defendants would pay to the plaintiff such balance as would be due after deducting such payment as the plaintiff might receive by reason of assenting to the assignment and sharing in its proceeds; that the plaintiff, relying on such promise of the defendants, assented to the assignment and received as its share of the proceeds of the assignment a part of the face of the note, and demanded of the defendants the balance and interest. Writs dated July 7, 1909.</p> <p>In the Superior Court the cases were tried before Keating, J. The material facts are stated in the opinion. The release therein referred to, which the plaintiff executed under seal and delivered to three persons who were described in the bill of exceptions as “three trustees who were appointed by the creditors to sell the assets of the Bennett-Bourget Company and distribute the proceeds,” was as follows: “Received of the Trustees of Bennett, Bourget Company, Sixteen Hundred fifty-five and 50/100 Dollars, being compromise adjustment of Fifty-five per cent, on our claim against said Bennett-Bourget Company, and is in full release, settlement and discharge thereof, and of said assignment and of said trustees.”</p> <p>At the close of the evidence, the defendants, in requests numbered one, two, three and four, asked for rulings in substance that the defendants could not be held liable as indorsers of the notes. In a request numbered five, as to the counts alleging that the defendants were liable by reason of promises based upon the plaintiff’s assenting to an assignment made by the corporation for the benefit of its creditors, they asked for a ruling that there was no evidence that the plaintiff had assented to the assignment “as set forth in said counts,” or that the plaintiff had received a dividend under said assignment, and that the defendants were entitled to verdicts on such counts.</p> <p>A sixth request was as follows: “There can be no oral reservation of rights against indorsers when the makers have been released in writing under seal.”</p> <p>The judge completed his charge at the close of an afternoon session. The next morning the defendants again called the attention of the judge to the fact that there was no evidence that the plaintiff in any way assented to the assignment by the corporation for the benefit of its creditors, and that there was no proof of the contracts set out in the counts relating to the special promises alleged to have been made by the defendants and to have been based on the plaintiff’s assent to such an assignment, and asked for further rulings based on that state of the facts.</p> <p>The rulings asked for as above described were refused.</p> <p>The judge in his charge to the jury stated: “What is meant by the words [in the statute] ‘expressly reserved’? They mean that you must not be left to infer that the ‘right of recourse’ is reserved. They mean that in some form of language that right must be reserved, in some form of language the reservation of that right against indorsers must be expressed. It cannot be inferred.”</p> <p>As to Bourget, the judge in substance charged the jury that Bourget would be bound by the agreement made with the plaintiff by Bennett, described in the opinion, if he expressly authorized it to be made or if, after it was made, he benefited by it and ratified it.</p> <p>The jury found for the plaintiff in the first action in the sum of $1,150, and in the second action in the sum of $225. The defendants alleged exceptions.</p> <p>The cases were submitted on briefs at the sitting of the court in November, 1912, and afterwards were submitted on briefs to all the justices.</p>

<p>Contract, Construction, Implied in fact. Waiver. Pleading, Civil, Declaration. .</p> <p>A contract in writing between a city on an arm of the sea and a contractor for the construction of a continuous water-tight line of sewer pipe about nine thousand feet in length running, buried in a trench under the harbor, from a pumping station on shore to an outlet beyond the mouth of the harbor, contained, under the caption, “ Correcting imperfect work that may have passed inspection,” pro- • visions reading, “Any unfaithful or imperfect work that may not be discovered before the final acceptance of the work shall be corrected or replaced immediately . . . notwithstanding that it may have been overlooked by the proper inspector,” and that “ any omission to disapprove the work at the time of inspection, or at the time of any monthly or other estimate” should "not relieve the contractor of any of his obligations.” Held, that the provision did riot refer to the replacing or correcting of work which already had been completed in accordance with the terms of the contract and had been accepted, but to work which, although perfect so far as it had gone, was not finished but was wholly or partially destroyed while it was in progress and before it finally was accepted;</p> <p>A contract for the construction of a water-tight sewer nine thousand feet long under a harbor for a city provided for periodical inspections, certifications by an engineer supervising the work for the city, and payments by the city after such certifications, and, as to repairs, provided in substance that, if at any time before the final payment to the contractor any part of the work, in the opinion of the engineer supervising the work for the city, required repairing, the repairs were to be done by the contractor upon notice from the engineer, or, the contractor failing, by the city, but at the expense of the contractor. Held, that the provision as to repairs referred to repairs to be made on work originally imperfectly done, and not to work properly done in accordance with the contract and accepted by the city.</p> <p>A contract for the construction for a city of a water-tight sewer nine thousand feet long beneath a harbor provided that the contractor should have no claim for extra work not provided for in the contract unless it was ordered in writing by an engineer supervising the work for the city and by the city’s board of sewerage commissioners. After a certain section of the sewer had been completed in accordance with the contract and accepted by the city, a leak occurred therein which in no way was caused by any act or omission of the contractor. The engineer asked the contractor to repair it. The contractor answered that it was “not up to” him to repair it. The engineer then said, “If [the anchor of] a ship has . . . pulled the pipe out of place, it is up to the city . . . and the city will pay for the repairs and I will recommend it. You go ahead, make the repairs and the city will pay for it.” The contractor answered, “We will go ahead and make repairs.” The repairs then were made by the contractor, the board of sewerage commissioners having full knowledge of all the circumstances and furnishing a new pipe therefor. In an action by the contractor for the work thus done and the materials thus furnished, no question was raised as to the power of the board to waive the provision of the" contract, or to make a new contract, and it was held, that there was evidence warranting a finding, either that the city had waived the provision of the contract as to the manner in which extra work should be ordered, or that the work was done by the contractor under a new contract with the city.</p> <p>Where work is done and materials are furnished in. accordance with an express contract and nothing remains to be done by either party except payment, a common count for work done and materials furnished will lie against the party from whom payment is due.</p>

Contract against Louis Auerbach and Edgar S. Hill, described in the writ as copartners doing business under the name and style of Auerbach, Hill & Co., as indorsers of two negotiable promissory notes. Writ in the Municipal Court of the City of Boston dated January 24, 1911. On appeal to the Superior Court, the case was heard by Hitch-code, J., without a jury.

<p>Tort for breaking and entering the plaintiffs’ close on Linwood Street in Lynn, described by boundaries in the declaration, and there cutting down and injuring the plaintiffs’ trees and undergrowth on November 13, 1908, and on divers days from that day until December 20, 1908. Writ in the Police Court of Lynn dated December 24, 1908.</p> <p>On appeal to the Superior Court the case was tried before Batigan, J. It was not disputed that trees were cut by the defendants on the land claimed by the plaintiffs, and the question tried was in regard to the plaintiffs’ right to possession as determined by the ownership of the land. The facts necessary for the purpose of understanding the questions passed upon by this court are stated in the opinion. The jury returned a verdict for the plaintiffs in the sum of $5.59; and the defendants alleged exceptions to the admission of certain evidence, as described in the opinion, and to the refusal of the judge to instruct the jury as requested by the defendants “and to his instructions so far as they are inconsistent with the law.” The character of the defendants’ requests for instructions is stated in the opinion.</p>

<p>Contract to recover $200 as a commission for procuring one Charles F. Wilinsky as the purchaser of certain real estate numbered 177,179 and 181 on Chambers Street in Boston. Writ in the Municipal Court of the City of Boston dated July 10, 1911.</p> <p>The answer contained a general denial and also annexed a copy of an agreement in writing for the sale of the real estate in question, alleging that under the terms of the agreement the defendant was not liable to the plaintiff because no title had passed under the agreement, which was a condition precedent to the plaintiff’s right to payment.</p> <p>On appeal to the Superior Court the case was submitted to Pratt, J., without a jury, upon an agreed statement of facts.</p> <p>It was agreed that the agreement in writing of which a copy was, annexed to the defendant’s answer was executed upon its date, which was May 29, 1911. The agreement was between Charles F. Wilinsky and the defendant “as he is the administrator of the estate of Max Schwartz.” It was signed by Wilinsky and by the defendant as such administrator. The defendant as such, administrator agreed to sell and Wilinsky agreed to buy the premises in question, which were to be conveyed on or before June 22, 1911, noon, by a good and sufficient deed conveying a good and clear title free from all incumbrances except those stated in the agreement. The price was $10,200, of which $300 was acknowledged to have been paid on the execution of the agreement and the balance was to be paid in cash upon the delivery of the deed. The agreement contained the following paragraph:</p> <p>“Full possession of the said premises is to be delivered to the , party of the second part [Wilinsky] at the time of the delivery of the deed, the said premises to be then in the same condition in which they now are, reasonable use and wear of the buildings thereon alone excepted. A commission of $200.00 is to be paid to Samuel Rosenthal by the party of the first part [the defendant as administrator] when title is passed.”</p> <p>At the bottom of the agreement was written and signed by the plaintiff the following: “May 29, 1911,1 agree to the commission as above. S. Rosenthal.”</p> <p>It was agreed that Wilinsky with his attorney was at the registry of deeds, where the deed was to be delivered and the money was to be paid, and was ready, able and willing to carry out his part of the agreement upon receipt from the defendant of a deed conveying a good and sufficient title to the premises, but that no deed was tendered within the time limited by the agreement or afterwards.</p> <p>It also was agreed that the court might draw sjich inferences as might be warranted by the facts agreed.</p> <p>The judge found for the plaintiff in the sum of $212.16 and ordered judgment for that amount. From the judgment entered in accordance with this order the defendant appealed.</p>

<p>Contract against eight defendants, of whom three were the executors of the will of Stephen Salisbury, for services alleged to have been rendered to the first five defendants and Stephen Salisbury in connection with the organization of a corporation known as the Worcester Cold Storage and Warehouse Company. Writ dated March 1, 1907.</p> <p>In the Superior Court the case was tried before Brown, J. It appeared that the contract under which the .services of the plaintiff were performed was as follows:</p> <p>“Subscription Form.</p> <p>“Whereas it is proposed to organize a company for the purpose of transacting a cold storage business, similar to the plan heretofore outlined, we, the undersigned, hereby individually subscribe at par for the amount of stock set opposite our respective signatures, and we agree to take the said stock upon allotment, and to pay for the same in installments as follows: ten per cent (10%) upon allotment and the balance upon notice to be not less than ten days and not more than twenty-five per cent (25%) to be called for in any one payment, and we hereby nominate and appoint Charles E. Lee of Boston our agent to organize the said company, and to do all necessary acts to complete said organization.</p> <p>“Subscriber, Amount.</p> <p>W. H. Blodget.............$5000</p> <p>B. J. Heslor.............. 3000</p> <p>H. J. Heslor..............1000</p> <p>Frank G. Webster........... 2000</p> <p>Stephen Salisbury........... 3000</p> <p>Arthur Murphy............ 1000 ”</p> <p>After the case had been opened to the jury and one witness had been called, the defendant executors of the will of Stephen Salisbury asked the judge to order a verdict in their favor, on the ground that by reason of the death of Stephen Salisbury the action could not be maintained against them jointly with the other defendants. The judge ruled that the action could not be maintained against the defendant executors, and, subject to the exception of the plaintiff, ordered the jury to return a verdict for such executors, the defendants Hamilton, Ely and Dewey. The other five defendants then moved that a verdict be ordered for them and each of them, upon the ground that the verdict for the defendants Hamilton, Ely and Dewey, executors, constituted a release of one of the joint contractors under the agreement printed above, in that it left no existing cause of action against the representatives of the estate of Salisbury, it having appeared that more than two years had elapsed since the appointment of the executors. The present action against them jointly with the other defendants was brought within two years after their appointment.</p> <p>The judge granted this motion and, subject to the exception of the plaintiff, ordered the jury to return a verdict for these five defendants and each of them.</p> <p>At the request of the plaintiff the judge reported the case for determination by this court. If his rulings were correct, judgment was to be entered for the defendants and each of them. If his rulings were wrong as to the defendants or any of them, the case was to be sent back for a .pew trial as against all or such of the defendants as this court might order.</p> <p>The judge further reported the following facts: The case came on for trial on December 14, 1909, before a jury. After the opening statement by the counsel for the plaintiff, one witness was called in his behalf, and thereupon the motion was made by the executors of the will of Stephen Salisbury which is stated above and the judge made the rulings above stated and continued the case for report. The following entry was made upon the docket: “December 14, 1909, continued for report.” A draft of a report prepared by the counsel for the plaintiff was first presented to the judge for allowance on April 13, 1912, at which time the defendants objected to any report being made, basing their objection upon the ground that by reason of the length of time which had elapsed since December 14, 1909, the judge then had no right to report the case. There were no docket entries between December 14, 1909, and April 13, 1912, the last entry being that stated above.</p> <p>The judge ruled that he had the right as a matter of discretion so to report the case, and stated that in reporting it he should report the contention of the defendants that as a matter of law the authority conferred upon justices of the Superior Court to report cases under R. L. c. 173, § 105, is not an authority without limit of time, that after a reasonable time has elapsed and no report has been made the authority to report the case no longer exists, and that in this case under the circumstances above set out no such authority existed.</p> <p>At the request of the defendants, the judge reported this additional question so raised by them. If, as a matter of law, the judge had no right to report the case after the lapse of time above stated, the report was to be discharged, and judgment was to be entered for the defendants and each of them; otherwise, the case was to be considered on the questions raised by the plaintiff.</p>

<p>Practice, Civil, Exceptions. Contract, What constitutes. Corporation, Officers and agents. Evidence, Extrinsic affecting writings.</p> <p>A case was heard by a judge without a jury. At the close of the evidence the plaintiff made certain requests for rulings. The judge, after taking the case under advisement, filed a finding for the defendant and a memorandum of findings. The following day the plaintiff’s counsel wrote to the judge a letter in which he stated that the plaintiff asked that “his rights be reserved in the matter of exceptions to the requests, findings and rulings refused.” The judge acknowledged the receipt of the letter and stated that he would notify the clerk. No notice of the alleging of the exceptions was given to the defendant until he filed a bill of exceptions fifteen days after the judge’s findings. Held, that the exceptions were alleged and saved properly.</p> <p>In an action of contract for a commission for the sale of a certain “razor proposition,” the declaration was based upon an agreement in a letter signed by the defendant personally. Evidence was introduced at the trial from which the judge properly found that the plaintiff and a corporation of which the defendant was an officer made an oral agreement regarding a commission to be paid to the plaintiff, of which the letter formed a part, and that the plaintiff knew that the defendant was acting for the corporation in the matter. Held, that the evidence tending to show such facts was admissible and that on the facts so found the defendant was not liable.</p>

<p>Carrier, Of goods. Conversion. Agency, Existence of relation. Contract, What constitutes. Evidence, Admissions. Practice, Civil, Exceptions.</p> <p>If a purchaser of goods directs the vendor to ship them to him by a certain route over several railroads and the vendor delivers them with explicit directions in writing as to that route to a railroad company which transports them on its lines and delivers them with the same directions to a second railroad company, and the second company receives the goods without issuing a bill of lading, such second company thereby assumes the obligations of a common carrier to transport the goods over its lines and to deliver them to the next carrier with and in accordance with the shipping directions given to it; and if, while the goods are in its possession, the second company alters the shipping directions so that the goods continue over a different route leading to the same destination, such act is a wrongful exercise of dominion over the goods which is tantamount to a conversion of them, and the company is liable to the purchaser of the goods for their value if, while being so transported over the changed route, they are destroyed by an act of God.</p> <p>Where a second carrier of goods without issuing a bill of lading has received goods for transportation from a first carrier with explicit directions in writing as to several successive carriers by whom they are to be handled, and alters the shipping directions and delivers the goods to the next carrier with the directions so altered, if the goods, while proceeding by the route specified by the second carrier, are destroyed by an act of God, such second carrier is hable to the owner of the goods for their value, although the route so designated by the second carrier, so far as could be seen in advance, involved no greater expense or delay and no greater risk of loss than did the route designated by the shipper. Nor can such second carrier’s failure to issue a bill of lading as required by 34 U. S. Sts. at Large, c. 3591, § 7, avail as a defense to an action by the consignee "of the goods to enforce such liability.</p> <p>Whether a wrongful act of dominion by a second carrier, who received goods from a first carrier with explicit shipping directions in writing and altered the shipping directions so that the goods proceeded to the same destination by. a different route, was so far a technical conversion of the goods as to give the consignee a right to refuse the goods when they arrived at their destination in safety, here was not considered, because in this case the goods were destroyed by an act of God while passing over the altered route.</p> <p>While several railroad corporations having connecting lines may make a contract forming themselves into an association called a “Despatch” for the carrying on of through transportation of goods over all of their lines at through rates, and may authorize an agent to act for the association in the issuing of bills of lading for such transportation, neither the existence of such a contract nor the authority of such an agent is lightly to be inferred.</p> <p>If the authorized agent of an association called a "Despatch,” formed by two connecting carriers for the procuring and carrying on of business in the through transportation of freight between points in New England and in the Southern States, issues a bill of lading for the transportation of certain goods from a point in New England to a point in the South after the goods, bearing specific directions in writing that they shall be shipped over the lines of the association, have left the point in New England, have passed through the hands of two carriers not members of the association and have come into the possession and control of one of the members of the -association, and if thereafter, by reason of the fact that one of the preceding carriers which was not a member of the association had altered the shipping directions, the goods are diverted from the lines of the association and are destroyed by an act of God while so diverted, the carriers which are members of the association are jointly liable for the full value of the goods.</p> <p>While ordinarily a carrier, who receives goods from another carrier to be transported further by still other carriers, is justified in acting upon the shipping directions or way bills which he receives with the goods from the preceding carrier, he is not so justified if an authorized agent of his, of whose acts he has or should have knowledge, by a contract with the owner or consignor of the goods has bound him to deal with the goods in a manner different from that shown in the shipping directions received from the preceding carrier.</p> <p>By direction of the consignee of certain goods, they were to be shipped “via Pennsylvania Railroad c/o Eastern & Southern Despatch . . . and Southern Railway,” and one declaring himself to be an agent of the “Eastern & Southern Despatch” issued a bill of lading to that effect. The goods were diverted after they left the Pennsylvania Railroad so that they proceeded by another route than the Southern Railroad, and, while so proceeding, were destroyed by an act of God. The consignee brought an action against, both railroad corporations, “individually and also doing business under the name of the Eastern & Southern Despatch,” at the trial of which it was agreed that all the facts in evidence were true. There was evidence that the defendants were an association acting under an agreement for the procuring of business for themselves, that the association had filed schedules with the interstate commerce commission for through rates between New England points and points in the Southern States, and that it issued bills of lading for and carried through such transportation. On the other hand there was evidence that the association existed practically for the sole purpose of soliciting business for the associated companies and that the agents had nothing to do with the transportation of freight or the collection of freight charges and exercised no control over such matters. It was not clear whether the goods had reached the Pennsylvania Railroad when the bill of lading was issued. The judge, subject to an exception by the defendants, directed a verdict for the plaintiff on such admitted facts. Held, that the exception should be sustained, because the question, whether the agent who issued the bill of lading had authority to bind the defendants, was for the jury, and, if the jury found that there was no such authority, they should find for the Southern Railroad Company, which never received the goods, and for the Pennsylvania Railroad Company if the bill of lading was issued when the goods were not in its possession, since in that case, not having made any inconsistent contract, it was justified in acting upon shipping directions which it had received from the preceding carrier.</p>

<p>Negligence, Street railway. Practice, Civil, Conduct of trial: requests and rulings, Exceptions.</p> <p>At the trial of an action against a street railway company by a passenger for personal injuries, where the plaintiff’s evidence tends to show that, as he was alighting from a car of the defendant after it had stopped in response to a signal from him to the conductor, the conductor signalled for the car to start and, the car starting, the plaintiff was thrown to the ground, and the defendant’s evidence tends to show that the plaintiff was thrown down as he was attempting to alight from the car when it was coming to a stop but before it had done so, and there is no foundation in the evidence for a finding that the accident happened in any other than in one of these two ways, the defendant is entitled to have the jury instructed that, if the accident happened by reason of the plaintiff’s attempt to alight from a moving car, while it properly was coming to a stop, there is no evidence that will warrant a finding of negligence on the part of the defendant.</p> <p>Where, in an action against a street railway company by a passenger for personal injuries alleged to have been caused by the starting of a car as the plaintiff was in the act of alighting, the plaintiff’s evidence tends to show that the car was started on a signal from the conductor, and the defendant’s evidence tends to show that the plaintiff was thrown to the ground as he was attempting to alight before the car had come to a stop at a regular stopping place, and there is no foundation in the evidence for a finding that the accident happened in any other than in one of these two ways, the defendant is entitled to have the jury instructed that, in order to find for the plaintiff, they must be satisfied by a fair preponderance of the evidence that the accident was caused solely by negligence of the defendant’s conductor.</p>

<p>Contract upon an account annexed containing various items for work and labor and materials furnished to the defendant by the plaintiff under a contract as to the excavating, grading and rough stone work necessary for the building of the new registry building of the county of Norfolk at Dedham, the defendant being the general contractor. There also was a declaration in set-off. Writ dated March 10, 1905.</p> <p>The case was referred to Clarence H. Cooper, Esquire, as auditor. The auditor’s findings as to the twelve hundred and sixty-five perch of stone mentioned in the opinion were in substance as follows: “The quantity of stone laid by the plaintiff is the most important and most perplexing question in the case. A mass of testimony bearing on this question was introduced, including the measurements in detail of three experts, one in behalf of the plaintiff, one in behalf of the defendant, and one an independent. While these experts agree in some of their measurements, they disagree in others to such a remarkable extent as to shake my confidence in their respective results, and my finding necessarily must be in the nature of a compromise. Both parties claim to have laid the foundations under the street and terrace walls and walls under the front steps. I find that all of such work was done by the plaintiff, and not by the defendant. The plaintiff now abandons Ms claim to have laid 1,265 perch. I find that he is entitled to be allowed for laying 1,113 perch at $2.25 a perch, amounting to $2,504.25.”</p> <p>The defendant in Ms brief stated his objection to the admission in evidence of the foregoing findings as follows: “The auditor there states, in substance, that he disregards the evidence of the experts, and that Ms finding must be in the nature of a compromise. It thus seems to be evident that the auditor simply made an arbitrary finding, either by way of a guess or by striking an average of the estimates of the different witnesses. This course would seem to be as objectionable as it is to have each juryman mark down the amount of Ms verdict, and to divide the total of such amounts by twelve to reach the verdict to be reported by the jury. It is submitted that the sixteenth request of the defendant should have been allowed.”</p> <p>With regard to the items in the auditor’s report for “teaming, and for labor and materials,” referred to in the opimon, the auditor, after a detailed description óf the basis of the claim, stated in part as follows: “The plaintiff’s day book . . . contains his account against the defendant for the extra work claimed in the item” in question, “the total amount being $385.50. . . . The entries . . . were made by the plaintiff’s bookkeeper from slips contaimng the charges received from his foreman at the close of each day’s work . . . and the bookkeeper testified that she had not been told to keep these slips after she had copied them on the daybook, and that she did not keep them. ... A batch of bills .rendered by the plaintiff to the defendant, at least five in number, were produced by the latter at the early hearings in the case and were fastened together and marked as one exhibit. Since then one of these bills . . . has disappeared; and the plaintiff testified that the aggregate amount of these bills was between $375 and $400. The other three bills of this batch correspond substantially with the items of charges” in the plaintiff’s day book, “there being a slight difference in the totals. I allow $357.50 of this item.”</p> <p>The defendant in Ms brief argued that these findings were not admissible in evidence for the following reasons: “It is submitted, however, that he [the auditor] shows no reason whatever for making the allowance of $357.50. He apparently bases this finding upon certain findings contained in the paragraph ... in regard to bills rendered by the plaintiff to the defendant. Clearly, these bills were incompetent in evidence, and the court should have excluded the finding of the auditor made upon such evidence as requested by the defendant.”</p> <p>The auditor’s report contained no statement that it contained a report of all the evidence introduced before him.</p> <p>In the Superior Court the case was tried before Keating, J. The material facts are stated in the opinion. There was a verdict for the plaintiff in the sum of $3,809.70; and the defendant alleged exceptions.</p>

<p>Negligence, Employer’s liability, Res ipso loquitur. Proximate Cause. Evidence, Presumptions and burden of proof.</p> <p>An employee in a rubber factory was put to work in front of two heated rolls revolving inwardly toward each other, which were an inch or two apart and were used to mix rubber, pitch and other materials. The pitch became soft and sticky in the process. One of his duties was to shovel up pieces of pitch that dropped and place them again upon the rolls. While doing so, on an occasion after he had been employed at the machine for about six months, his shovel became caught in the pitch and his hand was thrown against the rollers and then his hand and arm were drawn between them. At the trial of an action for the injuries thus received, it appeared that, when the plaintiff was put at work on the machine, he had been instructed that, in case he needed to stop the machine quickly, he was to pull a certain rope which was above and in front of him, that when his hand was being drawn between the rolls, he pulled the rope, but that the machine did not stop, that others afterwards pulled the rope, but that the machine did not stop until the factory’s engine was stopped. There was evidence that the defendant employed an inspector to look after the machinery but that the machine in question had not been inspected for six months. The defendant introduced no evidence to explain the condition of the machine. Held, that there was evidence that the plaintiff was in the exercise of due care. Held, also, that on the evidence a finding was warranted that the braking apparatus of the machine was out of order by reason of negligence of the defendant, and that the plaintiff had not assumed the risk of such a defect as a matter of law.</p>

<p>.Tort, by a plumber and tapper in the employ of the city of Boston, for personal injuries sustained on November 11, 1909, from the caving in of a trench, dug by the defendant under a contract with that city for laying a main water pipe, while the plaintiff was engaged in performing his duty of connecting the supply pipes of houses and‘stores with such main pipe on Washington Street in that part of Boston called Forest Hills. Writ dated November 17, 1909.</p> <p>In the Superior Court the case was tried before Wait, J. The essential facts which could have been found upon the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make certain rulings, of which those that are mentioned in the opinion were as follows:</p> <p>"1. On all the evidence the plaintiff is not entitled to recover.”</p> <p>"3. The defendant was under no obligation towards the city’s employees to cause the sides of the trench to be braced or held in place by sheeting [sheathing].”</p> <p>"7. If the superintendent and inspector employed by the city of Boston in charge of work in the trench being done by the city was in the habit of placing jacks or braces across the trench for the protection of the employees of the city or of requesting the defendant or his superintendent to brace the place, and the city employees including this plaintiff looked to the city inspector to brace the trench when they entered it or to give notice to the defendant or his superintendent to brace it, and no notice was given to the defendant or his superintendent, the defendant would not be liable to the plaintiff for a falling of the trench if the defendant and his superintendent did not know the bank was likely to fall and a reasonably prudent man would not have deemed it proper to brace it.”</p> <p>" 10. If the jury believe the testimony of the witness Bocuzzi, and find that the facts are that he was in the trench when the plaintiff came along and told him to get out of the way so that he could enter the trench at that point and connect the supply pipe, and the witness told him in substance that the trench there was in a dangerous condition and likely to cave in on him, and in spite of this the plaintiff insisted on going into the trench and displacing the witness there, saying he would not be there long, the jury must find that the plaintiff took his chances of the bank falling down on him and cannot recover.” .</p> <p>The judge refused to make these rulings, as well as certain others which were held by this court to have been covered by his charge, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $700. The defendant alleged exceptions, including an exception to the admission in evidence of the contract between the defendant and the city of Boston.</p>

<p>Contract, Construction. Evidence, Extrinsic affecting writings.</p> <p>Where by an agreement in writing it is stipulated that a contractor shall “ provide all the materials and perform all the work for the erection and completion of a frame apartment building ... as shown on the drawings and described in the specifications ” prepared by the architect, and in the specifications referred to it is stipulated that “ this contractor shall furnish materials, labor, apparatus, etc. to paint and finish all the outside and inside woodwork, and all the outside and inside metal, including the ornamental iron work,” the contract with the incorporated specifications is clear and unambiguous as to the painting required to be done by the contractor, and, in an action founded upon it, cannot be controlled or varied by evidence of a previous or contemporaneous oral agreement that the contractor was not required to do the painting.</p>

<p>Tort against Thomas McHugh and Michael McHugh, co-partners doing business under the name Amesbury Optical Company, for personal injuries sustained by the plaintiff on June 11, 1910, while in the employ of the defendants and at work upon a glass grinding machine in the defendants’ factory, the plaintiff being about seventeen years of age and inexperienced with machinery, and the defendants being alleged to have failed in their duty to give the plaintiff proper instructions and to warn him of the dangers incident to his employment. Writ dated July 16,1910.</p> <p>In the Superior Court the case was tried before Raymond, J. At the close of the .evidence, which is described in the opinion, the defendants asked the judge to order a verdict for them. The judge refused to do this, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $3,500. The defendants alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Insurance, Against liability. Evidence, Admissions by conduct. Words, “ Accidentally.”</p> <p>In an action on a policy, insuring the plaintiff “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries . . . accidentally suffered by any person . . . other than the employes of the assured while within or upon the premises of the assured at the location described in the schedule, or the premises or ways adjacent thereto, by reason of the operation of the trade or business described in the schedule,” the schedule referred to contained, among other things, the following statement: “The location of assured’s premises is Charlestown Stable, East Cambridge, and elsewhere in service of employers.” The business described in the schedule was “All operations incidental to the business of milk and dairy business.” The amount which the plaintiff sought to recover was paid by it in settlement of an action brought by a person not in the employ of the plaintiff for an assault committed on him at his store, which was no part of the premises of the plaintiff, by employees of the plaintiff when removing an ice chest lent by the plaintiff to the assaulted person to keep his milk in while purchasing milk from the plaintiff. Held, that the liability was not covered by the policy, which applied only to injuries suffered on the plaintiff’s premises at Charlestown, East Cambridge or elsewhere, wherever such premises might be; and that, as the place of injury was not covered by the policy, it was not necessary for the court to consider whether the injury was one “accidentally suffered.”</p> <p>In an action against an insurance corporation on a policy against loss from liability for personal injuries suffered on the plaintiff’s premises as described in the policy, a letter of the defendant’s superintendent distinctly denying the defendant’s liability, and basing such denial on the ground that the injury was of a kind not covered by the policy, does not show necessarily that the defendant agreed that the injury occurred within the area covered by the policy.</p>

<p>Negligence, Street railway.</p> <p>One, who boards an open street railway car, which seems to be full, and, after standing for a few seconds on the running board at about the middle of the right hand side of the car, walks slowly and carefully along the running board, while the car is in motion, toward a vacant place which he sees in the second seat from the front, and, having hold of a stanchion with each of his hands, is in the act of stepping into the car to take the seat, when in some way unknown to him he is thrown to the ground, is not negligent as matter of law.</p> <p>It is evidence of negligence on the part of the conductor of an open street railway car, that, when a passenger who had walked slowly and carefully along the running board was in the act of stepping into the car, the conductor brushed'by him or hit him and caused him to fall to the ground.</p>

<p>Negligence, Joinder of counts for conscious suffering and death, In operation of elevator. Practice, Civil, Joinder of counts. Elevator. Evidence, Acts of other persons, Of custom, Materiality.</p> <p>Where the declaration in an action brought in 1910 under St. 1907, c. 375, containing a single count for causing the death of a person, in which the damages are limited by the statute to $10,000, is amended under St. 1911, c. 31, by adding a second count at common law for conscious suffering resulting from the same injury, damages may be recovered under each count in the same way as if two separate actions had been brought, and the statutory limit of $10,000 applies only to the first count which was the original declaration.</p> <p>Jh an action by an administrator against the proprietor of a building for causing the death and conscious suffering of the plaintiff’s intestate by reason of the negligence of a servant of the defendant in starting an elevator, in which the intestate was being transported as a passenger, before the door of the elevator was closed, it is proper for the presiding judge to refuse to allow the defendant to show that it is common for operators of elevators to start the elevators before closing the doors; and it also is proper for him to exclude evidence offered by the defendant to show that before the accident no complaint had been made to the defendant in regard to the operator of the elevator whose negligence is alleged to have caused the accident; such evidence being immaterial upon the question of the negligence of the defendant’s servant in operating the elevator and also upon the question of the degree of his culpability.</p>

<p>Tort for personal injuries, received by the plaintiff while employed in a foundry of the defendant and caused by his clothing being set on fire when he was assisting in lifting a pot or crucible of molten brass. Writ dated October 27, 1908.</p> <p>In the Superior Court the case was tried before Lawton, J. It appeared that the plaintiff had been employed in the foundry for two and a half years. Other material facts are stated in the opinion. At the close of the evidence the defendant asked that a verdict be ordered for the, defendant. The request was refused. The jury found for the plaintiff in the sum of $800; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Practice, Civil, Conduct of trial: requests and rulings, Exceptions. Negligence, Employer’s liability, Res ipso loquitur.</p> <p>The judge presiding at a trial need not give a ruling which assumes as true a fact in dispute.</p> <p>In an action by an employee for personal injuries alleged to have been caused by his hand being crushed under a trip hammer which automatically started from a position of rest because of a defective condition, it was held that the judge’s charge, in dealing with requests of the plaintiff for rulings as to the doctrine of res ipso loquitur, was full, apt and correct.</p> <p>An exception to the exclusion, by the judge presiding at a trial of an action for personal injuries, of a question bearing on the plaintiff’s due care, will not be sustained where the judge gives as his reason for the exclusion that "the whole thing has been covered” and the bill of exceptions does not purport to contain the substance of all the evidence bearing on the question of the plaintiff’s due care, and it does not appear what the answer to the question would have been.</p>

<p>Agency, Scope of employment. Municipal Corporations, Officers and agents. Automobile. Negligence, Invited person. Practice, Civil, Conduct of trial.</p> <p>If an automobile, which had been purchased by a city for use in its street department under the control and direction of the superintendent of streets, was run into by a street railway car by reason of negligence on the part of employees of the street railway company, while, by direction of the superintendent of streets, the chauffeur in charge of the automobile, after having been to the house of the superintendent on business connected with the street department, was proceeding on his way to a garage where it was his duty to place the automobile when it was not in use, and, also by the superintendent’s direction, had with him a person not employed by the city or in any way connected with its business, with the intention of deviating, at a point a half mile further along in the journey, from the direct route to the garage for the purpose of leaving such person at his house, it may be found that at the time of the collision the automobile was being used under the direction of the superintendent of streets and in the business of the city, the unexecuted intention to deviate, for purposes other than the city’s business, from the direct route to the garage not yet having become operative, so that the automobile was not being used without authority in violation of St. 1909, c. 534, § 22; and the passenger may be found to have been a person invited to go in the automobile by a person authorized to give such an invitation.</p> <p>It is within the discretion of a judge presiding at a trial and is a proper exercise of his discretion, where a statement in his charge as to testimony given by a witness is questioned by one of the parties who asks that the testimony of the witness be read from the notes of the court stenographer, to deny the request if the stenographer who made notes of the testimony is absent and the notes are inaccessible, and to charge the jury that their recollection of the testimony and not his is to govern in their deliberations.</p>

Contract upon a promissory note. Writ in the District Court of Western Norfolk dated August 13, 1908. On appeal to the Superior Court, the case was tried before Sherman, J. The material facts are stated in the opinion.

<p>Negligence, Employer’s liability.</p> <p>At the trial of an action by an employee against Ms employer for personal injuries alleged to have been caused by negligence of a superintendent of the defendant, there was evidence that the plaintiff was assisting in handling a large rectangular block of stone, that by orders of the superintendent two fellow employees were using the blade of a longshoreman’s truck to pry up one end of the stone wMle the plaintiff put under it a roller the size of Ms arm, and that while they were doing so the truck wheels rolled back and the stone fell on the plamtiff’s fingers. The same method of operation had been used, with the plaintiff assisting, the day before, and there was no evidence that it was inadequate or unsuitable, or that it would have been feasible or was customary to block the wheels of the truck or that it was improper to fail to do so. Held, that there was no evidence of negligence of the defendant’s superintendent.</p> <p>It seems, that a workman who is placing a wooden roller under a heavy atone, the end of wMch is being pried up for the purpose, is not in the exercise of due care if he puts Ms fingers on top of the roller so that the stone will fall on them if it comes down on the roller prematurely.</p>

Contract or tort, for the value of fifty bales of cotton belonging to the plaintiff, which were alleged to have been received by the defendant as a carrier and not to have been delivered. Writ dated February 23, 1910. In the Superior Court the case was tried before Lawton, J., without a jury. It appeared that by the terms of the bill of lading the carrier was not to be liable for damages to or destruction of the cotton by fire.

<p>Contract, Implied in law. Mortgage, Of real estate: foreclosure sale.</p> <p>An. action of contract for money had and received will lie to recover money in the hands of the defendant which in equity and good conscience belongs to the plaintiff.</p> <p>Where the mortgagee under a mortgage of real estate containing a power of sale has made successive attempts to sell the real estate at foreclosure sales duly advertised and at each of such attempted sales has received a money deposit from the highest bidder which is forfeited because each of such bidders has failed to perform the further conditions of the sale, and thereafter the mortgagee has made a complete foreclosure sale at which he himself has become the purchaser at a price covering the full amount due on the mortgage with interest and foreclosure expenses, such mortgagee holds the surplus in his hands, derived from the forfeitures of deposits at the previous uncompleted sales, for the benefit of the owner of the equity of redemption in the real estate, and such owner may maintain an action of contract for money had and received against the mortgagee to recover the amount of the surplus in his hands derived from such deposits.</p>

<p>Negligence, In use of highway. Automobile.</p> <p>In an action for personal injuries, sustained by a boy eight years old and lame, from being knocked down by an automobile owned and driven by the defendant, where there is evidence of negligence on the part of the defendant in having driven swiftly into a street in which there were from five to ten children without giving sufficient warning to attract their attention, if the plaintiff testifies that in crossing the street, where vehicles frequently passed, he did not look up and down and did not see the automobile at all although there were no other vehicles in sight, this does not require a ruling that the plaintiff was negligent, if there is testimony of another witness to the effect that immediately before the accident the plaintiff with other children was standing at a safe place in the street at one side of the course of the approaching automobile and that just as the automobile reached him it turned to the left and knocked him down.</p>

<p>Tort for personal injuries sustained by the plaintiff on September 26,1910, from a fall caused by stepping on a baluster on a stairway, in the Rich Building at the corner of Franklin Street and Devonshire Street in Boston, such stairway being then in process of construction by and under the control of the defendant, and the plaintiff being a plumber in the employ of another independent contractor, who was doing the plumbing work in the building. Writ dated October 3, 1910.</p> <p>In the Superior Court the case was tried before Dana, J. The material facts shown by the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to make certain rulings, of which the sixth was as follows:</p> <p>“6. The plaintiff used the stairs not by invitation of the defendant, but as a licensee, and the only duty which the defendant owed him was to refrain from doing him wilful injury or setting a trap for him.”</p> <p>The judge refused to make this and other rulings requested by the defendant, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $3,050. The defendant alleged exceptions.</p>

<p>Practice, Civil, Exceptions. Negligence, Street railway.</p> <p>To an action by a woman against a corporation operating a street railway for personal injuries alleged to have been sustained by reason of the sudden starting of an open car of the defendant when the plaintiff as a passenger had got upon the running board and was attempting to enter the car, if there is evidence of negligence on the part of the conductor in giving the signal to start the car, but there is no evidence of negligence on the part of the motorman, and the judge erroneously refuses to rule at the request of the defendant that there is no evidence of negligence on the part of the motorman, whereupon the jury return a general verdict for the plaintiff, upon a bill of exceptions which states no portion of the judge’s charge and no special finding showing that the jury did not base their verdict on the alleged negligence of the motorman, it cannot be said that the erroneous refusal to give the ruling requested was a harmless error, and the exception to such refusal will be sustained.</p>

<p>Negligence, In a railroad yard.</p> <p>In an action against a railroad corporation to recover for the conscious suffering and death of one employed as a lamp trimmer and track walker in a yard of the defendant, it appeared that the decedent had been so employed for three weeks before the accident, that he had worked alone, managing his work in his own way without the superintendence of a foreman, and that he had worked in the yard at various times for a number of years in a section gang. While at work on his knees cleaning a switch lamp near to a track in a space four feet wide between the track and the switch stand, he was struck by St passing train and received injuries from which he died. A curve of the track and cars on an adjoining track caused the train to be hidden from view to one in an upright position as it approached, but one stooping could have looked under the cars and have observed it when three hundred feet distant. The decedent knew that the train might pass at any moment. He never gave an account of the accident and there were no eyewitnesses to it. Held, that the action could not be maintained because there was no evidence that the decedent at the time of the accident was in the exercise of due care.</p>

<p>Negligence, Employer’s liability.</p> <p>An employee of a street railway company, who had had twenty-three years’ experience as a lineman, was directed by his superintendent to take down from a pole at one side of a street a side feed span, which was a wire stretched across the street between two poles, and for that purpose mounted a ladder, which had been adjusted and fastened by a fellow servant, without doing anything himself to make the ladder secure. He began to adjust a hand line from the wire to the pole to take up the slack which would be caused by his loosening the side feed span from the pole, when his superintendent directed him not to fasten the hand line to the pole but to throw it over the feed wire to the ground for a fellow servant to hold it taut. Having done so, he was engaged in loosening the insulator which held the side feed span when it became loosened unexpectedly, the pole, relieved of its restraint, sprang back and the ladder and the lineman fell. In an action by the lineman against his employer for injuries thus sustained, it was held, that there was no evidence that the method which the superintendent directed the plaintiff to use was improper or involved any dangers known to the superintendent and not to the plaintiff, that it was not the duty of the superintendent to warn the lineman of so obvious a risk, and that the superintendent therefore was not negligent.</p>

<p>Practice, Civil, Conduct of trial: judge’s charge. Negligence, Street railway.</p> <p>At the trial of an action against a street railway company by a passenger for personal injuries, where the plaintiff’s evidence warrants a finding that, while he was in the act of alighting from a car which had come to a stop in a station in a subway, the car started and he was thrown down, and the defendant’s evidence warrants a finding that the plaintiff was thrown down because he attempted to alight from the car while it was in motion, and neither the pleadings nor the evidence raise any other issue or warrant any other finding, a discussion in the charge of the presiding judge, as though it were pertinent to the issues and evidence in the case, of the liability of a street railway company for injuries caused to alighting passengers from jolts, jerks or lurches of cars, is improper, and an exception thereto will be sustained.</p> <p>Where, in an action against a street railway company by a passenger for personal injuries, the plaintiff’s evidence tends to show that, as he was alighting from a car of the defendant which was standing still at a station in a subway, the car was started negligently and he was thrown to the station platform, and the defendant’s evidence tends to show that the plaintiff was thrown down because he attempted to alight from a moving car, and it is not possible on the evidence to find any other explanation of the accident than one of the two offered by such evidence, the presiding judge should instruct the jury that the defendant was under no duty to warn the plaintiff not to leave the car while it was in motion, and that, if they found that the plaintiff left the car while it was in motion and was injured for that reason, then they could not find that his injury was caused by the negligence of the defendant; and an error in failing to give such instructions is not cured by an instruction to the jury, that the plaintiff could not recover if he was injured “ because the car was moving and because he did not obey the instruction ” of the conductor to “wait until the car stops,” because under such an instruction the jury might infer that the conductor would be guilty of negligence if he failed to give such a warning.</p>

<p>Attachment. Carrier, Of goods.</p> <p>Goods in transit may be attached in the hands of a common carrier on a writ of summons and attachment upon payment of the carrier’s charges.</p>

<p>Contract, Construction. Order.</p> <p>In an action for the price of certain electrical supplies, it appeared that the plaintiff, being asked by a contractor, who was doing electrical work in a factory of the defendant, to furnish the supplies therefor, wrote a letter to the defendant stating that fact and that the contractor had said that the defendant would pay the plaintiff for the supplies on completion of the work on receipt of an order from the contractor, and expressing the hope that that would meet with the defendant’s approval. The defendant wrote at the bottom of the letter, “Will do asaboveonreceiptofanorder from ’’the contractor, and returned the letter to the plaintiff. The contractor wrote on the letter, below the defendant's signature, “We agree to above ” and signed it. The materials were furnished, the work was completed and the contractor was paid in full and absconded. Held, that the words “We agree to above” did not constitute the “order,” upon receipt of which the defendant promised to pay the plaintiff.</p> <p>While documents drawn up by business men in the midst of the press of business affairs should not be construed too strictly, some meaning must be given to the language used, and, in the absence of anything tending to show that words employed are used in a different sense, their common and natural meaning must be given to them.</p>

<p>Tort by a freight handler for personal injuries sustained on April 25, 1906, when the plaintiff was employed in a freight yard of the defendant, the first count of the declaration being at common law and alleging that the defendant put the plaintiff at work in a dangerous and unsafe place, the second count under the employers’ liability act alleging a defect in the ways, works or machinery of the defendant, the third count also under that act alleging negligence of a superintendent, and the fourth count at common law alleging negligence of the defendant’s servants. Writ dated July 2,1906.</p> <p>In the Superior Court the case was tried before Fessenden, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the judge ruled that the plaintiff could not recover and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The case was argued at the bar in November, 1912, before Rugg, C. J., Hammond, Loring, Braley, & Sheldon, JJ., and after was submitted on briefs to all the justices.</p>

<p>Tort by the administratrix of the estate of Russell J. Shaw, who was the driver of a delivery wagon, for personal injuries sustained by the plaintiff’s intestate on June 6, 1910, and alleged to have been caused by the defendant’s negligence in permitting the limb of a tree to hang so low over the driveway of the defendant that it struck the top of the covered wagon in which the plaintiff’s intestate was driving and threw him to the ground. Writ dated August 20, 1910.</p> <p>In the Superior Court the case was tried before Crosby, J. The material facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for the defendant. This the judge refused to do, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,500. The defendant alleged exceptions.</p>

<p>Tax, Validity, On “merchandise” of non-resident. Yacht. Words, “Merchandise.”</p> <p>In an action by the tax collector of a town against a non-resident for the collection of a tax assessed upon a chattel of the defendant and alleged to be due to the town under a statute of this Commonwealth, where it is not contended that the defendant is taxable in the town upon any other property and no question of overvaluation is involved, the defense that the assessment of the tax sought to be collected was illegal and void is open to the defendant.</p> <p>A yacht belonging to a resident of another State, which is used by him as a pleasure boat and is kept by him in a town in this Commonwealth, is “merchandise” within the meaning of that word as used in St. 1909, c. 516, § 2, and is taxable under that statute.</p>

<p>Arrest. Officer. Drunkenness. Assault. Evidence, Photographs.</p> <p>A police officer cannot lawfully make an arrest without a warrant on a charge of drunkenness unless the person arrested is drunk at the time of the arrest.</p> <p>A police officer has no right to arrest a person without a warrant upon information that assaults and threats to kill were made by such person the day before.</p> <p>A police officer has no authority to arrest a person without a warrant because he believes him to be “ a dangerous person to leave at large.”</p> <p>The verification of a photograph preliminary to its admission in evidence is for the presiding judge, who must determine-in his sound discretion whether it will be of practical assistance to the jury.</p>

<p>Judgment. Estoppel, By judgment. Deceit, Infant.</p> <p>If a minor has a valid claim against his employer for serious personal injuries, and a liability insurance company by fraud practiced upon the father of the minor procures an action to be brought in the name of the minor by his father as his next friend against his employer and judgment to be entered in that action for the plaintiff in a certain inadequate sum and an entry to be made of judgment satisfied, although such judgment is binding upon the parties to it, it is not a bar to an action for deceit brought by the minor against the insurance company, in which the plaintiff may prove that he was deprived of his right of action against his employer by the fraud of the defendant and may show and recover the amount of his actual damages.</p>

<p>Contract with a declaration upon an account annexed having two items, the first for the price of “ 1 26 in. Atherton Gluing Machine,” and the second for interest from April 23, 1910, to the return day of the writ. Writ in the Municipal Court of the City of Boston dated September 1, 1910.</p> <p>On appeal to the Superior Court the case was tried before Crosby, J.</p> <p>The plaintiff’s evidence consisted wholly of correspondence, the substance of which is stated in the opinion.</p> <p>The defendant offered to prove that the machine in question reached her place of business early in May, 1910, and that, owing to the absence of the manager of the business from the country and the fact that she had no use for it, she did not have the crate of machinery opened nor attempt to use it until about July 15, 1910, when she set up the machine and attempted to use it, but found that it was not adaptable to her business and was not satisfactory, and that she did not wish to try it further nor could it be used in her business.</p> <p>The defendant also offered to show that the plaintiff nevei sent a man to start the machine or to instruct her in its operation and care, and that, other than as above stated, she never made use of the machine, that she notified the plaintiff in letters of July 15, August 3 and August 9, 1910, of such fact and that she had boxed up the machine and held it subject to the order of the plaintiff, who refused to accept its return. •</p> <p>The judge excluded the evidence so offered and ordered a verdict for the plaintiff for the amount claimed. The defendant alleged exceptions. '</p>

<p> Husband and Wife. Alienation of Affections. </p> <p>Jn- an action wherein the plaintiff, a married woman, alleges that the defendant . unlawfully persuaded and incited her husband to desert her and to take with '' him their minor children, and it appears that such persuasion and incitement were in the form of advice, it is necessary for the maintenance of the action ■ that the plaintiff should prove that the advice was not given honestly or that . it was given with a malevolent motive.</p>

Contract upon an agreement by the defendants’ intestate, William F. Whittemore, to purchase the capital stock of the Walpole Card Clothing Company on terms set out in a memorandum described below. Writ dated April 30, 1907. In the Superior Court the case was heard by Lawton, J. The memorandum relied on by the plaintiff contained, under the heading, “Balance Sheet, Mar. 1,1905,” a tabulated statement in the nature of a trial balance.

<p>Negligence, Employer’s liability, In maintenance of stairway.</p> <p>At the trial of an action against the proprietor of a hotel by a chambermaid in his employ for personal injuries received by falling into a hole in stairs connected with an underground passageway running from the hotel to an annex where the rooms of the defendant’s employees were, it appeared that as a part of the contract of employment the defendant furnished board and lodging to the plaintiff, and that the passageway and stairs that she was using when injured formed the only way from the hotel to her room, that she was injured as she was returning from her room at the close of her noon hour, that the hole in the stairs was made by the removal of an old tread by carpenters who were sent by a contractor, by whom they were paid, to do whatever work the defendant ordered them to do, and who did such work in their own way. The carpenters had put up no barrier at the hole. There was evidence tending to show that the defendant retained control of the stairway while it was being repaired, that when the plaintiff went to her room the stairs were in their usual condition, that when she returned, just before she was injured, she saw the carpenters sitting on the stairs, but that there was no light there and no warning was given her by a barrier or by notice from any one and that she did not know and had no reason to know that there was anything unsafe about the stairs. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the defendant in failing to take suitable precautions for the plaintiff’s safety during the repair of the stairway.</p> <p>Where an employer, while a stairway is being repaired for him by carpenters employed by an independent contractor, retains control of the stairway and causes it to be used by his employees, he is bound to exercise reasonable care to put up suitable barriers or to warn those having occasion to use it.</p> <p>It is the duty of an employer in directing some of his employees to repair a stairway which is being used by other employees in the course of their employment, to take suitable precautions for the safety of such other employees, and that duty cannot be delegated by him; and therefore, if the employer attempts to delegate the taking of such precautions to an employee who is negligent in regard thereto and a fellow employee, while using the stairs in the course of his employment, thereby receives personal injuries, the employer cannot escape liability on the ground that such injuries were the result of negligence of a fellow servant of the person injured.</p>

<p>Negligence, Employer’s liability, Res ipso loquitur. Evidence, Opinion: experts. Practice, Civil, Exceptions.</p> <p>At the trial of an action against the proprietor of a quarry by an employee for personal injuries caused by the falling of a stone by reason of the breaking of a cable which was being used to hoist it, it appeared that the defendant had purchased the cableandhad begun usingit about sevenmonths before the accident and that when purchased it was the best of its kind. There was evidence tending to show that the cable repeatedly had been subjected to undue strains, the effect of which was to weaken it, that some of its strands were broken, and that its condition would have been apparent on inspection. It broke while lifting a stone weighing less than its “safe load.” Held, that there was evidence from which the jury might find that the defendant had not taken proper care to inspect the cable and that he was negligent in not having observed its weakened condition and in allowing it to be used on the occasion in question.</p> <p>In an action for personal injuries caused by the breaking of a cable when it was bearing a load which, if it had been in proper condition, it would have borne under the circumstances without breaking, the mere fact that the cable broke is some evidence that it had become unsound.</p> <p>If, under the circumstances in evidence at the trial of an action for personal injuries caused by the breaking of a cable, the mere breaking of the cable is evidence that it had become unsound, the jury, although the plaintiff attempts to explain the cause of the breaking, may find such explanation to be unsatisfactory and still may find for the plaintiff by applying the doctrine of res ipso loquitur.</p> <p>It cannot be said that testimony by an expert witness at the trial of an action for personal injuries caused by the breaking of a cable, which was to the effect that a wearing down of the strands of a cable of the type that broke would diminish its strength, was inadmissible as being upon a matter of common knowledge, where there was evidence of the defendant tending to show that such abrasion would not have that effect.</p>

<p>Tort for personal injuries sustained on June 22, 1906, when the plaintiff was a passenger on an open street railway car of the defendant, from a collision of the car with a wagon on Main Street in Brockton. Writ dated September 12, 1910.</p> <p>In the Superior Court the case was tried before Hall, J. There was evidence that the plaintiff was sitting at the extreme left end of the second seat facing forward; that the wagon, which had been in front of the car and had been proceeding in the same direction along the right hand side of the street, in order to pass another wagon that was standing at the side of the street, was turned to the left and crossed the track diagonally in front of the car; that the car kept moving forward; and that a pole or mast, which projected about fifteen feet from the rear of the wagon, struck the plaintiff and caused the injuries complained of.</p> <p>At the close of the evidence the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover, and that there was no evidence of negligence on the part of the motorman and the plaintiff was not entitled to recover. The judge refused to make these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,500. The defendant alleged exceptions.</p>

<p>Bill m equity, filed in the Superior Court on November 3, 1911, by the trustee under a mortgage made to secure the bonds of the Lynn Publishing Company, a corporation, against Frederick W. Enwright and the Lynn Publishing Company, to enjoin the defendant Enwright, as lessee under a lease from the International Trust Company, from evicting the plaintiff or the Lynn Publishing Company from certain premises on Willow Street in Lynn, where a newspaper called the Lynn Evening News was published by the plaintiff as trustee, and to have the defendant Enwright declared a constructive trustee holding such lease for the benefit of his former employer, the Lynn Publishing Company, and of the plaintiff as mortgagee in possession, and also to have the defendant ordered to assign such lease to the plaintiff.</p> <p>The defendant Enwright in his answer asked that the bill might be dismissed, and also filed a motion to dismiss. Certain holders of the bonds secured by the mortgage made to the plaintiff as trustee filed a motion to be allowed to prosecute the suit in the name of the plaintiff, as trustee, for the benefit of themselves and other bondholders.</p> <p>The case was heard by Jenney, J. He denied the motion to dismiss, and allowed the motion of the bondholders to be permitted to prosecute the suit. On the facts found by him he made an order that the bill should be dismissed with costs, and reported the case for determination by this court as described in the opinion. If the order of the judge was correct, the bill was to be dismissed with costs; otherwise, such decree was to be entered as should be ordered by this court.</p>

<p>Bankruptcy, Unlawful preference. Interest.</p> <p>In a suit in equity by a trustee in bankruptcy to recover the amount of an alleged unlawful preference, where it appeared that three notes of the bankrupt to the defendant matured at different times, a finding by a master that the payment by the bankrupt of the amount of one of these notes at its maturity when the, bankrupt was insolvent was a payment of that note in full and thus enabled the defendant “to obtain a- greater percentage of his debt than any other of such creditors of the same class,” was held not to have been plainly wrong.</p> <p>The question, whether under § 60 of the bankruptcy act of 1898 as amended by U. S. St. 1903, c. 487, § 13, an actual intent on the part of the debtor to prefer, as well as a reasonable cause on the part of the creditor to believe that a preference was intended, is necessary to constitute an unlawful preference, here was not passed upon, because in the present case the report of a master showed a transaction between the debtor and the creditor from which an intent to prefer the creditor was to be imputed to the debtor as matter of law.</p> <p>Even if a creditor of a bankrupt who has received an unlawful preference has a right to surrender the whole of it in specie to the trustee in bankruptcy, instead of the trustee having the right to elect whether he will accept such a surrender, at any rate such unlawfully preferred creditor has no right to reduce the damages that may be recovered against him by a partial return of the property given him as a preference.</p> <p>In a suit in equity by a trustee in bankruptcy to recover the amount of an unlawful preference, where there is no evidence that the plaintiff made any demand for the return of the property unlawfully transferred to the defendant, or for money damages in place of it, before bringing the suit, the plaintiff, if he prevails, is entitled to interest only from the date of the filing of the bill.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on July 19, 1912, by the executors of the will of Mary Huntington Cooke, widow of Josiah P. Cooke, late of Cambridge, for instructions upon the question which is stated in the opinion.</p> <p>By agreement of the parties the case was reserved by Sheldon, J., upon the bill and answers for determination by the full court.</p>

<p>Equity Jurisdiction, Suit by bondholders to prevent impairment of security. Corporation, Rights of bondholders. Mortgage, Of real estate. Equity Pleading and Practice, Bill, Demurrer.</p> <p>The holders of bonds of an insolvent corporation, secured by a mortgage to a trustee for the benefit of the bondholders, may maintain a suit in equity, against the corporation and its officers and controlling stockholders and the trustee under the mortgage, to restrain the defendants from impairing the value of the security of the bonds either by the fraudulent issue of additional bonds or by an improvident and unwarrantable sale of the land covered by the mortgage.</p> <p>A bill in equity, which alleges fraudulent and improper acts on the part of various defendants injurious to the plaintiff, is not multifarious because the defendants are alleged to have been concerned with the matters of which the plaintiff complains, some in one way and some in another, or because the particular acts alleged to have been done by one defendant are distinct from those alleged to have been done by other defendants, if all of such alleged acts tended to the general result injurious to the plaintiff.</p> <p>A demurrer to a bill in equity must be overruled if the bill sets forth any ground on which the plaintiff is entitled to equitable relief, although some of the grounds of demurrer are sustainable as to parts of the bill.</p>

<p>Corporation, Public service. Gas and Electric Light Commissioners. Gas Company.</p> <p>Review by Hammond, J., of the legislation leading up to R. L. c. 109, § 24, making it necessary for certain public service corporations to secure the approval of certain appropriate boards or commissions before issuing capital stock or bonds, and a definition of the powers thereby given to such boards and commissions.</p> <p>It is not within the power of the board of gas and electric light commissioners to dismiss an application, made under R. L. c. 109, § 24, by a gas company for approval of an issue of additional capital stock to meet liabilities incurred in increasing the efficiency or value of the plant, merely because at the time when such liabilities were incurred the company had on hand a surplus of undivided profits sufficient to meet such liabilities, which before making the application it lawfully distributed as dividends among its stockholders.</p> <p>Where a gas company, when having a surplus of net earnings on hand, incurs liabilities for expenditures made in increasing the efficiency or value of its plant which are less than the amount of such surplus, and then distributes the surplus among its stockholders in extra dividends and issues additional capital stock for public sale in a sum not greater than the increase in the value of the plant caused by such expenditures, the proceeds of which stock it uses to meet the liabilities, such issue of capital stock is not an issue of a stock dividend in violation of R. L. c. 109, § 20.</p>

<p>Tort for personal injuries alleged to have been received by the plaintiff while he was in the defendant’s employ as a longshoreman and was assisting in the removal of the hatches of a barge and for that purpose was lifting one of the beams of the hatches, called the “strong back,” by a rope fastened to it and intended to be used for that purpose, when the rope gave way and he fell into the hold. Writ dated December 17, 1909.</p> <p>In the Superior Court the case was tried before Stevens, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the defendant presented requests for rulings which were in substance that on all the evidence and the pleadings the plaintiff was not entitled to recover. The requests were refused.</p> <p>The defendant excepted to the following portion of the charge to the jury:</p> <p>“This lighter was not owned by the defendant corporation, but . . . had been hired and had been used by the defendant for about a week. Well, that makes no difference, if it was used by the defendant, and it put its servants upon it for the purpose of performing the work of the defendant, then the defendant’s liability is the same as though it had been the owner of the lighter.”</p> <p>The jury found for the plaintiff in the sum of $2,200; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Equity Jurisdiction, To redeem from tax sale, Laches, To enforce constructive trust. Trust, Constructive. Mortgage, Of real estate.</p> <p>An heir of the mortgagor of certain land, at the request of the mortgagee, who had received notice of an impending sale for the collection of a tax assessed upon the land, promised the mortgagee that he would attend to the tax or would purchase at the sale and would protect the mortgagee’s interest, and thereafter the heir’s wife purchased the property at the tax sale. Two years and eight months after the sale an assignee of the mortgagee brought a suit in equity under St. 1909, c. 490, Part II, § 76, against the heir and his wife to redeem the land from the tax title. The judge who heard the case found; beside the foregoing facts, that for a year and two months after the sale the defendants had paid interest on the mortgage, that the heir, in malting his probase to the mortgagee with regard to the tax and the impending sale, had acted “as the agent of his wife,” and that she had testified that she had “acted not only for the benefit of herself but for the benefit of the” mortgagee “in connection with such tax sale.” Eeld, that, irrespective of whether there was any intention on the part of the wife to gain an unconscionable advantage, the plaintiff should be permitted to redeem; and that no loches was shown.</p>

<p>Bill in equity, filed in the Supreme Judicial Court on February 6, 1912, and afterwards amended, to enjoin the defendant from prosecuting a writ of entry which, as the heir at law of one Nancy S. Davis, formerly Nancy S. Deans, he had brought against one Mary Judson Eldridge to recover a one fifth undivided interest in certain real estate in Needham which Nancy S. Deans in 1871, while her husband was living and without his assenting thereto, had undertaken to convey to the plaintiffs’ ancestor, who, by mesne conveyances with covenants of warranty, had conveyed it to the tenant in the writ of entry.</p> <p>The case was reserved by Sheldon, J., upon an agreed statement of facts, for determination by the full court.</p> <p>The material facts are stated in the opinion.</p>

<p>Bill in equity, filed in the Superior Court on August 17,1911, to reach and apply, in payment of a debt alleged to be due to the plaintiff from the defendant’s testator, property alleged to have been conveyed to the defendant individually by the testator with the intent to hinder, delay or defraud his creditors.</p> <p>In the Superior Court the case was heard by Jenney, J. The material facts are stated in the opinion. The objection that the court had no jurisdiction of the case was not raised either in the pleadings, as stated in the opinion, or at any point in the hearing in the Superior Court or on the defendant’s brief in this court.</p>

<p>Mortgage, Of real estate. Equity Jurisdiction, To compel discharge of mortgage. Evidence, Extrinsic affecting writings. Trust, Damages for breach. Equity Pleading and Practice, Amendment.</p> <p>In a suit in equity to compel the defendant to discharge a mortgage of certain land made to him by the plaintiff, it may be shown by oral evidence that the only consideration for the mortgage was an agreement in writing by the defendant to pay off certain prior incumbrances on the land.</p> <p>In a suit in equity the bill alleged a conveyance of land to the defendant in trust to secure the defendant for the performance of an agreement to pay off certain incumbrances on the land. One of the breaches of trust alleged to have been committed by the defendant was his failure to pay off a mortgage, of which it was alleged that a foreclosure sale was advertised. After the filing of the bill this foreclosure sale took place, and the plaintiff was allowed to amend his bill by alleging such sale for a price much less than the value of the land and the consequent loss to the plaintiff. The defendant filed an answer to the bill as amended. Held, that the part of the bill added by amendment was to be treated as a supplemental bill, by means of which all the matters in controversy might be determined in one suit.</p> <p>In suit in equity to compel the defendant to discharge a mortgage of land made by the plaintiff to the defendant, it was shown that the mortgage was made to the defendant as trustee, in consideration of his agreement to pay off certain incumbrances on the land, including two prior mortgages on different portions of it, that the defendant committed breaches of the trust by allowing one of such prior mortgages to be foreclosed and the land covered by that mortgage to be sold for much less than its value, and by procuring an assignment of the other prior mortgage to himself. Held, that the plaintiff was entitled to a decree ordering the defendant to discharge the mortgage made by the plaintiff to the defendant and also the prior mortgage wrongfully obtained by the defendant by assignment, and also ordering the defendant to pay damages to the plaintiff for the loss of the plaintiff’s equity of redemption through the foreclosure sale wrongfully permitted by the defendant, deducting therefrom such amount as was due to the defendant for payments properly made by him.</p>

<p>Contract, by a corporation called Marx and Rawolle doing business in Brooklyn in the State of New York, against the George E. Marsh Company, a corporation having places of business at Boston and at Lynn in this Commonwealth, to recover the stun of $976.15 with interest from February 6, 1910, alleged to have been overpaid to the defendant upon a purchase by the plaintiff from the defendant of a hundred drums of crude glycerine. Writ in the Municipal Court of the City of Boston dated April 6, 1910.</p> <p>On appeal to the Superior Court the case was tried before Lawton, J. It was agreed by the parties that the plaintiff ordered from the defendant one hundred drums of crude glycerine under the terms of a contract which is described sufficiently in the opinion and that the defendant shipped to the plaintiff one hundred drums of crude glycerine, which were received by the plaintiff and for which' the plaintiff paid the defendant $15,000.</p> <p>The plaintiff contended that the analysis of the glycerine made by Ricketts and Banks, public chemists, named in the contract, showed the glycerine to be defective in quality so that the plaintiff was entitled to a deduction from the contract price of the amount claimed as damages. It was agreed that, if the defendant was liable to the plaintiff under the terms of the contract, the analysis made by Ricketts and Banks would show the glycerine to be sufficiently below the agreed standard to entitle the plaintiff to recover the amount claimed. In addition to the facts stated in the opinion, there was evidence that a sampler employed by the plaintiff took samples of the glycerine the second day after its arrival at the plaintiff’s factory; that, three or four days after that, Ricketts and Banks’s man came; that the sampler of Ricketts and Banks did not do the mechanical work of sampling, which was done in his presence and under his direction by the plaintiff’s sampler; but that he was sent to the plaintiff’s factory by Ricketts and Banks to get the samples, and that he took the samples in the usual way.</p> <p>The judge refused to order a verdict for the defendant, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $1,076.37. The defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Equity Pleading and Practice, Appeal, Master’s report.</p> <p>Under R. L. c. 159, § 26, upon an appeal from a final decree previous interlocutory decrees not appealed from are not open to revision unless it appears to this ■ court that the final decree was erroneously affected thereby.</p> <p>Proceedings in a suit in equity subsequent to and in conformity with a rescript of this court are reviewable only upon matters of form.</p> <p>In a suit in equity the plaintiff appealed from an order of a single justice confirming the report of a special master, in which the master found that the plaintiff was in such a condition mentally as to require a guardian ad litem. After an examination of the report of the master it was held by this court that his con- - elusions of fact were warranted by the evidence.</p> <p>A final decree in a suit in equity, which conforms to a rescript of this court and is framed to comply with the findings of a master which have been confirmed by this court, is not a subject of appeal.</p> <p>The findings of fact made by a master in a suit in equity cannot be reversed where the evidence on which he based his findings is not reported.</p>

<p>Negligence, On street railway. Evidence, Negative evidence, Admissions and confessions. Interrogatories. Practice, Civil, Exceptions.</p> <p>In an action against a corporation operating a street railway for personal injuries sustained by the plaintiff, a boy nine years of age of ordinary intelligence, from being rim over by a car of the defendant when he was crossing a city street on a cross walk at its intersection with another street, there was evidence that before starting to cross the street the plaintiff looked both ways, that he could see for a distance of about two hundred and forty-five feet in the direction from which the car came that struck him, that he saw no car coming from that direction, but saw a car come from the opposite direction, stop just over the cross walk and then start up, that, seeing and hearing no other car, he stepped from the curbstone and started to cross the street upon the cross walk, that when he almost had passed over the last rail of the parallel tracks of the defendant, he was struck by a car going “pretty fast,” and that he heard no gong, bell or shout. Held, that the question whether the plaintiff was in the exercise of due care was for the jury.</p> <p>In an action against a corporation operating a street railway for personal injuries from being run over by a rapidly moving car of the defendant, when the plaintiff was crossing a city street on a cross walk from an intersecting street, where the plaintiff testifies that he heard no gong sound, and a woman, who was standing on the sidewalk opposite the place where the plaintiff was struck by the car and saw the accident, testifies that she heard no sound of the gong of a car before the plaintiff was struck, a finding of the jury is warranted that no gong was sounded on the defendant’s car.</p> <p>In an action against a corporation operating a street railway for personal injuries from being run over by a car of the defendant, where the plaintiff filed under R. L. c. 173, §§ 57-61, interrogatories addressed to the rafendant’s president, and the president declined to answer certain of the interrogatories unless directed by the court to do so, and afterwards was ordered by the court to answer them and did so, the first answers of the deponent declining to answer the questions unless ordered to do so are not admissible in evidence against the defendant’s objection.</p> <p>In an action against a corporation operating a street railway for personal injuries from being run over by a car of the defendant, the declaration contained two counts, the first alleging negligénce in the operation of the car and the second alleging a defective condition of the brakes or other machinery of the car. The presiding judge, against the defendant’s exception, erroneously permitted the plaintiff’s counsel to read to the jury the refusals of the defendant’s president to answer certain interrogatories filed by the defendant unless he was ordered to do so by the court, which interrogatories he afterwards answered when ordered by the court to do so. The interrogatories that the defendant’s president at first declined to answer related only to the second count of the declaration which alleged a defect in the car. On this count the presiding judge ordered a verdict for the defendant, and the jury returned a verdict for the plaintiff on the first count. The plaintiff argued that the erroneous admission of the president’s refusals to answer was not shown to have been prejudicial to the defendant. Held, that the refusals to answer, wrongly admitted in evidence, must have been introduced by the plaintiff for the purpose of showing an attempted concealment by the defendant of material facts damaging to the defendant which in law it was bound to disclose, and thus could be used to attack the general credibility of the defendant’s case in defense to the first count as well as in defense to the second, so that it could not be said that the defendant was not prejudiced by the error, and that the exception must be sustained.</p>

<p>Tort for personal injuries from being struck by a street railway car of the defendant while the plaintiff was attempting to cross Centre Street at the corner of Pond Street in that part of Boston called Jamaica Plain at 5.30 o’clock on the morning of March 1, 1910. Writ dated May 14, 1910.</p> <p>In the Superior Court the case was tried before Wait, J. It appeared that the plaintiff, a woman sixty-two years old, was employed as cook in a down town restaurant in Boston and was in the habit of taking the car which passed the corner of Pond Street at about 5.30 o’clock in the morning, the same car by which she was struck, for the purpose of getting to her work in Boston at six o’clock. The substance of her testimony in regard to the happening of the accident is stated in the opinion, where also is stated certain testimony of the motorman who was operating the car that struck the plaintiff. The plaintiff excepted to the exclusion of the question, asked her in rebuttal, which is stated in the opinion.</p> <p>Dr. H. A. Broughton, a witness called by the plaintiff, who is mentioned in the opinion, testified without memoranda that he received a call to the plaintiff’s house early on the morning of the accident, and saw her at about nine o’clock that morning. He then described her condition, and testified that the injury to her left leg was very serious; that she was confined to her bed for three or four weeks and was unable to walk about for seven or eight weeks more. On cross-examination by the counsel for the defendant, he testified that he kept a card index of cases of any importance with the history of each case written thereon; and that he had cards in his possession covering Mrs. Coolidge’s case. At the request of the counsel for the defendant he produced these cards, and in response to a question from the defendant’s counsel he read the entries on the cards. From one of these cards he read that he was called to see Mrs. Coolidge about nine o’clock on the morning of March 1, 1910; that she told him when he first saw her that she had been struck by a car of the defendant; that she went out about 5.30 o’clock in the morning and was ■ struck while crossing Centre Street; that she thought she had plenty of time to get over; that immediately after the accident, before the car had started on, she heard the motorman say to the conductor, "I thought I slowed up enough to let her by, but I did n’t.” All of the entries on the doctor’s cards were read by him, and there was no motion made to strike out any part of what was read.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>Each one of several workmen digging a trench for a common employer has a right to assume, until he sees some indication to the contrary, that the employer has performed the duty which he owes to him of using due care to select competent fellow workmen, and such a workman is not lacking in due care if, by reason of his not making inquiry in regard to the eyesight of a certain fellow workman, which, as the employer knew or should have known, was dangerously defective, he neither knew nor appreciated the extent of this physical defect or of the corresponding danger, and by reason thereof was injured.</p>

<p>Tort for personal injuries, alleged to have been received by the plaintiff while in the defendant’s employ on a wharf and to have been caused by the falling upon him of a fence which was a part of the wharf. Writ dated June 11, 1910.</p> <p>In the Superior Court the case was tried before Dubuque, J. The material facts are stated in the opinion. At the close of the evidence, the defendant asked for the following rulings, which were refused:</p> <p>“ 1. Upon all the evidence and pleadings in this case, the plaintiff is not entitled to recover.”</p> <p>“4. If the jury believe that the plaintiff made the statements attributed to him to the effect that he did fall off the hopper, and thereby received his injuries, the jury would be warranted in believing that such statement was true, notwithstanding the plaintiff’s testimony to the contrary during the trial.”</p> <p>The jury found for the plaintiff in the sum of $4,500; and the defendant alleged exceptions.</p> <p>The case was submitted on briefs.</p>

<p>Probate Court, Jurisdiction. Widow.</p> <p>Assuming, without deciding, that the widow of a testator who died without issue and at the time of his death resided in another State and left real estate but no personal property in this Commonwealth, and whose will has been proved both in that State and in this Commonwealth, thereafter can waive the provisions of the will and that the effect of such waiver would be to create as to her an intestacy as to the estate in this Commonwealth, she nevertheless cannot maintain in the Probate Court of this Commonwealth a petition for the sale of the real estate here for the purpose of paying her the $5,000 to which a widow of a resident of this Commonwealth who has died intestate and without issue would be entitled by R. L. c. 140, § 3, cl. 3.</p>

<p>Devise and Legacy, Lapse. Power.</p> <p>A testator devised a certain house and lot of land to a trustee for the use and benefit of a married woman and directed that the trustee should allow the beneficiary to occupy or to lease the property and to receive the rents and income thereof, that he should sell or mortgage or otherwise dispose of the property as the beneficiary might direct and should allow her to take the proceeds to her own use, that he should convey the property to the beneficiary on the death of her husband and that, if it was not conveyed to her during her lifetime, he should convey it to such person or persons as she by will might appoint and, in default of appointment, to her heirs. The provision of the will closed with the words, “It being my intention hereby to secure said house and lot of land to the sole use and benefit of said . . . [married woman,] . . . and free from the control or interference of her present or any future husband.” The married woman died testate before the testator. Held, that the devise was intended to be for the sole benefit of the married woman, and, therefore, upon her death before that of the testator, the devise'lapsed; and that her will could not operate as an exercise of the power given in the devise, because she never became the donee of the power.</p>

<p>Bill in equity, filed in the Superior Court, as amended, on February 20, 1912, by the surviving heir of Agnes F. Richards, the respondent in the suit of Robinson v. Richards, 209 Mass. 295, against James E. Robinson and James H. Stark, who were the petitioners in that suit, to set aside a deed adjudged in that suit to have been procured by fraud and for other relief.</p> <p>The case was heard by Hardy, J., upon agreed facts, by which the parties agreed that the facts alleged in the amended bill were true and further that the defendants made two payments, there stated, which were not mentioned in the bill.</p> <p>The judge made a final decree, that the deed from Agnes F. Richards to James E. Robinson, dated April 21, 1906, be discharged and cancelled as of record; that the defendants make and deliver to the plaintiff a quitclaim deed of certain premises; that a mortgage given by Agnes F. Richards tó Alba E. Wall on March 12,1875 [referred to in the opinion as the Perry mortgage], be discharged and cancelled as an incumbrance on the record title to the premises; that the defendants be enjoined from foreclosing the mortgage or setting up any title under it; that the defendants also be enjoined from setting up any claim under a tax title or under any proceeding extinguishing it; that they also be enjoined from interfering with the plaintiff’s enjoyment of the premises; and that the defendants pay to the plaintiff $37.12 as costs. The defendants appealed from the decree.</p>

<p>Board of Health, Municipal. Nuisance. Manure. Equity Jurisdiction, To enforce regulation of board of health.</p> <p>The board of health of a town, where market gardening was extensively carried on and required the use of large quantities of stable manure, made an order or regulation that manure brought into the town by a certain railroad should be unloaded at a certain freight yard and should be unloaded there within seventy-two hours, and that no car load of manure should remain on any track or siding of the railroad, except at the freight yard designated, for more than twelve hours. A market gardener, on whom a copy of this order was served, filed under R. L. c. 75, § 95, a petition for a trial by jury in the Superior Court. The vote by which the order or regulation was passed contained a recital that' in the opinion of the board of health “manure is an article capable of containing or conveying infection or contagion or of creating sickness and is attended with noisome and injurious odors.” Held, that the regulation was one made by the board of health under R. L. c. 75, § 65, from which the statute provided no appeal, and not under § 91 of that chapter, so that the petition to the Superior Court for a jury should be dismissed.</p> <p>A regulation made under R. L. c. 75, § 65, by the board of health of a town, where market gardening is extensively carried on and requires the use of large quantities of stable manure, that manure brought into the town by a certain railroad shall be unloaded at a certain freight yard and shall be unloaded there within seventy-two hours, and that no car load of manure shall remain on any track or siding of the railroad except in the freight yard designated for more than twelve horns, is not unreasonable as against a market gardener in the town who uses large quantities of manure, which it is more inconvenient and expensive for him to unload from the cars at the places designated than it was for him to unload at the places used by him for that purpose before the regulation was passed; and the town may maintain a suit in equity against him to enforce the regulation, although to the extent stated it interferes with his business. In the present case it was not necessary for the court to consider whether the regulation would apply to manure left standing in cars on a siding on the consignee’s own land.</p>

<p>Limitations, Statute of. Equity Jurisdiction, Statute of limitations.</p> <p>A suit in equity against a town to have a trust, under which a certain fund was paid to the defendant by the executor of a will, declared void and the fund paid to the plaintiff, who claims it through the donor’s sole heir at law and next of kin, is in effect an action for money had and received, and the statute of limitations is a bar to its maintenance if it is not brought until almost twenty years after the fund was paid to the town, which has held it during the entire period as of right and without fraud or concealment.</p>

<p>Agenc/y, Broker’s commission. Contract, Performance and breach.</p> <p>If a real estate broker, who was employed to procure a tenant for certain premises, procured a tenant ready and willing to take a lease of the premises on the terms fixed by his principal and the tenant was accepted by the principal, the broker has earned his commission, and his right to recover it cannot be affected by a condition as to the time within which the lease should be executed, which the principal attempted to impose after his acceptance of the tenant, especially where it appears that the condition as to the time of execution was insisted on by the principal, not in good faith, but for the purpose of evading his obligation to give a lease.</p>

<p>Article 2 of the Declaration of Rights and art. 11 of the Amendments to the Constitution of the Commonwealth absolutely prohibit the enactment of any law establishing any particular religion or restraining the free exercise of any particular religion.</p> <p>Article 18 of the Amendments to the Constitution of the Commonwealth, relating to moneys raised by taxation in the towns and cities for the support of public schools, requires that such moneys shall be disbursed exclusively for the support of such common schools and shall not be diverted to any other kind of school maintained in whole or in part by any religious sect. But there is no constitutional prohibition of appropriations for higher educational institutions, societies or undertakings under sectarian or ecclesiastical control.</p> <p>Whether the existing provisions of the Constitution and its amendments "adequately prohibit” the appropriation of public money for aiding any church, religious denomination or religious society, so that there is no "necessity for the adoption of an amendment” to this end, was said to be rather a legislative question than a question of law, a majority of the Justices expressing an opinion that such an appropriation is prohibited already.</p>

<p>The Justices of the Supreme Judicial Court have no right to give opinions as to the duties of the executive or the legislative department of the government of the Commonwealth in cases where their opinions are not required to be given by c. 3, art. 2 of the Constitution.</p> <p>Under c. 3, art. 2 of the Constitution the Governor cannot require the opinions of the Justices of the Supreme Judicial Court in regard to a bill laid before him for his revisal under c. 1, § 1, art. 2 of the Constitution.</p>